Imagine you want to built a home that does not comply with every building regulation, you seek permission from the government to build it anyhow (seeking a variance, some might say, or applying for a conditional use permit). You submit an application, and, in response to your application, you get no answer.
Under Minnesota law, after the expiration of 60 days, your application is automatically approved. Minn. Stat. ยง 15.99, subd. 2(a). But what then? Just start building? And what if, after the 60 days, you, the builder, get a communication from the governing body that “the City” has decided to “extend the period of time to act on the application”? Would you ignore that, based on the Minnesota statute providing that your application had been “automatically approved”?
Seems a little risky. Maybe it would be safer to go to court and seek an order that your application was approved just to make it clear and uncontested.
That was the approach taken by 14 Cherrywood LLC (“Cherrywood”) against the city of North Oaks in early 2022. Cherrywood sought a “writ of mandamus,” a particular kind of court order, asking the court to order the city to grant Cherrywood’s application and grant Cherrywood “mandamus damages” (presumably for the cost of having to go to court, including legal fees).
Makes sense, no?
Actually, the Minnesota Court of Appeals held that Cherrywood was probably unwise to seek a write of mandamus, seeking a court order ordering something that was already automatic under a statute (an unanswered application is automatically approved if not acted on within 60 days). Further, Cherrywood sought an “alternative writ of mandamus,” not a “peremptory writ,” and, as such, was not entitled to a judgment, per se, and was not entitled to “mandamus damages.” (The relevant statute is Minn. Stat. 586.09.)
No doubt this is bitterly disappointing to a builder who had to deal with non-responsive city officials, had to seek judicial intervention due to the non-responsive city officials, and then had to foot its own bill for its efforts to get the city officials off the dime. But this, unfortunately, is a fairly intractable aspect of our legal system: it can be slow, it can be expensive, and, far too often, the burdens, the significant expenses, are borne by those who were wronged in the first instance; this is the proverbial adding of insult to injury.