This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).









Calm Waters, LLC,

Appellant (A06-2019)

Relator (A06-2361),




Kanabec County Board of Commissioners, et al.,




Filed October 23, 2007

Reversed and writ of certiorari discharged;

motions granted in part and denied in part

Toussaint, Chief Judge


Kanabec County District Court

File No. 33-CV-06-247



Grant W. Lindberg, Jimmy A. Lindberg, Lindberg & McKinnis, P.A., 200 Third Avenue Northeast, Suite 300, Cambridge, MN  55008 (for appellant/relator)


Scott T. Anderson, Julia H. Halbach, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN  55402 (for respondents)



            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In this consolidated proceeding, appellant/relator Calm Waters, LLC, through a direct appeal, challenges the denial by the district court of its petition for a writ of mandamus and, through a certiorari appeal, challenges the denial of its preliminary plat application by respondent Kanabec County Planning Commission.  Because the county[1] failed to approve or deny Calm Waters’s preliminary plat application within 60 days after the filing of the written request, we reverse the district court’s decision and hold that the application is approved by operation of law under Minn. Stat. § 15.99, subd. 2(a) (2006).  In light of this decision, we dismiss the certiorari challenge as moot.


            An appellate court will conduct a de novo review of a district court’s legal determinations in a mandamus proceeding.  Breza v. City of Minnetrista, 725 N.W.2d 106, 110 (Minn. 2006).  Similarly, statutory construction by the district court is subject to de novo review.  Id.

            “Mandamus is an extraordinary legal remedy.”  Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 171 (Minn. 2006) (quotation omitted).  To obtain mandamus relief, there must be a showing that (a) the county “failed to perform an official duty clearly imposed by law;” (b) petitioner “suffered a public wrong” and was specifically injured by the county’s failure to perform; and (c) there was “no other adequate legal remedy.”  Breza, 725 N.W.2d at 109 (quotation omitted); see also Minn. Stat. §§ 586.01, .02 (2006) (addressing requirements for issuance of writ of mandamus).

            Calm Waters filed a petition for a peremptory writ of mandamus and, in the alternative, for an alternate writ of mandamus, seeking approval of its preliminary plat application by operation of law pursuant to Minn. Stat. § 15.99, subd. 2(a) (2006), on the ground that the county failed to approve or deny its application within 60 days after the filing of its written request.  The district court denied both requests for relief, ruling that Calm Waters had not established that the planning commission failed to perform an act or that Calm Waters was injured, and the court deemed it unnecessary to determine whether Calm Waters had other adequate remedies.  Because the court dismissed the action, it returned the county’s answer and response.

            A.         Duty clearly imposed by law

            In reviewing the district court’s decision, we first address its conclusion that Minn. Stat. § 15.99, subd. 2(a), does not establish a clear duty imposed on the county by law, so that mandamus was not appropriate.  “The legislature enacted section 15.99 in 1995 to establish deadlines for local governments to take action on zoning applications.”  Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 540 (Minn. 2007); see also Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001) (same).  The law provides that

an agency must approve or deny within 60 days a written request relating to zoning . . . 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(a).  An agency may extend this time limit by an additional 60-day period by providing written notice to the applicant.  Id., subd. 3(f) (2006).

            Calm Waters submitted a preliminary plat application for a subdivision and the required filing fee on July 26, 2006, to the county environmental services director.  See Kanabec County, Minn., Subdivision Platting Ordinance No. 4, art. III, § 3.11 (2005) (providing that application be submitted to environmental services director).

            The district court first concluded that Calm Waters did not submit its application to an “agency” within the meaning of Minn. Stat. §  15.99 because neither the planning commission nor the environmental services department constituted an “agency” within the meaning of Minn. Stat. § 15.99.  Although the court acknowledged that the county board was an agency, it stated that Calm Waters did not submit the application to the county board.

            In construing a statute, the appellate court must first determine whether the statutory language is on its face ambiguous.  Hans Hagen, 728 N.W.2d at 539.  “A statute is ambiguous when the language is subject to more than one reasonable interpretation.”  Id.  If the intent of the legislature is clear from plain and unambiguous language, “statutory construction is neither necessary nor permitted” and the appellate court will apply the plain meaning of the statute.  Id.  If the statute is ambiguous, the appellate court will apply other canons of construction to discern the legislature’s intent.  In re Appeal of Staley, 730 N.W.2d 289, 297 (Minn. App. 2007).

            The 60-day decision period applies to agencies.  Minn. Stat. § 15.99, subd. 2(a).  The definition of an “agency” includes, in relevant part, a county.  Minn. Stat. § 15.99, subd. 1(b) (2006).  A “request” is defined in relevant part as a “written application related to zoning” submitted to the agency on an application form, if any, provided by the agency.  Minn. Stat. § 15.99, subd. 1(c) (2006).  Calm Waters asserts that the county delegated the duty to receive the application to the environmental services director.  The county does not appear to dispute this contention.

            The question here is whether the county, which is an agency to which section 15.99 applies, delegated its authority to accept the application to the environmental services director.  The legislature authorizes counties “to carry on county planning and zoning activities.”  Minn. Stat. § 394.21, subd. 1 (2006).[2]  Further, counties may establish “standards and procedures to be employed in land development including, but not limited to, subdividing of land and the approval of land plats.”  Minn. Stat. § 394.25, subd. 7(a) (2006).  The Kanabec County subdivision platting ordinance specifically provides that the subdivider is to submit its application to the environmental services director.  Kanabec County, Minn., Subdivision Platting Ordinance No. 4, art. III, § 3.11.  Further, Calm Waters’s application was submitted on the form provided by the county, which also specifically provides that it should be returned to the environmental services office.  Consequently, the district court erred as a matter of law in ruling that the application was not submitted to an “agency” under the statute because it was submitted to the agency through its delegated agent.

            Next, the district court ruled that the county did not have a duty to perform any act relating to the approval of the preliminary plat and that its duty was instead limited to approving or denying a final plat.  Consequently, the court ruled that the county board did not have a duty to perform any act relating to the approval of the preliminary plat but that the planning commission had a duty to perform an official act and determine whether the preliminary plat application plan conformed to the design standards at its first regular meeting after receipt of the reports.

            Again, we must examine the language of the relevant statute and ordinance to determine which governmental unit had the duty to approve or deny Calm Waters’ application.  The statute authorizes the county board to assign duties and responsibilities to the planning commission by ordinance,

including but not restricted to the conduct of public hearings, the authority to order the issuance of some or all categories of conditional use permits, the authority to approve some or all categories of subdivisions of land, and the authority to approve some or all categories of planned unit developments.


Minn. Stat. § 394.30, subd. 5 (2006) (emphasis added).  In instances where the planning commission is not the final authority, as authorized in subdivision 5, it “shall review all applications for . . . plans for subdivisions of land and report thereon to the board.”  Id., subd. 4 (2006).

            Accordingly, the county delegated the authority to the planning commission by ordinance to “determine whether such plan conforms to design standards set forth in this ordinance and conforms to adopted county plans.  The Commission may approve a preliminary plan subject to certain revisions.”  Kanabec County, Minn., Subdivision Planning Ordinance No. 4, art. III, § 3.31 (2005) (emphasis added).  “Subsequent approval by the county board will be required of the final plat as outlined . . . [in the ordinance].”  Id. at § 3.32 (2005).

            The county argues that, because the planning commission was given the explicit authority to approve preliminary plans, it impliedly had the authority to deny them also.  Under the plain language of the statute, the planning commission has authority to approve a preliminary plan, but the statute does not give the commission the authority to deny it; instead, that authority remains with the county board.  Minn. Stat. § 394.25, subd. 7(b) (2006).  In those circumstances, the commission is to report to the county board.  Minn. Stat. § 394.30, subd. 4.  We note that this essentially provides for automatic administrative review of the planning commission’s recommendation for denial.  In the county’s view, those in the position of Calm Waters could not appeal the decision.

            The county, however, contends that section 15.99 does not apply to subdivision applications because they arise under chapter 505, which is not subject to the 60-day decision period in Minn. Stat. § 15.99, subd. 2(a).  Minn. Stat. § 505.09, subd. 1 (2006) provides that a county board has the power “to control and regulate the platting of subdivision of land. . . .”  To exercise this power, the board must adopt regulations governing the platting of land, which may address the physical characteristics of platting such as the location and dimension of streets, the location of utilities, lot size, drainage, and similar matters.  Minn. Stat. § 505.11 (2006).  The county asserts that it adopted its subdivision ordinance under these provisions and thus its action regarding the plat application is not subject to section 15.99.  As discussed above, the application at issue is to be decided by the county board under Minn. Stat. § 394.25, subd. 7(b), not by another body by ordinance.  The county must approve the application unless it “adopts written findings based on a record from the public proceedings why the application shall not be approved.”  Id.  Consequently, section 15.99 applies.  Because the plain language of the statute controls and is not ambiguous, it is unnecessary to review legislative history.  See Phelps v. Commonwealth Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) (holding that determination of statute’s ambiguity is necessary prior to consideration of legislative history).

            Finally, the county argues that section 15.99 does not apply to an application for preliminary plat approval of a subdivision because it does not constitute a written request “relating to zoning, septic systems, watershed district review, soil and water conservation district review, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.”  Minn. Stat. § 15.99, subd. 2(a).  A “written request relating to zoning” is a request to conduct a specific use of land within the framework of the regulatory structure relating to zoning or, in other words, a zoning application.  Advantage Capital Mgmt. v. City of Northfield, 664 N.W.2d 421, 426-27 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003).

            We turn again to the language of the statute concerning approval of the preliminary plat.  Minn. Stat. § 394.25, subd. 7(b) provides that the “county must approve a preliminary plat that meets the applicable standards and criteria contained in the county’s zoning and subdivision regulations” unless the county adopts written findings explaining why it is not being approved.  Id.  This plain language shows that an application for preliminary plat approval relates to zoning.    See Kramer v. Otter Tail County Bd. of Com’rs., 647 N.W.2d 23, 26 (Minn. App. 2002) (concluding that district court properly granted petition for writ of mandamus because county was required to grant application for preliminary plat under section 15.99).

            This discussion then gives rise to the question of whether a final decision was ever made on the preliminary plat application.  As discussed above, the planning commission did not have authority to deny a preliminary plat application.  Instead, the county board had the authority to do so, but did not act.  The initial application was submitted on July 26, 2006.  Even if the time limit had been properly extended an additional 60 days under Minn. Stat. § 15.99, subd. 2(f), no decision has been made by the county board.  Consequently, the application has been approved by operation of law.  Id., subd. 2(a).

            The parties also make several other arguments as to district court rulings that we address.  First, although the application form required a township approval letter, the district court ruled that this was not a requirement because neither the ordinance nor Minnesota law requires township approval prior to the planning commission’s approval of a preliminary plat.  Calm Waters argued that this ruling was correct.  Although the county asserted that Calm Waters’s application was incomplete because it did not include a township approval letter, and that, consequently, the 60-day period has not started to run, it did not file a notice of review to challenge the decision.  A respondent must file a notice of review under Minn. R. Civ. P. 106 to obtain review of an adverse decision by the district court, even if judgment was ultimately entered entirely in favor of respondent.  Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 794 (Minn. 1986).  Nonetheless, we wish to comment briefly that we agree with the district court; there is no showing that, at the relevant time, the statute or ordinance required an approval letter, and it is of no moment that the application includes this requirement.  We note that the ordinance has since been amended to require an approval letter from the affected township.  Kanabec County, Minn., Subdivision Platting Ordinance No. 4, art. III, § 3.11.4 (2006).

            Next, the parties address  the court’s ruling that the planning commission was not required to hold a public hearing prior to its approval or denial of the preliminary plat.  While we conclude that the approval has already occurred by operation of section 15.99, we will briefly discuss this issue.  Minn. Stat. § 394.26, subd. 1a (2006), provides that “public hearings shall be held before any conditional use permit, any variance, and any proposal for a subdivision is approved or denied by the responsible authority . . . .”  (Emphasis added.)

            First, an application for preliminary plat approval falls within the broad language requiring a hearing for “any proposal for a subdivision.”  Id.  Because the planning commission may approve (although not deny) the application, the public hearing should be held before the planning commission so that it may make this determination.  Further, the denial or approval of a preliminary plat application is a quasi-judicial decision, which is subject to review using the “substantial-evidence test to determine whether the decision is supported by legally sufficient reasons and factually supported in the record.”  Watab Township Citizen Alliance v. Benton County Bd. of Comm’rs, 728 N.W.2d 82, 93-94 (Minn. App. 2007), review denied (Minn. May 15, 2007).  Thus, a hearing must be held to generate the substantial evidence required to support a decision.  Under section 394.26, subdivision 1a, the hearing should be public.  See Semler Constr., Inc. v. City of Hanover, 667 N.W.2d 457, 461-62 (Minn. App. 2003) (addressing significance of preliminary plat), review denied (Minn. Oct. 29, 2003).  We decline to agree with the district court that Calm Waters’ counsel, in advocating a legal position for their client, was responsible in any way for any decision made by the county, which had its own legal advisers.

            The parties also address whether the environmental services director had authority to extend the 60-day time limit under Minn. Stat. § 15.99, subd. 3(f).  The district court did not resolve this issue.  A reviewing court will generally consider only the issues that the record shows were presented and considered by the district court in deciding the matter before it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  But an appellate court may decide an issue not decided by the district court where the question is determinative of the entire controversy, and there is no advantage or disadvantage to either party in not having a prior ruling on the merits.  Harms v. Indep. Sch. Dist. No. 300, 450 N.W.2d 571, 577 (Minn. 1990).  A party is not disadvantaged when the facts are undisputed.  Id. Both parties briefed this issue.

            “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.”  Minn. Stat. § 15.99, subd. 3(f).  “The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.”  Id.  The county contends that, under the ordinance, the environmental services director was authorized to extend the time period.  The ordinance provides that the applications for preliminary plat approval be submitted to the director and authorizes the director to perform certain tasks and to enforce the ordinance.  Kanabec County, Minn., Subdivision Platting Ordinance No. 4, art. III, §§ 3.11, 3.20, art. VII, §§ 7.01-.30, art. XII, § 12.10 (2005).  The county did not delegate the authority to issue an extension and the environmental services director therefore did not have authority to do so.

            B.         Public wrong

            We now turn to briefly address the next factor required for mandamus to issue, a showing that there was “a public wrong specifically injurious to petitioner.”  Kramer, 647 N.W.2d at 26.  In Kramer, this court held that where the county was required to approve or deny a preliminary plat application for a new subdivision within 60 days and refused to do so, the “county’s action injured respondents because they were unable to develop” their planned resort.  Id.  Under Kramer, Calm Waters similarly has shown the requisite wrong.

            C.        No other remedy

            Finally, for mandamus to issue, there must be a showing that there is “no other adequate remedy.”  Kramer, 647 N.W.2d at 26.  The district court did not reach this issue because it had already determined that the first two factors had not been met.

            In Kramer, this court held that the factor was met where the alternative remedy was a petition for a writ of certiorari, for which a complete record must be provided and the procedure was more expensive, more time consuming, and more complicated than a petition for a writ of mandamus.  647 N.W.2d at 26.  Consequently, in Kramer, this court held that the respondents were entitled to a writ of mandamus for the county’s failure to approve a preliminary plat application within 60 days under Minn. Stat. § 15.99.  In this case, although a petition for a writ of certiorari has been filed, it was premature because there was no final decision.  See discussion in Section II herein.  Calm Waters is likewise entitled to a writ of mandamus for the county’s failure to approve the preliminary plat application within 60 days.

            D.        Attorney fees

            Finally, Calm Waters seeks attorney fees, as well as damages, costs, and disbursements, under Minn. Stat. § 586.09 (2006), if this court finds that a writ of mandamus should issue.  That section provides that a “plaintiff who is given judgment, shall recover the damage sustained, together with costs and disbursements. . . .”  The supreme court has held that attorney fees were not recoverable as “damages” under Minn. Stat. § 586.09.  Fownes v. Hubbard Broad., Inc., 310 Minn. 540, 548, 246 N.W.2d 700, 705 (1976).


            Calm Waters also brings a certiorari appeal from the decision by the planning commission to deny its application for the preliminary plat.  Generally, a party “must first exhaust the administrative remedies available before bringing an action for judicial review.”  Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 71 (Minn. 1984);  see also Nw. Airlines, Inc. v. Metro. Airports Comm’n, 672 N.W.2d 379, 381 (Minn. App. 2003), review denied (Minn. Feb. 25, 2004).

            As discussed above, only the county board had the authority to deny a preliminary plat application, and it has not done so.  The decision by the planning commission therefore is not a “final decision,” and this certiorari appeal is premature.  Further, as we have ruled above, the approval is deemed granted by operation of law pursuant to section 15.99.  “[W]hen, pending appeal, an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal should be dismissed as moot.”  In re Application of Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997).  Consequently, the certiorari appeal is also moot, and we do not address whether the planning commission’s decision was arbitrary and capricious.

            Nonetheless, we take this opportunity to briefly address the issue of notice, or lack thereof, to Calm Waters regarding the public hearing.  Public hearings shall be held before “any proposal for a subdivision is approved or denied by the responsible authority.”  Minn. Stat. § 394.26, subd. 1a (2006).  Calm Waters asserted it did not receive notice of, and therefore did not attend, the public hearing before the planning commission on its preliminary plat application.

            It is assumed that properly addressed mail with prepaid postage is duly received by the addressee.  Nafstad v. Merchant, 303 Minn. 569, 570, 228 N.W.2d 548, 550 (1975). When the addressee denies receipt, the burden is on the sender “to show evidence of habit or custom with respect to mailing from the sender’s office, coupled with some evidence showing compliance with the custom in the particular instance.”  Id. at 571, 228 N.W.2d at 550 (holding unrebutted evidence more than adequately supports jury’s conclusion that one or both letters were received).  Our review of the evidence the county cites shows it is unlikely this burden could be met.

            Finally, we address the pending portions of the parties’ motions to expand the record in the mandamus appeal.  The parties’ documents concerning the township approval issue are irrelevant because township approval was not required at the time the application was filed.  The documents concerning whether Calm Waters received notice of the public hearing and the minutes of the meeting are relevant; they are more properly part of the certiorari appeal.  Accordingly, we grant in part and deny in part the motions.

            Reversed and writ of certiorari discharged; motions granted in part and denied in part.

[1]  We refer to respondents Kanabec County Board of Commissioners, Kanabec County Planning Commission, and Kanabec County Environmental Services collectively as “the  county.”


[2]  This provision applies to all but the most populous counties, and there is no dispute that it applies to Kanabec County.