Conditional Use Permit Denial, Later Explained, Was Timely

10/05/2016 / Gary Van Cleve

Minnesota’s 60-day rule, which requires that “a written request relating to zoning” must be denied within 60 days or it is automatically approved, continues to spawn court decisions explaining how it works[1]. Among other questions addressed by the courts is what constitutes a “denial.” The 60-day rule addresses one scenario, providing that when a vote on a resolution … to approve a request fails for any reason, the failure shall constitute a denial of the request provided that those voting against the motion state on the record the reasons why they oppose the request[2].”

The most recent 60-day rule question that a Minnesota court was asked to decide was when a vote to grant a conditional use permit (“CUP”) application fails, in order to qualify as a “denial,” must the reasons for that vote be stated on the record at the same meeting as the vote, or can the reasons for the vote be given at a later meeting? The Minnesota Court of Appeals ruled that a county board did not violate the 60-day rule when it adopted at a later meeting its reasons for voting down a resolution of approval of a CUP[3].

Perschbacher applied to Freeborn County for a CUP for a hog confinement operation. Within the time limits of the 60-day rule, the county board voted on a resolution to approve the CUP, but the vote failed. No reasons were given on the record by those county board members voting against the resolution. Because it was not entirely clear what the meaning of the failed resolution of approval meant (was this a decision of denial, or not?), the county sent a letter to Perschbacher following this meeting advising that it would notify him in writing of the county board’s decision after the next scheduled board meeting. At the next meeting, the board adopted written reasons for voting down the resolution to approve the CUP and gave these reasons to Perschbacher. Perschbacher challenged the board’s actions in court, arguing that its actions were not a proper denial under the 60-day rule because at the time the board voted down the resolution to approve the CUP, it failed to state on the record its reasons for doing so and only provided those reasons at a later meeting. Perschbacher argued that the 60-day rule did not expressly allow this; therefore, no proper “denial” had been issued.

The court of appeals disagreed, stating that the 60-day rule “does not require that board members who vote against a resolution to approve a request state their reasons for opposing the request on the record at the time of the vote.” The appellate court found that under the 60-day rule, when a vote is taken on a resolution to approve a request, “two conditions must be met before action on the resolution constitutes a denial: the vote must fail, and those who voted against the resolution must state on the record why they opposed the request.” The court of appeals stated that, as long as a later statement of reasons is issued before the time expires under the 60-day rule, such actions constitute a timely denial.

Practice pointer: Applicants for zoning requests should always keep close track of the timing of the processing of their requests to ensure compliance with the 60-day rule. Because of statutory extensions and exceptions to the 60-day rule, and numerous court decisions arising under the rule, whether denial of a request is untimely or timely often depends on the facts of a given case. If you have doubts concerning the timing of the processing of your zoning request, you should seek the advice of counsel.

Gary Van Cleve has extensive experience representing developers under the 60-day rule and has served as counsel of record in numerous such cases in the appellate courts, including the following 60-day rule cases decided by the Minnesota Supreme Court: Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536 (Minn. 2007) Breza v. City of Minnetrista, 725 N.W.2d 106 (Minn. 2006), and American Tower, L.P. v. City of Grant, 636 N.W.2d 309 (Minn. 2001).


[1] Minn. Stat. § 15.99, subd. 2(a)

[2] Subd. 2(b)

[3] Perschbacher v. Freeborn County Board of Commissioners, App. No. A15-2002 (Minn. App., Aug. 8, 2016)

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