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John Nephew

Maplewood City Council Policy & Politics


Final Plat

At the March 24th city council meeting, we approved the final plat of a development on a 3-2 vote. Some neighbors objected to the completion of this development, and one of them wrote to me to express disappointment that I did not vote with Mayor Longrie and Councilmember Hjelle to deny the final plat. According to this resident, "The reason they voted against it is because they took the time to come out and look at it and saw first hand the problems with the design."

I sent a reply this morning, and thought it would be worth posting here as well. Not only does this touch on the general topic of land use decisions that come before the council (a final plat approval vote is not the place where you come up with new conditions to place on a developer), but it also illustrates the concerns expressed to us earlier this week by the League of Minnesota Cities Insurance Trust about council behavior that can limit our options or create legal problems for the city.

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Dear [name withheld],

Thank you for writing with your concerns about the vote on the final plat approval for the Beaver Lake project at our last council meeting. Respectfully, I must stand by the vote that I took, which I believe was the legally correct and responsible action for the council to take.

Yesterday I attended the League of Minnesota Cities Safety & Loss Control Workshops in Brooklyn Park. Some workshops were on the topic of land use, and I had the opportunity to ask some legal experts in this field specifically about final plat decisions and what practical latitude a council has in voting on them. Also, the binder I received as an attendee had helpful information about preliminary and final plats.

According to the LMC's risk management information sheet, “Subdivisions, Plats, and Development Agreements–Oh My!” a council has very little discretion on a vote like the one that was before us. It states (p. 6):

The term “preliminary” approval can be misleading because preliminary plat approval establishes the nature, design, and scope of a development project. After a plat is preliminarily approved, the city generally cannot require further significant changes. Once the conditions and requirements of the preliminary plat approval are satisfied, the applicant is generally entitled to approval of the final plat.
City staff had informed us that the conditions required in the preliminary plat approval had been satisfied. This entitled the developer to final approval. In order for the council to vote otherwise, we would have needed to provide findings of fact that indicated deficiencies in the specific conditions that were set out by the city council long ago for this project. As the LMC's risk management information sheet “Ten Tips for Avoiding Land Use Claims” states (#8), “Neighborhood opposition alone is not a basis for denying an application.”

While Mayor Longrie and Mr. Hjelle voted against the final plat approval, they did not offer any findings of fact to support their votes. As you observed, at an earlier meeting I asked them for their reasoning, and I did not hear any satisfactory explanation at that time. If, as you suggest, they came out and looked at the site and agreed with problems that you perceive, they failed to communicate those issues to the council or place them on the record as reasons for their votes. On the contrary, the only reasons I recall were that Erik seemed to want to punish Mr. Schreier for allowing Will Rossbach to place lawn signs on other Maplewood properties he owns; and Mayor Longrie wanted to vote against the developer because in her view he always got his way.

I would humbly suggest that neither of these reasons would hold up in court, if I had voted with them and denied the final plat approval. For that matter, even if I had voted against the plat and had provided findings of fact, contrary to the staff's report, that suggested the conditions of final approval had not been met, I think the developer could have made a strong case that two of the three votes were, based on the public comments of Mr. Hjelle and Ms. Longrie, motivated by arbitrary or illegal reasons (such as an intent to punish Mr. Schreier for his implied expression of political views).

As you may have heard, this week we nearly lost our insurance coverage because of situations like this would have been. The League of Minnesota Cities Insurance Trust specifically expressed concerns about comments made by council members to the public and the media that undermine the ability to defend cases, by creating grounds for a plaintiff to argue that stated reasons for a decision were pretextual. As it stands, the losses created by council decisions in 2006-2007 are giving us a 38% premium increase and a 300% deductible increase in the coming year. In the interests of the entire city and all its taxpayers, this is really not a good time to invite further litigation, particularly not in the context of public councilmember remarks that could severely harm our prospects of prevailing in court.

Again, thank you for writing with your concerns. I know this is not the answer you wanted to hear, and that you are unhappy with that vote, but I hope I have provided you with a better understanding of my decision.

John Nephew, Councilmember

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John - an excellent explanation of your position on the Beaver Lake Project. There have been times lately that I have felt you are too politically correct on the Council....this is surely not one of them. Good job

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