Court of Appeals 04.21.09

The Court issued a published decision in Friends of Twin Lakes v. Roseville, affirming Roseville’s negative determination on an EAW for an expansion at Northwestern College.  The analysis meriting attention and publication is the Court’s approval of EAW review which considers pre-existing regulatory oversight as a legitimate means of preventing significant environmental effects.  Listing out and recognizing the existing regulation applicable to a project alongside the other mitigation measures planned or required will support a valid EAW decision.  As always. the key to any municipal decision is quality consideration and fact-finding.

The Court also released an unpublished decision in Ellis v. Minneapolis, reversing a special assessment for building demolition following a fire.  The legal takeaway is simple: if the city is levying an assessment through ordinance power, it has to do exactly what the ordinance says.  Here, the City of Minneapolis has an ordinance that allows the fire chief to hire a crew to tear down “walls or other parts of the building or to put them in a safe condition.”  Ellis argued that the building could be restored to safe condition without a tear-down, and got about six months to try before the City tore the building down.  What the Court appears to have locked onto, though, was the City’s assessment bill, which purported to assess the cost of the demolition crew being standby on-site on the first day after the fire.  No action to “tear down walls … or put them in a safe condition” equals no assessment.

Court of Appeals 04.14.09

The Court published a decision reversing an eminent domain order giving the City of Jordan some church-owned land for sidewalk and streetlight improvements.  The Court dusted off some century-old precedent to establish that sidewalks and traffic controls are “roads and streets” for the purposes of applying Minn. Stat. 315.42, an 1881 statute preventing the laying of roads and streets through church property without the consent of the religious corporation.  There is nothing fancy about this opinion – once “roads and streets” is defined, the application is straightforward.  The age of the precedents used by the Court here assure that just about any road-related improvement on church property can only be accomplished through negotiated approval.

The Court also released an unpublished opinion that adds to the canon of Cities Are Not Responsible For Their Mistakes.  The district court in Sibley County attempted to hold Gaylord responsible for confused and just plain incorrect advice concerning PUD and subdivision approval, granting the developer a writ of mandamus to approve a subdivision plat largely on a theory of estoppel.  The Court of Appeals reversed, taking less than three sentences to establish that estoppel is not a proper basis for mandamus.  It spent more time on whether a clear duty exists to approve a non-compliant plat (it doesn’t) and whether the developer has other remedies at law following an adverse zoning decision (it does).   In all of these cases, the developer/landowner/applicant is going to be charged with knowing the applicable laws and codes, regardless of what may be represented by a city or town staff.

Lost in Translation?

We’re working on water plans lately, and noticed a disconnect between this part of 103G.005:

 Subd. 10e.  Local government unit. “Local government unit” means:

(1) outside of the seven-county metropolitan area, a city council, county board of commissioners, or a soil and water conservation district or their delegate;

(2) in the seven-county metropolitan area, a city council, a town board under section 368.01, a watershed management organization under section 103B.211, or a soil and water conservation district or their delegate; and

(3) on state land, the agency with administrative responsibility for the land.

 And this part of 8420.0200:

 Subpart 1. Determinations of local government unit.

The local government unit responsible for making exemption, wetland type, wetland boundary, and no-loss determinations and approving replacement and wetland banking plans shall be determined according to items A to D.

A. Outside the seven-county metropolitan area, the local government unit is the county or city in which the drain or fill activity is located, or its delegate.

B.  In the seven-county metropolitan area, the local government unit is the city, town, or water management organization regulating surface-water-related matters in the area in which the drain or fill activity is located, or its delegate. The watershed management plan adopted under Minnesota Statutes, section 103B.231, and related board rules will normally indicate the appropriate local government unit. Lacking an indication, the local government unit must be the city, town, or its delegate.

Here is the original text of the 1991 WCA:

                        ARTICLE 6

                     REGULATION OF WETLAND ACTIVITIES

    Section 1.  Minnesota Statutes 1990, section 103G.005, is

amended by adding a subdivision to read:

    Subd. 6a.  [BOARD.] “Board” means the board of water and

soil resources.

    Sec. 2.  Minnesota Statutes 1990, section 103G.005, is

amended by adding a subdivision to read:

    Subd. 10a.  [LOCAL GOVERNMENT UNIT.] “Local government

unit” means:

    (1) outside of the seven-county metropolitan area, a city

council or county board of commissioners; and

    (2) in the seven-county metropolitan area, a city council,

a town board under section 368.01, or a watershed management

organization under section 103B.211.

 The Legislature’s version is far preferable – the prime responsibility of any local authority exercising WCA authority to to provide qualified, knowledgeable people.  Many of the towns that remain in the metro area lack any full-time staff at all.  Consultants could fill this gap, but why force this to happen when the original intent was to have a specialized agency govern wetlands in small townships to begin with?  The BWSR is going through public hearings on proposed revisions to 8420, though this portion is not yet proposed for a fix.

Supreme Court 04.09.09

The Court handed down a decision in a condemnation action, addressing an issue of lease/contract interpretation and entitlement to a condemnation award.

Court of Appeals 04.07.09

Two unpublished decisions today for discussion.  The first resolves a challenge to White Bear Lake’s decision to grant a variance and CUP amendment to an owner in the Marina Triangle.  The opinion does not break new ground in affirming the City’s approval of the applications, other than scoring another point for a highly deferential use of the Mohler three-part variance-approval analysis.   The other is a wrongful-termination case, in which much of the “termination” discussion went away in the appellant’s veteran’s-preference hearing (decided last year).  The remaining allegations of retaliation and defamation are turned away by the Court via summaries of existing law.  The Court does extend Carradine absolute immunity to the members of an ambulance service board – worth filing away for the next time you deal with a hot advisory-board issue (or member).

Supreme Court 04.02.09

The Supreme Court released its opinion in the Alexandria water-treatment plant NPDES permit dispute.  Jusitices Paul Anderson and Alan Page dissent from the ruling, which reverses the Court of Appeals and reinstates the water plant’s permit.  The Supreme Court found ambiguity in the controlling regulations, sufficient to give the MPCA room to “reasonably interpret” the rules into a permit that allowed further phosphorus discharge into a phosphorus-impaired water body.  The opinion, with dissents, is 49 pages.

The Court also released decisions on petitions for review, and granted review of S.M. Hentges v. Mensing, in which the Court of Appeals applied the multi-unit housing exception to the mechanic’s lien notice statute to a single-family subdivision project (of 5 houses).

Court of Appeals 3.31.09

The Court released a published opinion on the Gabby’s Saloon liquor-license appeal, In the Matter of the On-Sale Liquor License, Class B, Held by T.J. Management of Minneapolis d/b/a Gabby’s Saloon and Eatery.  The Court reversed the City’s adminstrative attempts to impose conditions on a granted liquor license that previously had no conditions.  The decision is made on due process grounds – the entire file supporting “adverse action” against this applicant involved the off-premises behavior of patrons, which the Court is unwilling to ascribe to the license holder as it did for on-premises illegality in the Hard Times Cafe case (which applied the same “good cause” language from Minneapolis code).  

Despite making a decision striking down the conditions on due-process vagueness grounds, the Court engages in a lengthy discussion analyzing express and implied regulatory powers in the context of the conditions imposed upon the license.  In the process, the Court distinguishes the  City of Duluth v. Cerveny,  a 1944 case that practitioners have relied upon to justify a very wide berth for cities engaging in liquor regulation.  Here, the Court is unwilling to give either statutes or City ordinances a broad reading (and shows its irritation by including in the opinion plenty of record quotes from city attorneys about “stretching the law”).  A key fact that may have fed the Court’s irritation: the city’s public safety committee had proposed harsh conditions, and staff had gathered their information – and Gabby’s received a liquor-license renewal from the City without conditions.  Cities and other governments get a lot of deference and leeway from the courts in part because of the difficulty of the job, but the easiest way to lose that tolerance is when one hand does not talk to the other.