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City attorney says Westwind permit appeal timeframe has already expired

WILLMAR -- The appeal of a conditional use permit for the low-income Westwind Estates Third Addition housing project is not permitted because the 60-day appeal period -- upheld in a little-known court decision -- has expired, according to an opinion by City Attorney Richard Ronning.

As a result of Ronning's opinion, a Board of Zoning Appeals hearing that had been scheduled for Monday night to consider the appeal has been cancelled, said Bruce Peterson, director of city planning and development services.

Peterson said he was unaware of a 2004 Minnesota Court of Appeals ruling that establishes when the appeal period begins.

Ronning said the court ruled that the appeal period ends 60 days from the date that the city accepts a conditional use permit application as being complete and not 60 days from the date of action on the permit by the Planning Commission.

"Because this appeal was not filed within that 60-day period, the city attorney has determined that the appeal is invalid and cannot be heard,'' said Peterson. "I am comfortable with the city attorney's opinion.''

The 60-day period began on Nov. 26, 2007, when Westwind developer Southwest Minnesota Housing Partnership of Slayton filed the conditional use permit application with the city. The permit is required to let Southwest develop "lease-to-own'' twin homes.

The permit request was originally scheduled to be heard by the Planning Commission on Dec. 12, but Southwest representatives were unavailable to attend, and the hearing was continued to Jan. 9 when the commission approved the permit. Later, a tie vote by the City Council let stand the commission's approval.

Gary Peterson of Willmar, who owns land next to Westwind and who opposes the development, appealed the Planning Commission decision on Feb. 8.

"We believed that (Gary Peterson) had until Feb. 8 to file the appeal,'' said Bruce Peterson. "We believed that it was a legitimate appeal and that by filing it on the 8th that that triggered another 60-day review period for the appeal. That's where the ruling by the Court of Appeals differs from our local interpretation.''

Peterson said he's not sure that land use professionals across the state are very clear on the appeal period.

"The continuing education that I've been a part of has always stressed the need for the Planning Commission and council to reach their decision within 60 days,'' he said.

"The Board of Zoning Appeals issues have not been addressed, except in the instances of variances when someone applies for a variance; then there's another 60-day period that applies, and we mistakenly believed that the filing of the appeal triggered a new 60-day review period,'' he said.

"But the court has ruled that it does not, and we have to stand by the ruling of the court.''

In a complex case, Ronning said, the Court of Appeals ruled that all appeals must be resolved within the 60-day time period as permitted by state law. That time period begins when a complete application is submitted to the city, Ronning said.

He researched the issue after the attorney for Southwest Minnesota Housing Partnership stated in a letter to Ronning that the appeal to the Board of Zoning Appeals was invalid because the 60-day period had expired.

Rick Goodemann, partnership executive director, said he was not sure Ronning would agree with the partnership or not, but the appeal "is outside of that date.

"Now it sounds like it's moving forward.''

Gary Peterson said he followed city ordinances and appeal process, and was surprised to learn Thursday of Ronning's opinion.

"To apply this now when it's never been applied to anyone else in Minnesota history is a strange turn of events,'' he said.

Gary Peterson thanked "courageous'' City Council members who are willing to block the project. The council failed on Monday to approve this year's street improvement report that included streets for Westwind.

But Peterson regrets the project has torn apart certain parts of the city.

"Everybody is just really bitter about this, and it's already created hard feelings that are going to last for a long, long time. But you've got to do what you've got to do.''