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4 <br /> r <br /> October 10, 2016 1 Volume 10 1 Issue 19 Zoning Bulletin <br /> agency must approve or deny within 60 days a written request relating to zon- <br /> ing . . . for a permit,license, or other governmental approval of an action," <br /> and that failure to timely do so is"approval of the request."The statute allows <br /> for a 60-day extension of that statutory period to a total of 120 days.The stat- <br /> ute also requires that if the agency denies the request,"it must state in writing <br /> the reasons for the denial at the time that it denies the request."Further, the <br /> statute provides that"[wlhen a vote on a resolution . . . to approve a request <br /> fails for any reason,the failure shall constitute a denial of the request provided <br /> that those voting against the motion state on the record the reasons why they <br /> oppose the request." <br /> Perschbacher argued that the statutory requirement that "those voting <br /> against the motion state on the record the reasons why they oppose the request" <br /> meant that the reasons must be stated"contemporaneously" with and"at the <br /> same meeting in which a governmental agency votes down a motion to ap- <br /> prove a zoning request."He contended that the Board's vote on February 3 <br /> together with the statement approved on February 17 could not constitute a <br /> denial of his CUP request.Accordingly, he argued that the Board therefore <br /> failed to deny his request within a 120-day extended statutory period, which <br /> resulted in automatic approval of his CUP request. <br /> The district court rejected Perschbacher's argument. The court found that <br /> the Board's vote on February 3, together with its statement on February 17, <br /> satisfied the statutory requirement for denying Perschbacher's CUP request. <br /> Perschbacher again appealed. <br /> DECISION:Affirmed. <br /> The Court of Appeals of Minnesota also rejected Perschbacher's argument. <br /> Looking at the "plain and ordinary meaning" of the statutory language, the <br /> court found that the statute did not require board members who vote against a <br /> resolution to approve a request to state their reasons for opposing the request <br /> on the record at the time of the vote, as Perschbacher had argued. The only <br /> timing requirement in Minn.Stat. § 15.99,found that court,is that"an agency <br /> must approve or deny a request within either an initial 60-day period or a 60- <br /> day extension of the initial period." <br /> The court analyzed subdivision 2(b) of§ 15.99, which again states that a <br /> failure to approve a request"shall constitute a denial of the request provided <br /> that those voting against the motion state on the record the reasons why they <br /> oppose the request."The court found that language meant that"when a vote is <br /> taken on a resolution to approve a request,two conditions must be met before <br /> action on the resolution constitutes a denial;the vote must fail,and those who <br /> voted against the resolution must state on the record why they opposed the <br /> request."That second condition removes the uncertainty about the meaning of <br /> the vote by requiring that only if the opponents state their reasons on the rec- <br /> ord is there a denial,said the court.But,emphasized the court,the statute does <br /> not restrict when the reasons may be stated on the record. <br /> Accordingly, the court concluded that, on February 3, when the Board's <br /> members voted on the resolution to approve Perschbacher's request for a CUP <br /> and the vote failed, the request was not denied. Under the plain language of <br /> § 15.99, subdivision 2(b), however, the Board satisfied the second condition <br /> 10 ©2016 Thomson Reuters <br /> I. <br /> i <br />