The DNR Gets It

The Star Tribune today has an article following up on the DNR/Lakeland variance dispute, looking at the constituencies behind the fight.  Legislators have introduced a bill to override the recent Supreme Court decision and “restore” the DNR’s role as a veto point for local-government variance decisions.  Interestingly enough, the DNR opposes the effort:

The DNR doesn’t support the legislative bill to restore its authority to support or deny local variances, Shodeen said. Instead, the DNR now prefers to take contested cases — situations where the agency thinks a city or township hasn’t followed laws already in place — to district court.

This strikes me as exactly the right approach.  Every zoning code has variance standards, and there is a decent body of law surrounding what is and what is not a proper variance.  Anyone bothered by a variance decision can take it to district court, where the city’s decision is tested against those existing standards.  The DNR’s rules, on paper, add nothing to those standards.  They just ensures that the DNR controls the decision, without any requirement to consider opposing viewpoints, or any direct accountability to the public.  The rules (and proposed bill) also ensured that the first round of fighting occurred in the administrative-hearing arena.  Bigger problems arise when the DNR uses this process to shift the goalposts – for instance, substituting “compliance with the intent of the scenic river plan” for “will not alter the essential character of the locality.” 

It’s good that the DNR recognizes that in large part, this is a waste, especially when factoring in the data that the process has really only stopped 2 projects in “recent years,” with 7 others proceeding on past DNR opposition.  There’s no compelling reason either in theory or in practice that the DNR’s objections to a local zoning decision not follow the path of everyone else’s objections – an appeal to district court.


Local Government Grants in Health Care Law

A component of the health-care reform legislation signed into law today is the creation of “Community Transformation Grants.”  Once the program is up and running, the Department of Health and Human Services will award competitive grants for “evidence-based community preventive health activities.”  Local governments (including school boards), state agencies, non-profit organizations and tribal organizations are all eligible to compete for grants.  “Infrastructure changes” are emphasized as part of the program, a strong sign that local governments will do very well in the competition for these grants (non-profits generally don’t build sidewalks).  The article linked notes some of the obvious targets of these grants – sidewalk and street improvements that encourage kids to walk to school, promote bicycle use, and make it more inviting for seniors and others to enjoy a walk outside.  However, the criteria are reasonably broad: “creating the infrastructure to support active living and access to nutritious foods in a safe environment”; “addressing special populations needs”; “developing and promoting programs targeting a variety of age levels to increase access to nutrition, physical activity and smoking cessation, improve social and emotional wellness, enhance safety in a community, or address any other chrinic disease priority area identified by the grantee.”  Under the right circumstances, you could see development incentive funding for grocery stores and restaurants, grants for community-center programs, money for community policing, and similar programs alongside the building projects.

It’s hard to link directly to the language, but the grant program is at Section 4201 of the bill passed this weekend (HR 3590).

Court of Appeals 03.23.10

Well overdue for a new post.   The Court helpfully provides an opinion affirming a railroad-crossing closure in the Town of Lorain.  Perhaps to aid in my writing of an update/critique, the opinion is as atrocious as a correctly decided opinion can be.  I can re-write the opinion in 6 sentences:

The Town and Union Pacific agreed to close an at-grade crossing under Minnesota Statutes, 219.074.  Appellants argue that the Town should have vacated the road under Minnesota Statutes, Chapter 164, and awarded them just compensation through that procedure.  We find that 219.074 is the controlling statute in this case.  Appellant’s request for a writ of mandamus directing the Town to use Chapter 164 procedures was properly denied.  Minn. Stat. 219.074 does not contain a cause of action for compensation to nearby landowners.  Affirmed.

Clear, concise, and leads to predictable results in the future.  Instead, the Court decides to frame the writ request as moot, seizing on the appellant’s admission that the crossing was closed and would stay closed.  But this leaves the impression that if only appellants had sued earlier, the outcome might have been different.  That’s simply not the truth.  The Town used the correct procedure.  The outcome is the same no matter when the owners file their challenge.  Instead of simply saying that, and resolving the issue, the Court just invites someone else to try again.

The second half of the analysis is even worse.  Having found that ordering a road-vacation process under Chapter 164 is moot, the Court rubs salt in the wound by finding that the possibility of compensation only springs from – wait for it – the Town holding hearings under Chapter 164.  It’s not a compelling argument, and as noted above, it’s totally unnecessary.  The greater sin, again, is creating the impression that the outcome might have been different if appellants had just sued earlier.  In some cases decided on maddening procedural grounds, that might be true.  In this case, it clearly and unequivocally is not true.  There was absolutely no reason to dodge the merits in this case, but for some reason, the Court chose to do that.

It’s certainly not the case that we’re going to be overcome with a flood of at-grade rail crossing closure cases.  But we all have our part to play in making government more efficient, less expensive, and better for everyone.  Telling litigants, “gee, you should have sued earlier” when the answer is clearly “no, the Town did it right” is the exact opposite of those things, and it does impact operations and budgets at every level of government.