Graham v. Itasca County Planning Com'n, C4-99-712.

• Decision Date: 26 October 1999
• Docket Number: No. C4-99-712.,C4-99-712.
• Parties: Dirk GRAHAM, Appellant, v. ITASCA COUNTY PLANNING COMMISSION, Board of Adjustment and Itasca County, Respondent.
• Court: Minnesota Court of Appeals

601 N.W.2d 461

Dirk GRAHAM, Appellant, v. ITASCA COUNTY PLANNING COMMISSION, Board of Adjustment and Itasca County, Respondent.

No. C4-99-712.

Court of Appeals of Minnesota.

October 26, 1999.

Craig S. Davis, Grand Rapids, MN (for appellant)

Jay T. Squires, Ratwick, Roszak & Maloney, P.A., Minneapolis, MN (for respondent)

Considered and decided by TOUSSAINT, Presiding Judge, LANSING, Judge, and KLAPHAKE, Judge.

OPINION

LANSING, Judge.

The district court affirmed the Itasca County Board of Adjustment's denial of Dirk Graham's variance application. Graham appeals, asserting that the denial is arbitrary and capricious and that the governing ordinance violates the Equal Protection Clause of the Fourteenth Amendment. By notice of review, the board appeals the district court's holding that Graham's appeal was timely. We affirm.

FACTS

The properties involved in this appeal are two adjoining lots located on Bonnie Point of Deer Lake in Itasca County. Dirk Graham purchased the two 100-foot lots from separate owners. When Graham purchased the property, the county zoning plan prohibited development of lake lots that were less than 200 feet wide, unless the land had been platted before the ordinance was adopted and continued to be owned separately. Adjacent, substandard lots owned by the same person, however, were considered to be a single lot for purposes of development.

Graham obtained a permit and began building on one lot in 1997. In May 1998, he applied for a variance to the Itasca County Board of Adjustment, seeking to build another structure on his adjoining lot. The board denied Graham's requested variance at its meeting on June 3, 1998, finding that Graham had failed to demonstrate hardship. Graham himself was not present at the meeting, but his representative was informed orally of Graham's right to appeal. On June 15, 1998, Graham received written notice from the county of the decision and of his right to appeal. Graham filed his appeal on July 13, 1998, within 30 days of the written, but not the oral, notice.

The district court held that Graham's appeal was timely, but granted summary judgment in the county's favor against Graham's substantive claims. Graham appeals the summary judgment, and the board challenges the district court's determination of timeliness.

ISSUES

I. Does Minn.Stat. § 394.27, subd. 9 (1998), require written notice of a board of adjustment's variance decision to commence the running of the 30-day limitations period for appeal?

II. Does an ordinance prohibiting separate development of commonly owned adjacent substandard lots, but allowing development of adjacent substandard lots that are not commonly owned, violate the Equal Protection Clause of the Fourteenth Amendment?

III. Was the board's denial of Graham's variance application reasonable?

ANALYSIS

I

Whether written notice of a board of adjustment's variance decision is necessary to trigger the limitations period in Minn.Stat. § 394.27, subd. 9 (1998), is an issue of statutory construction. The construction of a statute raises a question of law, which this court reviews de novo. Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996).

Under Minn.Stat. § 394.27, subd. 9, a person aggrieved by a decision of the board of adjustment may appeal to the district court within 30 days after receipt of notice of the board's decision:

All decisions by the board of adjustment in granting variances * * * shall be final except that any aggrieved person * * * shall have the right to appeal within 30 days, after receipt of notice of the decision, to the district court * * *.

Minn.Stat. § 394.27, subd. 9 (emphasis added). The statute does not specify the type of notice required to trigger the running of the appeal period. The district court interpreted the statute to require written notice. The board challenges the district court's interpretation, claiming that actual notice of the board's decision, even if only oral, is sufficient to start the appeal period. We disagree.

We have previously construed Minn. Stat. § 394.27, subd. 9, to require written notice. In re Appeal of Saldana, 444 N.W.2d 892, 893 (Minn.App.1989). In so doing, we reasoned that written notice may be implied when a statute is silent about the type of notice required and that a particular board's practice of notifying aggrieved parties in writing created a reasonable expectation that the appeal period began to run when an aggrieved party received written notice. Saldana, 444 N.W.2d at 893-94. We also noted that the aggrieved party did not become aware of the basis for the board's decision until it received written notice of it. Id. at 894.

Saldana is consistent with due process and with previous supreme court decisions construing similar statutes. See Bahr v. City of Litchfield, 420 N.W.2d 604 (Minn.1988)

; In re Judicial Ditch No. 2, 163 Minn. 383, 202 N.W. 52 (1925). Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties and afford them an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (holding that when names and post office addresses of those affected by a proceeding are at hand, notice by publication does not comport with due process). The notice must convey the required information and must afford a reasonable time for those interested to prepare adequately and to make their appearance. Id.; Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997) (stating notice must apprise affected individual of, and permit adequate preparation for, impending hearing). The means employed to provide notice must be reasonably certain to inform those affected. Mullane, 339 U.S. at 314,

70 S.Ct. at 657. Generally, written notice is more reasonably certain to inform aggrieved individuals of the basis for the board's decision. Oral notice is less likely to provide the information necessary to prepare for appeal and to have the merits of their case fairly judged.

Previous supreme court decisions construing statutes similar to Minn.Stat. § 394.27, subd. 9, support a conclusion that the statute requires written notice of the board's decision. As early as 1925, the supreme court construed a statute limiting the time within which a writ of certiorari could issue to within 60 days after the aggrieved party "shall have received due notice" of the decision sought to be reviewed. Judicial Ditch No. 2, 163 Minn. at 383, 202 N.W. at 52. The court held that the due-notice requirement was not satisfied until the aggrieved party or his attorney received written notice of the decision. Id. It reasoned that written notice would eliminate disputes on whether a party had actual notice and establish a uniform rule of practice for writs of certiorari. Id.

More recently, the court, while recognizing that the term "due notice" must be defined in the context in which the requirement is imposed, stated that "`due notice' requires, at a minimum, that notice be given in writing and that it be reasonably certain to reach the [affected individual]." Bahr, 420 N.W.2d at 607 (holding posted written notice constituted "due notice" when municipality apprised affected individuals that it would post notice, and all affected individuals read the posted notice).

We conclude that the written-notice requirement in Saldana is constitutionally sound and consistent with the rationale of the supreme court notice decisions. Several additional considerations convince us that Saldana correctly construed Minn. Stat. § 394.27, subd. 9. First, written notice comports with due process without unduly burdening the board of adjustment, which is already required to file a certified copy of its decision with the County Recorder or the Registrar of Titles. Minn. Stat. § 394.27, subd. 8 (1998). Second, written notice more definitely and unambiguously establishes the beginning of the appeal period and would thereby reduce disputes over whether a party had actual notice. Third, written notice would establish a more uniform system of practice for writs of certiorari. See, e.g., Minn. R. Civ.App. P. 116.01 (requiring written notice to commence limitations period for issuance of a writ of certiorari). Fourth, written notice would facilitate judicial review by providing aggrieved individuals with the basis for the decision sought to be reviewed. Last, the rules of civil procedure favor written notice in other contexts. See Minn. R. Civ. P. 77.04 (notice of filing of order to be served "by mail upon every party affected thereby or upon such party's attorney of record"). Relying on these reasons and the holding in Saldana, we conclude that the district court correctly held that the 30-day limitations period under Minn.Stat. § 394.27, subd. 9, began to run when Graham received written notice of the board's decision.

II

The Equal Protection Clause guarantees "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Absent an allegation that an ordinance discriminates on the basis of a suspect classification or fundamental right, zoning ordinances are reviewed under the rational-basis standard. City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Rational-basis review involves a two-step review: (1) identifying a legitimate governmental purpose, and (2) determining whether a rational basis exists for the governmental body to believe that the legislation would further the purpose. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 (1981); Haves v. City of Miami, 52 F.3d 918, 921-22 (11th Cir.1995).

Graham asserts that the Itasca County ordinance violates the Equal Protection Clause by creating an irrational classification based on ownership. The ordinance limits the development of substandard...