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Westwind debate goes to Board of Appeals, are courts next?

WILLMAR -- The landowner who had appealed the conditional use permit for the Westwind Estates Third Addition proposal is looking forward to the opportunity to state his case before the Willmar Board of Zoning Appeals.

Attorney Jim Mogen of St. Cloud said Gary Peterson is also approaching the hearing confident that any action that the board may take on his appeal will not be moot.

On a four-to-two vote Monday, Willmar City Council members instructed the Board of Zoning Appeals to hold a hearing on the appeal filed by Peterson.

It will be considering Peterson's challenge of the permit that allows the Southwest Minnesota Housing Partnership to develop 22 lease-toown twin homes, six singlefamily detached homes, and six low-income rental units.

They would be constructed on a 22-acre area in southwest Willmar to increase the city's housing stock for low- to moderate-income residents.

City Attorney Rich Ronning told council members that the hearing would be an "exercise in futility'' because the 60-day time period for appeals had expired.

Ronning is referring to a state statute and case law that both establish and uphold a 60-day time period. However, Mogen said that he will be arguing that the law has been broadened by decisions in years following the 2004 case law referred to by the city attorney.

More recent decisions by courts have affirmed a city's authority to grant an appeal hearing.

The city's authority to do so matters more than the number of days on a calendar, according to Mogen.

He said the state adopted the 60-day limit to prevent communities from thwarting the hearing process by delaying them. That is not the issue here, now that the council has ordered the board to hold the hearing, he said.

Ronning, however, remains convinced that the 60-day limit will remain the law that matters.

Either way, he noted that the dispute over the permit could become an issue that is eventually raised in district court.

Ronning said the Board of Zoning Appeals will conduct the hearing as it determines best. Most likely, the board will allow attorneys representing each side to state their cases, he said.

It is up to the board whether or not it wants to take any action after hearing the two sides, Ronning said.

If the board should reverse the Planning and Zoning decision to award the Westwind permit, the developer could file a lawsuit in district court challenging that action. The developer would point out that the 60-day time period had expired and claim it is too late to take away the permit, Ronning explained.

On the other hand, the Ronning noted that should the Board of Zoning Appeals uphold the decision to award the permit for Westwind, property owner Gary Peterson would have the legal right to file his own suit and challenge the issuance of the permit in district court.

In short, the city attorney said "stay tuned'' as the arguments in this case may very well continue in one venue or another.