Louis County District Court File No. 69-DU-CV-17-2438
William D. Paul, William D. Paul Law Office, Duluth,
Minnesota (for appellants)
A. Alsop, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent Town of Duluth)
M. Johnson, Thibodeau, Johnson, & Feriancek, PLLP,
Duluth, Minnesota (for respondents Charles Bille and Carol
Considered and decided by Johnson, Presiding Judge; Ross,
Judge; and Tracy M. Smith, Judge.
of the rules of civil procedure applies to an action under
Minnesota Statutes section 462.361, subdivision 1 (2018), for
judicial review of a township's decision on an
application for a zoning variance.
persons applied for a variance from a township's zoning
ordinance so that they could build a residence on their
jointly owned property. The township approved the variance
application. Neighboring property owners commenced an action
in district court to obtain judicial review of the
township's approval of the zoning-variance application.
The neighbors timely served their summons and complaint on
the township but not on the zoning-variance applicants. The
township moved to dismiss the action on the ground that the
applicants were necessary and indispensable but were not
before the court. The district court granted the
township's motion. We conclude that rule 19 of the rules
of civil procedure applies and that the district court did
not abuse its discretion by granting the township's
motion to dismiss. Therefore, we affirm.
Bille and Carol Danielson-Bille (hereinafter the Billes) own
real property on North Shore Drive between the city of Duluth
and the city of Two Harbors. Their property is 75 feet wide
and runs approximately 175 feet from state highway 61 to the
shore of Lake Superior.
2017, the Billes wished to build a residence on the property,
which is located in the town of Duluth. The township's
zoning ordinance would not allow a residence on the property
because it is only 0.31 acres in size (instead of 2 acres),
because it is only 75 feet wide (instead of 200 feet), and
because it could not accommodate the required setbacks on all
four sides. In March 2017, the Billes applied to the
township's planning-and-zoning commission for a variance
from the township's zoning ordinance. Three persons who
jointly own property to the west of the Billes'
property-John Schulz, Rebecca Norine, and Jack Nelson-opposed
the Billes' application. In May 2017, the commission
approved the requested variance. Schulz, Norine, and Nelson
pursued an administrative appeal to the township's board
of supervisors. In June 2017, the board granted the
administrative appeal and denied the Billes' variance
2017, the Billes submitted a second variance application. In
August 2017, the commission approved the application. Schulz,
Norine, and Nelson again appealed. In September 2017, the
township board upheld the commission's decision and
granted the variance.
township's zoning ordinance provides that a person
aggrieved by the board's decision on a zoning-variance
application may seek judicial review in the district court
"within thirty (30) days after delivery of the decision
to the appellant." Twp. of Duluth, Minn., Zoning
Ordinance No. 5, art. XIV, § 3(E)(4) (2015). The parties
agree that the 30th day after delivery of the township
board's decision was October 8, 2017, which was a Sunday.
The following day, October 9, 2017, was Columbus Day, a ...