John Nephew

Maplewood City Council Policy & Politics


Thursday, May 22, 2008

Levy Limits

A city council sets many rules for itself, but a lot of what we have to deal with are the laws and regulations imposed by higher levels of government. This is why the League of Minnesota Cities employs lobbyists, to encourage our state legislators to pass laws beneficial to our cities and to oppose ones that make city governance more difficult.

In the recently ended legislative session, one part of the budget compromise is sure to play a big role in our city's planning for the next year: levy limits. Under the agreement worked out between the legislature and the governor, cities and counties will be limited in how much they can increase their revenue from property taxes. The LMC has put together a short document to help cities understand how the levy limits will be applied. The basic limit is a 3.9% increase, adjusted by increases in population and new commercial property construction. There are exceptions for things like levies for bonds approved by taxpayer referendum. (Local Government Aid is also part of the calculations, but Maplewood doesn't currently get any so it doesn't apply to us.)

I don't have a problem with the idea of keeping our city's levy increase under this limit. I'd be aiming for that kind of fiscal restraint in any case. But we do have some unique risks in Maplewood -- for example, with our new insurance terms, which subject us to higher per-incident deductibles and no aggregate deductible for certain types of claims. If we get another wave of litigation like the kind that hit us in early 2007, the result would almost certainly be cuts to city services. We also face other challenges, such as skyrocketing health insurance premiums for city employees. (I hear rumors of a potential 44% increase if we don't change providers or coverage.) The 2009 budget process is going to require tough decisions and honest negotiations, and a willingness of everyone to come together to share the burden, in order to navigate through the present situation while doing our best to maintain a strong city in the long run.


Tuesday, May 20, 2008

You Take That Back!!

At the April 14th and May 15th meetings, Mayor Longrie devoted council meeting time to complaining about an entry I posted to this blog back in early April, which she thinks is inaccurate. (She also did not appreciate my flying saucer cartoon.)

The specific sentence that the mayor has demanded that I change is this: "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."

With all due respect to the mayor's office, I do not feel it is appropriate for me to censor my personal blog according to her desires. Besides the principle of free speech, which the mayor herself has been known to defend from time to time, I feel that changing this text would be dishonest.

This sentence is part of an e-mail that I sent to a resident who had asked me about the vote on the Beaver Lake final plat. To change the text of the e-mail on my website would misrepresent the actual message that I sent to this individual. Like what I wrote or not, I did write it and send it from my city e-mail account, and censoring it after the fact won't change that.

The sentence describes "...the only reasons I recall..." concerning that vote. This makes the sentence a description of my consciousness at the moment that I wrote it, which the mayor is in no position to dispute. The mayor's recollection obviously differs from mine. On the other hand, several people have told me that they too recall her making such a comment -- which may not have been in the formal setting of a council meeting, and may not have been recorded. Even if we imagine for the sake of argument that my recollection was faulty, or that I and other people misinterpreted some statements that she made, the statement that it was my recollection remains true. Again, I believe it would be dishonest to revise this to make a false statement about what was in my mind at the time I wrote this e-mail.

Let's keep in mind that the mayor's recollection is not perfect, as we've seen in the past. At the April 14th council meeting, for example, she also complained that she had never heard from the LMCIT about a concern with "creating grounds for a plaintiff to argue that stated reasons for a decision were pretextual." I reminded her of the specific letter from the LMCIT, which she had also received, which clearly made that very point. If she did not remember this crucial point among the concerns expressed to us by the LMCIT (albeit one the council perhaps did not want to hear), to me that raises the question of whether her memory is sometimes selective.

A Helpful Suggestion
Here is an alternative way that the mayor could have resolved her problem with this matter. Let us suppose that her ultimate concern is that she would like people not to come away with the impression that she makes decisions on the basis of grudges, personal resentments, and the like. She might simply have responded by saying that her recollection differs from mine, and she would like people to know that, and left it there.

Even better, she could have written a comment responding to the posting itself on my website. Then anyone who visits and reads my posting could also read her disagreement with my recollection of the facts.

This would have had the added benefit of not making it an issue in a council meeting. After all, if her aim is to quell what she feels is an unfair impression created by a portion of one archived article out of the 150 that are now found on my website, it hardly seems productive to start out by calling such attention to it at a council meeting, without so much as e-mailing me privately with her concerns beforehand. I guess I should be grateful to her for repeatedly plugging my blog, though.

As it stands, her promise to keep bringing this up at council meeting after council meeting until she gets her way, may not convey the image she may be intending to defend -- of a person who would never let personal grudges or resentments dictate the way she handles the public's business on the council.


Sunday, May 18, 2008

Comp Plan Open House

It's difficult to overstate the importance of the "comp plan" for city planning and the related recommendations and decisions made by city staff the the city council. In the Twin Cities metro area, Minnesota state law has given a special role to the comp plan. The comp plan not only involves our vision for our community, but the update process engages neighboring communities and political subdivisions, so that development will occur in a way that is mindful of regional needs.

The City of Maplewood is hosting an open house for the public to review and comment on the proposed 2008 update to our Comprehensive Plan. It will take place at the Maplewood Community Center (2100 White Bear Ave.) on Thursday, May 22, from 6 to 8 PM.

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Wednesday, May 14, 2008

Auditors and Obsessions

Mayor Longrie placed an item on the May 12 agenda, described as "Discussion and Resolution calling for an Audit by the State Auditor’s Office for the Past Seven Years." Since we didn't get to this before the end of the meeting on Monday, it will be part of the Thursday continuation.

The Mayor has made public statements that give us an idea of what she's planning for this item -- an opinion piece on the topic in the Pioneer Press on April 8th, and then the same text and more in her lengthy opinion column in the city's May newsletter. She claims that she wanted to call in the state auditor when she was first elected mayor, but even when she had a controlling majority of the council she was "scoffed at." She identifies specific areas that she thinks need investigation. For example, she's very concerned that several years ago someone made a joke about naming a street after Councilmember Will Rossbach.

I admit that I've wondered about calling in investigators, after the things I've seen and heard about in the past couple of years. The thing is, it would cost Maplewood a lot of money – the state auditor doesn't go through a city's dirty laundry for free, after all. More importantly, instead of helping Maplewood to heal its divisions and move forward, would we really rather launch into some kind of scab-picking hootenanny, revisiting all the petty grudges and rumors of the past seven years?

I guess I'm not quite ready to sign on with that plan. However, in the interests of frank discussion, I thought I would do my part in preparation for this agenda item. So I quickly threw together some highlights from just the last few months before I joined the council – things that were distressing to me and other residents, and that I think we would want to bring to the auditors' attention, should we decide to take tax dollars away from other priorities in order to pay them instead.

The Copeland-Longrie Contract
The state auditor could investigate the mayor's involvement in the creation of an unauthorized contract promising Mr. Copeland a large sum if he were terminated and if "elected City Council officials" subsequently made any "negative comments" regarding Mr. Copeland's "character and job performance with the City." Given the close association between Mr. Copeland and the mayor herself, this appeared designed to shield her from criticism.

While the FBI declined to pursue criminal charges, and the city's agreement with Mr. Copeland promises not to bring a civil suit against him on this matter, the mayor has no such shield from potential civil action if the state auditors were to deem it appropriate.

Wipers Recycling
Mayor Longrie and former Councilmember Cave frequently touted Wipers Recycling as an example of their success in attracting business to Maplewood, in campaign literature as well as in city publications. In an e-mailed report from the acting city manager on 3/17/08, the council learned that one city employee last year "was in fear for his job for being insubordinate to the City Manager or for not doing his job as a building official as required by MN State Statute." The state auditors could investigate whether there was improper meddling on the part of Cave, Longrie, or former City Manager Copeland to prevent or delay the enforcement of health and safety regulations on this business, either due to friendship with the business owner or in order to prevent any political controversy because of the public association between the business and these members of the city council.

Taxpayer-Funded Campaigning
The State Auditor could be asked about the use of the taxpayer-funded city newsletter for election campaigning. Two days after the primary election, in which Ms. Cave had placed a distant third, she proposed a tax levy freeze, which the council approved 3-2 after very little discussion. Ms. Cave promoted the freeze as a major accomplishment in her campaign literature. Articles in the October and November city newsletters also focused on the levy freeze. In the October issue, an unsigned article that quoted Mr. Copeland extensively spoke glowingly of the freeze, and downplayed the potential impact on city services. In the same issue Ms. Cave touted the freeze she proposed, and highlighted the 3-2 vote on it. In the November issue, Mr. Hjelle campaigned even more explicitly, praising Ms. Cave's freeze, emphasizing the 3-2 vote, attacking Mr. Rossbach, and warning "how important it is to have at least 3 council members who understand the need to 'protect your wallet.'" He concluded with an exhortation for residents to vote in the election just days away.

Removal of City Documents
There have been numerous reports that Mr. Copeland, immediately prior to his suspension, removed or destroyed many documents from his office. Certainly we have found as a council that important records, such as letters received from the LMCIT, were not left behind for his successor. While we have agreed not to bring any civil charges against Mr. Copeland on this matter, the State Auditor might determine whether the destruction of government data and failure to preserve necessary records for a successor is a criminal offense under state law. There could also be an investigation as to whether any other individuals may have participated in these acts, or if any confidential data was given to unauthorized parties.

The Roswell Alien Crash*
Since the Mayor seems fixated on the idea of hunting for suspected conspiracies from years ago, I thought we might as well add this to the list, too.

*Not documented.


Sunday, May 11, 2008

Revised Settlement Proposal

At our next council meeting, May 12, we will again be taking up the matter of a possible settlement with CoPar over the Carver Crossing project. After a long meeting on May 5th, the council tabled the matter in order to allow CoPar to adjust their proposal, in light of the concerns raised in council discussions (the primary concern at the end of the night being money).

The packet for Monday's meeting includes a revised settlement proposal. In case you don't want to download the whole thing from the city website (it's one 28.7 MB file for the whole council meeting packet), I extracted the new material from the Item K3 agenda report -- a report from our Acting City Manager and our attorney in the case, and a possible resolution that the council could pass if we agree to the settlement.

There are two major changes from a week ago. The first is that the city's required financial outlay is eliminated. In the 165-unit settlement proposal of last week, the city would have "bought down" the density by agreeing to pay one third of the cost of public improvements. Now the whole cost is borne by the developer.

There's a change to the number of units. The baseline number of units is now 174 -- not the 165 of last week, but also not the original 191.

Several key points remain the same -- namely, the inclusion of a guard rail system along Henry Lane to address safety concerns; giving the city the option to explore a referendum or other means of funding to purchase land south of Fish Creek for conservation; and the developer agreeing to hold off on any major construction south of Fish Creek until 2009, to allow time for that process.

Speaking of other means of funding, the park fees generated by the project were part of the financial package for the "buy-down" in last week's iteration of the settlement proposal. That is no longer the case; those fees will now be available to help fund the conservation purchase, if the city wishes.

Finally, the agenda report includes a note of warning: "CoPar indicated that their willingness for sale of property in the southern area is contingent upon reaching a litigation settlement at this time. Should the plan be denied, they indicated that they will build the entire 191 unit plan without sales to the City for further open space considerations. "


Saturday, May 10, 2008

Maplewood Voices Interview

On Thursday evening, Jim Llanas interviewed Will Rossbach and me about current issues on the city council, and the interview is now posted online as part of the Maplewood Voices "Speaking for You" series.


Thursday, May 08, 2008

Finding a Path

Monday night's special meeting about the proposed CoPar settlement went late into the night, and the end result was tabling action until next week. While that may seem like a lot of sound and fury that signified nothing in the end, I think we may actually be on the verge of a breakthrough. For one thing, this may have been the first time the developer could directly witness the council discussing the settlement-related issues and identifying our individual concerns, without having it mediated by city staff and attorneys on both sides.

As I wrote in this blog two months ago, my chief concern in a settlement outcome has been to open the door for public ownership of land south of Fish Creek. When I wrote at that time, I posed it specifically in terms of a referendum, but I have become increasingly optimistic that there are other potential funding sources to explore as well. A letter delivered to us Monday evening from the Friends of the Mississippi River amplifies my optimism, as they offer their "assistance as a partner with the City and area stakeholders in helping to protect the land around Fish Creek as a natural and open space."

Some on the council may be cool to the idea of a bonding referendum. As a result, they may be reluctant to state unequivocal support for the conservation goal, out of a fear that it could imply their endorsement of city borrowing and spending. I can see how a politician might not want to face a choice between support of the environment and opposition to taxes. On the bright side, at least there seems to be acceptance of the conservation idea if money comes from somewhere else.

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Monday, May 05, 2008

R-1(R) Zoning Ordinance

Since it's sure to be part of the discussion at tonight's special meeting, I thought it would be helpful if folks at home had easy access to the city's R-1(R) zoning ordinance. Download the PDF and read it for yourself.


Sunday, May 04, 2008

Comp Plan Versus Zoning

As I discussed in my last entry, if we go to court in the CoPar suit, a judge will determine whether the city, exercising quasi-judicial authority, was arbitrary, unreasonable or capricious in deciding not to approve CoPar's conditional use permit application.

Many people who look at the CoPar situation wonder how the city's decision in September 2006 could possibly be called arbitrary, unreasonable, or capricious. The R-1(R) zoning requires lots at least 2 acres in size; CoPar's proposal had smaller lots; therefore it was turned down because it did not comply with the zoning regulations. What's the matter with expecting people to follow the rules? And why would the developer think they could build more houses on that land in the first place?

The problem is that Maplewood's zoning and our comprehensive plan on this parcel do not agree with one another -- and in Minnesota, the comprehensive plan trumps zoning.

The Conflict

First of all, the problems with Maplewood's comp plan. The southern portion of CoPar's property is guided as "R-1."

On page 30 of the Comp Plan, we are told, "Table 5 (on page 33) shows the maximum number of people per gross acre allowed . . . If someone wants to know how many units of a certain type of dwelling they can build, they should use Table 5." Unfortunately, Table 5 on page 33 does not specifically mention the R-1 land use category. It does say that, for "Single Dwelling," the city expects 2.9 people per unit. It also seems to cross reference "Single Dwelling" with the R-3L and R-3M land uses for 4.1 and 4.6 units per acre, respectively -- but those are multiple dwelling land uses. This makes no sense. Maybe it means that R-1 can have up to 4.1 or 4.6 units per acre, if there are some kind of headers missing from the right columns of the table that would clarify what they mean?

On page 32 of the comp plan, there is a much more clear listing of the land use categories. Under residential land use, it specifies that R-1 means "Single Dwelling (10,000-square-foot lot areas)." In other words, roughly 4.3 units per acre.

The Residential Land Uses has three categories of "Residential Estate" uses (RE-20, RE-30, and RE-40), that do specify larger lots (of 20/30/40 thousand square feet each, respectively). If larger lots were intended, why wasn't the land guided as one of these?

Also the R-1(R) zoning ordinance mentions land where municipal sanitary sewer and water service are not foreseen, thus requiring larger lots for septic systems. If a developer is willing to install sewer and water, are the large lots still necessary, given that the comp plan allows for higher densities under the R-1 land use?

So we appear to have a problem between the comp plan (lots as small as 10,000 square feet) and zoning (lots no less than 2 acres, or 87,120 square feet) on this parcel. Which can the developer -- or the neighboring residents -- rely on?

The Law

Unfortunately for Maplewood, the law is quite clear: If there's a disagreement between the Comp Plan and the zoning controls, the comp plan wins.

In several places, the Metropolitan Land Use Planning Act suggests that the Comprehensive Plan outranks zoning and other official controls. For example:
Subdivision 1. Control copies to [met] council. Each local governmental unit shall adopt official controls as described in its adopted comprehensive plan and shall submit copies of the official controls to the council within 30 days following adoption thereof, for information purposes only.
Subd. 2. No conflict with plans. A local governmental unit shall not adopt any official control or fiscal device which is in conflict with its comprehensive plan or which permits activity in conflict with metropolitan system plans.
Subd. 3. Amendments. If an official control conflicts with a comprehensive plan as the result of an amendment to the plan, the official control shall be amended by the unit within nine months following the amendment to the plan so as to not conflict with the amended comprehensive plan.
In Metropolitics: A Regional Agenda for Community and Stability (Brookings Institution Press, 1997), former Minnesota legislator Myron Orfield discusses the Metropolitan Land Use Planning Act, which he actually introduced. He writes (p. 126):
In terms of enforcement, the Land Planning Act provided explicit authority for both the Met Council and interested citizens to sue to ensure that the Development Guide was followed. It reversed the so-called "Merriam Amendment," which had given local zoning laws precedence over comprehensive plans.
The language of the statute can be confusing sometimes to those of us who are not lawyers, but I think Mr. Orfield's words cut through the legalese of the Act to make his intent as its author clear. He intended to reverse the Merriam Amendment, and to give comprehensive plans precedence over zoning.

Usually developers have been on the other side of this issue in their lawsuits (as in Mendota Golf, LLP v. City of Mendota Heights, when the zoning was less restrictive than the comp plan; the developer sued to force the city to change the comp plan to match the zoning, and the Minnesota Supreme Court sided with the city). Developers know very well to look at the comp plan first, and property lawyers advise their clients to "rely only on the comprehensive plan’s use designation."

The Impact for Our Case

At the Planning Commission public hearing and in e-mails from residents since then, I've heard many folks who oppose the development asking that we go to court and trust that the judge will rule in our favor. Perhaps, some have suggested, this will be the test case to overturn the rule of comp plan over zoning.

If we go to court and hope to win, I think we need to be very clear on what we will be trying to persuade the judge to do. We not only will ask her to overturn precedents from previous court cases. We will want her to overturn the law itself, or somehow interpret it in a way directly contrary to the explicit intent of the legislators who wrote it.

While I'm not a lawyer, it seems to me that this is a pretty slim hope on which to pin the future of this land that our community values so highly.

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Quasi-Judicial Authority

Tomorrow we have to make a decision on a proposed settlement of the CoPar litigation. Like the rest of the council, I've spent an enormous amount of time studying this issue and searching for the best course of action. I think if I tried to write about all the aspects of this situation, this would be a very long entry, and I probably would not be done writing it before tomorrow night's meeting.

For whatever it's worth, I did want to spend some time writing about the legal issues of the case, as best as I have been able to understand them.

CoPar's application in 2006 was for a conditional use permit. This determined the way that the city council was allowed to evaluate the application. In training seminars sponsored by the League of Minnesota Cities, I've several times encountered the following diagram. (This particular version comes from "Land Use Issues Presentation: Comprehensive Plan and Land Use Ordinances.")
On the bottom of the pyramid, a city council makes broad-brush decisions -- such as the Comp Plan to guide the development of the community over decades to come. When you get to the narrow top of the pyramid, the council has less and less choice; the question is not about what the council would like. Instead, the council must judge what the current law allows given the facts placed before us.

A decision about what to put in the comp plan, or how to zone a property within the parameters permitted by the comp plan, is a legislative decision. According to another League of Minnesota Cities Insurance Trust document ("Zoning Decisions," p. 1),
When adopting or amending a zoning ordinance, a city council is exercising so-called “legislative” authority. The council is advancing health, safety, and welfare by making rules that apply throughout the entire community. When acting legislatively, the council has broad discretion and will be afforded considerable deference by any reviewing court. City councils are ultimately accountable to the voters for legislative decisions.
In contrast, when deciding how to apply the comprehensive plan and the zoning -- for example, by judging whether or not a specific conditional use permit should be issued -- the city council is making a quasi-judicial decision. The same LMCIT document goes on to say, with regard to quasi-judicial authority:
The task is to determine the facts associated with a particular request, and then apply those facts to the legal standards contained in the zoning ordinance and relevant state law. A city council has less discretion when acting quasi-judicially, and a reviewing court will examine whether the city council applied rules already in place to the facts before it. In general, if the facts indicate the applicant meets the relevant legal standard, then they are likely entitled to the approval.
The LMCIT document provides more information specific to conditional use permits (p. 3):
City councils sometimes misunderstand the level and the nature of discretion they have when reviewing applications for conditional use permits. If a proposed conditional use satisfies the conditional use standards set forth in the zoning ordinance, then generally the landowner is entitled to the conditional use permit. The city made the legislative decision about the appropriateness of a kind of use in a zoning district when the council adopted the ordinance providing for the use as conditional. When considering a conditional use permit application, the city is tasked with the more limited quasi-judicial role of considering whether the facts of a particular application satisfy the standards set forth in the ordinance.
Boiling things down, CoPar's argument is that the city was arbitrary or unreasonable in denying their application, because their proposal (in their view) did comply with the city's standards. In order to appeal the city's decision, they filed suit. If we proceed to court, a judge will examine the record and determine whether the city applied the law correctly to this situation.

The LMCIT document also discusses how a judge would review a decision (p. 5).
If the city action is challenged, courts will review the decision on the public record. The record must demonstrate the city exercised the appropriate level of discretion and applied the relevant standards in a reasonable fashion. It may not matter that the city acted reasonably if the city is unable to prove its actions through the public record. (emphasis added)
It is very important to understand the role of the record. The judge can only determine whether or not the decision was appropriate, based on the reasons given by the council when they made the decision. Was the law applied correctly, given the facts set out by the public record when the council's decision was made? If someone, after the decision, came up with an added reason or better explanation for why it was reasonable to turn down the application, that will not help the city win the case.

It should be no surprise that the LMCIT strongly recommends that a city create a written list of findings for quasi-judicial decisions such as those about conditional use permits (p. 6).
The written statement explaining the reasons for the zoning decision is particularly important for quasi-judicial decisions such as variances and conditional use permits. The League recommends the city adopt written findings of fact and conclusions of law whenever a city makes such decisions. The document should identify the relevant legal criteria such as statutory standards or code provisions, explain the relevant facts relating to the particular application, and then apply those facts to the legal criteria. The document should provide a court with everything needed to uphold the zoning decision.
Unfortunately, in the decision that led to the current lawsuit, those written findings were never produced. This is just one of the complications that we face, but the unique problems of our specific situation are better saved for a separate article.

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Saturday, May 03, 2008

Good Process

The past week has been very busy, so I'm late in writing this, but I wanted to say that I thought there was a lot to like about last Monday's council meeting (April 28). In particular the wetland ordinance discussion at the end seemed to me to be a good example of the way that, as a council and a community, we should operate.

At issue were changes to the wetland ordinance, which I have discussed previously. The agenda item was the second reading of the proposed changes; if we had approved it, they would have become law as soon as they were published in the official newspaper.

A number of residents came forward with concerns. On the whole, my sense was that the residents supported the intent and general thrust of the changes and placed a high value on water quality and wetland preservation, but they were calling the council's attention to specific issues that concerned them in terms of the impact and possible unintended consequences in their own neighborhoods. They brought the issues forward in a manner that was reasoned, respectful and constructive, and all of us -- the council, the city staff, the chair of the Environmental & Natural Resources Commission -- listened and discussed their points.

In the end, the council decided (with what looked to me like the agreement of city staff and the commission chair) to table the second reading, and refer the ordinance back to the Environmental Commission for another look in light of the concerns that had been raised (and, I hope, with the continued involvement of the residents who brought those concerns to us).

I am hopeful that this is a sign of things to come, in terms of how the council and the city can work together in a positive way.

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