Franklin P. Kottschade, et al., Appellants,
State of Minnesota, Department of Transportation, Respondent.
Olmsted County District Court File No. 55-CV-12-5761
Gary A. Van Cleve, Julie N. Nagorski, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, Minnesota (for appellants)
Lori Swanson, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Huspeni, Judge. [*]
Appellants challenge the district court's order sustaining respondent's demurrer to a petition for a writ of mandamus, arguing that their driveway-access permit application was deemed approved under Minn. Stat. § 15.99, subd. 2(a) (2012), because their application was "a written request relating to zoning" and respondent failed to respond to it within 60 days. Because we conclude that appellants' application was "a written request relating to zoning" and it is undisputed that respondent failed to respond to the application within 60 days, we reverse and remand for the district court to issue the writ of mandamus.
On May 26, 2010, appellants Franklin P. and Bonnie R. Kottschade submitted an application for an "access driveway permit" to respondent State of Minnesota, Department of Transportation (MnDOT). The Kottschades sought to build a driveway connecting land they own in Rochester to the abutting Trunk Highway 52 East Frontage Road. The application consisted of a one-page preprinted form from MnDOT. The form included spaces for applicants to provide the purpose of the driveway, whether a building would be constructed, and, if so, what type of building. The Kottschades indicated that their proposed driveway is for "Right-in/Right-out" access to commercial property. They also stated that a 36, 000-square-foot retail building would be constructed on the property. The Kottschades attached a legal description of the property, a site plan, a topographic survey, and a concept layout.
MnDOT denied the Kottschades' request for a driveway-access permit in a letter dated July 28. The letter stated that the requested driveway access "will not be allowed due to public safety concerns." The Kottschades petitioned the district court to issue a peremptory writ of mandamus to compel MnDOT to grant their driveway-access permit application, or an alternative writ of mandamus to show cause why a "writ of mandamus should not issue directing MnDOT to grant the [a]pplication immediately." The Kottschades alleged that they are entitled to relief because MnDOT did not approve or deny the application within 60 days as required by Minn. Stat. § 15.99, subd. 2(a), and that if an agency "fails to deny a request within  days, the request is automatically approved." The district court issued an order allowing an alternative writ of mandamus, with a September 28, 2012 hearing date.
MnDOT appeared at the September 28 hearing and submitted a demurrer to the petition for the writs of mandamus, contending that the Kottschades' petition did not state facts sufficient to constitute a cause of action. In a written order dated January 4, 2013, the district court concluded "that under the plain language of [Minn. Stat. § 15.99, subd. 2(a)], the 60 day deadline for agency action does not apply to the Frontage Road access application at issue herein." The district court sustained the state's demurrer and dismissed the Kottschades' petition for writs of mandamus. This appeal follows.
This is an appeal from a district court order sustaining a demurrer to a petition for a writ of mandamus. A demurrer asks the district court, in relevant part, to decide whether the allegations in the complaint, "even if found to be true upon trial, would entitle plaintiff to judgment as a matter of substantive law." Hoppe v. Klapperich, 224 Minn. 224, 227, 28 N.W.2d 780, 784 (1947).
A demurrer raises an issue of law only and is for the court's determination. No fact question is involved, nor does it include a mixed question of law and fact. A demurrer admits all material facts well pleaded, including all necessary inferences or conclusions of law which follow from such facts. The complaint is to be liberally construed, and if by such construction it can be shown that facts are stated ...