By Jed Burkett

Land use regulation can be one of the more challenging aspects of city governance. Local officials must make difficult decisions about development, which can lead to unhappy residents no matter the outcome. Sometimes, those decisions lead to litigation. When that happens, a court will review the city’s record (the information available at the time of the decision) to determine if it supports the city’s actions. Often, cities must compile these decision-making records while the clock is ticking toward a statutory deadline known as the 60-day rule.

What’s a record?

The record of a decision broadly includes all information available to the city at the time it made its decision about development. This may include relevant statutes and ordinance standards, as well as the facts, analysis, discussions, and deliberations. The record typically begins with an application for a particular planning or zoning approval and may include staff reports, memos, studies, or technical reviews. It culminates in the city’s decision, often made at a public meeting.

What is the 60-day rule?

The 60-day rule is a timing law found in Minnesota Statutes, section 15.99. Enacted by the Legislature in 1995, the rule is designed to prevent government agencies from unnecessarily delaying development requests. Under the statute, a city must approve or deny a written zoning request within 60 days of receiving it. The city may extend this period by an additional 60 days, but only if it does so in writing before the initial 60-day deadline expires. To go beyond those 120 days, a city generally must have written consent from the applicant.

If a city fails to approve or deny a request within the statutory time period, the request is automatically approved, which can be a significant consequence. For this reason, it is crucial that cities carefully scrutinize applications as they come in to ensure all required materials are included and begin processing them promptly. The law allows cities 15 business days to review an application for completeness and notify the applicant in writing if anything is missing. This notice of incompleteness ends the 60-day clock, and a new clock will start when the applicant reapplies with the required information.

Public hearings

Holding a public hearing is an important step in developing the record. The Municipal Planning Act (Minnesota Statutes Chapter 462) generally requires public hearings before adopting or amending a comprehensive plan or a zoning ordinance — including rezonings — and before granting conditional or interim use permits or preliminary plat approval.

Public hearings should include a complete disclosure of what is being proposed, and a fair and open assessment of the issues raised. The public should be able to:

• Hear and see all the information.
• Ask relevant questions.
• Provide additional information.
• Express support or opposition.

For a smooth public hearing process, the city council should adopt written policies and procedures for conducting public hearings.

Role of neighborhood opinion

Neighborhood opposition can complicate the evaluation of a land use application. Courts have held that public opinion alone is not a valid basis for a city’s decision. When reviewing comments, it is helpful to distinguish between the quantity, and the quality, of the comments. For example, the council can rely on well-supported testimony that includes relevant facts. In contrast, emotional or unsupported opposition should not serve as the basis for denial.

Written statement

After a public hearing, the city should adopt written findings to support its decision. The 60-day rule requires that reasons for a denial be provided in writing. These written statements typically take the form of a resolution known as findings of fact. The written statement should:

• Identify the relevant legal criteria, such as statutory standards or code provisions.
• Explain the facts of the specific application.
• Apply those facts to the legal standards.

This document should provide the court with everything needed to uphold the city’s decision.

Jed Burkett is a land use loss control attorney with the League of Minnesota Cities Insurance Trust. Contact: [email protected] or (651) 281-1247.