Guest Blog Post By Peter Coyle and Julie Nagorski
December 2013 – Governmental agencies “must approve or deny within 60 days a written request relating to zoning” and a failure to do so results in an automatic approval of the application pursuant to Minnesota’s so-called “60-day Rule,” Minn. Stat. § 15.99. Under earlier Minnesota appellate court decisions, the 60-day Rule had been interpreted narrowly to apply only to zoning applications.
The key case from 2003 had rejected a landowner’s claim that the 60-day Rule applied to a building permit application, instead determining that it covered only applications arising under the zoning ordinance, including special-use permits, conditional-use permits, variances, and site-plan approval. The Minnesota Supreme Court and the Minnesota Court of Appeals, however, have now issued decisions that interpret the 60-day Rule more broadly. This is good news for landowners, builders and developers.
The Court of Appeals recently considered whether a landowner’s application to the Minnesota Department of Transportation for a permit for an ingress/egress access point for his property was subject to the 60-day Rule. In Kottschade v. State of Minnesota, No. A13-1034 (Minn. App. Dec. 23, 2013), the landowner applied to MnDOT for permission to create and construct a driveway access from his property to the adjacent highway frontage road, without which his parcel lacked direct access to the public roads. MnDOT did not act on the request until 63 days after it was submitted, when it wrote a denial letter to the landowner. The lower court decided, based on the 2003 appellate decision, that the driveway access application was not a “written request relating to zoning” because it was not a zoning application and, therefore, MnDOT was not obligated to act on it within 60 days.
The landowner in Kottschade appealed the lower court’s decision and, while the appeal was pending, the Minnesota Supreme Court issued its decision in 500, LLC v. City of Minneapolis, No. A11-1705, 2013 WL 5348308 (Minn. Sept. 25, 2013). In that case, the Minnesota Supreme Court held that an application for a certificate of appropriateness (for the alteration of a historic landmark under Minneapolis’s heritage preservation ordinances) was a written request relating to zoning and controlled by the 60-day Rule. In doing so, the Supreme Court determined that the 60-day Rule applies to “a written request that has a connection, association, or logical relationship to the regulation of building development or the uses of property.” The Supreme Court found dispositive the facts that (a) the application affected a specific parcel and particular property rights, (b) the heritage preservation statutes authorizing those ordinances connected those ordinances to the zoning ordinance and (c) the heritage preservation ordinances and the zoning ordinance both referenced and implemented the city’s comprehensive land use plan. Because these facts showed that an application for a certificate of appropriateness “related to zoning,” the Supreme Court decided that the 60-day Rule governed it.
The Court of Appeals in Kottschade used the 500, LLC decision to determine that the 60-day Rule applied to the driveway access application. It reasoned that (a) the application affected a specific property and the landowner’s rights to alter and use it, (b) the statute giving MnDOT authority to issue the permit connected the decision on the application to the use of the property, and (c) the Minnesota administrative rules adopted by MnDOT connected driveway access to land uses. These facts showed that the application had a connection “to the regulation of building development or the uses of property” and, therefore, related to zoning and was subject to the 60-day Rule.
Property owners and developers should be aware of the deadlines that state law imposes on agency actions involving applications relating to zoning. The nature of requests to which the 60-day Rule applies is broader than previously-controlling law provided, which limited the Rule to applications arising directly under zoning ordinances. Under the recent appellate decisions, if sufficient connections exist between the application and the regulation of building development or the use of property, then the 60-day Rule controls.
Peter Coyle is a shareholder at Larkin Hoffman Daly & Lindgren Ltd. practicing in land use law and governmental relations.
He routinely advises landowners, builders and developers on local government issues including application of the Sixty-day Rule.
Julie Nagorski is an associate attorney at Larkin Hoffman Daly & Lindgren Ltd. practicing in land use law and real estate litigation. She represented Mr. Kottschade in successfully applying the Sixty-day Rule to MnDOT’s denial of an access permit.