This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






John Carlson,





The County of Aitkin, et al.,



Filed August 31, 2004


Harten, Judge


Aitkin County District Court

File No. C6-03-817


Jack Y. Perry, Jason R. Asmus, Briggs & Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Thomas P. Carlson, Thomas M. Beito, Carlson & Soldo, P.L.L.P., 1052 Centerville Circle, Vadnais Heights, MN 55127  (for respondents)


            Considered and decided by Lansing, Presiding Judge; Harten, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant landowner challenges the district court’s decision that it lacked subject matter jurisdiction to address appellant’s alternative petition for a writ of mandamus. Because we see no error of law in that decision, we affirm.


On 5 August 2003, appellant John Carlson applied to respondent County of Aitkin Planning Commission for a conditional use permit (CUP) under the Aitkin County Zoning Ordinance §§ 11.00-.05.  The ordinance provides, among other things, that an applicant  “may appeal any decision of the Planning Commission relative to a conditional use permit by writ of certiorari to the Minnesota Court of Appeals . . . .”

            On 15 September 2003, the planning commission held a hearing on appellant’s CUP petition.  After hearing testimony from appellant and other witnesses, the commission discussed each of the seven criteria for evaluating CUP applications: 

           1.          The requested use will not be injurious to the use and enjoyment of the environment or of other property in the immediate vicinity, nor impair property values within the surrounding neighborhood.


           2.          The requested use will not increase local or state expenditures in relation to costs of servicing or maintaining neighborhood properties.


           3.          The location and character of the requested use are considered to be consistent with a desirable pattern of development for the locality in general.


           4.          The requested use conforms to the comprehensive land use for the County.


           5.          Proper notice has been given to those people required under Minnesota Statutes, Chapter 394, of the proposed requested use and of the hearing before the planning commission.


           6.          That other applicable requirements of this ordinance, or other ordinances of the County have been met.


           7.          The requested use is not injurious to the public health, safety and general welfare.


 Each commission member voted on each criterion, after which appellant’s application was denied.  At the end of the hearing, appellant was provided with and signed a notice of denial, stating that “findings of fact . . . will be forthcoming on the recording document.”  The hearing transcript indicates that appellant was told at the end of the hearing, “And then there is an appeal process to this if you wish to do that, and that’s by writ of certiorari to the Minnesota Court of Appeals.” 

            The next day, 16 September 2003, appellant received by FAX a document identified as the “Findings of Fact for the September 15, 2003 PC meeting regarding permit #30898C.”  The findings were a copy of the CUP criteria with each member’s vote.  Some of the criteria were annotated, “See tape for response.”   The FAX cover sheet said, “The tapes probably won’t be done until this Thursday [18 September 2003].  Please call if you have any questions . . . .” 

            On 15 October 2003, appellant filed a petition for a writ of mandamus pursuant to Minn. Stat. § 394.37, subd. 4 (2002), with the district court.  The county moved to dismiss or for summary judgment on grounds of lack of subject matter jurisdiction.  Five days before the hearing, appellant cross-moved for summary judgment.  The district court dismissed the mandamus petition and did not reach appellant’s summary judgment motion because it determined that it lacked subject matter jurisdiction.  We review the subject matter determination.


1.         Subject Matter Jurisdiction

            The district court dismissed appellant’s petition for lack of subject matter jurisdiction.  Whether subject matter jurisdiction exists is a question of law.  Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn. 2000).   Both this court and the supreme  court have addressed the question of judicial review of county zoning decisions.

[T]he legislature has not provided for judicial review of zoning decisions of county boards in the district court as it has for zoning decisions of cities, towns and even county boards of adjustment.  Compare Minn. Stat. § 462.361, subd. 1 (1998) (providing for district court review of zoning orders of a “governing body” or board of adjustments); Minn. Stat. § 462.352, subd. 11 (1998) (defining “governing body” as only a city council or town board); and Minn. Stat. § 394.27, subd. 9 (1998) (providing for district court review of board of adjustment decisions) with Minn. Stat. § 394.301 (1998) (authorizing county conditional use permit proceedings but without providing for district court review). 


Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 n.5  (Minn. 2000).[1]

County authority for planning, development, and zoning is governed by Minn. Stat. §§ 394.21-.37 (2000).  Chapter 394 does not provide for district court review of a county board’s CUP decision.  As a result, review of a county board’s decision on a CUP is obtainable only through a writ of certiorari to this court.  Neitzel v. County of Redwood, 521 N.W.2d 73, 76 (Minn. App. 1994) [(holding that a party must petition the Minnesota Court of Appeals for a writ of certiorari to obtain judicial review of a county board’s decision on a CUP application)], review denied (Minn. Oct. 27, 1994).


United Migrant Opportunity Servs., Inc. v. Dodge County Planning Comm’n, 636 N.W.2d 813, 814-15 (Minn. App. 2001) (emphasis added).  Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 180-81 (Minn. App. 1997), considered the efficacy of county ordinances governing appeals from CUP decisions:

[T]he issue in Toby’s [of Alexandria, Inc. v. County of Douglas, 545 N.W.2d 54 (Minn. App. 1996), review denied (Minn. 21 May 1996)] was whether a party aggrieved by the county board’s CUP decision could appeal to the district court.  We held that the general authority given to counties over zoning matters included the authority to authorize a direct appeal of a county board’s CUP decision to the district court.  Id. [at 56].  In Toby’s the county had enacted an ordinance specifically providing that CUP decisions would be appealed to the district court.  Carver County has not enacted such an ordinance.


Respondent Aitkin County not only did not enact an ordinance providing for appeal to the district court; it explicitly provided for certiorari review by the Minnesota Court of Appeals.  See Aitkin County Zoning Ordinance § 11.05 (providing for appeal by writ of certiorari within 30 days of the planning commission’s decision).  We conclude that the district court lacked subject matter jurisdiction over appellant’s challenge to the denial of a CUP.[2] 

2.         Statutory Requirements of CUP Denial           

Appellant relies on Minn. Stat. § 15.99, subd. 2(a) (Supp. 2003), stating that an agency’s failure to deny a written request relating to zoning within 60 days is an approval of that request.   Appellant made his request on 5 August; it was denied on 15 September, 40 days later.  But appellant argues that the findings accompanying the denial were insufficient to meet the statutory requirements.[3]

Appellant relies on Demolition Landfill Servs., LLC  v. City of Duluth, 609 N.W.2d 278 (Minn. App. 2000), review denied (Minn. 25 July 2000), but that case is readily distinguishable.  In that case, the agency voted against a resolution to grant a special use permit within the statutory time frame, on 12 April, but did not vote for the resolution to deny the special use permit until the next meeting on 24 May, after the time frame had expired.  Id. at 279.  No reasons for the decision were provided until the 24 May meeting.  Id at. 280-81.  Because agency members were free to change their votes between the meetings, this court “[could not] conclude that the council’s rejection of the resolution granting the permit equated to a denial of the permit application,” and held that the denial was untimely and the application was therefore approved.  Id. at 281. 

In dictum, Demolition Landfill held that simultaneous, written reasons for a denial were mandatory.  Id. at 282.  But appellant was provided with a written denial, a written transcript of the meeting, and a written list of the criteria used to evaluate his application, all within the 60-day period.  Minn. Stat. § 15.99 provides no basis for finding that the planning commission failed to deny appellant’s CUP application within 60 days.

Aitkin county’s denial of a CUP application can be challenged only by certiorari review in this court, not by a petition for mandamus in the district court.  “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.”  Minn. R. Civ. P. 12.08(c).  The district court properly dismissed the action.[4]          


[1] Appellant cites numerous cases in which district courts have reviewed county CUP decisions, but those cases predate Interstate PowerSee also Neitzel v. County of Redwood, 521 N.W.2d 73, 76 n.1 (Minn. App. 1994) (“Although judicial review of county board decisions on conditional use permits has been obtained by bringing an action in the district court, the issue of the proper method to obtain review was not raised in those cases.  See, e.g., Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460 (Minn. 1994).”), review denied (Minn. 27 Oct. 1994).


[2] Appellant asserts that Minn. Stat. § 394.37, subd. 4, which provides that any county taxpayer may institute mandamus to compel specific performance of official duties by a proper official, grants an appropriate remedy.  But Minn. Stat. § 394.37, subd. 4, assumes there is subject matter jurisdiction; our decision that the district court lacked subject matter jurisdiction renders moot appellant’s argument.  Moreover, “[c]hapter 394 does not provide for district court review of a county board’s CUP decision.”  United Migrant, 636 N.W.2d at 814.

[3] Appellant concedes that “the appellate courts have yet to address the precise situation” of what findings are required by Minn. Stat. § 15.99.

[4] We do not review the denial of the CUP because appellant has not sought certiorari review of that decision and the period for him to do so has expired.  See United Migrant, 636 N.W. 2d at 815 (citing Minn. Stat. §§ 606.01-.02 (2000) to hold that a party seeking review of a county board’s CUP decision must apply for and serve the writ within 60 days after receiving notice of the decision).