Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, June 07, 2009

The AGO's Annual CLE Seminar and the Oral Argument Everyone is Talking About

I had a great time at the annual all-day CLE seminar hosted by the Minnesota Attorney General's Office, held this past Friday. The program was entitled “Anatomy of a Contest Case” and explored elements of effective administrative law practice from various different perspectives. The program drew about 200 lawyers, from government and the private sector, to the University of St. Thomas’ O'Shaughnessy Educational Center.

Judges Heydinger, Cervantes and I had about 45 minutes to share our suggestions on effective trial practice. Our panel was entitled: “The Facts: The ALJ’s Perspective.”

Hopefully, we were a “value-add.”

Among the most interesting features of the conference to me was that presenters in three of the eight panels that day made reference to the case of In the Matter of the Denial of Certification of the Variance Granted to Robert W. Hubbard by the City of Lakeland – a matter that will proceed to oral argument before the Minnesota Supreme Court this coming Wednesday.

In that case, the City of Lakeland granted Robert Hubbard a bluffline setback variance for Hubbard’s home on the shore of the St. Croix River. Exercising powers under Minnesota’s Lower St. Croix Wild and Scenic River Act, the Department of Natural Resources issued a notice of non-approval of the variance. Under the Act, the DNR has review powers over local variances that are granted with the St. Croix River Shoreland Management District.

Hubbard and Lakeland demanded a contested case hearing under the Administrative Procedures Act. The administrative law judge recommended that the Commissioner of the Department of Natural Resources affirm the denial of the variance. On September 18, 2007, the Commissioner issued an order affirming the denial of the variance. The City of Lakeland and Hubbard appealed to the Minnesota Court of Appeals, which reversed the decision of the Commissioner. As the appellate panel reasoned, Mr. Hubbard'd requested variance was automatically approved because the Commissioner did not issue his final decision within 60 days of the close of the record in the contested case hearing.

Among the issues upon which the Minnesota Supreme Court granted review is the question of whether the 60-day time period for government approvals “relating to zoning,” applies in this case, or the 90-day time period for issuance of such decisions under the Administrative Procedures Act.

As one of the panelists from the CLE on Friday exclaimed – knowing exactly what breed of lawyers had assembled in the auditorium – “whether the APA or section 15.99 applies in such cases is something you could talk about for hours!!!....”

Well, the lawyers in the case on Wednesday won’t nearly have that long to talk. The oral argument in Hubbard begins at 9:00 a.m. this Wednesday (June 10) in Courtroom 300 of the Minnesota Judicial Center (or you can see it replayed on the internet from this link here, shortly thereafter).