The Social Networking Role of Cities

I attended the East Metro Sustainability Roundtable put on last night by the Alliance for Sustainability.  The meeting itself was well-attended by City staffers, elected officials, and volunteers from Oakdale, Mahtomedi, Maplewood, Lake Elmo, Woodbury, Roseville and White Bear Lake, all of whom had great things to report about their eco-initiatives.

While the roundtable speakers discussed far-flung areas of concern from transit options to compostables, underlying every success story was a great social networking framework.  Some things (energy savings in City operations, improvements to new building codes) can be accomplished in a top-down fashion, but the initiatives with the most promise absolutely must have public participation in order to succeed – whether it is getting residents of multi-family housing to save energy or developing a form-based zoning code or walkable city plan. 

This puts a lot of pressure upon elected officials and paid staff to recruit, recruit, recruit for citizen boards and commissions, especially in smaller cities.  There are groups out there who will rally the troops, and can provide great resources, but the bottom line is creating a citizen network that will sustain any planning and implementation of a given project.  Everyone at some time or another has joked about governing via Facebook, but perhaps it’s not a joke anymore.

The next AFORS roundtable is aimed at the North Metro, at the Family Service Center in New Brighton, 6:30 pm on April 16.  AFORS is also putting on Natural Step seminars, the next planned April 13 and 20 in Bayport.

Court of Appeals 3.24.09

Two cases of interest released today:

– A published decision in Halla Nursery v. Chanhassen reversing a district court order preventing Chanhassen from enforcing its sign ordinance.  The facts are quite unique – most of the decision applies facts to a 1997 judgment between the parties, in place of ordinances.  The opinion eventually comes around to applying “vested rights” doctrine, both to the judgment and to the City’s attempts to enforce its sign ordinance.  In both realms, the Court of Appeals finds no vested rights – the owner is supposed to know the rules that apply to them, even when government officials do not.  This is the latest in a string of recent cases that have reinforced the notion that the government at large will not be held responsible for the mistakes and mis-statements of any of its officials. 

– An unpublished decision in Minnesota Commerical Railway Co. v. Rice Creek Watershed District, which applies the airport-noise (Alevizos) takings standard to water projects – here, whether an RCWD project caused damage to a railway bridge.  The analysis is light as the facts to pin blame on RCWD seem to be in short supply; the railway had a thirty-year gap in their maintenance records for the bridge from the early 70s to just before RCWD installed their project.  The opinion also briefly touches on statutory immunity and the value of a good administrative record.

Court of Appeals 03.17.09

No opinions released today on the topics we cover. 

Argument schedules for April are now up – the Supreme Court does not have any municipal cases scheduled for hearing, and the Court of Appeals has 12 cases as it goes on its spring travel tour (arguments in Rochester, Marshall, St. Cloud, and Moorhead).

Supreme Court Opinions 03.12.09

No opinions from the Supreme Court today, and no action on petitions for review.

This Week in Oral Arguments 3.12.09

One of the arguments occurred yesterday, one is likely starting as I type, and the other is a case we’re involved in (St. Paul v. MGM, Chad Lemmons represents MGM in that matter).  So this is more in the way of brief review, instead of argument preview.

Rainbow Taxi v. Minneapolis, A08-993 (argued yesterday).  Rainbow Taxi challenges the Minneapolis ordinance mandating 5% fleet minimums for a) wheelchair accessible cabs, and b) fuel-efficient cabs for each “taxicab service company.”  Rainbow fought a citation for failing to meet the standards in front of a Minneapolis hearing officer, and now seeks review of the adverse decison on certiorari appeal.  Rainbow does not allege pocedural irregularity or other direct attack on the process afforded it, but argues a) the Ordinance should not apply, as Rainbow’s “own” fleet is 12 cabs, and some of those are leased to independent contractors (the ordinance applies for all companies with fleets of 15 or more; the City says the fleet is 46 because that’s the number of cabs under Rainbow’s dispatch service, hence “service company”); and b) the Ordinance is unconstitutional, with their best arguments focused on the vagueness of “fleet” and “fuel efficient.”  Rainbow’s central complaint is that the wheelchair-cab mandate is a financial disaster, stating that they can’t get drivers to take the cabs, and of 30 wheelchair cab licenses granted to all companies since 1995, only 3 such cabs are on the street today.  Rainbow also makes an equal-protection claim, perhaps misapplying the Olech doctrine but positioning their industry against limousine services, shuttle bus operators and other private-sector transportation.  The City covers its initial bases first, noting the lack of an attack on the due process afforded to Rainbow in the City hearing, and stating the standard presumption of constitutionality afforded to city ordinances.  In response to Rainbow’s sharpest constitutional claims, the City offers that the meaning of “taxicab service companies” is well-understood, essentially applying to all cabs operating under a given company’s “colors”, and needed no further definition within the ordinance.  “Fuel efficient” was left for later Council determination in the ordinance (flexible, but subject to dustups just like this one) and the Council had adopted a resolution setting 23 MPG as the “fuel efficient” line for taxicabs.  The City notes that both items were consistently enforced, but did not address in its brief whether a resolution is proper for defining a term that will affect the enforcement of a penal ordinance.  The State Law Library’s file did not contain a reply brief from Rainbow, if one was filed.

Clear Channel v. Arden Hills, A08-1388, for Court of Appeals argument this morning.  Clear Channel appeals from the grant of summary judgment to Arden Hills on Clear Channel’s complaint for declaratory judgment.  The underlying dispute concerns the LED billboard Clear Channel installed on I-694 in Arden Hills (on a billboard which was already a nonconforming use under city ordinances).  Many cities’ planning staffs have hated these screens, and have felt that Clear Channel (and its competitors) have snuck these in through backdoors or, in the Arden Hills instance, just done it without asking for permission.  This is certainly a decision that will have an impact on a current hot topic, but may also set the course of nonconformity law, either re-establishing or overturning Minnesota’s common-law understanding of the concept in light of 2001 codification of nonconformity, and a 2004 amendment to that same statute.  Both Clear Channel and Arden Hills accuse each other of blatantly misreading the text of Section 462.357, subd. 1(e), though the real argument is whether converting a standard billboard into a TV set is an “improvement” (Clear Channel’s position) or an “expansion” (Arden Hills’ position, adopted by the District Court).  Maybe as a result of the District Court opinion, neither side focuses on the most obvious change (the dynamic LED screen), but on whether the added depth, volume, and accompanying changes to the billboard support to hold the additional weight are improvement or expansion.  Clear Channel relies heavily on legislative history (which is normally not a good strategy in cases interpreting State laws) to stake a claim for a brand new day in nonconformities, in which the old concepts of elimination through obsolescence do not apply.  The Auto Dealers’ Association filed an amicus brief urging the Court to adopt a new three-part test for nonconformities based on recent holdings of New England courts (Mass., Ct., and NH are cited): 1) a threshold determination of what use was in place at the time of grandfathering; 2) the “improvement” (slightly loaded wording, no?) would be analyzed to see if it “merely improves” the operation/structure or if it constitutes a departure “from the nature and purpose of the original”; and 3) determine whether the improvement will cause the NCU to have a different impact on the surrounding neighborhood.  Arden Hills responds by defending the “old regime” against the codification and amendment, noting that regardless of any new rules for “improvement,” “expansion” is still clearly governed by the traditional understanding of nonconformity, and the added bulk of the dynamic sign is an obvious expansion in their view (and they did prevail at District Court).  The City takes on the MADA’s suggested new approach, noting most powerfully that the New England courts who have adopted the 3-part test have come to regret it in fairly short order, as it leads to confusion and inconsistent application, even by appellate courts.

If that isn’t enough, the case also raises a question of preemption: does Federal billboard law and State billboard controls in MnDOT right-of-way pre-empt local regulation unless the City gets MnDOT certification?  This question also draws an amicus, this time from the outdoor advertisers’ association, arguing that Arden Hills lacks certification to regulate outdoor advertising in the Federal/MnDOT ROW under Minn Stat 173.16, subd. 5.  The billboard company and billboard association follow this up with attacks on the ordinance itself, on the application of a certain lighting standard, the division of the city into districts with different standards, on the aesthetic regulation of the ordinance, and finally on a provision that requires the Planner to reject applications in writing within 30 days (arguing for 15.99-style automatic approval to guard against ad hoc  justifications).  Arden Hills takes on the pre-emption argument with a full dissection of the applicable standards – which seemed to be missing in the proponents’ briefs.  The City also defended its ordinance on the various grounds of attack (sorry for cutting it short, but there is a lot here and this portion is the most routine). 

As neither side spends much time arguing about the existence of material fact, but is pounding straight to the law, expect either a full affirm or a full reversal when the decision comes out; the loser is certain to petition to the Supreme Court, and this would seem to be a likely grant for them.  This is definitely a case to watch.

Saint Paul v. MGM, A08-1439, argued today.  Saint Paul is appealing a grant of summary judgment denying its attempt to require MGM to block access to its parking lot from the alley behind the property, and to maintain a screening fence on its back property line.  MGM resisted, and prevailed at District Court, primarily on property-law doctrines.   As I mentioned, Chad Lemmons of Kelly & Lemmons briefed and is arguing MGM’s side of this case, so I’ll refrain from deep analysis of the case.

Court of Appeals Opinions 03.10.09

The court published a decision on recreational-use immunity this morning.  The decison is notable for firmly establishing that certain conditions (here, a gouge in the sidewalk outside a rec center in St. Paul) are simply not “inherently dangerous conditions likely to cause death or serious bodily harm” and are not subject to factual dispute.  The Court also rejected the argument that the traditional standard of liability, or the calculation of inherent risk, is different if the facility is used by more vulnerable people (here, a 76-year-old woman). 

The Court also issued an unpublished opinion on conditional use permits, finding Sherburne County’s denial of permits relating to a gravel-pit expansion to be arbitrary and capricious.  The opinion is fact-specific and heavily influenced by the long history of litigation between Veit/Vonco (pit operator) and Sherburne County.  The opinion’s main use is the affirmation and application of the holding from Trisko v. Waite Park, finding that if an authority can create conditions that would allow it to address concerns and approve a CUP, then it must do that.  Here, the County Board identified 37 conditions that could have applied, so the Court found refusal to employ these conditions to be arbitrary and capricious.  Also note – the Court reached its main conclusion on page 9 of the opinion.  The opinion is 13 pages.  Thus, the other takeaway is that the Court does not hesitate to smack your board’s decision around as much as possible when it’s sending it back to you on remand.  Beware.

Bill Introductions – First Week of March

Last week brought a wave of bills with aims to modify municipal policy (and that’s without digging into the details of tax bills).  Here’s some of the bills we’re looking at:

HF 1180/SF 1207 clarifying the meaning of “discipline” under the Data Practices Act.

HF 1190  requiring state and municipal fleet purchases to be 25% electric vehicles after 2012.  The bill also would require that all full-size pickups bought by governments by “manufactured in Minnesota” – as long as we’re hoping for massive positive change in the auto industry in three years or less, why not?

HF 1195 proposing mandate relief and actually identifying some mandates to be lifted (on the fast track, had one committee hearing yesterday, and goes before another committee tomorrow).

HF 1201 encouraging the use of performance measurement techniques.

HF 1294  Repealing sunday sales restrictions on liquor, cars, etc.

HF 1297/SF 1163 making substantial changes to annexation statutes.

HF 1377 ending municipal liquor stores.

HF 1398/SF 761 House companion to the Senate alternate publication bill mentioned in our first post.

SF 1181 which appears to be a more aggressive proposal to let the Web replace newspapers (except for annexation, assessments, and zoning notices)

The first committee deadline – for bills to make it out of their initial committee – is March 27.

Court of Appeals Opinions 3.3.09

The Court released an unpublished opinion in Lohse v. City of Oak Grove.  Oak Grove fired Ms. Lohse, a non-union, at-will employee.  Thus, she falls into one of the few categories of public employment that is still governed by common law: with no union contract (and thus no aribtration) and no “for cause” provision in a contract or city policy (which would giver her independent review rights under 179A.25), her only recourse is to petition the Court of Appeals for certiorari review.  Though the City prevails here courtesy of the highly deferential standard of review, the opinion is troubling in one respect:  the Court found that the City “waived” its right to claim Ms. Lohse was an at-will employee because “respondent did not present this argument below” and the City Council did not “base its decision” on the at-will status.  Maybe this can be addressed by simply referring to “at-will” as a reason supporting a Council’s finding, but if it’s not (and does anybody want to be the city that finds out?), the choices seem to be hold a hearing and waive “at-will,” or refuse to give any process at all to keep “at-will.”  This would seem to be impossible choice if you have to deal with a long-term employee.

Argument Previews 3.4.09

Two cases involving cities will be argued at the Court of Appeals tomorrow:

Brigewater Telephone v. Monticello, A08-1928.  Discussed previously, Bridgewater seeks to block Monticello from issuing (now, from receiving the proceeds of) revenue bonds to support the creation of a city/private fiber-optic network.  Bridgewater argues that the City acted outside the scope of Minn. Stat. 475.52, which it argues limits revenue bond issues to “traditional utilities.”  In particular, Bridgewater argues that “internet service” is not one of these traditional utilities (though how is it separate from phone and/or cable?  Never really answered.)  The argument essentially seeks specific legislative authorization before a government body can enter a competitive marketplace.  Bridgewater also seeks remand to the district court on evidentiary issues.  The City replies that the language of 475.52 is very broad and allows bonds for “other public conveniences,” noting that there is little authority for what Bridgewater wants to define as “traditonal utilities.”  The City also points to a broad expansion of the meaning of “public purpose” in court opinions in the past 30 years.  The case drew an amicus brief from the National Association of Telecommunications Officers and Advisors supporting the City’s “right” to expand broadband services, and noting the historical role of government intervention to promote the expansion on novel technologies, such as the telephone.

Three Putt, LLC v. Minnetonka, A08-1436.  This case raises the question: what is a PUD, exactly?  Three Putt owns one parcel in a two-lot PUD “district.”  When the PUD was created, the same developer owned both lots, but entered into two separate PUD Agreements (one for each lot).  Unfortunately, the two agreements do not exactly match up in terms of reserved rights for cross-parking, lot access, or visibility.  Inevitably, these differences came to light when the parcels were sold off, and one developer (also a defendant/respondent in the action) built their property up in a way that steps all over the rights that the other owner thought they had.  Three Putt sued both the City and their neighboring developer on contract, zoning, and trespass theories, but lost on all claims (except a temporary trespass by the neighbor) on summary judgment.  At appeal, Three Putt frames the issue as involving a unitary PUD district (which does exist on the City’s map), thus making their claims of spot zoning and/or interference with a legal nonconforming use at least substantial enough to get to trial, if not prevail overall.  The City and the other developer take the stance that the contracts (PUD Agreements) dominate the issue, creating complete separation between the two properties – thus, the City’s acts to amend or administer one contract have no impact upon the other, or at least do not grant the other contract holder any special say in the matter.  The case also touches on who has the burden when challenging a grant of variance – the challenger (to show the request is unreasonable or lacks uniqueness) or the City/proponent (to establish that it made findings to support the grant of a variance)?

Hiding from the people?

Governing a city or town of any size is a tough job.  Governing transparently is even tougher, especially when making difficult decisions that are sure to gore some community oxen.  The temptation is always there to keep such things under wraps as much as possible, especially when floating ideas which may never go anywhere, to avoid arousing any angry crowds of citizens.  However, it often turns out that holding on to bad news only makes the public angrier when the news comes out, as not only are their leaders making a “bad” decision, they tried to “hide” it from the public.  The atmosphere is even worse when the public’s ability to react and influence the decision is reduced to a token appearance at a public hearing (or less).  Besides, given recent events, we should think that the “cone of silence” has developed a bad reputation, right? 

Maybe not.  A new bill introduced in the Senate would exempt budget information from public disclosure until the budget is presented to the City Council as a fully realized proposal.  The bill language ends up being less than mandatory (budget info is made nonpublic, but governments can release it if they see a need), but using the new bill as intended certainly promises a lot more of the angry-hornet meetings described above.  And while it’s been mentioned before, the street improvement district bill has its merits but as written completely reduces an individual’s right to challenge their burden to a token appearance at a public hearing.    The League of Minnesota Cities writeup of the streets bill notes that the concept is modeled on the sidewalk improvement district law, which is a very short piece of legislation.  A better comparison, and better model, is probably the special service and housing improvement districts in Chapter 428A, which give owners in the proposed district the ability to challenge the creation of a district and the imposition of fees.  The good part of the street improvement district idea is recognizing that good streets do not just benefit those that own property directly abutting the street – perhaps this concept should be applied to an amendment of special-assessment statutes, rather than creating a new and much more closed process that looks like an end-run around long-standing local taxation law?