Last week the staff report for this past Monday's meeting was made public on the city website.  As I mentioned in an earlier posting, it revealed that the lowest-cost proposal for a city-wide service was made by Allied Waste.  Tennis Sanitation (another one of the proposers) immediately mailed the following postcard to all of their Maplewood customers (click on the image for a larger version):



Not surprisingly, the City Council was deluged with phone calls and e-mails from residents who were falsely told by this postcard that Monday night was going to have a decision on whether or not to organize hauling, when in fact the agenda item was one step in the formal process of developing a an alternative system that could be considered as an option at the end of this whole trash study -- something Tennis should well understand, seeing as they are one of four competing proposers in that process.  (And, as it happens, the item was tabled to allow the whole council an opportunity to read the confidential documents of all the proposals before making a decision.)

If you're an official in another city looking at this issue now or in the future, be prepared for this sort of thing from individual haulers and their trade association.  Take note that providing truthful information to their customers, or behaving in a professional manner relative to the formal procurement process, may not be priorities for them.

Labels: organized collection, process

Posted by John Nephew on 9/28/2011 09:08:00 AM Email to a Friend | Permalink | Comments
Tweet

Yesterday, the City Council met in a special meeting as the canvassing board to certify the results of the August 9th primary.  Losing candidate Elizabeth Sletten was present, and immediately after the meeting adjourned submitted a request for a recount in writing to the city clerk.  Due to the close margin between her and the 4th place finisher (just seven votes between them), she is entitled to a recount at taxpayer expense if she requests it.

The recount will be conducted this coming Wednesday, August 17, 2011 at 9:00 a.m. in Council Chambers at City Hall.  It is open to the public.

Labels: campaign 2011, process

Posted by John Nephew on 8/13/2011 07:47:00 AM Email to a Friend | Permalink | Comments
Tweet

Based on the turnout at the public hearing in front of the planning commission, and the e-mails and phone calls I've received, the most contentious item on our meeting agenda tonight will undoubtedly be Item J3. This item concerns a conditional use permit (CUP) application for a South Metro Human Services residential mental health care facility to be located in the former Ethan Allen building, NW of the intersection of Hwy 36 and Hwy 61.

A considerable number of neighbors are very agitated by the proposal, and testified at the planning commission and in correspondence to the city that the permit should be denied because of the negative impact they believe it would have on their neighborhood. The planning commission voted to recommend approval, but it was a 4-3 vote with the minority wanting to see additional information related to some CUP criteria (in particular the one about not hurting property values).

In case you're following along at home when we discuss this, let me give you some information about the decision that will be in front of the council, and how we'll need to evaluate the CUP application.

First of all, legally, if the applicant satisfies the standards and complies with reasonable conditions that may be set by the city, they're entitled to the conditional use permit.  This is what's known as a "quasi-judicial" decision.

It's also important to understand that our city ordinances can't override state and federal law. When it comes to residential facilities, there are specific state and federal laws designed to protect the disabled (including people with mental illness) from discrimination, including the Fair Housing Act and the Americans with Disabilities Act. If criteria for evaluating a CUP application would have the effect of being discriminatory, they are not valid as grounds for rejecting an application.*

Under state law, we also can't set any conditions for this facility that are more restrictive than what we would apply to a facility that housed or served individuals who are not disabled, unless the requirements are designed to protect the residents of the facility.**

Given that there are facilities nearby that provide a short-term place to live (the motel), and overnight medical treatment (the sleep center just across the highway), and based on the testimony at the planning commission and the e-mails I've received on this topic, I'm hard pressed to find any argument against the proposed use that isn't ultimately based on a desire of some neighbors not to have mentally ill persons in/near their neighborhood.

The "depreciates property values" argument boils down to what one letter from a neighbor, included in the packet, stated bluntly: "We would never have chosen this location [to buy a house] if there were a mental health residential facility within .3 miles of our home." The assertion is that people (including this neighbor) don't want to live near the mentally ill, so a lack of buyers will drive down property values.  Even if true (which does not appear to be the case), the argument is discriminatory on the face of it, and thus can't legally be used to deny a CUP.

I found an interesting document online, called "Fair Housing Law: Zoning and Land Use Issues." In discussing how Fair Housing Act cases have been looked at by the courts, this passage is especially worth reading:

To prove discriminatory intent under the FHA, the plaintiff need only show that the plaintiff’s disability was one factor considered by the defendant in making a land use or zoning decision. The plaintiff’s handicap need not be the sole basis for the defendant’s discriminatory actions. Further, a plaintiff need not demonstrate that the defendant harbors personal animosity, ill will, or a malicious desire to discriminate. Intentional discrimination includes actions motivated by stereotypes, prejudice, unfounded fears, misperceptions, paternalistic attitudes and a desire to respond to certain neighborhood and community concerns.

Denying this applicant's conditional use permit on account of some neighbors' fear or dislike of disabled persons (including the mentally ill) would be both illegal and unjust.

*See 42 U.S.C. § 3615: "any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid."
**See Minnesota Statutes 245A.11. As quoted in the staff report for Monday's meeting, Subdivision 3 of the law includes this language: "A town, municipal, or county zoning authority may require a conditional use or special use permit to assure proper maintenance and operation of a residential program. Conditions imposed on the residential program must not be more restrictive than those imposed on other conditional uses or special uses of residential property in the same zones, unless the additional conditions are necessary to protect the health and safety of the persons being served by the program."

Labels: development, process

Posted by John Nephew on 7/25/2011 02:01:00 PM Email to a Friend | Permalink | Comments
Tweet

Last week's Maplewood Review included an article about the city council's goals, which we set at our annual retreat back in February and formally approved at a recent city council meeting.

The goals will also be the official topic of the upcoming quarterly Citizens Forum town hall meeting, which I will co-host with Mayor Rossbach on May 7th.

Labels: events, media, process

Posted by John Nephew on 4/24/2011 08:08:00 AM Email to a Friend | Permalink | Comments
Tweet

You may not be surprised to hear that the city council is getting a lot of e-mails and phone calls on the topic of organized trash collection. (If you want to share your own thoughts on this topic, I encourage you to do so -- you can e-mail the whole council at once by writing to city.council@ci.maplewood.mn.us.)  As usual, I'm working hard to reply to every e-mail and return every phone message.

A couple of folks have asked, in essence, "How can you even consider doing this when it's obvious that most people are vehemently opposed?"

Setting aside the question of whether elected officials are supposed to do what they believe is popular versus what they conclude is right, let me say that it's absolutely not clear to me that a majority of residents would oppose development of an organized collection plan.

There's a big PR campaign underway, not to educate residents, but to prompt them to contact the City Council in support of the NSWMA's protect-the-status-quo-profits agenda. It's crafted to generate the impression of broad popular support for their position. Turning out a passionate minority to advocate for your position (including various residents declaring as "fact" things you know to be false, and know better than to be caught saying on the record yourself) is not the same as speaking for a majority of the citizens. In their fight against the facts and the public good, NSWMA has relied on this skillful illusion of a popular majority to suppress efforts at organization in Minnesota over the past two decades.

Consider for example the "survey" on their website, which is mentioned in their mass mailing.  The "survey" consists of only one checkbox, which is marked: "Check here, if you are opposed to government managed waste collection. By checking this box, you also give us approval to share information about your opposition and your comments with local officials."  (The NSWMA postcard last fall similarly was a "survey" with the only explicit option being to agree with them.  You had to write in your own somewhere on the card, as numerous people did, if you didn't agree with what they wanted you to say.)

I'm going to go out on a limb and say that at our March 28th hearing, NSWMA's lawyer will tell us that darn near 100% of respondents to their online survey opposed organized collection.  He won't even be able to share the comments of anyone else, because the web form is set up so that you must agree with them in order to authorize them to share your opinion with the city. As a gauge of resident opinion, their "survey" will be worthless.  But remember, it's not really a survey; its purpose is to push peoples' buttons so that they will lobby their Council with the NSWMA's talking points.  (As I heard from a couple of folks on Friday, NSWMA wasn't even answering their phone if you tried to call them about their mailer.)

I've been tracking the opinions of people who contact me to get a read on public sentiment on the question, "Should we consider organizing our trash collection?" and how it might be changing.  I have built a database of everyone who has phoned or e-mailed.  It also includes all the people who sent those postcards last fall, if they had an e-mail address; I had manually entered all that info so that I could send them all my FAQ in reply.

So at the outset, because of the NSWMA PR campaign, I think it's reasonable to expect the comments we receive to be overwhelmingly skewed toward their side of the issue.  The numbers bear this out: people who have contacted me have started out 91.6% against organization, 1.7% neutral or undecided; and 6.7% in favor.

That's total.  If you look at just the e-mail I've received since Friday and the latest NSWMA mailer, it is interesting that opposition has dropped to 74%; 3% neutral; and 23% favoring organized collection.  At least one in six anti-organization writers had also written us last fall (the "at least" meaning I don't know if more sent in postcards without an e-mail address on it); the only pro-organization person who had written previously...was previously opposed, but has changed her mind.

By Saturday afternoon, I had already received more e-mails in favor of organization than I got in the entire run-up to October's hearing.

Even more interesting, perhaps, is the other opinion I'm tracking: What do people think now, after I've had the chance to offer them more information?  If they reply to my e-mail, what position do they now take?  If we talk on the phone, what is their opinion at the end of the conversation?

The results are remarkable: Opposition to organized collection drops to 44.0%.  37.6% favor organized collection.  18.4% are willing to see us try to develop a plan that they could evaluate.  And remember, we're starting with a sample that was skewed by the NSWMA's hoodwinking campaign.

Obviously this is not a random sample or scientific polling.  But it does tell me that, if given information about what we're actually considering and why, a majority of residents agree that we should develop an organized collection plan and see how it compares to the current system.

Whether or not to actually implement a specific plan is, of course, a different question, one we can't meaningfully ask unless we pass the "resolution of intent to organize" and move into the planning phase.

Labels: organized collection, process

Posted by John Nephew on 3/22/2011 06:38:00 PM Email to a Friend | Permalink | Comments
Tweet

It's very good news that tonight's special budget meeting agenda includes two-year contracts for all seven of the city employee bargaining units.  All of the units have agreed to 0% cost-of-living adjustments for 2011, in light of the state of the economy, declining revenues and state cuts, and the recent low rate of inflation.  The two-year contracts include a COLA of 1% for 2012, which I think is a good trade-off for the certainty of having agreements in place and knowing that we won't have to spend months on contract negotiations again next year only to see a higher COLA than that.  The employees are getting that 1% increase, but they're also accepting the risk that inflation might spike over the next two year period.

There are a lot of other details about the agreement that are important but take a lot more explanation.  In particular, changes to health care insurance coverage that were part of the package in the last round of contracts have paid big dividends to the city (and the employees) in holding down the growth in our health insurance costs.  A few more tweaks should be approved to help continue to keep a lid on those costs while maintaining quality health care for our employees.

After the strained state of labor-management relations in Maplewood just a few years ago, the smooth process in this round of contract negotiations is a welcome change, with all the contracts settled before we set our final levy and approve the 2011 budget, and no contracts going to arbitration.  And given the details of the contracts (such as that 0% COLA), I think it's fair to say that the comity in city hall hasn't short-changed the taxpayers one bit.

Labels: finance, process

Posted by John Nephew on 12/06/2010 08:50:00 AM Email to a Friend | Permalink | Comments
Tweet

In "Maplewood council approves preliminary budget and levy," the Maplewood Review's Derrick Knutson's reports on the council's decision earlier this month to set the maximum levy increase at 5%.

We can reduce this figure as we get closer to a final city budget for 2011, but since we are now past September 15th, it can't be set higher.

Labels: finance, media, process

Posted by John Nephew on 9/30/2010 10:50:00 AM Email to a Friend | Permalink | Comments
Tweet

I got hold of the actual mailing that the National Solid Waste Management Association is sending to Maplewood residents, in their effort to shut down discussions of organized collection.

Here is the letter itself:


And here is the back of the postcard they are asking residents to fill out and mail:


The other side is addressed to the city manager, and has a 28 cent postcard stamp attached. The person who received this letter got two postcards — presumably a separate one for each adult in the household.

Labels: environment, organized collection, process

Posted by John Nephew on 9/26/2010 02:58:00 PM Email to a Friend | Permalink | Comments
Tweet

This week's LMC Cities Bulletin includes an article about Krummenacher v. City of Minnetonka, a decision issued on June 24th by the Minnesota Supreme Court. The decision will have a major impact on land use decisions by cities, since it overturns the previous standard (from a 1989 appellate court decision) about what constitutes “undue hardship” and justifies a variance. The new ruling sets a much stricter standard, requiring that a “property cannot be put to a reasonable use without the variance.”

I have not yet had a chance to download and read the opinion itself, but at first glance it seems that this should have an immediate impact on how our city council makes decisions on matters such as the requested wetland buffer variance on Monday's council meeting agenda (item J6).

Labels: development, process

Posted by John Nephew on 7/23/2010 10:58:00 AM Email to a Friend | Permalink | Comments
Tweet

For anyone looking for some light weekend reading with lots of bullet points, I've uploaded the Executive Summary prepared by the facilitator following our February 5th council/staff retreat.

Labels: council politics, events, process

Posted by John Nephew on 3/06/2010 09:03:00 AM Email to a Friend | Permalink | Comments
Tweet

On Friday, February 5th, a long overdue City Council-Management Team retreat was held all day at the fire station on Clarence Street. The purpose of the retreat was threefold: to set council direction and goals for the next 2-3 years, identify short-term priorities, and build trust and better ways of working between staff and council. While we await a written report from the retreat facilitator, I thought I'd briefly write up my own notes from the day.

In the morning, the city council reviewed the city's assets and obstacles. Using a list of goals assembled from questionnaires the council had filled out prior to the meeting, we discussed and ranked those goals. The following emerged as our top seven:

1. Re-establish Maplewood's Reputation — restore trust and respect between the citizens, staff, and elected officials, restore a positive image with our residents, the media and other government entitites

2. Good Government — Make city government transparent and accessible, and operate with an environment of efficiency and mutual respect. Welcome and encourage citizen involvement, but not let the city's path be dictated simply by the loudest and most persistent voices that show up at city meetings.

3. Parks Department — Reorganize, re-establish, revitalize; possible joint venture with neighboring communities

4. (tie) Environmental Planning — Further develop processes for “going green”; enhance and fund open space management; includes follow-up on Fish Creek commission recommendations

4. (tie) Fiscal Responsibility — Manage the city's finances and financial planning effectively, with an eye to providing stability and maximum value in the long term for our residents

6. Complete the infrastructure upgrade process

7. Redevelopment

In the afternoon, city department heads joined the retreat. Each councilmember and staff member in the retreat was asked to identify ten short-term objectives or priorities. The following items were on the list of majorities of both group (three or more councilmembers, plus six or more of the eleven management team staff):

• Maintain Quality Services
• Integration of Parks and Recreation; Parks Funding
• Economic Development
• Investment in Redevelopment
• In-depth survey of citizens
• Investment in infrastructure

With nine hours of work and discussion, there was a lot more to it than these two lists, but this provides at least some idea of the areas of consensus that emerged from the retreat. It was time well spent, and I look forward to working with my fellow councilmembers and the staff in going forward to achieve these goals and objectives.

Labels: council politics, events, process

Posted by John Nephew on 2/09/2010 11:13:00 AM Email to a Friend | Permalink | Comments
Tweet

Mayor Rossbach and Councilmembers Juenemann and Llanas took their oaths of office at a special council meeting held this past Monday, January 4th. We also declared the vacancy of Mayor Rossbach's council seat, called for a special election to be held at the same time as this year's statewide primary, and discussed how to appoint a councilmember to serve in the interim.

For the interim appointment process, we decided that each councilmember will put forward the name of a qualified and willing candidate. We will ask these nominees to fill out an application or provide their resume, and we will interview them all together and discuss the appointment at a special workshop on January 12th. There was consensus that we would like to appoint someone with past city government experience, preferably a former councilmember but someone with experience serving on a city board or commission would be considered as well. The other criterion suggested by Councilmember Juenemann (and with which Councilmember Llanas agreed) was that we select someone who does not intend to run in the special election. I didn't think this was essential, but I also don't have a big objection to it and so I included it in the motion.

Ideally this process will result in an interim councilmember appointed in time to join our goal-setting retreat with staff, which we have scheduled to occur on February 5th.

Labels: campaign 2010, council politics, process

Posted by John Nephew on 1/05/2010 04:56:00 PM Email to a Friend | Permalink | Comments
Tweet

Another article in last week's Maplewood Review deserves notice, particularly as it appeared on one of the inside pages of the print edition and I don't think I ever even saw it listed on the front page of their website: "Council approves handbook for city commissions." As the article notes, we voted 4-1 (Hjelle dissenting) to approve the handbook and revised policies for city boards and commissions.

Labels: media, process

Posted by John Nephew on 8/20/2009 08:18:00 AM Email to a Friend | Permalink | Comments
Tweet

We didn't get around to voting on it, but we had a lengthy discussion in the wee hours of the morning about my proposed resolution to suspend the Council Corner column during the election campaign season.

The people who stayed around long past midnight to address the city council on this topic were almost all opposed to the resolution. I was amazed that a recurrent theme was their mistaken belief that suspending the Council Corner would be a violation of the First Amendment guarantee of free speech. (There seems to be confusion about the meaning of "free" as in "unrestricted" versus "paid for by someone else," i.e., taxpayers.) One resident called my resolution "censorship," and compared it to Russia. I think I remember another speaker even suggesting that the city should be required to mail a letter on behalf of the mayor to all residents of Maplewood, at taxpayer expense, if she wished to during the election campaign.

Since some people considered it unthinkable that government would not fund currently elected officials' communications during their reelection campaigns, I thought it might be instructive to look at the franking privilege for members of the United States Congress.

Specifically, Congress has set rules for itself to prohibit taxpayer-funded mailings during election campaigns (quoting a 2007 Congressional Research Service document):

Senators are currently restricted from mass mailing during the 60 day period prior to federal elections, and during the 60 period prior to primary elections in which they are a candidate for any public office. The restriction for Representatives is 90 days prior to federal or primary elections in which they are a candidate for any public office.

Note that this prohibition on using the franking privilege at all during a reelection campaign is in addition to the regulations on content of franked mail at any time (including a prohibition on mailings that "relate to political campaigns, political parties, biographical accounts, or holiday greetings").

If somebody really thinks this poses a constitutional problem, perhaps they should let the U.S. Congress know.

Labels: campaign 2009, council politics, process

Posted by John Nephew on 7/17/2009 11:48:00 AM Email to a Friend | Permalink | Comments
Tweet

One of the items I submitted for the agenda of Monday's council meeting is a resolution that would suspend the city council column in the city's newsletter through the election campaign season. This is in response to a citizen petition submitted to the city council at our last regular meeting. (I've uploaded my agenda report to this website.)

I admit that I'm of two minds on this. On the one hand, I recognize that the blatant use of city resources for campaigning, as we saw in the 2007 election season, is unseemly. On the other hand, I also remember how each monthly newsletter with the writings of Longrie/Hjelle/Cave/Copeland would bring my campaign fresh volunteers and unsolicited contributions from angry residents. Residents continue to tell me about their visceral negative reactions to the mayor's cloying prose and Erik's frothing, paranoid hyperbole. So I find myself a little torn between the sense of what is proper, and the political value of giving Diana and Erik the rope with which to do her reelection campaign the most harm possible.

In any case, it seems only fair to put our citizens' request in front of the whole council for a vote. I figure the result is pretty good either way -- either we make the city newsletter less of a source of resident anger during the campaign, or the council votes down this resolution and then Erik writes a rant that's even more over-the-top than usual, which is sure to help motivate people to get out and vote against his ally, the mayor. (Assuming, of course, that he's still afraid to run for reelection himself.)

Labels: campaign 2009, council politics, process

Posted by John Nephew on 7/08/2009 11:09:00 AM Email to a Friend | Permalink | Comments
Tweet

After a bit of drama a week earlier, this past Monday the Maplewood City Council did vote to approve the contract hiring James Antonen as our new city manager. Mr. Antonen is probably en route as I type this, and we anticipate that he will be sitting in the manager's chair at this coming Monday's council meeting.

The Maplewood Review has a couple of articles up this week about how things unfolded: one about the meeting on Feb. 23 where a motion to approve the contract contingent upon acceptance of the final background check failed, and another "news flash" online story about the final approval after the completed background check was approved.

Labels: manager search, process

Posted by John Nephew on 3/05/2009 09:30:00 AM Email to a Friend | Permalink | Comments
Tweet

Today the three candidates for City Manager are being interviewed over at City Hall by the two panels, one made up of residents and Maplewood business owners, the other city employees. The day's events culminate in a social reception at the Maplewood Community Center, from 5:30 pm to 7:30 pm. The interviews and the social reception are open to the public, and I'd encourage members of the community to come and get a first-hand impression of the candidates.

I'm looking forward to meeting the candidates, and I hope that one of them will be the perfect fit for Maplewood's future.

Labels: events, manager search, process

Posted by John Nephew on 1/06/2009 10:51:00 AM Email to a Friend | Permalink | Comments
Tweet

Last night we had a special meeting at 5:00 PM to review the resumes of a dozen semifinalists recommended to us by our consultants for the city manager search. This meeting was not in fact a closed session, as indicated on the agenda, since our attorneys informed us that there was not a basis in the Open Meeting Law for closing the meeting. Instead, to preserve private applicant data, we simply referred to each applicant by a number instead of a name.

To select finalists, each member of the council submitted a list of the applicants (by numbers) that we wished to interview. A councilmember could select all applicants, none, or any number in between. There was remarkable consensus -- two candidates were on the lists of all five of us, and another three were each on 4 of 5 lists. That gave us five candidates, the very number our consultant recommended we select as finalists. I offered a motion to name those five as our finalists; Erik Hjelle gave his second; and the motion carried unanimously.

The finalists, whose names are now public, are as follows (in alphabetical order, with their current or most recent city management position):

1. James W. Antonen, former City Manager of Davis, California
2. William P. Barlow, Village Manager of Winfield, Illinois
3. Daniel J. Donahue, former City Manager of New Hope, Minnesota
4. Stephen P. King, City Administrator of South Saint Paul, Minnesota
5. Timothy Madigan, City Administrator of Faribault, Minnesota

We also agreed unanimously on the next steps in the process. The plan is to have the finalists interviewed by our two advisory panels on January 6th or 7th. We will ask the panels to make a written report to us no later than Monday, January 12th. After reviewing the reports and interviews of the panels, we will conduct our own interviews of all five finalists later that week (most likely on January 14th).

UPDATE: The council was just informed that Mr. Barlow has accepted another job and removed himself from consideration. So, we will proceed with the four remaining finalists.

Labels: manager search, process

Posted by John Nephew on 12/16/2008 11:16:00 AM Email to a Friend | Permalink | Comments
Tweet

With the budget out of the way and the comprehensive plan sent to neighboring jurisdictions for comment, we still have a major piece of business for the council: the ongoing process to select a new city manager.

Our consultants at the PAR Group have provided to the council the resumés and applications of 12 individuals, out of at least four dozen total applicants, for our consideration in a closed meeting at Monday.

The identities of these individuals are at this point confidential. According to Minnesota Statutes § 13.43, subd. 3 (that's part of the Minnesota Government Data Practices Act),

Names of applicants shall be private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, "finalist" means an individual who is selected to be interviewed by the appointing authority prior to selection.

On Monday, we will review the applications in closed session with Mr. Bernard from the PAR Group, and then select finalists for interview.

Because the identities of applicants are private data at this point, I can't say a lot about them, but I think I am not going too far by suggesting that we have a lot of impressive, well qualified choices.

Labels: manager search, process

Posted by John Nephew on 12/13/2008 10:23:00 AM Email to a Friend | Permalink | Comments
Tweet

Two items on tonight's agenda will focus the council's attention on the topic of land use: Item K2, Comprehensive Plan Update, and item L4, Richie Place Subdivision Proposal on Labore Road (which involves a proposed change to the Comprehensive Land Use Plan).

In preparation for these items, I've been doing some reading this past weekend -- specifically, two Minnesota Supreme Court cases that shed light on council power and its limits when it comes to land use decisions.

In Mendota Golf, LLP, v. City of Mendota Heights (2006), the Supreme Court looked at a case where there was a conflict between the zoning and the land use plan for a golf course whose owner wanted to make it a residential development. The zoning was appropriate for this development, but the city did not want to amend its comp plan. The city was ordered to reconcile the conflict between the comp plan and the zoning -- but (unlike the original lower court ruling) the Supreme Court made it clear that how to reconcile the conflict was up to the city to decide.

Mendota Golf also made it clear that how the conflict was resolved could have further implications: "Our decision also does not foreclose Mendota Golf from asserting a regulatory takings claim if the parties cannot resolve their dispute," wrote the court.

So the upshot of this case is that a city must reconcile conflicts between zoning and the Comp Plan (such as the conflict we face on Richie Place, or the conflict in South Maplewood between the current zoning and comp plan), but courts give a city broad legislative authority to decide how to reconcile the conflict (e.g., change zoning to match the Comp Plan; change the Comp Plan to match the zoning; or change both to something else entirely). However, the court also opened the door to the possibility that some changes could result in a regulatory taking, that is, a situation where the city could be forced to compensate the landowners for regulating away the use of their land.

Last year some of these issues arose again in the case of Wensmann Realty v. Eagan (2007). This case focused on that open door to a regulatory takings claims, in a case where the city wanted to maintain an Open Space land use designation on private land to prevent a residential development. The court concluded that "a city’s denial of an application to amend its comprehensive plan to permit residential development of golf course property constitutes a regulatory taking under the Minnesota Constitution if the denial leaves no reasonable use of the property."

Considering the balance of factors to determine whether or not there is a regulatory taking, the court wrote, "The citizens of Eagan clearly value the open space that the golf course provides, but if the property owner is forced to leave the property undeveloped for the benefit of neighboring landowners without an opportunity to pursue a reasonable use of the property, the city is, in essence, asking the property owner to carry a burden that in all fairness should be borne by the entire community."

In the Wensmann case, the justices ultimately felt that the court record was insufficent to determine if in fact a taking had occurred, and so remanded the case to district court. Eagan and Wensmann subsequently worked out a compromise, which involved a referendum this fall on whether or not the city would buy the land in order to keep it as public open space.

In conclusion, I see two key guidelines when the council is considering changes to our comprehensive land use plan.

1. If there is a conflict between the comp plan and the zoning, we are obliged to reconcile that conflict. This is required by the Metropolitan Land Planning Act (Minnesota Statutes 473.865). We have legislative authority to decide how to reconcile the conflict, as long as our decision has a rational basis.
2. To avoid regulatory takings claims from landowners whose land use plan designation is changes, we need to make certain that the designation allows a reasonable use of the property. Again, a city has fairly wide latitude, since as the court writes in Wensmann, "A taking does not result simply because the property owner has been deprived of the most profitable use of the property."

Labels: development, process

Posted by John Nephew on 12/08/2008 12:15:00 PM Email to a Friend | Permalink | Comments
Tweet