In re: Application of Skyline Materials, Ltd. for Zoning Variance.
Court of Appeals Office of Appellate Courts.
Jay T. Squires, Courtney R. Sebo, Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota, for appellant Houston County.
Gregory B. Schultz, Gregory Schultz Law Office, Caledonia, Minnesota, for respondents Michael and Diane Fields.
Paul D. Reuvers, Susan M. Tindal, Iverson Reuvers, Bloomington, Minnesota, for amicus curiae Association of Minnesota Counties.
Anderson, J. Took no part, Wright, Lillehaug, JJ.
Service of an appeal pursuant to Minn. Stat. § 394.27, subd. 9 (2012) from a decision of a county board of adjustment to the district court commences a new civil action and is therefore governed by Rule 4.03, rather than Rule 5.02, of the Minnesota Rules of Civil Procedure.
Reversed and remanded to the district court for dismissal.
The issue presented in this case is whether respondents properly served their notice of appeal of a variance decision by a county board of adjustment. Because we conclude that respondents' service of process pursuant to Rule 5.02 of the Minnesota Rules of Civil Procedure, rather than Rule 4.03, was ineffective to commence an action in the district court, we reverse and remand to the district court with instructions to dismiss respondents' action for lack of subject matter jurisdiction.
Respondents Michael and Diane Fields own property adjacent to property owned by Skyline Materials, Ltd. in Houston County. Skyline applied to appellant Houston County for a variance from the setback requirements of the County's zoning ordinance. The County granted the variance and sent written notice of its decision to the Fields on April 4, 2011.
Minnesota Statutes section 394.27, subdivision 9, sets forth a limited right to appeal such decisions, stating:
All decisions by the board of adjustment in granting variances or in hearing appeals from any administrative order, requirement, decision, or determination shall be final except that any aggrieved person or persons, or any department, board or commission of the jurisdiction or of the state shall have the right to appeal within 30 days, after receipt of notice of the decision, to the district court in the county in which the land is located on questions of law and fact.
Minn. Stat. § 394.27, subd. 9 (2012). The Fields sought to exercise the statutory right of appeal. The parties agree that in order to invoke the statutory procedure, the Fields were required to serve an appeal upon the County, ...