Lake Elmo’s Trade Barriers, Revisited

Lake Elmo’s mayor submitted an op-ed response to the Pioneer Press (appearing 12/17) concerning the story I wrote about last week.  The Mayor quickly gets out the point that the “homegrown law” is really a land-use regulation.  He frames the issue as one of a rogue landowner – it sure seems to be just one, based on the op-ed – who won’t abide by the City’s zoning code.  So far, so good.  If this is just about unchecked land use, then the City is on solid ground.

Unfortunately, it’s not.  At one point, the Mayor sets up a strawman: what if your neighbor turned his garage and front yard into a used car lot and kiddie play-place?  The implication is that “commercial” uses should only take place on “commercial” property.  Trouble is, Lake Elmo’s code allows this particular neighbor to sell flowers, pumpkins and Christmas trees from their farm property.  The mayor terms it an “exception,” but a conditional use permit is not an “exception” to zoning in any way, shape or form.  It’s an integral part of the regulation, and the owner is completely entitled to a permit if they meet criteria (see today’s other post).  The City can either eliminate the category of use (again, farmers have a more or less unfettered state-constitutional right to sell their own produce), or grant permits to owners that qualify.

Since there’s no real issue of “commercial” use versus “farm” use, the “grow your own” restriction seems to be the only issue at stake here.  Here, the gist of the original news article – a “homegrown law” creates winners and losers based on the source of the products offered for sale – unavoidably raises Commerce Clause issues.  Another way to say “create winners and losers” is to say the City “discriminates.”  A state or local government can occasionally adopt regulations which discriminate against out-of-state commerce, but it needs a very good reason that stands separate and apart from the goods’ place of origin.  There also needs to be no other way to accomplish this very important goal except to discriminate against out-of-state products.  It’s hard to see how this particular law stands under that standard, or any proposed compromise which would allow a certain percentage of “foreign” goods to be sold.

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