By Julie N. Nagorski
Nearly two decades ago, the Minnesota Court of Appeals decided that Minnesota’s 60-Day Rule, Section 15.99 of Minnesota Statutes, did not apply to a building permit application submitted to the City of Northfield.1 Based on that holding, most cities and most practitioners believe that while the 60-Day Rule requires government to take prompt action on applications of many sorts, from those for variances to those for conditional-use permits, it does not apply to building permit applications. This belief needs a re-examination.
Minnesota’s 60-Day Rule requires that “an agency must approve or deny within 60 days a written request relating to zoning… for a permit, license, or other governmental approval of an action.”2 Section 15.99 identifies definitions for many of its terms. An “agency” is “a department, agency, board, commission, or other group in the executive branch of the state government; a… city, county, town or school district….”3 A “request” is statutorily defined as “a written application relating to zoning, septic systems, watershed district review, or the expansion of the metropolitan urban service area, for a permit, license, or other governmental approval of an action.”4 The statute does not define the nature of an application that constitutes a request “relating to zoning.”
In 2013 the Minnesota Supreme Court adopted a broad definition of Section 15.99’s term “a written request relating to zoning.”5 In 500, LLC v. City of Minneapolis, the Supreme Court determined:
“[T]he phrase ‘a written request relating to zoning’ is unambiguous and refers to a written request that has a connection, association, or logical relationship to the regulation of building development or the uses of property. If a written request has such a connection, association, or logical relationship, then the 60-day time limit in Minn. Stat. §15.99, subd. 2(a), applies.”6
In so deciding the meaning of Section 15.99’s phrase “relating to zoning,” the Minnesota Supreme Court explicitly rejected the argument by the City of Minneapolis that the phrase “refer[s] to only those requests that are explicitly authorized by an applicable zoning ordinance or statute.” The arguments advanced by the City of Minneapolis and rejected in 500, LLC found support in the language of the decision in Advantage Capital. The Minnesota Court of Appeals had decided in Advantage Capital that a “written request relating to zoning” was “a request to conduct a specific use of land within the framework of the regulatory structure relating to zoning or, in other words, a zoning application.”7 Based on its conclusion that Section 15.99’s “relating to zoning” phrase required a narrow construction, the court of appeals in Advantage Capital held that Section 15.99 did not apply to the building permit application at issue.8
The Minnesota Supreme Court in 500, LLC held, however, that an application for a “certificate of appropriateness” submitted to the Minneapolis Heritage Preservation Commission had “a connection, association, or logical relationship to the regulation of building development and the uses of property” and was, therefore, a request relating to zoning to which Section 15.99 applied.9 To reach that holding, the Supreme Court analyzed three factors. First, it noted that “a certificate of appropriateness involves a particular property and affects specific property rights”:
“In this case, for example, 500 LLC cannot alter the property to convert it into an office building without first securing the approval of the Commission or the Minneapolis City Council. See Minneapolis, Minn., Code of Ordinances § 599.310 (2013). Such a restriction, like the requirement for a conditional-use permit, affects 500 LLC’s specific rights to alter and use its property—which is typical of a zoning restriction.”10
The Minnesota Supreme Court noted, second, that the state’s historic-preservation-enabling laws, under which the Minneapolis Heritage Preservation Commission operated, “recognize a connection, association, or logical relationship between heritage preservation and zoning.” Third, the Court noted that “the City’s heritage-preservation ordinances identify a connection, association, or logical relationship between an application for a certificate of appropriateness and zoning” (reversing and remanding the district court’s decision granting summary judgment to the city on the applicant’s Section 15.99 claim).
Following the decision of the Minnesota Supreme Court, the Minnesota Court of Appeals held that an application to the Minnesota Department of Transportation for a driveway-access permit also constitutes a request “relating to zoning” governed by Section 15.99.11 The court of appeals, in so deciding, applied the holding and analysis required by the Minnesota Supreme Court’s decision in 500, LLC. It held that the driveway-access permit application showed an “association… or logical relationship to the regulation of building development or the uses of property.” In the only appellate decision construing the meaning of Section 15.99’s phrase “relating to zoning” since 500, LLC, the court of appeals held that the statute applied to the driveway-access permit application and directed the district court to issue the peremptory writ of mandamus compelling MNDOT to grant the driveway-access permit.12
An argument based solely on Advantage Capital that a building permit application is not subject to the 60-Day Rule ignores the later decision of the Minnesota Supreme Court in 500, LLC and the later decision of the Minnesota Court of Appeals in Kottschade and, in many instances, the facts of the specific situation. At least one Minnesota district court rejected a city’s motion for summary judgment on this issue. Rather than resting on the common wisdom providing that “building permit applications are not subject to the 60-Day Rule,” one should complete a more careful analysis and determine whether the 60-Day Rule applies in the particular circumstances at issue. If a building permit application has a “connection, association, or logical relationship to the regulation of building development or the uses of property” under the three factors considered by the Court in 500, LLC, then it is a written request relating to zoning and Section 15.99 applies to it.
JULIE N. NAGORSKI is an attorney at DeWitt LLP. She has significant experience litigating disputes in numerous areas of the law, with a focus in real property and construction disputes. She can be reached by email or at (612) 305-1427.
Notes
1 Advantage Capital Mgmt. v. City of Northfield, 664 N.W.2d 421 (Minn. App. 2003).
2 Minn. Stat. §15.99, subd. 2.
3 Minn. Stat. §15.99, subd. 1.
4 Id.
5 500, LLC v. City of Minneapolis, 837 N.W.2d 287 (Minn. 2013).
6 Id. at 291.
7 664 N.W.2d at 427.
8 Id.
9 837 N.W.2d at 293.
10 Id. at 292.
11 Kottschade v. State, Dep’t of Transp., No. A13-1034, 2013 WL 6725872, at *3 (Minn. App. 12/23/2013).
12 Id.