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Timing is Everything: Panels Explain Deadlines for Final Action

By Eric L. Lipman

Within the last four weeks, the Minnesota Court of Appeals has twice addressed the question of when an agency head must make a final decision upon a contested case record ? both times providing the instruction in unpublished opinions.

As readers of these pages will recall, Minnesota law provides that ?[u]nless otherwise provided by law, the report or order of the administrative law judge constitutes the final decision in the case unless the agency modifies or rejects it ? within 90 days after the record of the proceeding closes ?.?

In mid-November, an appellate panel held that unless another date is set by the agency, a final decision is due within 90 days of the last presentation of arguments to the agency head. If the agency?s decision is not forthcoming within that period, continued the panel, the Administrative Law Judge?s decision below becomes final.

On Tuesday, a separate panel, in a different case, added other gloss. In ?matters relating to zoning,? a final decision by the agency head is due within 60 days of the deadline for filing exceptions and arguments to the Administrative Law Judge?s report. As the panel reasoned, a narrowing of the timeline is required because Minn. Stat. § 15.99 provides that ?an agency must approve or deny within 60 days a written request relating to zoning ? [and that failure] of an agency to deny a request within 60 days is approval of the request.?

Read together, the opinions make clear that these are uncertain times for agency heads. This is so because the boundaries of ?the 60-day rule? are not clearly marked. Final agency action is due within 60 days on ?a written application related to zoning, septic systems, watershed district review, soil and water conservation district review, or the expansion of the metropolitan urban service area, for a permit, license, or other governmental approval of an action.? Arguably, this description could include a wide array of agency decisions from contested cases.

The opinion in the first case referenced above is accessible here. The opinion in the second case is accessible here.

Full post as published by Within the Scope on December 11, 2008 (boomark / email).