This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-81

 

Demolition Landfill Services, LLC, petitioner,

Appellant,

 

vs.

 

City of Duluth,

Respondent.

 

Filed July 25, 2000

Reversed

Shumaker, Judge

 

St. Louis County District Court

File No. C8-99-601467

 

 

Timothy R. Thornton, Jack Y. Perry, Briggs and Morgan, P.A., 2400 IDS Center, Minneapolis, MN 55402 (for appellant)

 

Bryan F. Brown, City Attorney, M. Alison Lutterman, Deputy City Attorney, 410 City Hall, Duluth, MN 55802

 

Considered and decided by Harten, Presiding Judge, Toussaint, Chief, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

 

SHUMAKER, Judge

 

Appellant Demolition Landfill Services, LLC challenges the district court's summary judgment denying appellant's petition for a writ of mandamus to compel respondent City of Duluth to issue a special-use permit to appellant. Appellant contends that the city's failure to deny or approve the permit application within the statutory deadline, or to properly extend that deadline, resulted in the approval of the application. We reverse.

FACTS

On September 11, 1998, Demolition Landfill Services, LLC (DLS) applied to the City of Duluth for a special-use permit to operate a temporary demolition debris landfill on the western edge of the city.

Duluth's planning staff reviewed the application, concluded that DLS had met the requirements of the governing ordinance, and recommended approval of the permit. The city's planning commission passed the matter on to the city council without a recommendation.

The Duluth City Council considered DLS's application at several meetings. On November 5, 1998, the council discussed the possibility of extending the statutory deadline for action on the application and acknowledged that any notice of extension would have to be in writing.

Between November 5 and November 9, 1998, an assistant city attorney spoke on the telephone with DLS's attorney and indicated that the city council would extend the deadline for considering DLS's application. Although the assistant city attorney had drafted a written notice of the extension, she did not send it because she felt that the telephone conversation with DLS's attorney satisfied the notice requirement.

 

The city council discussed DLS's application again on November 19, 1998. On that same day DLS notified the city that DLS considered its application approved because the city had not denied it within the period required by law. Duluth formally denied the application on December 7, 1998.

Seeking to compel the City of Duluth to issue the permit, DLS petitioned the district court for a writ of mandamus. The court ruled that the city had substantially complied with the law by giving oral notice of the extension of the deadline for acting on DLS's application. The court granted summary judgment in favor of the city. DLS appeals from that judgment.

D E C I S I O N

 

The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). This court need not give deference to the district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Under Minn. Stat. 15.99, subd. 2 (1998), a city must act within 60 days of receiving an application for a special-use permit. If the city does not act within 60 days, the application is automatically approved:

Except as otherwise provided in this section and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

 

Minn. Stat.  15.99, subd. 2.

 

The 60-day review period may be extended if the city provides written notice explaining the reasons for the extension:

An agency may extend the time limit in subdivision 2 before the end of the initial 60-day period by providing written notice of the extension to the applicant. The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.

 

Minn. Stat. 15.99, subd. 3(f) (1998).

The parties agree that Duluth did not approve or deny DLS's application before the expiration of the 60-day deadline provided in the statute. But the city contends, and the district court held, that it effectively extended the deadline for action on the permit by giving oral notice of the extension prior to the expiration of the deadline.

A proper extension of the 60-day review deadline requires four things: (1) written notice of the extension, (2) given before expiration of the deadline, (3) stating the reasons for the extension, and (4) indicating the anticipated length of the extension. Minn. Stat.  15.99, subd. 3(f). Here, the city gave only an oral notice prior to the expiration of the review period that it would extend the period and take a final vote on November 23, 1998. It gave no reason for the extension.

The city relies on Manco of Fairmont, Inc. v. Town Bd., 583 N.W.2d 293 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998), for the proposition that it substantially complied with the extension requirement. Manco had applied for a permit to increase the size of a pig feedlot. Id. Before the expiration of the 60-day deadline for action on the application, the township sent a letter to Manco stating that it would extend the review period for 60 days so as to take more time to make a decision. Id. at 294. When the township eventually denied the application, Manco petitioned for a writ of mandamus, arguing that the township failed to comply with section 15.99, subdivision 3(f), by failing to give a reason for the extension. Id. at 295. The district court denied Manco's petition. Id.

On appeal, this court held that section 15.99, subdivision 3(f), is directory, rather than mandatory, and that the doctrine of substantial compliance applies to a directory statute. Id. at 296. The township in Manco gave written notice of the extension within the initial review period, stated that it needed more time to decide, and extended the period for 60 days. The court's only concern was the adequacy of the reason for the extension. The court held that, because the statute did not specify the nature of the reason required for an extension, the township's reason was sufficient and substantially complied with the extension statute. Id.

The township in Manco complied with all four requirements of section 15.99, subdivision 3(f). Id. The City of Duluth complied with only two of the requirements, omitting the other two entirely. We hold that the city did not substantially comply with Minn. Stat.  15.99, subd. 3(f), and that the district court erred in ruling otherwise. Because the city failed to deny DLS's application within the time required by law, it is deemed to have approved the application and it must issue the permit. Minn. Stat.  15.99, subd. 2.

Reversed.