Supreme Court 10.29.09

In August, I wrote about the same-day release of Pigs R Us v. Compton Township and Pawn America v. St. Louis Park.  Both cases involved the local government taking evasive action in the face of an unwanted project – a pig farm in the township, a pawnshop in the suburb.  Compton Township chose the “hastily rewrite the zoning code” maneuver; St. Louis Park enacted a moratorium.  Compton Township lost its case in district court and didn’t do any better on appeal.  St. Louis Park won its district court case and prevailed on appeal.  At the time, I thought the Court of Appeals might be mocking the Township by releasing the St. Louis Park opinion on the same day.  Paired together, there was a definite “right way, wrong way” feel to the decisions.

Well, the Supreme Court is taking the St. Louis Park case for review.  If you believe that “the Court grants cert to reverse,” perhaps there won’t be a “right way” to block an otherwise-permitted use when this case is resolved next year.  Compton Township, on the other hand, is headed back to District Court for a damages trial now that the Supreme Court denied its petition for review.

Court of Appeals 10.27.09

The Court releases an unpublished opinion affirming the City of Birchwood’s handling of docks on their public park with shoreline on White Bear Lake.  The primary issue is who holds the riparian rights to the shore – the City by ownership of the park parcels or landowners holding access easements dating to the original subdivision of land.  Like many real-estate focused decisions, this opinion isn’t a groundbreaker but is handy to keep around as a nutshell guide to the topic at hand.  On top of the riparian-right issue, the Court also re-affirms that local government regulation of docks will usually trump any claim of property right to install a dock. 

It’s not clear that the appellants meant for the case to be decided on riparian rights alone.  Just name-dropping section 1983, due process, and equal protection isn’t enough to raise an issue, though.  The Court brushes those issues aside, but not without suggesting that the outcome could be different if the issue were plead properly (the City does grant rights on the beach to a different dock association).  This looks like a shot at both the appellants’ attoney and the city, to me.

File it away – we’ve all had those times where pushing a government staff member into a wall, chasing the person into a secured area, prying your way into same secure area, shoving that person into an office and barring the door is just another part of the day.  Especially when you want to see some government documents, and see them now, but some punk deputy department director asks you to make an appointment.  Some things just have to be done.  Just know, when it’s all done, you’re not going to be able to claim the right to make a citizen’s arrest as a defense to the trespassing and disorderly conduct charges coming your way when the dust settles.

Change coming for the 60-day rule?

The appellate courts were quiet this week in case releases.  The court of appeals resolved a street-dedication issue in favor of Collegeville Township in a case that appears to have most of its interesting arguments knocked away in district court. 

Of interest, though, is the Supreme Court’s decision to grant review of a 60-day rule case out of Cook County.  At release, the Court of Appeals decision seemed very straightforward; I didn’t comment on it other than to congratulate my law school buddy Roy Christensen on the good result.  It didn’t seem like Supreme Court material.  However, the Court is still considering a case out of Lakeland which applied the 60-day rule against the DNR, which was argued October 12.  It doesn’t seem like the issues identified in the DNR case would affect local government approval, as the supplemental briefing request in that case mainly sought answers about the DNR commissioner’s authority.  Still, when the Court has taken briefs and argument on an issue, and grants review of a seemingly non-controversial case on the same topic, you have to wonder if big changes are coming.

Court of Appeals 10.13.09

The Court hands down a decision today affirming that a bond-holder cannot get a deficiency judgment on a defaulted revenue bond.  Brainerd’s Housing and Redevelopment Authority sold a $2.1 million revenue bond in 2005 to kick-start development of Brainerd Oaks, slated to be a 96-house development.  Not surprisingly, the 10 houses built with the bond proceeds didn’t sell well, and the bond went into default with about $1.9 million due.  The bank that bought the bond brought foreclosure on the 7 lots that remained unsold, as the bond included a mortgage on the lots among its securities.  The bank also sought a deficiency judgment – typical in mortgage foreclosure, but something that clearly reached for assets outside the revenue sources identified in the bond.  The HRA opposed the deficiency judgment, and the district court agreed, granting summary judgment against the deficiency request.

The Court of Appeals affirmed the decision, finding that recovery on a revenue bond is strictly limited to the sources of revenue identified in the bond.  A bond is not the same as a promissory note.  Going through the bond terms itself and the statute, this seems painfully obvious, but what about the mortgages?  The ability to obtain a deficiency judgment in foreclosure is tied to the entitlement to recover in the underlying contract – such as the promissory note signed with a standard house mortgage.  Here, though, the mortgages are attached to a revenue bond, which identified four (thoroughly depleted) sources of revenue, and limited payment to proceeds from those assets.  The mortgage foreclosure does not allow an end run around the normal operation of revenue bonds.

Court of Appeals 10.06.09

No civil cases, but the Court issues an opinion in a criminal case which re-affirms that local personnel ordinances and employee policies cannot support criminal charges for “misconduct of a public official.”  Only statutes define “lawful authority” and thus misconduct for purposes of the criminal statute.   This employee was also charged with theft by swindle (the jury deadlocked), so the misconduct charges were likely an add-on or lesser charge, in the prosecutors’ minds.  Still, it’s a reminder not to over-reach when handling a bad employment case.

You’re doing it wrong …

Remeber all those articles earlier this year about the benefits of public-private partnership?  This isn’t what I had in mind.

Supreme Court 10.01.09

No opinions, but two cert decisions of interest.  The Court granted review in Krummenacher v. Minnetonka, in which the Court of Appeals held that variance procedures are appropriate to consider and approve changes in a nonconforming use.  When the opinion came out, I really didn’t find it all that remarkable.  Maybe the Court is just trying to catch up in the area of zoning nonconformities, where our reported case history is surprisingly sparse.  Review almost has to be on the main question of whether variance applies to nonconformities; it’s not in the Court’s nature to “correct error” in the City’s hardship analysis or in whether the record needed to be augmented at the district court level.  If there’s any quibble with the Court of Appeals opinion, it’s that the nonconformity statute permits cities to allow expansion “by ordinance,” which to me implies the need for a separate ordinance (and presumably a focused policy discussion) on the topic of expanding nonconformities.  Applying a variance procedure that was already on the books doesn’t fit that bill, though the Court’s reasoning seemed solid when I read it in July.

The Court denies review of the City of Sleepy Eye’s decision to fire its police chief.  At most, the Court might have taken the issue of whether the City had to afford independent review to the chief, but past cases have gone by the boards with a lot less than the two full hearings (a year apart, almost) that this employee received.  That, and perhaps the Court didn’t feel like spending time on the case of a police chief fired (in part) for huffing paint in uniform.  Just a guess.