By Paul D. Reuvers and Stephanie A. Angolkar, Iverson Reuvers
Date: February 2019
To encourage local government units to consider in a timely manner written requests relating to zoning, septic systems and other specific issues, Minnesota Statute, Section 15.99 requires a county to approve or deny a request within 60 days. Failure to approve or deny within 60 days results in automatic approval.
This may sound simple enough, but several questions arise repeatedly regarding this 60-day rule. Here are answers to the most frequently asked.
Does this apply to verbal requests?
No. The “request,” as defined in the statute, must be submitted to the county in writing.1
What does “written request relating to zoning” mean?
It refers to a written request that has a “connection, association, or logical relationship to the regulation of building development or the uses of property.”2 Courts have broadly applied this phrase, but common examples include variances, conditional/interim use permits, and rezoning/reclassification requests. The rule, however, does not apply to building permits.3
Does the applicant need to use the county’s form?
Yes. If the county has an application form, the applicant must use it. If the county does not have a form, then the request must clearly identify on the first page the specific governmental approval being sought.4
When does a county start counting?
The 60-day period begins when the county receives a written request containing all information required by law or by county ordinance, including the applicable application fee.5 If the fee is paid a few days after the application is submitted, the clock starts when the fee is paid.
What if the applicant does not submit all required information?
If the application is incomplete, the county must send written notice explaining what information is missing to the applicant within 15 business days of receipt of the request. The clock does not start until the county receives the missing information.6
When evaluating an application for completeness, the specific ordinance provisions and the application form itself should be reviewed. Counties should ensure that their ordinances and/or application forms list the information they want to require from applicants.
Once a complete application is received, does a county count calendar days or business days?
Calendar days. Business days are only considered when the county notifies an applicant it has received an incomplete application.7
What if a county needs more than 60 days?
The county can extend the 60-day deadline by up to another 60 days, but it must do so before the expiration of the initial 60-day deadline. The county must provide written notice of the extension to the applicant, which must state the reasons for the extension and its anticipated length.8
What if a county needs even more time than the 60-day extension (120 days total) provides?
An applicant can always waive the 60-day rule. The waiver should be in writing to ensure that it will be upheld if challenged.9
What if a state or federal agency must act on the application first?
The clock does not begin for the county’s review until the state or federal agency approves the applicant’s request.10
What if a procedure, such as an Environmental Assessment Worksheet, is required first?
If a state statute, federal law and/or court order requires a process(es) to occur before the county can act on the application and the time period(s) makes it impossible to act within 60 days, the clock does not begin until completion of the last required process.11
What if the county fails to provide written reasons for denial before the 60-day deadline?
The Minnesota Supreme Court confirmed the automatic-approval penalty is not triggered by failure to provide written reasons for denial.12 Rather, the penalty only applies to the failure to make a timely decision. A county that does not articulate written findings to support its decision, however, runs the risk of having its decision overturned on the basis of being arbitrary and capricious.