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APA Minnesota Legislative and Law Committee

If you are interested in becoming a member, please contact the committee's co-chairs:
Matt Brown mbrown@coonrapidsmn.gov (763) 767-6460 or
Andrew Mack andrew.mack@jpbgba.org (218) 759-3582.

2014 Planners' Day at the Capitol

Planners' Day at the Capitol is scheduled to occur on April 4, 2014. Mark your calendars now!

We are planning to offer a tour of new improvements associated with Metro Transit's new light rail corridor completion. We will also provide an update on what's going on with legislation this year. You will also be able to get the latest information on our current planning enabling law reform outreach efforts. Thanks to the leadership provided by the APA MN Board and Chapter District Directors, your Legislative & Law Committee will be conducting focus group listening sessions in Greater Minnesota. The focus group activities will also be discussed.

Click here to download a copy of the Day at the Capitol Flyer (Adobe Format).

Use the links below for directions to the Capitol and to find more information about parking.
http://mn.gov/admin/government/buildings-grounds/building-management/buildings/statecapitol.jsp
http://www.mn.gov/admin/images/public_disabled.pdf

We will be meeting for a social gathering at Great Waters Brewing Company at 3:30 p.m. Use the link below if you need more information and directions.
http://www.greatwatersbc.com/location

Legislative & Law Committee Planning and Zoning Reform Efforts Continue

The APA-MN Legislative and Law Committee in cooperation with Chapter District Directors, will host a series of focus groups in Greater Minnesota to discuss findings of the draft white paper, "Minnesota's Planning and Zoning Enabling Laws: Analysis and Options for Reform." The paper focuses on Minnesota's primary planning statutes, Chapters 394 and 462, as well as some of the other statutes that affect local planning and zoning. The APA-MN Legislative Committee has been working for several years to identify issues and problems with these enabling laws.

The white paper provides a brief history of Minnesota's planning and zoning laws, and analyzes the major differences between the two primary statues, Chapter 394, applicable to counties, and Chapter 462, applicable to cities and to townships that choose to exercise planning authority.

  • Both planning statutes are based on models from earlier eras, beginning in the 1920s, and neither has kept up with contemporary planning practice.
  • The statutes are structured differently, with many minor inconsistencies in wording, definitions and procedures. The cumulative effect of these differences is a pervasive lack of clarity for the non-expert reader.
  • The primary conflicts between the statutes, as they are expressed in local planning and zoning requirements, play out at the edges of jurisdictions, where city, county and township regulations meet or overlap. In these areas, related statutes governing annexation and other municipal boundary changes also come into play.
  • One significant gap in both statutes is between the comprehensive plan and the "official controls" - the zoning and other regulations - intended to implement the plan. The relationship between these official controls and the comprehensive plan is not clearly stated, creating ambiguity and uncertainty.
  • Another significant weakness is the lack of consistent guidance on the contents of a comprehensive plan. This results in great variation in the "comprehensiveness" and effectiveness of plans across the state.
  • Both statutes continue to be modified, often in tandem, with new requirements, in response to court decisions and emerging land uses or trends. These piecemeal updates create new inconsistencies and additional demands on local governments to keep pace with the changes.
  • The lack of integration between the land use planning statutes and other related statutes is equally pervasive. Topics such as water resources, shoreland and floodplain management, annexation, airport planning and zoning, platting and subdivision, and redevelopment all affect or are affected by local planning, and are governed by separate, sometimes inconsistent, statutes.

Additionally, in response to a survey by the APA-MN Legislative and Law Committee (drawing responses from about 10% of the professional membership), about 40% of respondents indicated that their work has been hindered by an outdated state statute or rule. Over 80% of respondents are somewhat or very interested in reform of Minnesota's planning and zoning enabling laws.

Links to the Committee's Enabling Law Reform Background Information
Purpose and Need
Final Draft White Paper: "Minnesota's Planning and Zoning Enabling Laws: Analysis and Options for Reform" (PDF File)
APA-MN Legislative and Law Committee Survey
Phase 2 Listening Outreach & Legislative Presentation


Minnesota Legislative and Law Committee Update
March 9, 2014

As reorganized, the Legislative and Law Committee is now responsible for tracking the Minnesota Legislature and case law activities before the Minnesota and United States Courts.

About Legislative Tracking

Although the Minnesota Legislature was scheduled to begin its 'Un-Session' on February 25, 2014, committee hearings began about one month ahead of the session convening and numerous regional listening sessions in various districts are currently being conducted by legislators. To date there are 280 House bills that were pre-introduced and the Chapter Legislative & Law Committee is analyzing this information as they fit into various topical areas which pertain to the practice of planning in Minnesota such as planning & zoning laws, transportation, parks and trails, economic development, capital investment. The committee is monitoring and tracking legislative actions by the best available online information.

About Case Law Tracking

The committee is monitoring and tracking the state and federal courts by using the best online information that is publicly available as highlighted below. For decisions and opinions that are issued in Minnesota, the committee is tracking the Court of Appeals and Supreme Court. At the federal level, the committee is tracking decisions made by the United States District Court for the District of Minnesota and for appeals to the United States Court of Appeals for the Eighth Circuit. The committee monitors the United States Attorney's "virtual" Office for the District of Minnesota for litigation activities. The committee also tracks cases taken to the United States District Court for the District of Columbia and the United States Supreme Court.

The sources consulted also include Find Law, Supreme Court of the United States Blog, the American Planning Association's Planning and Law Division and the APA Amicus Curiae Committee.

Minnesota Legislative Update: 2014

When the 88th Minnesota Legislature reconvenes on February 25th, it will be meeting in session with several important actions to consider before its adjournment on May 19th. In the meantime, legislators will be busy contending with issues leftover from 2013 and activities leading up to February 25th. Pre-filing of bills for introduction during the session is scheduled to begin on January 13th. The week of January 27-30 is expected to be the starting point for committee meetings.

The Unsession

According to records maintained and analyzed by the Minnesota Legislative Reference Library and House Research, between 1857 and 1878, the legislature met annually. From 1879 through 1972, it met only during odd years. Since 1973, as a result of the passage of a constitutional amendment, it is permitted to meet in flexible biennial sessions. The even years have been intended to serve as sessions to pass a bonding bill and correct or refine previously passed legislation. Minnesota Statutes, section 14.05, subdivision 5, directs each agency, as defined by the statute, to submit, by December 1 of each year "to the governor, the Legislative Coordinating Commission, the policy and funding committees and divisions with jurisdiction over the agency, and the revisor of statutes, whether any of its rules are obsolete, unnecessary, or duplicative of other state or federal statutes or rules."

Last year, Governor Dayton proposed "making next year's legislative session the first Unsession." He stated: "Except for responding to a fiscal or other emergency and passing a bonding bill, the session would be devoted to eliminating unnecessary or redundant laws, rules, and regulations; reducing the verbiage in those that remain; shortening the timelines for developing and implementing them; and undoing anything else, which makes government nearly impossible to understand, operate, or support."

In August 2013, the governor asked for suggestions to be considered by his administration and has prepared a proposed series of changes to statutes intended to eliminate outdated and poorly constructed language to transmit in 2014.

On March 6, 2014, the Dayton Administration identified the following "Unsession" changes:

Legislation Introduced In 2013 and Not Passed Into Law

Although many bills were introduced and not acted on in 2013, the following represent some of the bills that will be watched in 2014.

  • Annexation Procedures and Subdivisions of Parcels (HF 1425 / SF 1353): The legislation was designed to address conflicts over annexation procedures in cases more than one city is positioned to annex land and restrict annexations by ordinance for land that is subdivided from parcels exceeding 120 acres was introduced just before the first policy committee deadline on March 11th. The bill was given a hearing on May 2nd in the House Government Operations Committee after all policy committee deadlines had passed. The Senate companion bill, SF 1353, was introduced on March 13 and referred to the Committee on State and Local Government. Although no action was taken in the Senate this year. Andrew Mack followed the House Government Operations Committee Hearing on this subject in St. Cloud last October. The Committee leadership wanted more background on the subject and to hear from various local government representatives on how cooperation amongst neighboring entities resulted in good long-range planning decisions for the area's region as a whole. Andrew explained to the committee, in response to a committee question about what the Minnesota Legislature can do to improve local decision making, that effective Intergovernmental Cooperation is one very important aspect of planning in Minnesota. Additionally, there are several other important aspects representing the broad practice of planning in Minnesota which must also be considered. This is an especially important consideration when examining all related aspects of Minnesota's Planning & Zoning Enabling Laws for the future good and prosperity of our state (please see APA MN White Paper). Annexation procedures will likely once again be discussed in 2014.
  • Partial Discharge of Easements (HF 752 / SF 480): In 2010, the Minnesota Supreme Court ruled that section 177.225 allows for the discharge of an entire easement that is acquired through a condemnation process. In response to the Court's decision, the bills amend section 177.225 by allowing the property owner to petition for the discharge of the portion of the easement that is not being used for the purpose it was acquired. Similar legislation was introduced in the 87th Legislature. No action was taken on either HF 752 or SF 480 in 2013. In the first week of the 2014, a similar proposal (HF 2154 / SF 2089) was introduced. Another bill, HF 2765 was introduced on March 6, 2014.
  • Municipal Street Improvement Districts: (HF 745 / SF 607): If passed, the bill would have permitted municipalities to designate a district (vs. a traditional 429 property frontage assessment proceeding) to collect fees from property owners in order to finance street construction, reconstruction, maintenance, and upgrades. Addressing the long-term needs of our existing country and state's declining infrastructure needs continues to be an important consideration to many citizens and government leaders across the board.
  • Economic Development Tax Increment District Job Creation Time Extension (HF 706 / SF 669): If passed, the bill would have extended the time that a district would have the authority to establish a new job creation district and to use surplus increments. The 2010 legislation that was passed in response to the severity of job losses caused by the economic collapse in the construction industry allowed economic development districts to be created for projects, including office and retail projects, that local governments determined would add new jobs in the state before 2014 that would otherwise not be created.
  • Prohibiting School Construction Near Former Landfills (HF 957 / SF 775): The bill prohibits school construction within one-quarter mile of a former landfill. The bill also requires schools located within one-quarter mile of a former landfill to mail an annual notice within 60 days of when school starts, informing students' parents and school employees about its location. Mailed notices will require including a map of the former landfill location. The school would also be required to post a location map on its web site. HF 957 is scheduled to be discussed at the House Environment and Natural Resources Policy Committee meeting on January 28th.
  • Renovation of Ice Arenas - Air Quality Improvement (HF 868 / SF 736): The bill appropriates $5 million to the Minnesota Amateur Sports Commission for grants of up to $200,000 to local units of government to renovate or replace heating, ventilation and air conditioning systems to reduce concentrations of carbon monoxide and nitrogen dioxide.
  • Federal Conformity and Sales Tax Exemptions (HF 1777) - House 2014 tax bill. For more information, see the March 7, 2014 House Research Summary) at http://www.house.leg.state.mn.us/hrd/bs/88/HF1777.pdf. The bill has passed the House and is awaiting action in the Senate.

The chapter Legislative and Law Committee will again be monitoring these and other bills related to and affecting the practice of planning in Minnesota. Periodic updates will be emailed to the membership through the end of the 2014 Minnesota Legislative Session.

Recent Economic Forecasts Improve State Budget Outlook

According to Minnesota Management and Budget, the November Economic Forecast "increased the projected balance for FY 2014-15 from $47 million to $1.086 billion. Forecast revenues have increased $787 million (2.0 percent), while projected spending is $247 million (0.6 percent) lower. A net reduction in general fund reserves added an additional $5 million to the bottom line." Several proposals to address reserves will be debated, including tax refunds, adjustments to existing tax policies, funding capital requests, and applying reserves to programs. No legislative budgeting and spending actions will be taken until the release of the next outlook in February. Additionally, the Federal Reserve Bank of Minneapolis released its Beige Book for the Ninth District on December 4th. The December report noted the District's "economy grew at a moderate pace" since its previous report on October 16th.

Minnesota Management and Budget's (MMB) January 2014 revenue collections update indicates that collections continue to increase and are now 5.4 percent higher (about $172 million) for November and December 2013 than had been forecast by MMB in November. See: http://www.mmb.state.mn.us/doc/fu/14/update-jan.pdf.

In February, MMB announced that economic conditions had continued to improve and increased the state's FY2014-15 projected balance to $1.233 Billion.

Capital Requests

In 2013, legislation was passed that provided over 100 million dollars for the completion of renovation work for the State Capitol and its complex. Another 20 million dollars was provided to the Department of Natural Resources that provides for a match for flood hazard mitigation grants that were awarded to local government projects. Additionally, around eight million dollars was approved for the Public Facilities Authority to use as a match for receiving federal funds for Minnesota's clean water and drinking water revolving loan fund. Funds were also approved for the restoration and repair work that has been needed at the Minneapolis Veterans Home. Funding for what some hoped would be a much larger bonding bill did not materialize. In July, the preliminary capital budget requests were submitted by agencies and political subdivisions for consideration during the 2014 Legislative Session. The preliminary requests totaled $2.8 billion: $2.1 billion were submitted by state agencies and $682 million were submitted by local governments.

Minnesota Management and Budget refined and prepared the state agency requests to the governor for transmittal to the Legislature on January 15th. The governor released the administration's project recommendations to the legislature for bonding in 2014. The link below includes the recommendations and final recommendations for state agency requests and local agency requests with the governor's recommendations.
http://www.mmb.state.mn.us/critical.html

Legislative Auditor Releases Program Evaluations on Nosie Barriers and Sustainable Forest Incentive Program

The Legislature will have two new program evaluation reports to consider when it reconvenes.

  • MnDOT Noise Barriers (October 22, 2013): The Legislative Auditor's report "examined the activities and policies of the Minnesota Department of Transportation (MnDOT) regarding highway noise barriers." The Legislative Auditor recommended that "MnDOT: (1) change how it assesses public support for noise barrier projects; (2) establish a pathway for communities outside the Twin Cities metropolitan area to become eligible for state-funded noise barriers; and (3) revise its method of prioritizing state-funded noise barrier projects." The report also suggested "MnDOT pay greater attention to maintenance needs" and called on the Department to make its policy-making process more transparent."
  • Sustainable Forest Incentive Program (November 18, 2013): The report "found that the incentive payments made to landowners under the program are not tied to program goals, nor is there sufficient assurance that participants comply with program requirements." The report concludes, "If the program is retained, we recommend that the Legislature tie the incentive payment amount to property taxes or program goals. We also recommend that the Legislature increase oversight and monitoring of participants and expand and clarify the program's penalty options, among other recommendations."

School Facilities Financing Working Group Reports Findings and Recommendations

The 2013 Legislature directed the commissioner of education to "convene a working group to develop recommendations for reforming the financing of prekindergarten through grade 12 education facilities to create adequate, equitable, and sustainable financing of public school facilities throughout the state." The scope of the working group recommendations was required to include funding options for facilities projects currently financed with debt service, alternative facilities, deferred maintenance, health and safety, building lease, and operating capital revenues.

The law also required the commissioner, on behalf of the working group, to submit a report to the legislature by February 1, 2014, recommending how best to allocate funds for school facilities. The report highlighted the challenge as follows: "Over the past 20 years, state support for school facilities has gradually eroded, while new programs such as alternative facilities funding and the capital project referendum levy have contributed to growing disparities in facilities funding among districts. There is broad agreement that Minnesota's current system of funding school facilities is in need of systematic overhaul." Eight specific recommendations for change have been made. Recommendation 7 includes an appendix containing proposed changes to Minnesota Statues.

The proposed changes include repealing section 123B.71, subdivision 1, and amending subdivisions 8 and 9. The recommended amendments to subdivision 9 include changes to project related information that is required from school boards to provide to the commissioner of education for review and comment when a school district, a special education cooperative, or a cooperative unit of government proposes to construct or expand a facility as described and proposed for changes in subdivision 8. As proposed by the working group, subdivision 9 modifies the types of information that must be submitted to the commissioner, including "…confirmations of the district and contracted professionals that the project is planned and will be executed to consider and comply with the following:

  1. section 471.345 Uniform Municipal Contracting Law;
  2. sustainable design;
  3. section 123B.72 School Facility Commissioning requiring certification that plans and designs for extensively renovated or new facility's heating, ventilation, and air conditioning systems will meet or exceed current code standards; and will provide an air quality filtration system that meets ASHRAE standard 52.1;
  4. American National Standards Institute Acoustical Performance Criteria, Design Requirements and Guidelines for Schools of the maximum background noise level and reverberation times;
  5. Minnesota State Fire Code;
  6. applicable building code under chapter 326B;
  7. consultation with appropriate governmental units regarding utilities, roads, sewers, sidewalks, retention ponds, school bus and automobile traffic, safe access for walkers and bicyclists;

Click here to read the report. Click here for more information about the School Facilities Financing Working Group.

Federal Update, March 28, 2014

EPA Finalizes Tier 3 Vehicle Emission and Fuel Standards Program

On March 3, 2014, the Administrator of the Environmental Protection Agency (EPA) signed the final Tier 3 Vehicle Emission and Fuel Standards rule for publication in the Federal Register. The EPA indicates the final rule:

"...establishes more stringent vehicle emissions standards and will reduce the sulfur content of gasoline beginning in 2017, as part of a systems approach to addressing the impacts of motor vehicles and fuels on air quality and public health. The gasoline sulfur standard will make emission control systems more effective for both existing and new vehicles, and will enable more stringent vehicle emissions standards. The vehicle standards will reduce both tailpipe and evaporative emissions from passenger cars, light-duty trucks, medium-duty passenger vehicles, and some heavy-duty vehicles. This will result in significant reductions in pollutants such as ozone, particulate matter, and air toxics across the country and help state and local agencies in their efforts to attain and maintain health-based National Ambient Air Quality Standards. Motor vehicles are an important source of exposure to air pollution both regionally and near roads. These vehicle standards are intended to harmonize with California's Low Emission Vehicle program, thus creating a federal vehicle emissions program that will allow automakers to sell the same vehicles in all 50 states. The vehicle standards will be implemented over the same timeframe as the greenhouse gas/fuel efficiency standards for light-duty vehicles (promulgated by EPA and the National Highway Safety Administration in 2012), as part of a comprehensive approach toward regulating emissions from motor vehicles."

Transportation Program Decision Needed by September 30, 2014

The current surface transportation program, P.L. 112-141, "the Moving Ahead for Progress in the 21st Century" (MAP-21) was passed for two years in 2012 and will expire on September 30, 2014. Congress can decide to continue the existing program under temporary Continuing Resolutions (CR), reauthorize the existing MAP-21 program, or pass new legislation. While in St. Paul in February, the president summarized the administration's proposal which was released with the Federal Fiscal Year 2015 budget as submitted to the Congress on March 4, 2014. The House and Senate are also preparing bills.

The Obama Administration budget includes $302 billion for a surface transportation reauthorization and funded for four years. This includes $206 billion in highway spending, $72 billion for transit, $19 billion for passenger rail, and $10 billion for freight. Among other things, the budget also recommends that Congress enact $5 billion for the "Transportation Investment Generating Economic Recovery" (TIGER) program. The White House summary discusses its proposal for transportation.

The Environmental and Energy Study Institute (EESI) has released its fact sheet regarding the Obama Administration's 2015 budget proposals for "Sustainable Energy, Buildings, Transportation and Climate." The link to the EESI fact sheet may be found online at http://files.eesi.org/IssueBrief_Budget_030714.pdf.

Department of State Submits 2014 U.S. Climate Action Report to the United Nations Framework Convention on Climate Change

On January 1, 2014, the Department of State submitted the 2014 U.S. Climate Action Report to the United Nations Framework Convention on Climate Change (UNFCCC). According to the U.S. Department of State, "The report, which includes the First U.S. Biennial Report and Sixth U.S. National Communication to the UNFCCC, details actions the United States is taking domestically and internationally to mitigate, adapt to, and assist others in addressing climate change."

On November 1, 2013 the president issued an Executive Order - "Preparing the United States for the Impacts of Climate Change." The order establishes the Council on Climate Preparedness and Resilience, outlines coordination between federal and state planning, and requests a review of policies related to protecting natural and environmental resources. The order notes that "coordinated action on climate change preparedness and resilience across the Federal Government was established by Executive Order 13514 of October 5, 2009 (Federal Leadership in Environmental, Energy, and Economic Performance), and the Interagency Climate Change Adaptation Task Force led by the Council on Environmental Quality (CEQ), the Office of Science and Technology Policy (OSTP), and the National Oceanic and Atmospheric Administration (NOAA). In addition, through the U.S. Global Change Research Program (USGCRP), established by section 103 of the Global Change Research Act of 1990 (15 U.S.C. 2933), and agency programs and activities, the Federal Government will continue to support scientific research, observational capabilities, and assessments necessary to improve our understanding of and response to climate change and its impacts on the Nation."

Case Law Update

Minnesota Supreme Court

Lorraine White, Trustee for the Lorraine M. White Trust, et al., Appellants vs. City of Elk River, Respondent
Case Number A12-0681
(Filed December4, 2013)

"Appellants Lorraine White and Wapiti Park Campground have operated a campground on property in respondent City of Elk River since 1973. After the City revoked a 1984 conditional-use permit (CUP) for the campground, appellants brought an action seeking declaratory and injunctive relief. On cross-motions for summary judgment, the district court concluded that the campground was a legal nonconforming use and that the City could not eliminate this use by revoking the 1984 CUP. The court of appeals reversed.

On appeal to the Supreme Court, the following issues were presented:
(1) Whether the City can terminate a legal nonconforming use by revoking a CUP; and
(2) Whether appellants had the right to rebuild an accessory structure to a legal nonconforming use, when the value of the structure was less than 50% of the value of the entire legal nonconforming use. (Sherburne County)"

Oral arguments were heard by the Supreme Court on June 10, 2013. (See http://www.tpt.org/courts/MNJudicialBranchvideo_NEW.php?number=A120681)

The Court ruled as follows:

  • "...we reverse the decision of the court of appeals and reinstate the portion of the district court's decision granting summary judgment to Wapiti Park on the ground that the City's revocation of the conditional-use permit did not terminate Wapiti Park's nonconforming use as a campground. However, we reverse the portion of the district court's decision granting summary judgment to Wapiti Park on the interim-use-permit issue and hold that the City did not exceed its authority by requiring Wapiti Park to obtain an interim-use permit before constructing the replacement building and resuming its regulated use. We remand to the district court for further proceedings on the remaining issues, including those issues raised in the City's motion for summary judgment pertaining to the City's counterclaims against Wapiti Park.

The Supreme Court determined that:

"1. A municipality may terminate a nonconforming use of land in accordance with Minn. Stat. § 462.357, subds. 1d-1e (2012) or Minn. Stat. § 465.01 (2012). But a municipality lacks the authority to terminate a nonconforming use by requiring the property owner to obtain a conditional-use permit to continue the use and then revoking the conditional-use permit. Respondent therefore lacked the authority to terminate appellants' nonconforming use by revoking the conditional-use permit.
2. Respondent has the authority to require appellants to obtain an interim-use permit before replacing the destroyed accessory building and resuming its regulated use."

The Supreme Court addressed the City's authority to terminate Wapiti Park's nonconforming use as a campground as follows:

  • "We have long upheld a municipality's authority to enact zoning ordinances as a legitimate exercise of its police power. Hawkins v. Talbot, 248 Minn. 549, 551, 80 N.W.2d 863, 865 (1957). But we also have recognized limitations-both constitutional and statutory-on that authority."
  • "We conclude that a landowner does not surrender the right to continue a nonconforming use by obtaining a conditional-use permit unless the landowner validly waives that right. We have long held that, except as limited by public policy, a person may waive a constitutional or statutory right. See In re Welfare of G.L.H., 614 N.W.2d 718, 720-23 (Minn. 2000); Stephenson v. Martin, 259 N.W.2d 467, 470 (Minn. 1977)."
  • "Under our established waiver jurisprudence, Wapiti Park's application for the conditional-use permit, standing alone, cannot constitute a valid waiver."
  • "When restrictions on nonconforming uses prove ineffective, however, the Legislature has granted municipalities the statutory authority to terminate nonconforming uses. Minnesota's zoning enabling act contemplates four circumstances under which a nonconforming use may terminate. The first circumstance is by exercise of eminent domain. Minn. Stat. § 465.01 (2012). Two other circumstances are by operation of law when the use has been "discontinued for a period of more than one year," Minn. Stat. § 462.357, subd. 1e(a)(1), or when the use has been "destroyed by fire or other peril to the extent of greater than 50 percent of its estimated market value," id., subd. 1e(a)(2). A fourth circumstance for terminating a nonconforming use is by judicial determination that the use is a nuisance. Id., subd. 1d. Additionally, a municipality and a property owner may terminate a nonconforming use by written agreement."
  • "Not one of the four statutorily authorized events that could terminate Wapiti Park's nonconforming use occurred. The City did not exercise its power of eminent domain, Wapiti Park has continued to operate as a campground without interruption since 1973, the campground was never destroyed by fire to an extent greater than 50 percent of its value, and the City did not bring a nuisance action. Moreover, the City does not point to any statutory or Minnesota common law to support its claim that it has the authority to terminate Wapiti Park's nonconforming use by revoking the conditional-use permit. Consequently, the City's revocation of the conditional-use permit did not eliminate Wapiti Park's right to continue the nonconforming use as a campground."
  • "Not one of the four statutorily authorized events that could terminate Wapiti Park's nonconforming use occurred. The City did not exercise its power of eminent domain, Wapiti Park has continued to operate as a campground without interruption since 1973, the campground was never destroyed by fire to an extent greater than 50 percent of its value, and the City did not bring a nuisance action. Moreover, the City does not point to any statutory or Minnesota common law to support its claim that it has the authority to terminate Wapiti Park's nonconforming use by revoking the conditional-use permit. Consequently, the City's revocation of the conditional-use permit did not eliminate Wapiti Park's right to continue the nonconforming use as a campground."
  • "Through its statutory scheme, the Legislature affirms the right of municipalities to temporarily enjoin nonconforming uses that fail to comply with public-welfare regulations, but the Legislature does not authorize municipalities to permanently terminate nonconforming uses by revoking conditional-use permits. This policy decision of the Legislature strikes a balance between a private landowner's nonconforming-use rights and the public municipality's regulatory interests."
  • "We conclude that the City acted within its authority when it required Wapiti Park to obtain the interim-use permit to replace the destroyed accessory building and resume its regulated use. The parties do not dispute that the building was a total loss. Because the destruction to the building was greater than 50 percent of its total value, Wapiti Park was required to obtain the City's permission to replace the building to avoid an impermissible expansion of the nonconforming use. Our holding as to this matter does not prevent Wapiti Park from continuing to operate the campground as a nonconforming use. Nor does it require Wapiti Park to destroy the replacement building. However, Wapiti Park may not lawfully use the building until it obtains renewal of the interim-use permit and complies with the conditions of the permit."

The Court's decision and opinion can be viewed at http://mn.gov/web/prod/static/lawlib/live//archive/supct/1312/OPA120681-12042013.pdf.

County of Dakota vs. Cameron
Docket: A11-1273
(Filed November 27, 2013)

In 2008, Dakota County moved forward with a condemnation action to acquire right-of-way for reconstruction of a County State-Aid Highway One of the properties was owned by Cameron.

In this eminent domain case, a landowner subject to compensation for the relocation of his business is challenging the District Court's "award of damages under Minnesota's minimum-compensation statute, section 117.187. The property owner argues that the district court misinterpreted section 117.187 when it awarded minimum compensation for the taking of the property. The owner also argues that the district court was in error when it did not award the full amount of attorney fees that were requested. The issues addressed relate to the terms "comparable property" and "community" as used in section 117.187, are defined according to their common usage. A determination of damages in section 117.187 is based on market-value analyses of comparable properties in the community.

The Court of Appeals determined "Because the district court properly construed section 117.187 and awarded appellant just compensation, and because the district court did not err in determining a reasonable award of attorney fees..." it agreed with District Court's ruling. The case was been appealed to the Minnesota Supreme Court.

On appeal, the Supreme Court affirmed the court of appeals' decision upholding the district court's award of $997,055.84 in damages and $161,964.50 in attorney fees to Cameron.

Court of Appeals Decision and Published Opinion:
http://mn.gov/lawlib//archive/ctappub/1203/opa111273-032612.pdf

Supreme Court decision, published opinion with Justice Anderson concurring in part, dissenting in part.:
http://mn.gov/lawlib/archive/supct/1311/OPA111273-1127.pdf

500, LLC vs. City of Minneapolis
Case Number A11-1705
(Filed September 25, 2013)

In September, the Minnesota Supreme Court decided a case relating to the applicability of the so-called "60-day" rule to an application for a certificate of appropriateness made to the City's Historic Preservation Commission by the developer, 500, LLC, in order to alter a property designated as a historic landmark. The question raised was if the application constituted "a written request relating to zoning" under Minnesota Statutes section 15.99, subdivision 2(a) and was therefore subject to the law's 60-day determination requirements.

The proponent submitted a plan to the City of Minneapolis for review. Prior to the city council's review, the Minneapolis Heritage Preservation Commission nominated the property for designation as a local historic landmark. The use of the designation provided for interim protection for the property, which prohibited "destruction or inappropriate alteration during the designation process" without a obtaining a "certificate of appropriateness" from the City.

In a case decided by the Minnesota Court of Appeals, Advantage Capital Management v. City of Northfield, it was ruled that section 15.99 does not apply to building permits. Using this decision, the district court held that because the certificate of appropriateness for the proposal was a request to make alterations to the building, it was not a request related to zoning and, therefore, not subject to section 15.99. The Minnesota Court of Appeals agreed.

The Supreme Court reversed the decisions of the state's district and appellate courts by finding that the application for a certificate of appropriateness constitutes a "written request relating to zoning." As a result, the Court held the City "failed to approve or deny the application within 60 days..."

In its opinion, the Court explained how the enabling laws that created the "Minnesota Historic District Act" and the "Municipal Heritage Preservation Act" for municipalities relate to zoning and the facts it weighed in determining how the City itself established the application of a certificate of appropriateness as a request relating to zoning.

Justice Page noted in his concurrence statement that points to how "agency" is defined under § 15.99, subd. 1 (b). It defines "Agency" as a "Statutory or Home Rule Charter City." Thus, the agency here is the City of Minneapolis. He added: " What is unclear to me, on the record presented, is whether the application submitted by 500, LLC (500 LLC), to the Heritage Preservation Commission constitutes "[a] request . . . submitted in writing to the agency as required by Minn. Stat. § 15.99, subd. 1(c) (2012)."

Justice Page continued, "The Commission denied the application on June 2, 2009. The application was submitted to the City Council on June 12, 2009, when 500 LLC filed its notice of appeal. In late July, the City Council's Zoning and Planning Committee considered 500 LLC's appeal and recommended that the City Council deny the appeal. On July 31, 2009, the City Council adopted the Committee's recommendation to deny 500 LLC's appeal. The City Council then rejected that appeal within 60 days of its submission to the City Council. However, the City has conceded that, if the application for a certificate of appropriateness constitutes a written request relating to zoning, its denial of the application was outside the 60-day limit. Therefore, I concur in the result."

The standard for the types of applications that relate to zoning and subject to section 15.99 may continue to challenge planners. In the meantime, the Supreme Court decision and opinion can be viewed at http://mn.gov/web/prod/static/lawlib/live/archive/supct/1309/OPA111705-0925.pdf

Minnesota Court of Appeals

Ethan Dean, et al., Appellants, vs. City of Winona, Respondent.
Case Number: A13-1028

Filed February 24, 2014
Appeal from Winona County District Court: File No. 85-CV-11-2329

http://mn.gov/lawlib/archive/ctappub/2014/opa131028-022414.pdf

Syllabus
1. A municipality may use its police power to limit the number of lots on a block that are eligible to obtain certification as a rental property.
2. An ordinance that establishes a neutral, numerical limit on the number of lots on a block that are eligible to obtain certification as a rental property does not violate equal protection or due process under the Minnesota Constitution.

Opinion
Larkin
, Judge
Appellants, owners of residential properties in respondent municipality, challenge the summary judgment upholding respondent's ordinance that limits, to 30%, the number of lots on a block that are eligible to obtain certification as a rental property. Because respondent's adoption of the ordinance was an authorized exercise of its police power and because appellants have not met their burden to show that the ordinance is unconstitutional, we affirm.

Issues
I. Is the 30% rule an ultra vires act that exceeds the powers delegated to respondent by the Minnesota legislature?
II. Have appellants shown that the 30% rule is unconstitutional?

Decision
Respondent was authorized, under its broad police power, to adopt an ordinance limiting by percentage the number of lots on a block that are eligible to obtain certification as a rental property. Because the ordinance does not discriminate against any class of property owners, either on its face or in its application, and there is a rational basis for the ordinance, the ordinance does not violate equal protection or substantive due process. And because the ordinance does not delegate legislative power to other property owners, it does not violate procedural due process. We therefore affirm the district court's award of summary judgment to respondent.

The appellants may decide to ask for a review of the case by the Minnesota Supreme Court.

Duininck, Inc. v. Renville County Board of Commissioners
Case Number: A12-1046
http://mn.gov/lawlib/archive/ctapun/1304/opa121046-041513.pdf

The applicant applied for an interim use permit to allow gravel mining on 44 acres of land. Since 2000, mining for 39 acres was authorized under conditional use permits. The applicant sought an applied for an interim use permit to expand the existing site by 5 acres. The County reviewed the application and determined the proposal would require an environmental assessment worksheet (EAW) because the application encompassed more than 40 acres as a phased project action.

The original conditional use permits had expired, causing the applicant to seek the interim use permit for the entire 44 acres for the purpose of to continuing existing operations and expanding mining by five acres. The applicant contended that the County had not appropriately applied the rule, which allows for a 3-year look-back in order to determine whether or not to include original project acreage triggers the mandatory 40 acre EAW threshold.

Because ongoing mining operations require permit renewals, the Court of Appeals upheld the County's decision to require an EAW. The Court of Appeals noted: "Our decision in this case is dictated by the plain language of the relevant rules, as applied to the particular facts before us. We are cognizant of the unusual context in which this case arises. Nonetheless, we are required to apply the language of the EAW rules-which contemplate projects with completed phases-to ongoing mining operations, which require the permit renewals whether or not a proposer has completed mining any particular area."

4410.4300: Mandatory EAW Categories
See: Subpart 1. Threshold test and Subpart 12 (B)

Harlan Poppler, et al., Respondents, vs. Wright Hennepin Cooperative Electric Association, Appellant.
Case Number: A12-1615
http://mn.gov/lawlib/archive/ctappub/1307/opa121615-071913.pdf

The Court of Appeals affirmed in part, reversed in part, and instructed the District Court to hold a new trial on the issue of damages relating to effects to dairy farm animals from stray voltage. The case was remanded back to the local Wright County court to more accurately calculate Poppler's estimated $700,000 loss.

The Court also ruled that trespass law does not apply in this case. Poppler had alleged that his electric power cooperative had trespassed onto his property by circulating electricity through the soil.

Franklin P. Kottschade, et al., v. State of Minnesota, Department of Transportation
Docket: A13-1034
Unpublished Opinion Filed December 23, 2013

If the recent Court of Appeals decision holds, the issue of the applicability of the 60-day rule appears to be broadening for permit applications when the permit can be shown by statute and, when applicable, associated rules, to relate to zoning, and when the agency meets the definition of an agency as described in the chapter 15.99.

The applicant applied to the Minnesota Department of Transportation (MnDOT) for a driveway access permit for a commercial property. MnDOT issued a denial in 63 days and the Court of Appeals reversed the District Court interpretation that the application did not relate to zoning and was not covered by section 15.99. The Court of Appeals noted: "After the district court made its decision-and after the parties submitted their appellate briefs-the supreme court adopted a much broader definition of the phrase "a written request relating to zoning." The case was remanded back to District Court.

MnDOT argued that section 160.18, subdivision 3, which relates to the Department's control of access is the controlling statute for making a decision about the application. The Court of Appeals did not argue about which statute controlled the decision and instead used section 160.18 to determine that the statute connects the permit to use of the property.

The Court also referenced Minnesota Rules 8810.5200 saying:
...Minnesota rules governing MnDOT's issuance of driveway permits provide, in relevant part, that"[i]n the event of a change in land use . . . existing driveways are not automatically perpetuated and new driveway access applications shall be submitted." Minn. R. 8810.5200 (2011). Thus, the applicable state-agency rules recognize at least a "connection, association, or logical relationship" between the driveway-access permit and "the regulation of . . . the uses of property."

Although this case relates to a state agency permit, the Court also used the "definition and analysis" in 500,LLC decision to further show how the application to MnDOT related to zoning.

http://mn.gov/lawlib//archive/ctapun/1312/opa131034-122313.pdf

Supreme Court of the United States Update

US Supreme Court October Term 2013

Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.
Docket Number: 11-1507

United States Court of Appeals, Third Circuit CASE NUMBER: 11-1159
Court of Appeals DECISION: 658 F.3d 375
(http://www2.bloomberglaw.com/public/desktop/document/Mt_Holly_Gardens_Citizens_in_Action_Inc_v_Twp_of_Mount_Holly_658_)

U.S. Supreme Court
June 11, 2012: Petition for a writ of certiorari filed.
June 17, 2013: Petition granted limited to Question 1 presented by the petition.
November 15, 2013: Writ of certiorari Dismissed - Rule 46.
November 15, 2013: Stipulation to dismiss the writ of certiorari pursuant to Rule 46 received.

The Supreme Court of the United State Blog (SCOTUS) posted a video about the issues related to the case, which has now been settled:
http://www.scotusblog.com/media/mount-holly-gardens-and-the-court/

Questions Presented to the Third Circuit:

The Fair Housing Act makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. §3604(a). Reversing the District Court's decision, the Third Circuit found that the Respondents presented a prima facie case under the Fair Housing Act because Petitioners sought to redevelop a blighted housing development that was disproportionately occupied by low and moderate income minorities and because the redevelopment sought to replace the blighted housing with new market rate housing which was unaffordable to the current residents within the blighted area.

The Third Circuit found that a prima facie case had been made despite the fact that there was no evidence of discriminatory intent and no segregative effect. The following are the questions presented, which include subparts:
1. Are disparate impact claims cognizable under the Fair Housing Act?
2. If such claims are cognizable, should they be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test?
(a) What is the correct test for determining whether a prima facie case of disparate impact has been made?
(b) How should statistical evidence be evaluated?
(c) What is the correct test for determining when a Defendant has satisfied its burden in a disparate impact case?

Rule 46. Dismissing Cases

  1. At any stage of the proceedings, whenever all parties file with the Clerk an agreement in writing that a case be dismissed, specifying the terms for payment of costs, and pay to the Clerk any fees then due, the Clerk, without further reference to the Court, will enter an order of dismissal.
  2. (a) A petitioner or appellant may file a motion to dismiss the case, with proof of service as required by Rule 29, tendering to the Clerk any fees due and costs payable. No more than 15 days after service thereof, an adverse party may file an objection, limited to the amount of damages and costs in this Court alleged to be payable or to showing that the moving party does not represent all petitioners or appellants. The Clerk will not file any objection not so limited (b) When the objection asserts that the moving party does not represent all the petitioners or appellants, the party moving for dismissal may file a reply within 10 days, after which time the matter will be submitted to the Court for its determination. (c) If no objection is filed-or if upon objection going only to the amount of damages and costs in this Court, the party moving for dismissal tenders the additional damages and costs in full within 10 days of the demand therefor-the Clerk, without further reference to the Court, will enter an order of dismissal. If, after objection as to the amount of damages and costs in this Court, the moving party does not respond by a tender within 10 days, the Clerk will report the matter to the Court for its determination.
  3. No mandate or other process will issue on a dismissal under this Rule without an order of the Court.

Utility Air Regulatory Group v. Environmental Protection Agency
Docket Number: 12-1146
Status: On appeal from the United States Court of Appeals for the District of Columbia Circuit.
United States Court of Appeals for the District of Columbia Circuit Opinion:

http://www.cadc.uscourts.gov/internet/opinions.nsf/52AC9DC9471D374685257A290052ACF6/$file/09-1322-1380690.pdf
U.S. Supreme Court Docket:
http://www.supremecourt.gov/search.aspx?filename=/docketfiles/12-1146.htm

Limited to the following question:

Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

Additional information sources:

http://www.scotusblog.com/case-files/cases/utility-air-regulatory-group-v-environmental-protection-agency/ http://www.nytimes.com/2013/10/16/us/politics/supreme-court-to-hear-challenge-to-epa-emissions-rules.html?_r=0 http://eponline.com/Articles/2013/12/01/Peeling-the-Litigation-Onion.aspx?Page=1

Selected Minnesota and U.S. Legislation, Laws, Policies, and Programs Links

The following document link is intended to provide some Web resources for tracking Minnesota and federal legislative, executive, and judicial actions. The links may also be helpful in finding information relating to programs, projects, and funding.

See: http://www.mnapa.com/documents/ APA MN Selected Policy & Law Links 03_2014.pdf

 

American Planning Association Minnesota Chapter
Phone: 1-888-882-5369 (toll free)
E-mail the APA Minnesota