More Pruning of DNR Authority

The Supreme Court released its opinion today on the St. Mary’s Point variance case, a close companion to the Lakeland variance case decided in February.  By reversing the DNR’s final decision, the Court restricts the DNR from overriding local ordinances that the DNR previously approved. 

As in the Lakeland case, this matter involved local approval of a variance which the DNR refused to “certify.”  It possibly could have been resolved on the same grounds as the Lakeland case (no authority to certify).  The Court majority, citing procedural reasons, focuses instead on the DNR’s role in approving local ordinances.  In this case, the dispute arose when the DNR determined its current rules differed from the local ordinance, and the agency chose to apply its rules.  Under the local ordinance text, a variance wouldn’t be needed (it’s not really explained in the opinion why the variance was sought, or granted).   The Court again looks at the text of the Lower St. Croix act, and concludes that the DNR’s authority ends when the local ordinance is approved, and the local ordinances govern over DNR rules.  Without DNR approval required, the project can go forward.

So through combination of these two decisions, there is no longer a DNR review requirement for local land use decisions in the lower St. Croix river valley.  Local governments must still send ordinance amendments to the DNR for review, but variances and CUPs are now effective on city council approval.

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Court of Appeals 04.13.10

The Court reverses the Saint Paul city council on a building-demolition order, finding that the Council “entirely failed to consider an important aspect of the issue.”  The leading source of frustration in dealing with nuisance properties is the absurd length of time it takes to get through the process.  This opinion re-emphasizes why delays and postponements are, like it or not, the right choice.  This property either sat vacant or was used as an unauthorized duplex for at least seven years.  The City had posted summary abatement notices on the property four times since 2007.  Following another inspection in October, 2008, the City began the nuisance-building removal process.  The owner got notice and was supposed to abate by Devember 15.  It’s not clear whether the owner started work right away, but it wasn’t done by Dec. 15.  A hearing was set for February.  The owner had done some work but not all.  The hearing was continued for 2 weeks, and the owner pulled some additional permits but apparently wasn’t done.  There was also some dispute about the exterior of the building.   The matter was heard before the Council two weeks later.  The owner appeared with a packet of materials (it’s not clear what was in the packet, since somehow it never made it into the record) and disputed parts of the staff report.  However, it’s evident that the work was, at best, in progress. Following 13 minutes of discussion, the councilmember for the ward including the property expressed his frustrations with the history of the property going back to 2004, and led a unanimous vote for demolition.

To the Court, however, the history doesn’t matter.  The sole concern is the current existence of a nuisance – apparently determined at the minute of decision, without reference to past history, work deadlines, or even completion at the time of the decision.  The Court scolds the city council for ordering demolition on “stale” staff reports based on the October 2008 inspection and later drive-bys of the property.    In doing so, I think they go too far in making it appear that showing up on the day of decision with a packet of photos is all it takes to prevent nuisance abatement; let’s hope that’s not the rule.  The crucial aspects seem to be: a) not updating the “nuisance” opinion to address the work the City had issued permits for; b) the relatively short Council consideration of the item; and c) that the “money quote” from a councilmember (likely the only thing said by any member, knowing St. Paul meetings) focused solely on past frustration with the property, and not its current status. 

The takeaway: stay focused on why a property remains a nuisance on the day of the Council’s decision.  Missed deadlines and past conditions won’t support the decision by themselves.

New Law: Energy Improvement Assessments

A part of the jobs legislation signed by the Governor last Thursday includes authorization for local governments to establish PACE bond programs.  To recap, the purpose of the program is to allow building owners to borrow money for energy upgrades and repay the loan through a property tax assessment.  Along with potentially more favorable rates, this arrangement would tie the debt to the property instead of the individual, making larger projects more attractive to owners.  The program is entirely voluntary, and does not require the creation of special districts.

Getting a program started will require a local ordinance incorporating the minimum requirements from the statute, as the power to assess is related to the city’s ability to assess for service charges and similar items in 429.101.  At a minimum, project requests must be supported by an “energy audit” or “renewable energy system feasibility study,” the improvements must be installed by licensed contractors, and energy-generating improvements have to be barred from selling their excess energy or transferring it offsite.  The building owner’s credit is not a factor, but the local government is required to look at “ability to repay” before approving a project.  The law then authorizes the local government to issue revenue bonds to pay for the approved projects, backed by the assessment agreements with participating building owners. 

The provisions of the law went into effect April 2, so local government programs can get started.