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• REe . viEw SPRING 2002 Published by the Land Use ♦ and Real Estate Practice Group The 60-Day Rule Means 60 Days TAMARA M. O'NEILL MORELAND he 60-day rule requires that a dty either approve or deny a - - - , written request relating to zoning within 60 days of its receipt pro- Since the Minnesota Supreme Court's ruling, Larkin Hoffman has handled _ vided that the request contains all information required by law or two additional district court cases involving the 60-day rule. In each case, a previously adopted rule,ordinance,or policy of the city. If the aty fails to the property owner was granted summary judgment due to the city's inabil- approve or deny the request within the designated 60 days,the request is ity or unwillingness to follow the 60-day rule. In Watrud v.Apple Valley the deemed approved. However,the statute also allows the city to extend the Dakota County District Court held invalid the city's attempt to avoid the initial 60-day penod for up to an additional 60 days if 1] the extension is requirements of the 60-day rule by adopting a resolution which dictated made prior to the expiration of the initial 60 days;and 2]the city provides that review and approval of a site plan and building permit authorization is written notice of the extension to the applicant stating the reasons therefore made pursuant to the Minnesota State Building Code and not the 60-ay and the antiapated length of the extension. The intent of this rule is clear: rule. Examining the city's actions under the 60-day rule, the court con- to create a balance between a atys right to regulate through zoning and a cluded that since the city failed to approve or deny the request in property owners right not to be unduly burdened by a limitless application accordance with the 60-day rule, the request was deemed approved. process. (See Minnesota Statutes,Section 15.99) Similarly, in DeLite Outdoor Advertising v. St Paul the Ramsey County • , _ . , . , , _ , i ., Distnct Court determined that the city's failure to property seek an exten- , 1 . sion for the review of permit applications pursuant to 60-day rule resulted Since the enactment of the 60-day rule in 1995, cities have attempted in the absence of such an extension. The court concluded that because to subvert the protections it provides to property owners. Some cities have the applications were not extended and were not expressly denied within accomplished this by automatically invoking a 60-day extension in their the initial 60-day time period,they were deemed approved. application forms, thereby giving them an initial 120 days to approve or deny a request These automatic extensions not only circumvented the The decision of the Minnesota Supreme Court in American Tower,and the plain meaning of the 60-day rule but also destroyed the intended balance subsequent decisions in the Dakota and Ramsey County District Courts envisioned by the legislature. seem to require the obvious—cities must comply with the plain language of the 60-day rule. These are important decisions which ensure that the - - - _ legislative intent and the balance created is respected. However,the plain language of the 60-day rule calls for caution. The statute allows a city to On December 6, 2001,the Minnesota Supreme Court handed down its extend the initial 60 days if it provides written notice stating the reasons for ruling in American Tower v.City of Grant in which it affirmed that the plain the extension and its anticipated length. This only requires a city to inform meaning of the 60-day rule did not permit a city to bestow upon itself an the applicant of the reasons for the extension but in no way requires that automatic extension. The Court determined that"[t]he City's receipt of the the reasons be valid or reasonable. In fact in overturning a portion of the written request triggered both the commencement of the 60-day time limit Court of Appeal's decision,the Minnesota Supreme Court determined that to approve or deny the request and the commencement of the period in the statute does not limit an extension to cases of "extenuating circum- which the City could extend the 60-day deadline:' In other words, a city stances—it merely requires that the reasons be stated' This allows a city cannot grant itself an extension pro forma prior to receiving the application an extension without any logical reason and therefore still entitles a city to to which the extension applies. The Court stated that its conclusion was an extension as a matter of course. consistent with the statute's requirement that a city provide an applicant with written notice of an extension providing the reasons for, and antici- pated length of,the extension. "Because one is not an applicant until one has submitted a zoning request, the use of the term 'applicant' indicates TAM.\RA O'NEILL MORELAND is an associate in the Real Estatc that an extension must be made after the application is received by the Lm anon Department,practicing in all areas rt real estate and lan •agency" The Court also stated that its conclusion was consistent with the use litigation Tamara may he reached at 952-696-6711 or statute's"individualized approach based on an applicant's zoning requests roneill4lhdl com. and definite deadline and procedures for extensions within the statute:' A city's automatic extension for every application "is inconsistent with this case-by-case approach because it prospectively establishes generalized rules for all zoning requests"