60-DAY RULE DOES NOT APPLY TO BUILDING PERMITS

The Minnesota Court of Appeals has ruled that a City need not act on a Building Permit Application within 60 days. Minnesota Statutes Section 15.99 requires that the government either deny or approve a zoning request within 60 days of receipt of the Application, or the request is automatically approved. The government may extend the time by an additional 60 days, for a total of 120 days. There are also some exceptions to the rule, including a 2003 change that exempts plats.

In the case of Advantage Capital Management v. City of Northfield, on April 9, 2001, the property owner submitted a Building Permit Application to the City. Northfield City Zoning Rules require that a Site Plan be submitted with a Building Permit Application.

On May 3, 2001, the property owner submitted the Site Plan Application. On May 23, 2001, the City's Design Advisory Board (DAB) conditionally approved the Site Plan.

Two neighbors appealed the DAB approval to the full City Council.

On June 18, 2001, the City Council reversed the DAB's approval. The matter was referred back to the DAB for further review. On June 20, 2001, the City notified the developer that it was extending the 60-day time limit by an additional 60 days. The DAB was scheduled to meet on July 3rd, but the property owner asked that the meeting be postponed.

On July 11, 2001, the property owner sued the City claiming that the City's failure to act on the Building Permit Application in 60 days meant that the Building Permit was granted. The District Court agreed and the City appealed.

The Court of Appeals reversed the District Court. The Court decided that an Application for a Building Permit was not a zoning related request, and the 60-Day Rule under Section 15.99 did not apply. The Court found that the Building Site Plan was a zoning request, but that plan was first submitted on May 3, 2001, and the City properly extended the 60 days time on June 20, 2001, within the first 60 days.

The Court of Appeals found that Building Codes and Building Permits relate to standards of construction and safety standards. These are different than the regulation of land use under zoning rules. On that basis, the Court ruled that the 60-Day Rule under Minnesota Statutes 15.99 did not apply.

This settled a long and ongoing dispute between Cities and builders. The 60-Day Rule does not apply to the actual Building Permit Application, but it might apply to Site Plans or other City requirements that are incidental to the Building Permit.

While the Court of Appeals cleared up the question of the Application of the 60-Day Rule to Building Permits, the practical effect is that builders should never start a project thinking that the government has somehow waived its right to issue a Building Permit. Unlike most zoning requests, Building Permits and Codes require subsequent inspections and the issuance of a Certificate of Occupancy. Just because a builder is able to get a Building Permit by operation of law, does not mean that they will ever get an inspection or a Certificate of Occupancy.

©2003 by David J. Meyers and Rinke-Noonan Law Firm, St. Cloud, Minnesota

David J. Meyers is licensed to practice law in the Minnesota State and Federal Courts. He is past President of BAM and currently serves on the Board of Directors for the Central Minnesota Builders Association.