Opinion
No. CX-97-1634.
Filed April 14, 1998.
Appeal from the District Court, Todd County, File No. CX96500.
Thomas J. Reif, (for appellant)
Jay T. Squires, (for respondent)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant contends that the permit application for his development plan was approved by default under the statute that provides for automatic approval when a government agency fails to act on an application within 60 days. We affirm the trial court's holding that appellant's application is governed by an exception to the default statute for defective applications, which requires the permit authority to give notice of the defect within ten days after the application is submitted; more specifically, we affirm holdings that (a) appellant's application was not submitted until his other, preferred plan was rejected, and (b) Todd County complied with the ten-day notice requirements through an oral announcement about the application defects.
FACTS
On March 6, 1996, appellant requested a Conditional Use Permit for Lakehead Condominiums, a plan that included development of two platted lots with approximately 400 feet of lakeshore frontage. Appellant proposed converting an existing apartment building into condominiums and constructing two additional condominium units. On the same application form, he submitted Alternate A, a plan involving fewer condominium units and the sale of a 120-foot parcel at the north end of the development as a residential lot.
It is undisputed that the Lakehead Condominiums proposal was disapproved by the county board on April 2. This appeal involves the permit request for Alternate A, which has never been acted upon by the county board. Appellant brought a suit in the nature of a request for a declaratory judgment that Todd County was required by statute to approve Alternate A. On cross-motions for summary judgment, the trial court dismissed this suit, holding that (a) Alternate A was not submitted for approval when it was delivered to the county on March 6 but was a plan only to be considered if the Lakehead Condominiums plan was rejected; (b) at the March 28 meeting where the Lakehead Condominiums plan was disapproved by the planning committee, a county official notified appellant that his application for Alternate A was defective and could not be acted upon; and (c) the application for Alternate A was defective under the law, in that it involved a subdivision proposal that required a specific application form, an additional fee, a plat particularly suited for re-subdivision action, and a design for suitable sewage systems on each lot.
DECISION
The county does not dispute that it did not act upon Alternate A within the 60-day time limit of Minn. Stat. § 15.99, subd. 2 (1996). Rather, the county contends that subdivision 2 of the statute does not apply because under subdivision 3(a) the 60 days does not run if the application fails to include the required information and the government agency sends notice within ten days telling the applicant what information is missing. Where, as in this case, the material facts are not in dispute, this court need not defer to the trial court's application of the law. Hubred v. Control Data Corp. , 442 N.W.2d 308, 310 (Minn. 1989).
"(A)n agency must approve or deny within 60 days a written request relating to zoning * * *. Failure of an agency to deny a request within 60 days is approval of the request." Minn. Stat. § 15.99, subd. 2.
"If an agency receives a written request that does not contain all required information, the 60-day limit starts over only if the agency sends notice within ten business days of receipt of the request telling the requester what information is missing." Minn. Stat. § 15.99, subd. 3(a).
Time of Application
Appellant contends that the application for Alternate A was submitted on March 6 and that the time for the county to advise him of any defects expired on March 16. The trial court disagreed, holding that Alternate A was not meant for action unless Lakehead Condominiums was rejected. Thus, Alternate A was not submitted until March 28.
Appellant insists that he submitted both plans and that he did not favor one plan over the other. But on its face, the application was for a primary and an alternate plan. Moreover, the zoning administrator testified that when he and appellant went out to the site, they reviewed it for the five-unit condominium application. And at the planning committee hearing, it was only after the Lakehead Condominiums plan was rejected that appellant focused his attention on Alternate A. The record calls for the trial court's application of the statute, that is, its holding that the receipt of appellant's proposal for Alternate A occurred on March 28, after his initial proposal was rejected.
Notice of Defect
Appellant also contends that the defects of Alternate A were pointed out to him verbally and that the requirement that he be "sent notice" should be interpreted as mandating written notice. The statute does not state that notice must be in writing and we do not find a mandate for a written notice in the statutory language that notice must be "sent." Where a writing is required, the legislature has so provided. See Minn. Stat. § 15.99, subd. 2 (an agency denying an application must state in writing the reasons for the denial); see also Morris v. Northampton County Hanover Township Bd. , 395 A.2d 697, 699 (Pa.Commw.Ct. 1978) (holding that automatic approval provision did not apply to two inconsistent plans).
Appellant does not dispute that he was given oral notice. In his affidavit, appellant stated that in his presence the planning committee was informed that Alternate A required a separate application. The minutes of the planning committee's meeting confirm that appellant was told that in order to subdivide his parcel into two lots he would have to submit a plat and provide a design for two suitable spots for sewage systems on each lot before the plat could be approved.
Required Information
The subdivision 3(a) ten-day notice provision applies only if the original application lacked "all information required." The trial court found that Alternate A lacked the required information in that the county required a separate application form, pre-approval of a sewage system, and numerous copies of the plat. Appellant counters that Alternate A was accompanied by a surveyor's drawing of the site and that the subdivision plat would involve little more than submission of the same documents with different certification and multiple copies in a different format. While this is a mere matter of form, it is nonetheless a lawful part of the county's process. The same can be said of requirements for a separate application and fee. And the subdivision application involves the substantive requirement that a design for suitable sites for sewage systems must be approved before a plat is approved or rejected.
The court properly applied subdivision 3(a) in the circumstances of this case and appellant is not entitled to the relief that he requested as a matter of law.