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Schulz v. Town of Duluth

Court of Appeals of Minnesota

February 11, 2019

John Schulz, et al., Appellants,
v.
Town of Duluth, Respondent, Charles Bille, et al., Respondents.

          St. Louis County District Court File No. 69-DU-CV-17-2438

          William D. Paul, William D. Paul Law Office, Duluth, Minnesota (for appellants)

          Robert A. Alsop, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for respondent Town of Duluth)

          David M. Johnson, Thibodeau, Johnson, & Feriancek, PLLP, Duluth, Minnesota (for respondents Charles Bille and Carol Danielson-Bille)

          Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Tracy M. Smith, Judge.

         SYLLABUS

         Rule 19 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.

          OPINION

          JOHNSON, JUDGE

         Two 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.

         FACTS

         Charles 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.

         In 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 application.

         In July 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.

         The 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 ...


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