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.