For most controversies relating to a proposed use of land, the local government permitting process will be the initial battleground between the project proponent and opposing persons. Whether the government body grants or denies the land use application(s), many such battles find their way to court. The judicial process can take years to reach a final resolution, during which time the status of the development can be in doubt. The type of judicial review will vary depending on what subdivision of government is involved (e.g., city, township, or county) and the type of land use application at issue. Some cases go to district court. Others go to the court of appeals. Failure to bring suit in the right court can be fatal. Sometimes a strict statute of limitations controls the deadline for judicial review. In other instances, the deadline is looser and more subjective.
This is the fourth article in a series explaining the fundamentals of the most critical aspects of real estate law. In this piece, I focus on judicial review of local land use decisions. The article is divided into three parts. Part one explains the meaning of key terminology in this area. Part two describes the process to obtain judicial review. Finally, the article addresses the practicalities (e.g., time investment, procedure) once the matter is in court.
Below, I explain the most common land use applications and legal terms frequently used in the context of land use appeals.
A “conditional use permit” or “CUP” is applied for when the zoning ordinance allows a particular use of land so long as it conforms with certain zoning criteria. The government body will consider evidence and make findings regarding whether the use meets the express criteria stipulated in the ordinance. By law, if the proposed use meets the ordinance criteria, it must be approved. The government may impose reasonable conditions on the use of property. A CUP will run with the land and therefore benefit subsequent property owners. Once issued, a CUP becomes a property right that can exist into perpetuity. Circumstances when a CUP become ineffective include when the use ceases for an extended period of time, or when the government exercises eminent domain to acquire the CUP.
A “variance” application requests the government’s permission to deviate from the express requirements of the zoning ordinance. “Area variances,” such as requests to deviate from setback requirements, height limits, or density maximums, may be appropriate. By contrast, a “use variance,” which would allow a use of land otherwise not permitted by the zoning code, are illegal. A variance may issue only where the landowner demonstrates a “practical difficulty.” There are three elements to the practical difficulty test: (1) the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; (2) the plight of the landowner is due to circumstances unique to the property not created by the landowner; and (3) the variance, if granted, will not alter the essential character of the locality.
A “rezoning” application requests that the government change the zoning classification assigned to the subject property. A rezoning application involves a broader inquiry than a CUP or variance application and is considered a “legislative” decision to which the courts afford more deference.
A “declaratory judgment” is an action created by statute that allows the court to decide disputed questions of law. This mechanism is frequently used in land use disputes relating to real property in state district court.
“Mandamus” is a remedy that a court can award ordering a local level of government or government agency to take some action. The local government must have violated a clear legal duty imposed by law. Mandamus claims are sometimes joined with claims for declaratory judgment.
A “quasi-judicial decision” requires the government decisionmaker to apply evidence in the record to adopted ordinance criteria. CUP and variance decisions are considered quasi-judicial.
A “legislative” decision is considered a policy-making decision of the government. For example, a decision to permit or prohibit a certain land use in a zoning district would be considered legislative. Courts apply the most deferential standard of review to legislative decisions.
“Certiorari” is a form of judicial review that applies only to quasi-judicial decisions. Certiorari is used where no other mechanism of judicial review is available to challenge a government’s or agency’s quasi-judicial decision. Writs of certiorari are directed to the court of appeals.
II. Securing Judicial Review of Local Land Use Decisions.
A land use attorney will first consider which government entity was the decisionmaker and second, whether the decision is quasi-judicial or legislative. If a municipal decision is at issue, regardless of whether the decision is quasi-judicial or legislative, review will be obtained through a declaratory judgment action in the state district court. If challenging a permit denial, the challenger may include a request for mandamus with the claim for declaratory judgment. The statute of limitations governing quasi-judicial and legislative municipal decision is six years. Principles of equity (e.g., discretionary principles of fairness) will apply. A challenger who sits on his hands for an unreasonable period of time before bringing suit may be barred from doing so if another person changes their position in reasonable reliance on the approvals.
If a county quasi-judicial decision is concerned, judicial review will normally be sought in the court of appeals by certiorari. There is an exceptionally short period of time in which to seek review. Counsel should be consulted immediately after notice of the adverse decision to ensure that all necessary steps are timely taken. Failure to timely bring an appeal may result in a court declining review. On the other hand, review of a county’s legislative decision will lie in the district court by declaratory judgment.
In the vast majority of cases there is no basis to seek federal jurisdiction of a land use decision. Exceptions include where the landowner is a religious entity or place of worship or where the denial arguably results in a constitutional taking of the real property.
III. What Happens When a Land Use Decision is Properly Appealed.
For a land use decision venued in state district court, the case will be adjudicated after the parties’ exchange of written arguments and a hearing where the lawyers will present oral argument. There is not a trial, witnesses are not called, and with a few exceptions, new evidence is inadmissible. The briefing period lasts for a couple months and in all, it can take 4-6 months to get a hearing date before the judge. After the oral argument, the judge will have 90 days to rule on the appeal. Many state district court judges come from the criminal bar and lack background in land use/zoning matters. It is therefore common for judges to take most, or all, of the time they have to render a decision in such cases. A district court can issue a ruling declaring a land use approval illegal and void or, alternatively, can order the government to issue a land use entitlement.
After the district court renders a decision, the decision can be further appealed by either side to the Minnesota Court of Appeals. An appeal will add substantially more time (often around 6-8 months) and expense to the litigation. A decision of the court of appeals can be further appealed to the Minnesota Supreme Court. Review before the state supreme court is discretionary and the overwhelming number of petitions for review to the state supreme court are denied.
For certiorari appeals to the court of appeals, the parties will exchange appellate briefs arguing the evidence in the record. The party appealing the decision (the appellant) will file the first brief, the defendant/respondent (normally the government) will file a response brief, and the appellant will then file a final reply brief. The court of appeals will normally hold oral argument at which time the matter is taken under advisement pending decision. The court of appeals also follows a 90-day deadline schedule.