No Written Reasons Needed to Meet 60-Day Rule

There’s been plenty of fodder for posts lately, but I’ll skip to the 60-day rule decision handed down yesterday by the Supreme Court since that closes the loop on a running discussion here.  I thought the Supreme Court might be looking at making a change in the “60-day rule,” and now it’s happened.  The Court of Appeals disposed of this case (Johnson v. Cook County) in a brief unpublished opinion last August that followed prior decisions requiring a local government to not only act upon a zoning request in 60 days, but also to adopt written findings within that time-frame if the request is denied.  The key portion of the statute (15.99, subd. 2(a)) is this:

Failure of an agency to deny a request within 60 days is approval of the request.  If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The logic behind the Court of Appeals’ ruling, and the prior cases supporting it, is that adopting written findings is an essential part of a “denial,” and the denial is ineffective unless those findings exist.  This is certainly good practice, as any board or council is foolish to take any adverse action without fully stating its reasons for doing so on the record.  Putting findings into a written resolution for a vote, particularly on zoning matters that have likely gone through staff review and a planning commission hearing, is simply common sense.  That said, the question remains whether doing so is mandatory to avoid automatic approval or is simply a good idea.

The Supreme Court now says, “just a good idea.”  It hinted in a 2007 decision, Hans Hagen Homes, that written findings might not be mandatory.  Of course, it’s unfortunate that the Court chose to write “denial is complete when a city votes to deny the application and adopts a written statement of its reasons for denial” (emphasis added), because that sure does makes it seem like the Supreme Court ratified the existing understanding of the Rule.  Only in a footnote in Hans Hagen did the Court leave its tip that this may not be, saying that the statute could be read more narrowly, but since nobody asked for that, the Court would “leave it for another day.”  Is it asking too much for opinion-writers to choose between declarative statements and hedges, or at least not to use both while discussing a single issue?

Anyway, the Court follows through on the hint buried in its 2007 footnote, and decides that written findings are not mandatory to avoid an automatic 60-day approval.  Justice Dietzen, writing for the Court, separates the sentences of 15.99, sub 2 into component parts: a “time deadline,” a “penalty provision”, and a “written-reasons requirement.”  From there, the implications are obvious; the “penalty provision” only references the “time deadline,” and thus the “written-reasons requirement” has no direct penalty, making it directory instead of mandatory.  This makes sense as an abstract reading of the statute, but I’m disappointed that the Court completely avoids a discussion of the logic that supported the contrary reading – that written findings were necessary to “complete” a denial.  In that reading, the “written-reasons” sentence is not a standalone requirement, but a clarification of the basic requirement to “approve or deny” requests within 60 days.  This is a perfectly plausible reading, backed by past precedents, and as I noted above, good and competent practice.  I won’t lie; this decision is a relief to county and city attorneys and makes compliance with the 60-day rule much, much simpler.  I just think that when a court knows it’s taking the law in a new direction, it has to put in the effort to not just explain its logic, but explain why it’s rejecting the logic of previous decisions.

Again, it remains best practice to have written findings ready to go if a board or a council might deny a zoning request, even after this opinion.  Justice Dietzen notes as much in the home stretch of the opinion, reminding the audience that if a decision is made without findings or identified factual support, it will likely be overturned in court.  This decision simply frees a board or council to state its reasons verbally at a meeting while moving the denial of a request (or in making a vote against approval), and having those reasons transcribed at a later date.

Court of Appeals 07.13.10

with assistance from Caitlin Cragg

The Court released an opinion in Hebert v. City of Fifty Lakes on Tuesday, marking the second time the case has come up for appellate review.  It also for now marks the second round of the City winning the case on motions in District Court and then losing in appellate court.  The key facts: the properties at issue here were registered as Torrens properties in 1953; the City platted a 66-foot roadway abutting the properties in 1954; the road was rebuilt in 1971, but the rebuilders went about 30 to 50 feet outside of the platted right-of-way onto these Torrens properties.  The current owners of the properties sued in 2005 for a declaration that the road encroached on their properties and seeking money damages for the trespass.

Last round, the Supreme Court ultimately held that the public use and maintenance of a road was not a “de facto” taking that limiting affected landowners to a 15-year statute of limitations (which would have run in 1969 or 1986, depending on the stretch of road complained about).  This week, the Court of Appeals pushes further, holding that the “user statute” – which allows cities and towns to own roadways after 6 years of continuous use and maintenance as a public highway – is a form of adverse possession, and therefore is not effective against registered (Torrens) property.  For all of my complaints about judicial opinion-writing lately, the analysis in this one is superb.  It would have been easy enough, and maybe sufficient, to parse some language and conclude, “that looks like adverse possession.”  Instead, Judge Worke reaches back over 100 years to tie together the major decisions interpreting the user statute, demonstrating that the Court’s conclusion is in line with the consistent interpretation of this statute over many years.  The immediate result of this holding is that Fifty Lakes has no title to the “off-course” portion of this road; the City must start eminent-domain proceedings to acquire the right-of-way.  The case is remanded back to District Court, but given the stakes, it seems a given that this will go to the Supreme Court before the City backs down on its claim to title.

Also released this week is the opinion in Zweber v. Scott County, in which the Court sends a subdivision plat back to Scott County with an order to approve the plat.  The County denied the subdivision for perceived failure to meet “interconnectivity” standards for the proposed street network.  On first read, this had potential to be a very disturbing case – requiring streets that connect and doing away with cul-de-sacs is a major part of current land-use planning.  While I think this opinion is a little ridiculous in phrasing its objection (“the ordinance doesn’t specify how many connections are needed to be “interconnected”), the basic problem is that the ordinance fails to define what “interconnected” means in this context.  If a halfway-reasonable definition had been provided, the outcome may have been different.    While ordinance definitions occasionally seem like overkill (and sometimes are), there are still many places where the local ordinance definition completely determines the outcome of a case – accessory uses are a good example.  End result: this subdivision gets approved, and Scott County gets to work on an amendment to fix this hole in its ordinance.