Thomas Hecker, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0932

Thomas Hecker,
Respondent,

vs.

Crow Wing County Board,
Appellant,

Sunset Shores WF, LLC,
Respondent.

Filed April 19, 2021
Affirmed
Cochran, Judge

Crow Wing County District Court
File No. 18-CV-19-4224

Mark A. Severson, Joseph T. Pates, Severs on Porter Law, Crosslake, Minnesota (for
respondent Thomas Hecker)

Scott T. Anderson, Rupp, Anderson, Squires & Waldspurger, Minneapolis, Minnesota (for
appellant)

Sunset Shores WF, LLC, Oak Grove, Minnesota (respondent)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and
Gaïtas, Judge.
SYLLABUS
1. A draft decision document is not e ffective “notice of the decision” for
purposes of commencing the 30-day period to appeal a board of adjustment’s variance
decision under Minn. Stat. § 394.27, subd. 9 (2020).

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2. An aggrieved person appealing a boa rd of adjustment’s variance decision
under Minn. Stat. § 394.27, subd. 9, may invoke the jurisdiction of the district court by
serving a notice of appeal, pursu ant to Minn. R. Civ. P. 4. 03, within the 30-day appeal
period.
OPINION
COCHRAN, Judge
This case involves a decision by appellant Crow Wing County1 (the county) to grant
a variance to respondent Sunset Shores WF, LLC, and the subs equent filing of an appeal
to the district court by an aggrieved ne ighbor, respondent Thomas Hecker, under Minn.
Stat. § 394.27, subd. 9. The county argues that the district court erred by denying its
motion to dismiss because (1) Hecker’s variance appeal was untimely, and (2) Hecker
failed to serve a formal summons. Because we conclude that Hecker commenced his
appeal within the statutorily prescribed time frame and that Hecker’s notice of appeal was
sufficient to commence the civil action, we affirm.
FACTS
The following facts are undisputed. Sunset Shores 2 applied to the county for three
zoning variances and a conditiona l-use permit related to prope rty it owned. The county
held a hearing on the requests on August 15, 2019. At the hearing, the county granted one

1 The named appellant is Crow Wing County Board, but appellant refers to itself as Crow
Wing County. We defer to appellant’s nomenclature.
2 Sunset Shores is a named respondent but took no part in this appeal.

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of the three variance requests, but it denied th e other two. The county also granted the
conditional-use permit.3
On September 13, 2019, an attorney representing Hecker contacted the Crow Wing
County Land Services Department to inquire about the status of the requested variances
and conditional-use permit. At the time, the attorney did not identify himself as
representing Hecker. In response, a customer-service supervisor sent an email to Hecker’s
attorney with an att ached document entitled “S unset Shores Draft.pdf.” The body of the
email stated only, “Attached is the draft findings.” The attached document included a
summary of the record, findings of fact, a summary of the decision, and a signature line for
the board chair. The documen t was watermarked as “DRAFT,” was unsigned, and was
postdated to September 19, 2019.
Within two minutes of receiving th e draft document, Hecker’s attorney
responded: “Because the [board] has not yet signed the Findings (and will not do so until
9/19), may I also assume that the decision has not been served on applicant?” The
customer-service supervisor replied that she was copying an environmental-services
supervisor on the email because she believed that “he ha[d] been in contact with the
applicant.” The environmental-services supervisor never responded.
On September 29, 2019, Hecker’s attorney sent an email to the
environmental-services supervisor, saying that he believed that the document had been

3 The county operates a join t board of adjustment/planning commission, which acted on
the variance requests and the request for a conditional-use permit on the same day. The
conditional-use permit is not at issue in this appeal.

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signed. He further stated, “No secrets here, we plan to appeal the decision.” On October 9,
2019, an attorney who represented the county in land-use matters responded. The county’s
attorney, mistakenly assuming that Hecker’s attorney was representing Sunset Shores,
wrote: “Your client was handed that written no tice of the decision on both the variance
decision and the conditional use decision on Augu st 15, 2019.” There is no indication in
the record that Hecker was provided with written notice of the county’s decision on
August 15, 2019—the date of the hearing.
On October 17, 2019, Hecker filed a notice of appeal with the district court under
Minn. Stat. § 394.27, subd. 9, challenging the county’s decision to grant the variance. In
the notice of appeal, Hecker asserted that he had not yet received the “final signed decision
or notice of the decision.” Hecker served the notice of appeal on the county on October 18,
2019. He did not serve a separate summons. The county filed an answer later in October,
alleging that Hecker failed to timely commence an appeal.
In January 2020, the county moved the district court to dismiss Hecker’s appeal on
the basis of lack of subject-matter jurisdicti on. The county argued that the appeal was
untimely and also argued that the appeal was not properly commenced because Hecker
failed to serve a summons. Hecker responded to the county’s motion with a memorandum
of law and argued that the appeal was timely because the draft document did not trigger
the 30-day statutory deadline. He also argued that the notice of appeal fulfilled the
requirements of a summons. In support of H ecker’s argument, his attorney submitted an
affidavit stating that the county did not post its decision and findings from the August
hearing to its website until October 24, 2019.

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After holding a hearing on the matter, the di strict court issued an order denying the
county’s motion to dismiss. The district court found that the county approved the decision
and findings on September 19, 2019, but it did not publish them “until at least October 24,
2019.” Based on this finding, the district court concluded that Hecker’s appeal—which
was filed on October 17 and served on October 18, 2019—was timely. The district court
rejected the county’s argument that the draft document provided to He cker’s attorney on
September 13, 2019 constituted o fficial notice of the decision for purposes of the statute.
The district court emphasized that the document was “still in draft form,” was marked as a
“draft,” and was not signed. The district court concluded that Minn. Stat. § 394.27, subd. 9,
as interpreted by case law, “requires written notice and the notice pr ovided to [Hecker’s]
attorney was not sufficient.” The district court did not address the county’s argument that
Hecker failed to invoke its jurisdiction by failing to serve a summons but implicitly rejected
that argument by denying the county’s motion to dismiss. This appeal follows.
ISSUES
I. Did the district court err by concludi ng that Hecker’s appeal was timely?
II. Did the district court err by concluding that the notice of appeal was sufficient to
invoke its jurisdiction?
ANALYSIS
The county argues that the district court erred by denying its motion to dismiss. The
county contends that the district court lacked jurisdiction to hear Hecker’s appeal because
(1) the appeal was untimely, and (2) Hecker failed to serv e a formal summons on the
county along with his notice of appeal. We are not persuaded.

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I. The district court did not err by conc luding that Hecker’s appeal was timely.
Under Minn. Stat. § 394.27, subd. 9, an aggrieved person ma y appeal a county’s
decision to grant a variance to the district court. The statute provides, in relevant part:
All decisions by the board of adjustment in granting
variances or in hearing appeals from any administrative order,
requirement, decision, or determination shall be final except
that any aggrieved person or persons . . . shall have the right to
appeal within 30 days, after re ceipt of notice of the decision,
to the district court in the county in whic h the land is located
on questions of law and fact.
Minn. Stat. § 394.27, subd. 9 (emphasis added).
Failure to serve an appeal within the 30-day deadline se t forth in Minn.
Stat. § 394.27, subd. 9, deprives the district court of jurisdiction over the action. See In re
Skyline Materials, Ltd. , 835 N.W.2d 472, 477 (Minn. 20 13) (concluding district court
lacked jurisdiction over appeal under Minn. St at. § 394.27, subd. 9, due to failure to
properly serve county w ithin 30-day time period); Elbert v. Tlam, 830 N.W.2d 448, 452
(Minn. App. 2013) (holding failure to serve notice of appeal under Minn. Stat. § 394.27,
subd. 9, within 30-day period is incurable jurisdictional defect), review granted (Minn.
July 16, 2013) and order granting review vacated (Minn. Sept. 25, 20 13). An incurable
jurisdictional defect deprives the district court of jurisdiction over the matter. Elbert,
830 N.W.2d at 450. We review the legal i ssues regarding jurisdiction de novo when, as

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here, there are no facts in dispute. Schulz v. Town of Duluth , 936 N.W.2d 334, 338
(Minn. 2019).4
The county argues that the district court erred by concluding that Hecker’s appeal
of the county’s variance decision was timely. The county maintains that Hecker’s appeal
was untimely because Hecker commenced his appeal more than 30 days after his attorney
received the draft document from the county on September 13. Hecker argues that the
district court correctly concluded that the draft document was insufficient to trigger the
30-day appeal period because the draft document did not constitute “notice of the decision”
as used in Minn. Stat. § 394.27, subd. 9. Hecker emphasizes that the document was
unsigned, postdated, and watermarked as “DRAFT.”
The issue of when the 30-day appeal period began to run turns on the interpretation
of the undefined phrase “notice of the decision” as used in Minn. Stat. § 394.27, subd. 9.
Issues of statutory interpretation are ques tions of law that we review de novo.
State v. Overweg, 922 N.W.2d 179, 182-83 (Minn. 2 019). The object of statutory
interpretation is to ascertain and effectuate the legislature’s intent. Tapia v. Leslie ,
950 N.W.2d 59, 61 (Minn. 2020). The first st ep is to determine whether the statute is
ambiguous on its face. Id. A statute is ambiguous if it is “subject to more than one
reasonable interpretation.” Id. “If the [l]egislature’s intent is apparent from the plain and
unambiguous language of the statute, we do not engage in any further statutory

4 This appeal involves the de nial of a motion to dismiss for lack of subject-matter
jurisdiction. We have appellate jurisdiction over “orders denying a motion to dismiss for
lack of subject-matter jurisdiction.” Cruz-Guzman v. State, 916 N.W.2d 1, 7 (Minn. 2018).

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construction.” Id. We generally interpret phrases in a statute according to their common
meanings, but we construe technical terms according to their special meaning or definition.
Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn. 2012).
The county argues that we should interpret the phrase “notice of the decision” as
used in Minn. Stat. § 394.27, subd. 9, broadly. The county suggests, without support, that
“[n]otice simply means to give an announcement, or give information of something.” The
county next contends, again w ithout support, that “[a] ‘decis ion’ is merely an act of
deciding something.” Putting the two together, the county maintains that “[a]ll the statute
requires is that the county give the aggrieve d person the information of what action was
taken.” And the county contends that Heck er received notice of “what action was taken”
on September 13 when the county emailed his attorney a copy of the draft document
because the draft document included a summary of the county’s decision on the variance
requests. The county further contends that it is of no import that the document was marked
as a draft, unsigned, and postdated. The county emphasizes that the decision regarding the
variance requests was made in August, and only the factual findings needed to be finalized.
Hecker argues that the phrase “notice of the decision” as used in Minn. Stat.
§ 394.27, subd. 9, should be interpreted more narrowly. He contends that the term “notice”
has acquired a special meaning when used in reference to “notice” of a legal right. Citing
to the first definition of “notice” in Black’s Law Dictionary, Hecker suggests that “notice”
as used in Minn. Stat. § 394.27, subd. 9, means “definite legal cognizance” of the decision.
Black’s Law Dictionary 1277 (11th ed. 2019). And, citi ng to the first definition of
“decision” in Black’s Law Dictionary , he contends that the wo rd “decision” means “[a]

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judicial or agency determination after c onsideration of the facts and the law.” Id. at 511.
Taking these definitions together, Hecker ar gues that “notice of the decision” means
“definite legal cognizance of the final and official decision” of the county. And he contends
that the draft document was not sufficient no tice for purposes of Minn. Stat. § 394.27,
subd. 9, because the draft, unsigned document did not provide definite legal cognizance of
the basis for the county’s decision. In support of his position, he also cites to this court’s
decisions in In re Appeal of Saldana , 444 N.W.2d 892 (Minn. App. 1989), and
Graham v. Itasca Cty. Planning Comm’n, 601 N.W.2d 461 (Minn. App. 1999).
We agree with the district court and Heck er that the draft document provided by the
county to Hecker’s at torney did not constitute “notice of the decision” for purposes of
triggering Hecker’s 30-day appeal period under Minn. Stat. § 39 4.27, subd. 9. Our
opinions in Saldana and Graham as well as the definitions in Black’s Law Dictionary guide
us to this conclusion.
In Saldana, we construed the phrase “receipt of notice of the decision” under Minn.
Stat. § 394.27, subd. 9, to mean that the appeal period commences when an aggrieved
person receives the county’s “formal” writt en order rather than oral notice. Saldana,
444 N.W.2d at 893-94. Despite the absence of the word “written” in Minn. Stat. § 394.27,
subd. 9, we concluded that written notice was required for two reasons. First, we noted
that the board of adjustment is “already required to prepare and file a written order under
Minn. Stat. § 394.27, subd. 8.” Id. at 893. Second, we recognized that the applicants in
Saldana were “unable to make a cogent decisi on whether to launch an appeal” until they
received the written notice because “it was not until appellants received the [county’s]

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order and findings that they were made awar e of the basis upon which the [county] made
its decision.” Id. at 894.
The next time that we had an opportunity to interpret Minn. Stat. § 394.27, subd. 9,
we reiterated our conclusion that written notice is required. Graham, 601 N.W.2d at 464.
We noted that “written notice comports w ith due process without unduly burdening the
board of adjustment, which is already required to file a certified copy of its decision with
the County Recorder or the Registrar of Titles.” Id. at 465. And we emphasized that the
purpose of providing notice of the decision is to convey the requ ired information and
“afford a reasonable time for t hose interested to prepare ad equately and to make their
appearance.” Id. at 464.
Based on our precedent, we interpret the phrase “notice of the decision” to require
a final, written decision document. This inte rpretation is supported by the definition of
“notice” set forth in Black’s Law Dictionary as requiring “definite legal cognizance.”
Black’s Law Dictionary, supra, at 1277. A final, written d ecision document is necessary
to provide an aggrieved pers on with definite legal cogni zance of a county’s decision
regarding a variance request. See id. Our interpretation also fulfills the legislature’s intent
of providing aggrieved persons with a right to appeal by ensuring aggrieved persons have
clear notice of when the 30-day appeal period commences under the statute.
Following this interpretation of the phrase “notice of the decision” as used in Minn.
Stat. § 394.27, subd. 9, we conclude that the draft document provided to Hecker’s attorney
on September 13, 2019, did no t satisfy the statutory notic e requirement. The draft
document did not constitute notice of the decision under Minn. Stat. § 394.27, subd. 9, for

11
three reasons. First, the document had a signature line for the board chair but the document
was unsigned. Second, the document was dated September 19, 2019, even though it was
received by Hecker’s attorney on Septem ber 13, 2019. Thir d, the document was
watermarked as “DRAFT.” Together, these facts indicate that the document was not final
and was not intended to provide notice of the decision for purposes of triggering the
statutory appeal period. Viewing the document as a whole, there is no reasonable basis to
conclude that it provided effective, written notice of the county’s variance decision.
Because the draft document received by Hecker’s attorney on September 13, 2019
was insufficient to trigger the 30-day appeal period under Mi nn. Stat. § 394.27, subd. 9,
the district court did not err by denying the county’s motion to dismiss for lack of
jurisdiction on that basis. Further, no party ch allenges the district court’s finding that the
county did not finalize the do cument until September 19, 2019. We need not determine
when Hecker received notice of the decision because, assuming for the purposes of our
analysis that Hecker received notice on th e day the document was finalized, Hecker’s
appeal was timely when commenced on October 18, 2019—within 30 days of
September 19, 2019.
II. Hecker’s notice of appeal fulfilled th e requirements of a summons and was
sufficient to invoke the jurisdiction of the district court.
The county next argues that the district court lacked jurisd iction over Hecker’s
appeal because Hecker did not serve a separa te summons along with his notice of appeal.
Hecker contends that his service of the notice of appeal on the county satisfied the mandate

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of a summons under the rules of civil procedure for purposes of conferring jurisdiction on
the district court. We agree with Hecker.
We review jurisdictional questions de novo when, as here, the facts are not in
dispute. Skyline, 835 N.W.2d at 474. Similarly, our review of the “construction and
application of the Minnesota Rules of Civil Procedure” is de novo. Id.
Under the rules of civil procedure, servic e of a summons generally is required to
confer jurisdiction on the district court over an action. Minn. R. Civ. P. 3.01 (providing
that a civil action is commenced upon service of a summons or a signed waiver of service);
see also Skyline, 835 N.W.2d at 475. The issue here is whether the notice of appeal served
by Hecker satisfied the requirements of a su mmons for purposes of the rules of civil
procedure.
Both parties point to Skyline to resolve this question. Skyline also involved an
appeal of a county variance decision under Minn. Stat. § 394.27, subd. 9. 835 N.W.2d at
473-74. The issue before the supreme court in Skyline was whether the respondents
properly served their notice of appeal of the county’s variance decision when they served
the county attorney. Id. In addressing the issue, the supreme court explained that an appeal
under Minn. Stat. § 394.27, subd. 9, commences a new action for purposes of the rules of
civil procedure; it is not a continuation of an ongoing action. Id. at 476. The supreme court
then concluded that respondents had not served their notice of appeal in accordance with
the rules of civil procedure becau se they served their notice of appeal under rule 5.02(a),
which governs service upon a party represented by an attorney afte r an action has been
commenced, rather than under rule 4.03, which governs service of a summons. Id. The

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supreme court further concluded that respon dents should have effe cted service under
rule 4.03 by serving either the county board chai r or the county aud itor, rather than by
serving the county attorney, and as a result th e district court lacked jurisdiction over the
appeal. Id. at 477-78.
In addressing the requirements of service under rule 4, the Skyline court noted that
the rules of civil proc edure “do not explicitly define a ‘summons.’” Id. at 475. The
supreme court then stated that “both the [r] ules and our decisions support the conclusion
that for purposes of service under [r]ule 4.03, a ‘summons’ is simply any document that
commences a civil action.” Id. (emphasis added). The supreme court also noted that under
rule 4, “the summons or other process is the document that invokes the jurisdiction of the
court, compelling the de fendant to appear.” Id. (emphasis added). The supreme court’s
description of a summons in Skyline guides us in determining whether a notice of appeal
under Minn. Stat. § 394.27, subd. 9, serves as a summons for purposes of the rules of civil
procedure.
This court’s decision in Elbert provides further guidance. In Elbert, we held that
“to perfect an appeal under section 394.27, su bdivision 9, the appealing party must serve
notice of appeal on the adverse party or parties within the 30-day time period set forth in
the statute and that failure to do so is an incurable jurisdic tional defect.” 830 N.W.2d at
452 (emphasis added). We note that the supr eme court granted review of our decision in
Elbert in July 2013, but then vacated the orde r granting review in September 2013, one
month after the supreme court decided Skyline. Thus, our conclusion in Elbert, that timely
service of the notice of appeal confers jurisdiction over the action in the district court, has

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not been disturbed. Reading Skyline and Elbert together, we conclude that a notice of
appeal of a county’s variance decision constitutes a summons or other process sufficient to
invoke the jurisdiction of the district court under Minn. Stat. § 394.27, subd. 9, provided
that the notice of appeal complies with the language in Skyline describing a summons.
Here, Hecker’s notice of appeal satisfied the description of a summons set forth in
Skyline. First, the document gave the county fo rmal notice that Hecker was commencing
an action in district court appealing its vari ance decision. Second, the document notified
the county of Hecker’s claims . Third, the notice properly i nvoked the jurisdiction of the
district court because, as provided by Minn. Stat. § 394.27, subd. 9, Hecker appealed to the
district court of the county where the subject property lies. And, while the notice of appeal
lacked explicit language requiring the county to appear and answer, the county did appear
and file an answer. The coun ty’s conduct demonstrates that it understood the notice of
appeal to constitute a summons or other pr ocess that commenced an action under Minn.
Stat. § 394.27, subd. 9. In sum, the notic e of appeal satisfied the requirements of a
summons set forth in Skyline and invoked the jurisdiction of the district court. See
835 N.W.2d at 475.
The county argues that Skyline compels a conclusion that the rules of civil procedure
required Hecker to serve a separate summons in addition to the no tice of appeal. The
county notes that rule 3.01 requires service of a summons to commence a civil action and
argues that a separate summons is required to comply with the rule. The county contends
that this conclusion is supported by the supreme court’s language in Skyline emphasizing

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a “single, uniform course of procedure” for the commencement of civil actions. Id. at 478
(quotation omitted).
We read Skyline differently. We note that Skyline cited Andrusick v. City of Apple
Valley, 258 N.W.2d 766 (Minn. 1977), which involved an appeal from a special assessment
under Minn. Stat. § 429.081 (1976). Id. at 477. The Andrusick court specifically concluded
that the “appeal in an assessment proceeding initiates a civil action.” 258 N.W.2d at 768.
That appeal, like the appeal at issue in Skyline and the appeal at issue here, was initiated
by a notice of appeal. Id. at 766. And the Andrusick court specifically held that “the notice
of appeal is ‘civil process.’” Id. at 768. The Skyline court’s citation of Andrusick with
approval militates against the county’s interpretation that Skyline requires service of a
separate summons in addition to a notice of appeal because Andrusick holds that a notice
of appeal, in the context of Minn. Stat. § 429.081, initiates a civil action and constitutes
civil process. And, while the Skyline court did not address the precise issue before us, the
Skyline court also concluded that “service of th e appeal was the event that would have
commenced a civil action” had service been proper. 835 N.W.2d at 476. Thus, even
though the Skyline court recognized the po licy supporting a “single, uniform course of
procedure” for commencement of a civil action, the Skyline court implicitly held that in
some circumstances a statutory notice of appe al is sufficient to commence a civil action
and invoke the jurisdiction of the district court. Id.
Importantly, the appeal process pursuant to the version of Minn. Stat. § 429.081 at
issue in Andrusick is very similar to that for Minn. Stat. § 394.27, subd. 9. At the time
Andrusick was decided, section 429.081 provided that “[w]ithin 20 days after the adoption

16
of the assessment, any person aggrieved may appeal to the district court by serving a notice
upon the mayor or clerk of the municipality.” 5 Similarly, Minn. Stat. § 394.27, subd. 9,
allows “any aggrieved person” to appeal “with in 30 days.” The type of civil action
contemplated by both statutes is similar: an appeal from a proceeding that is originally
legislative or administrative in nature that becomes “a civil action when a notice of appeal
is filed in the state district court.” Andrusick, 258 N.W.2d at 767 (quoting City of
Owatonna v. Chicago, Rock Island & Pac. R.R. Co. , 298 F. Supp. 919, 921 (D.
Minn. 1969)). Based on the Skyline court’s discussion of Andrusick, we conclude Skyline
requires service of a document that invokes the district court’s jurisdiction, but we conclude
that Skyline does not require a separate summons in addition to a notice of appeal.
In a previous case, we addressed a similar issue and concluded “that the Minnesota
Rules of Civil Procedure do not specifically require that a summons be filed with a notice
of appeal to perfect an appeal to district court.” Curtis v. Otter Tail Cty. Bd. of Adjustment,
455 N.W.2d 86, 87 (Minn. App. 1990). In that case, we also concluded that a landowner
filing an appeal under Minn. Stat. § 394.27, subd. 9, was not “commencing” a new action
subject to the rules of civil procedure but rath er was “seeking review of a decision in an
ongoing case.” Id. We acknowledge that Skyline overruled our conclusion that the filing
of a notice of appeal did not commence a new civil action. But we do not read Skyline as
overruling our conclusion that the rules of civil procedure do not require a separate
summons, because the Skyline opinion did not address that i ssue. And our conclusion in

5 The current version of the statute allows an aggrieved person to appeal an assessment
within 30 days. Minn. Stat. § 429.081 (2020).

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Curtis that a separate summons is not required for an appeal under Minn. Stat. § 394.27,
subd. 9, is reinforced by Skyline’s citation to Andrusick a s w e l l a s b y Skyline’s own
conclusion that service of a notice of appeal is the event that commences a new civil action
under Minn. Stat. § 394.27, subd. 9.
DECISION
A draft decision document is not effective “notice of the decision” for purposes of
commencing the 30-day period under Minn. Stat . § 394.27, subd. 9, to appeal a variance
decision of a county board of adjustment. Because Hecker did not receive a final written
decision document notifying him of the co unty’s variance decision until at least
September 19, 2019, the district court did no t err by concluding that Hecker’s appeal of
that variance decision was timely when he served and filed his notice of appeal within the
appeal period. And because the notice of appeal that Hecker served fulfilled the
requirements of a summons for purposes of commencing an action under Minn. Stat.
§ 394.27, subd. 9, thereby invoking the district court’s jurisdiction, the district court did
not err by denying the county’s motion to dismiss.
Affirmed.