Which governmental body approves zoning applications?

Cities, towns, and counties have legal authority to approve to zoning applications, but not all of these governmental bodies exercise this power. Some towns leave zoning up to the county. Some cities and town have zoning ordinances but contract with some other governmental body to handle zoning applications. Sorting this out may be challenging, but is critical to obtaining approval, and also critical to preserving the right to appeal a bad decision.

Cities may grant zoning approval for land inside the city limits under Minn. Stat. § 462.351 to § 462.381. If a county has not adopted a zoning ordinance, a city may control zoning in a two-mile radius around the city or halfway to the next city, whichever is less, per Minn. Stat. § 462.357, subd. 1.

Towns derive their zoning authority from two different sets of statutes. Minnesota Stat. § 366.10 et seq. gives towns zoning authority, but provides little guidance on the details. Minnesota Stat. § 462.352, Subd. 2, includes towns in the definition of “municipality”, so towns also have the zoning authority that cities have under Minn. Stat. Chapter 462. Potential conflicts exist between these statutes in at least five areas: (a) how a town’s first zoning ordinance shall be adopted, (b) how zoning district boundaries may be changed, (c) the purposes of a zoning ordinance, (d) restrictions on manufactured homes, and (e) continuance of nonconforming uses. No case law exists reconciling the two chapters.

County zoning authority comes from Minn. Stat. § 394.21 et seq. County authority extends over all land outside an incorporated municipality, plus all land in unorganized townships (where no town board has been created), and in townships which have not adopted a zoning ordinance. Cities and towns may contract with counties to provide zoning services, under Minn. Stat. § 394.32 and §394.33. Even when approval authority rests with the county, cities and towns may be asked for a recommendation.

Counties, cities, and towns usually appoint a planning commission to review zoning matters. The planning commission may be advisory, or it may have authority to approve some or all zoning applications. In addition, joint planning boards created under Minn. Stat. § 462.3585, or as part of an orderly annexation agreement under Minn. Stat. § 414.0325, Subd. 5, also may have the authority to make recommendations or approve zoning applications.

The quickest way to determine who approves zoning applications is by calling the zoning administrator in the city where the land is located, and if the land is not within a city, then by calling the county zoning administrator for guidance. Although zoning ordinances are public documents and recorded in the land records, and contracts between various governmental entities likewise are public documents, it may be nearly impossible to know what documents to request, or what the documents were called. In addition, while a document may theoretically be available to the public, staff may be unable to locate a copy. Cities, towns, and even counties may revise or amend their agreements orally or by notation in their minutes, without revising the written agreement itself, further complicating any attempt to evaluate the scope of any party’s authority. Towns also occasionally follow procedures which are simply wrong. See, e.g., Fryberger v. Township of Fredenberg, 428 N.W.2d 601 (Minn. App. 1988), rev. den. (Minn. Nov. 16, 1988), where a town board of adjustment heard appeals from the town planning commission.

While this confusion of governments may seem like a mere nuisance, it can have a critical impact on a property owner’s ability to fight or appeal a bad decision. A county board of adjustment hears some appeals, and decides on variance applications. Appeals from its decisions must be made to district court within 30 days. Minn. Stat. § 394.27, subd. 9. Appeals from a county board's zoning decisions must be done by writ of certiorari to the Court of Appeals. Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566 (Minn. 2000); In re Application by Block, 727 N.W.2d 166 (Minn. App. 2007). Under Minn. Stat. § 606.01, such an appeal must be brought within 60 days after the objected-to county decision. In contrast, Minn. Stat. § 462.361 provides that an appeal of a city’s zoning decision should be filed in District Court. These city appeals may be brought at any time, subject only to the equitable principle of laches. Fryberger, supra.

In the situation where the county asks a town board or city council for input prior to granting or denying a zoning application, the property owner must be careful to note which government actually has the legal authority to approve or deny the application. Even if the county routinely “rubber-stamps” a recommendation from a town or city, from a legal point of view the county is the government making the decision. When a county is under contract to handle zoning matters for a city or town, it might be possible to argue that the city appeal process should apply. No case has decided this particular question. However, a prudent property owner should assume that the shorter county appeal process applies. If incorrect, the property owner would still have the ability to bring suit in district court.

Categories: Legal Blog

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