“60-day Rule Case” Turns Out Not To Be A 60-Day Rule Case

The Supreme Court released its ruling in the Lakeland-DNR variance case this morning.  The opinion comes with great anticipation, since the Court seemed to be grabbing non-controversial 60-day cases for review, pointing to a possible shift in doctrine on Minn. Stat. 15.99, the “60-day rule.” 

At least for the moment, that’s not happening.  The Court decided the case solely on the question of the DNR’s authority to “certify” a locally granted variance (an issue added by the Court following the initial oral argument).  Concluding that the DNR lacks the authority to certify or nullify a local zoning decision, the Court declared the DNR aciton (and, by extension, the part of the City ordinance requiring such certification) void, allowing the variance to go into effect.  The Court does not address other issues raised if a threshold issue like authority resolves the entire dispute.

The opinion is simple – the statutes giving DNR authority in this area do not give the agency the power to nullify local land-use decisions.  As the Court works through the statutes involved, it becomes pretty obvious that this is the case, and has been ever since the program began.  The DNR’s argues what appear to be very thin reeds, winding up with what is really an undefensible position: because the Legislature gave us broad rulemaking authority, we can do whatever we want (“Of course our rules must relate to protection of the river area, Senator, but we believe that local governments levy taxes in a way that threatens the riverbank, so the Commissioner needs the ability to certify City budgets.”).  Justice Gildea systematically takes apart each argument for powers beyond “assisting” local governments with their land use ordinances. 

Where this case ends up is in the building line of recent cases that holds every level of government to just what the constitution and statutes give to it – no more (this case, cases where local governments gave permits they shouldn’t have) and no less (ruling out estoppel when a government official drops the ball).  The rule is becoming clear (if it wasn’t already) that individual actors do not get to alter their granted powers through their actions.  If the Court can stick to this rule when it looks at Constitutional powers, the unallotment decision shouldn’t be that difficult for them.

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