This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-878

Karen S. Tully, et al.,

Relators,

vs.

County of Kandiyohi,

Respondent.

Filed October 29, 1996

Writ discharged

Willis, Judge

Kandiyohi County Board of Commissioners

Ralph H. Tully, Strong, Tully, Tully & Crouch, Ltd., 600 Norwest Midland Building, 401 Second Avenue South, Minneapolis, MN 55401 (for Relators)

Boyd Beccue, John Kallestad, Beccue & Kallestad, 316 West Fourth Street, Willmar, MN 56201 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

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

WILLIS, Judge

Karen S. Tully seeks certiorari review of a resolution of the Kandiyohi County Board of Commissioners directing the County Assessor to combine lots affected by Department of Natural Resources ("DNR") shoreline regulations into one tax parcel whenever possible. Tully claims the Board's resolution was a quasi-judicial decision that should be set aside as arbitrary and capricious. Because we conclude that the resolution was a legislative act, we discharge the writ.

FACTS

From the scant record before us, the following appear to be the facts: In 1979, Karen S. Tully and her brother, Kermit B. Sorum, Jr., became tenants in common of Lots 5 and 6, Block 1, Bass Beach, in Kandiyohi County. Tully appears here both individually and as the personal representative of her brother's estate. The property has been in Tully's family since 1923, when a cottage was built on Lot 6. Lot 5 has always been vacant and was rendered unbuildable by a 1992 Kandiyohi County zoning ordinance restricting the sale and development of lots with less than 100 feet of shoreline. For all years prior to 1996, Kandiyohi County sent separate tax statements for each of the two lots.

On January 17, 1996, the Kandiyohi County Board of Commissioners adopted a resolution directing that all lots of record affected by DNR shoreline regulations be combined into one tax parcel whenever possible.

On March 4, 1996, Tully received mailed notice that, pursuant to the Board's resolution and without Tully's consent, Kandiyohi County had combined Lots 5 and 6 into one tax parcel.

Tully claims that the Board's action has unfair tax consequences, in that Lot 5, which is unbuildable under the zoning ordinance, is now being taxed as a buildable lot.

D E C I S I O N

Where no right of judicial review has been provided by statute, review of quasi-judicial decisions of administrative bodies must be by writ of certiorari. Neitzel v. County of Redwood, 521 N.W.2d 73, 75 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994); Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). But certiorari is not appropriate for review of legislative acts. Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981). Because Tully has no statutory right of judicial review, the issue before us is whether the Board's action was quasi-judicial or legislative and, therefore, whether review by writ of certiorari is appropriate.

In determining whether an action is quasi-judicial or legislative,

no hard-and-fast rules can be set forth. Rather, it is necessary in each instance to examine the nature and quality of the action taken. A frequently used test is to see whether the function under consideration involves the exercise of discretion and requires notice and hearing. If these elements are present, the "finding" is considered a quasi-judicial act.

Minnesota State Bd. of Health v. Governor's Certificate of Need Appeal Bd., 304 Minn. 209, 214, 230 N.W.2d 176, 179 (1975). This court has stated that the authority to apply concepts of equity to the facts of an individual situation is a quasi-judicial power, but the adoption of a policy of general applicability and future effect is a legislative action. RES Inv. Co. v. County of Dakota, 494 N.W.2d 64, 67 (Minn. App. 1992), review denied (Minn. Feb. 25, 1993).

Based on the record before us, we conclude that the Board's resolution was a legislative act. The resolution on its face applies prospectively to all property in Kandiyohi County affected by DNR shoreline regulations, and nothing in the record shows that the resolution does not in fact have general applicability and future effect. Therefore, review by writ of certiorari is improper.

Writ discharged.