Read The Permit Before You Spend A Lot Of Money

18/ “YOU HAVE A RIGHT TO A TIMELY DECISION, BUT . . .”:  Richard Breza thought he had all the necessary permits to build a house in Minnetrista on Lake Minnetonka, so he began work.  He brought in twenty truckloads of dirt to fill and sod 5,700 square feet on the site. 

Breza admits that he did not read the original City permit.  The permit specifically stated that “fill is prohibited from wetlands.”  Breza testified that he never saw the permit.

The DNR instructed him to seek City exemption or replacement nearby of a filled wetland.  Breza applied in December, but the City told him to wait for a decision until the snow melted.  More than a year after Breza applied for the exemption, the City denied it.

In Minnesota, when an owner applies for a property variance or exemption, the government must issue a decision within 60 days, or the government will assume that the request has been granted.

Breza persuaded a district court that it should direct the City to deliver the requested exemption.  The City persuaded the Court of Appeals to overturn that order, because the City lacked authority to grant an exemption to fill a wetland larger than 400 square feet.

Then-Justice Gildea wrote for a unanimous Supreme Court that while a property owner has a right to presume that he has the authorization for a property variance or exemption if a City takes more than 60 days to respond, the owner may not presume that the City would have given him more permission than it had the power to give.

“Where an application to a city for an exemption from wetland replacement requirements is approved because the city failed to act on the application within the deadline, the scope of the approval cannot be broader than the city’s substantive authority to approve such applications.  However, granting a writ of mandamus that compels a city to approve a request by operation of section 15.99 that the city lacks the authority to approve is an error of law.”

Six years after Breza brought in the dirt, Breza had to find another solution.  He should have read the original permit.


READ THE FULL CASE DECISION: 

Richard Breza, Appellant, vs. City of Minnetrista, Respondent.

December 21, 2006                            2006-207            

https://mn.gov/law-library-stat/archive/supct/0612/opa042286-1221.htm