|
OAH 3-1902-20003-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE DEPARTMENT OF LABOR
AND INDUSTRY
|
RECOMMENDED ORDER ON MOTION TO DISMISS AND CROSS MOTIONS FOR SUMMARY DISPOSITION |
This matter is before
Administrative Law Judge Kathleen D. Sheehy on
Scott T. Anderson, Esq., Ratwik, Roszak
& Maloney, P.A.,
Based upon all of the files, records, and
proceedings herein, and for the reasons set forth in the accompanying
Memorandum, the Administrative Law Judge makes the following:
RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED
that:
1. The County’s Motion to Dismiss be
DENIED;
2. The Department’s motion for summary
disposition be GRANTED, and
the County’s motion for summary disposition be DENIED; and
3. The Administrative Order dated October
14, 2008, be AFFIRMED.
Dated: May 21,
2009
s/Kathleen
D. Sheehy ___________________________
KATHLEEN
D. SHEEHY
Administrative
Law Judge
NOTICE
This report is a recommendation, not a final decision. The Commissioner of Labor and Industry will make
the final decision after a review of the record. The Commissioner may adopt, reject or modify this
Recommended Order. Pursuant to Minn.
Stat. § 326B.082, subd. 8(e),[1]
the Commissioner shall not issue a final order until at least five days after
the date of the administrative law judge’s report. Any person aggrieved by the administrative
law judge’s report may, within those five days, serve written comments to the Commissioner
on the report, and the Commissioner shall consider and enter the comments in
the record. Parties should contact Steve
Sviggum, Commissioner of the Minnesota Department of Labor and Industry, ATTN: Nancy
Leppink, Director of Legal Services,
Under Minn. Stat. § 14.62, subd. 1, the agency is
required to serve its final decision upon each party and the Administrative Law
Judge by first class mail or as otherwise provided by law.
MEMORANDUM
For approximately the past 40 years,
The County’s position is succinctly stated in a memo to
the
In accordance with its desire to remain the chef in
In November 2007, the Township adopted by ordinance the
Minnesota State Building Code, with an effective date of January 1, 2008. On August 5, 2008,
The disagreement came to a
head when Constance Bakken, a resident of
Shortly thereafter, the
Township commenced a declaratory judgment action against the County in Wright
County District Court. The Township
seeks a declaratory judgment that it has sole authority to issue building
permits within the Township.[13] The County’s answer asserts, among other
things, that the request for relief “constitutes an attempt to divest the
County of authority within the shoreland area, and would result in Plaintiff
acting to enforce and interpret the County’s zoning ordinances without the
County’s permission and authority, and interfere with the general regulatory
scheme of statewide standards, and their administration and enforcement, and is
therefore against public policy, unwarranted by statute, and void.”[14] The Department is not a party to this
litigation.
The Department sought
unsuccessfully to persuade the County that the Township had the right to enforce
the State Building Code after adopting it by ordinance.[15] On September 23, 2008, the Department’s
Supervisor of Regional and Code Administrative Services in the Construction
Codes and Licensing Division spoke with Wright County’s building official, who
indicated that he had been directed by the County’s Planning and Zoning
Administrator and the County Attorney to continue to issue Code-related
building permits in the shoreland district of Corinna Township.[16] On September 26, 2008, the Commissioner
issued an Administrative Order requiring Craig Schulz, the County’s building
official, to cease and desist from administering the Minnesota State Building
Code in
In response to the
Administrative Orders, Schulz and the County requested a hearing. The appeals were subsequently consolidated,
and the parties agreed to resolve the legal issues by submission of cross
motions for summary disposition.[19] The parties subsequently entered into a
Consent Order dismissing without prejudice the Administrative Order entered
against Mr. Schulz, on the basis of his agreement that he is an employee of
In December 2008, the
County filed a Motion to Dismiss or Stay the administrative action on a number
of grounds. The County subsequently
agreed to defer several of its legal arguments until the filing of the summary
disposition motions, and the Administrative Law Judge deferred resolution of
the remaining issue until that time.[21] On the day those motions were filed (February
20, 2009), Corinna Township filed a Notice of Motion and Motion to Intervene
with Petition to Intervene, and a Memorandum opposing the County’s earlier motion
to dismiss. After additional briefing on
the propriety of the Township’s petition to intervene, the Administrative Law
Judge granted the Petition to Intervene and ordered that the Township have
party status on April 10, 2009.
Wright County’s Motion to
Dismiss or Stay Proceeding
In its Motion to Dismiss or Stay this Proceeding, the
County argues that the cease and desist order should be dismissed or stayed
because it is more appropriate to address purely legal issues in a district
court, as opposed to a contested case proceeding. The County has cited no persuasive authority
for the proposition that contested case proceedings are an inappropriate forum
for the decision of legal issues. No
separation of powers issues are implicated when an administrative law judge
decides a purely legal issue in the course of a properly commenced contested
case proceeding.
Moreover, a contested case is the statutory method of
appealing the cease and desist order issued by the Department, a process the
County availed itself of when it decided to appeal. Chapter 326B of Minnesota Statutes provides
the Commissioner with authority to administer the State Building Code. The Commissioner has the authority to issue an
administrative order to any person who the Commissioner determines has
committed a violation of the applicable law, which is defined to include, in
relevant part, the entirety of Chapter 326B.[22] The person to whom the order is issued has a
right to request an expedited hearing to review the propriety of the Commissioner’s
order.[23]
The County also contends that the Commissioner has made a
“final” determination, so that exhaustion of administrative remedies is
fruitless. That argument is
incorrect. The administrative process
assures that the responding party has a full opportunity to present the facts
and the law that support its position and to create a record for a decision. The role of the administrative law judge is to
make an independent determination of the facts and law and to issue a report
with a recommendation to the Commissioner.
When an appeal of the initial agency action is timely filed, the initial
order is not final until the completion of the contested case proceeding.[24]
Utilizing
the administrative process protects the autonomy of administrative agencies and
promotes judicial efficiency.[25] The Department of Labor and Industry is not a
party to the district court litigation between the Township and the County, and
it has an independent interest in obtaining a final decision as to the validity
of the Administrative Order. Ordinarily
the courts postpone exercise of their jurisdiction to allow an agency to apply
its expertise and proceed first to fully consider the basis for the challenge
to its action and to make any necessary correction. The Administrative Law Judge accordingly
recommends that the County’s Motion to Dismiss or Stay the Administrative Order
be denied.
Cross Motions for Summary
Disposition
The issue presented on the
cross motions for summary disposition is whether the Department has the
authority to preclude the County from issuing building permits in the
Township. Summary disposition is the
administrative equivalent of summary judgment.[26] Summary disposition is appropriate when there
is no genuine dispute about the material facts, and one party is entitled to
judgment as a matter of law.[27] The parties have agreed that there are no
genuine issues of material fact and that this matter can be resolved as a
matter of law.
In
provide basic and uniform performance standards, establish reasonable
safeguards for health, safety, welfare, comfort, and security of the residents
of this state and provide for the use of modern methods, devices, materials,
and techniques which will in part tend to lower construction costs. The construction of buildings should be
permitted at the least possible cost consistent with recognized standards of
health and safety.[29]
The Department has the authority to interpret the Building
Code to assure that it is applied uniformly and consistently.[30] This includes the authority to enforce its
provisions against any “person,” which is defined to include any legal entity.[31]
The Building Code defines a “municipality” to mean a
city, county, or town.[32] Since 1972, municipalities have been allowed
to adopt the Building Code by ordinance. In the late 1970s, the law was amended
to allow counties outside the seven-county metropolitan area to hold referenda
on whether to rescind their adoption of the Building Code. In 1981, the opportunity to hold a similar
referendum was extended to municipalities with a population of 2,500 or less. In 2008, the legislature amended the statute
governing the application and enforcement of the Building Code to require that
if a municipality had adopted the Building Code as of January 1, 2008, “that
municipality must continue to administer and enforce the State Building Code
within its jurisdiction. The
municipality is prohibited from repealing its ordinance adopting the State
Building Code.”[33]
A municipality is not required to administer and enforce
the Building Code, but it “may choose to administer and enforce the State
Building Code within its jurisdiction by adopting the code by ordinance.”[34] When a municipality designates its proposed
building official, the Department must review and certify that specified
qualifications are met. Once designated,
the building officials shall “in the municipality for which they are
designated, be responsible for all aspects of code administration for which
they are certified, including the issuance of all building permits….”[35] The building official receives permit
applications, reviews construction documents, inspects the premises, and
interprets and enforces compliance with the Building Code.[36] The building official also maintains the
official records related to the applications and permits.[37] A municipality may designate no more than one
building official responsible for code administration defined by each
certification category established in rule.[38]
The County first argues that, because it enacted the
Building Code prior to January 1, 2008, it is the municipality that must
“continue to administer and enforce” the State Building Code within its entire jurisdiction,
and the Department is precluded from narrowing the scope of the County’s
authority to administer the Building Code.
The County contends that once a county has designated a building
official, the Department’s designation of a building official in any town
within the county is ineffective to change the authority of the county’s
building official. The County further
maintains that because it has the authority to issue building permits in the
Township, it has not violated any provision of the Building Code that would justify
issuance of an Administrative Order.
The Department has interpreted the statute to mean that a
county administers and enforces the building code unless a building official
has been designated for a city or town therein.
Once a city or township has a certified building official, that person
handles building permits within the township, and the county loses its authority
to administer the building code at that time.
The County’s position is not supported by the text of the
statute.[39] The clear meaning of the two sentences read
together is to prohibit a municipality that has adopted the Building Code from
reversing its decision, as was allowed under predecessor versions of the
statute. The prohibition on repealing a
building code ordinance is a limitation on the municipality, not on the
Department. The Department’s position is
consistent with the specific provision allowing a township the choice of
undertaking the responsibility to administer the Building Code.
In order to give meaning to a township’s authority to
administer and enforce the Building Code within its jurisdiction, the
county’s authority and responsibility within the township must be withdrawn
once the township’s building official is approved. If the County’s argument were accepted, it
would render meaningless the right of a township to seek appointment of its own
building official. It would be absurd to
read the statute as providing townships the right to designate a building
official, who would have no authority to actually administer the code or issue
permits if the county had previously fulfilled that role. It would also cause confusion and duplication
for any person seeking a permit. The plain
language of the statute provides that “[b]uilding officials shall, in the
municipality for which they are designated, be responsible for all aspects of
Code administration for which they are certified, including the issuance of all
building permits….” The Department clearly
has the authority to certify the building official and to specify the scope of
that certification.[40]
Another provision of the law allows two or more
municipalities to combine in the designation of a building official to
administer the code within their communities.[41] This provision does not, as the County secondarily
argues, require the county and the township to “share” permitting
authority. The clear intent of that
provision is to permit the sharing of authority through agreement, not to
require a township to seek a county’s acquiescence to the township’s exercise
of its authority or to force the parties to reach some kind of compromise. The County itself declared such a theory of
“double permitting” to be unnecessary and poor public policy in its earlier
correspondence with the Township.[42]
In support of its argument that its interpretation of the
statutes is consistent and long-standing, the Department attached a listing of
certified building officials throughout the state, which includes building officials
in nineteen cities and towns within Wright County.[43] The County suggests that the list
demonstrates only that the Department has failed to establish that it has ever
before issued Cease and Desist Orders against other counties that have
townships administering the Building Code.[44] The purpose of the list is to show that in
the listed counties, the townships enforce the Building Code within their
jurisdiction, and the county enforces it elsewhere. The list supports Department’s position that
a township with a properly designated building official, not the county,
administers the Building Code within the township’s boundaries.[45]
When the Department determines that the building code is
not being properly administered or enforced, it may have the administration and
enforcement undertaken by another building official.[46] Its discretion is not without limits. When exercising this authority, the
Department must give notice to the affected municipality and provide that
municipality with the opportunity to challenge its determination.[47] The Department’s broad oversight of the
Building Code and building officials logically extends to determining which
building official will perform the required duties when two jurisdictions
disagree. Based on the expansive
recitation of the Department’s statutory duties, it seems clear that the
Legislature intended that the Department resolve disputes about the reach of
each building official’s jurisdiction.
The County contends that DOLI has no such authority over
the County because, as part of its authority to conduct planning and zoning,
the County has enacted “official controls,” defined as:
legislatively defined and enacted policies, standards, precise detailed
maps, and other criteria, all of which control the physical development of a
municipality or a county or any part thereof…, and are the means of translating
into ordinances all or any part of the general objectives of the comprehensive
plan. Such official controls may include
but are not limited to ordinances establishing zoning, subdivision controls,
site plan rules, sanitary codes, building codes, housing codes, and official
maps.[48]
The County contends that because it has enacted the
Building Code among its official controls under Minn. Stat. § 394.22, subd. 6,
it is required to administer and enforce the Building Code throughout the
county, including within the Township. By
its express terms, Minn. Stat. § 394.22, subd. 6, grants counties the authority
to enact building codes; the statute does not purport to determine whether a
county must continue to enforce the Building Code when a township has exercised
its statutory right to do so. Moreover, the
County’s argument that it cannot be deprived of its authority to enforce the
Building Code as an official control is inconsistent with the clear statutory
grant of authority to towns to enact their own official controls so long as
those official controls are not less restrictive than those enacted by the
county board.[49]
Once a town has enacted official controls and filed a
certified copy with the county, the town “shall have the authority granted the
governing body of any municipality as provided in section 394.32,”[50]
which allows a municipality to take over official controls within its corporate
limits. The only logical interpretation
of such a grant of authority to the towns is that their exercise of the option
to implement official controls limits the county’s exercise of its
authority. Any other interpretation
would lead to two jurisdictions replicating the administration and enforcement
of official controls in the townships.
The Department does not contend that its grant of
authority extends beyond the Building Code.
It takes no position on the on-going dispute between the County and the
Township over larger questions of planning and zoning authority. The scope of the County’s authority to conduct
planning and zoning and adopt official controls is established by statutes and
rules outside of the Department’s jurisdiction.[51] The statutes governing the Department’s administration
of the Building Code specifically provide:
“Nothing in this subdivision prohibits a municipality from adopting
ordinances relating to zoning, subdivision, or planning unless the ordinance
conflicts with a provision of the State Building Code that regulates components
or systems of any structure.”[52] Thus, the Legislature has clarified how the
zoning and planning laws should be read in conjunction with the laws governing
the Building Code. Although the County contends
that administration and enforcement of planning and zoning is inextricably
linked to building permits and that the duties of the building official cannot
be separated from those functions, the Legislature has clarified the division
of authority and responsibilities.
The Department’s rules governing building officials
require that they ascertain that all statutes and rules, including those that
go beyond the Building Code, have been met before a building permit may be
issued.[53] It must be assumed that the Township’s
building official will comply with applicable planning and zoning provisions of
the law, including those that govern shoreland management. If the building official fails to do so, the
County may have a basis to challenge his actions.[54] To the extent that the County has official
controls in place that the Township has not adopted, the Township’s building
official must work with the County to assure compliance.
The County cites Anderson
v. City of Minneapolis[55]
for the proposition that, when issuing a building permit, the building official
is required to “make a judgment as to whether the plans submitted in support of
the application [for a building permit] constituted a permissible use of the
property in the area involved.”[56] The County argues that a township building
official cannot be permitted to interpret county ordinances in making such
determinations. The case relied upon by the
County does not support its argument. It
held only that the City of
Similarly, the County’s reliance on West Circle Properties LLC v. Hall[57]
is misplaced. The facts of that case
were that a township had approved a final plat but failed to comply with a
statutory requirement that the plat be submitted to the county board for
approval. The Court of Appeals upheld
the county recorder’s decision not to record the plat because the approval had
not been given. Although the County claims
that the decision stands for the proposition that a county has priority over a
township in the area of official controls, it cannot be fairly cited for that
proposition. Instead, it reaffirms that
the Township’s exercise of its authority must comply with other law, and any
official controls that a township enacts must be no less restrictive than the
controls prescribed by the county.[58]
In addition, the County argues that its authority to
regulate shoreland management in the Township precludes the Township’s right to
issue building permits in the shoreland area.
It relies upon a provision of the shoreland management rule that
states: “Local governments must provide
for the administration and enforcement of their shoreland management controls
by establishing permit procedures for building construction, installation of
sewage treatment systems, and grading and filling.”[59]
The shoreland management rule provides only that local
governments must administer and enforce shoreland management controls by
“establishing permit procedures” for building construction. It does not require that the local government
entity that administers and enforces shoreland management controls must be the one
and only entity authorized to issue building permits in those areas. In addition, this rule provision must be read
in the context of the authorizing statute, Minn. Stat. § 103F.211, subd. 1. The statute outlines the standards to be set
by rule, which focus on the placement of structures on building sites and the
designation of types of land uses, not the construction of buildings. Both the County and the Township must follow
the Building Code. Although Respondent
sees an irreconcilable conflict when one government entity is responsible for shoreland
management and another is responsible for administration of the Building Code,
it has failed to show how the obligations of the two regulatory processes are
inconsistent. Moreover, any possible
conflict is resolved by Minn. Stat. §36B.121, subd. 2 (g): “Nothing in this subdivision prohibits a
municipality from adopting ordinances relating to zoning, subdivision, or
planning unless the ordinance conflicts with a provision of the State Building
Code that regulates components or systems of any structure.”
The County has not explained why it believes that the
Township’s Building Official will fail to take into account zoning, shoreland
regulation, or any other applicable statutes and rules that may limit the placement
of a building or the land use for which a permit is sought. The Department’s recognition of a Township
building official does not prohibit the County from enforcing its land use
regulations in shoreland areas or divest the County of its authority to do
so. The Building Code applies to construction
“methods, devices, materials, and techniques,” and it does not conflict with or
interfere with land use planning.[60]
The County may be correct that it is difficult for a
Township building official to be familiar with all of the statutes and rules
that could come into play when an application for a building permit is
filed. As the County points out, the
statutes and rules governing zoning variances, conditional use permits, wetland
permits, setback requirements, and other provisions of law and rule may
apply. But its contention that a
building official cannot perform the functions assigned to him by law if a
county has responsibility for other aspects of land planning and zoning is
better addressed to the Legislature. It
is clear that the statutes in effect give the authority to issue the building
permit to the designated building official in the township, if one has been
certified, and it is that person’s duty to become familiar with the applicable
provisions of statute, rule and ordinance.[61]
The statutes are clear that the Department has the
authority to designate the Township’s building official and that the
designation and notice to the County removes the authority of the County
building official to perform the identical function within the Township. The division of authority to enforce zoning,
planning, and shoreland management is a separate matter that is beyond the
reach of the Department so long as such enforcement does not violate the terms
of the Building Code. The Department had
the authority to issue the Administrative Order requiring the County to cease
and desist from administering the Building Code in
K.
D. S.
[1] Unless otherwise noted, statutes are cited to Minnesota Statutes, 2008 Edition.
[2] See Affidavit of Thomas Salkowski.
[3] See generally Affidavit of Violet Novotne.
[4] Novotne Aff. Ex. W.
[5] Affidavit of Scott T. Anderson, Ex. 1.
[6] Novotne Aff. Ex. FF.
[7]
Novotne Aff. Ex. HH;
[8] Novotne Aff. Ex. KK.
[9]
Novotne Aff. Ex. LL;
[10] Novotne Aff. Ex. UU.
[11] Novotne Aff. Ex. NN.
[12] Novotne Aff. Ex. PP.
[13]
[14]
[15]
Affidavit of Stephen P. Hernick (
[16] Affidavit of Doug Nord ¶¶ 1-6.
[17] In the Matter of Craig Schulz, Certified Building Official, OAH Docket No. 3-1902-19976-2, Notice and Order for Hearing & attached Administrative Order.
[18] In the Matter of the Administrative Order
Issued to
[19] Prehearing Order (Nov. 18, 2008).
[20] Consent Order (Dec. 23, 2008).
[21] Letter dated Jan. 14, 2009, from ALJ to Christopher Kaisershot and Scott Anderson.
[22]
[23]
[24]
[25] See, e.g., Thomas v. Ramberg, 240
[26]Pietsch
v. Bd. of Chiropractic Examiners, 683 N.W.2d 303, 306 (
[27] Sauter
v. Sauter, 70 N.W. 2d 351, 353 (
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
The County has suggested that the Department’s interpretation of these statutes
may not be enforced unless the Department adopts a rule announcing this
interpretation. Because the Department’s
interpretation coincides with the plain meaning of the statute, it is not
necessary for the Department to implement that interpretation through
rulemaking. See Cable Communications Bd. v. Nor-West Cable Communications
Partnership, 356 N.W.2d 658, 667 (
[41]
[42]
[43] Hernick Aff. Exs. 2 & 4.
[44] Respondent’s Memorandum in Response to DOLI’s Motion for Summary Disposition at 9.
[45] See Hernick Aff.; see also Affidavit of Palmer Kenneth Durdahl (Middleville and
[46]
[47]
[48]
[49]
[50]
[51] See
[52]
[53]
[54] See,e.g., Berggren v. Town of
[55]
[56]
[57] West Circle Properties LLC v. Hall, 634
N.W.2d 238 (
[58]
[59]
[60] Minn. R. 1300.0120, subd. 1.
[61]