The DNR Adjusts

In the last several months, the Supreme Court has eviscerated the DNR’s ability to directly manage shoreline property development.  The DNR had exercised review authority over shoreline variances and insisted that its agency rules overrode local ordinances, even when local ordinances had been DNR-approved.  Those powers have now vanished, and in March the DNR suggested that it was going to simply challenge “bad” local decisions in district court.

Today’s Star Tribune reports that the agency is following through on that plan.  As it turns out, for all the Court has done to limit the DNR this year, the Krummenacher variance decision will likely give the agency its mojo back.  The DNR has sued a township in western Minnesota to nullify a variance granted to allow a lake home within 15 feet of the shoreline.  The news story, and the Star Tribune’s prior reporting, makes clear just how much of a seismic shift the Krummenacher holding creates; local officials in the area estimate that 70% – 90% of variance requests are approved by local officials.  In the past, just about anybody who presented something out of line with zoning was simply advised to apply for a variance.  Again, if the use made sense (or at least didn’t offend anyone), the variance was easy to get as long as the “problem” arguably creating the need for a variance wasn’t the owner’s fault.  At this point, cities and towns should just stop suggesting that owners should seek variances, as the standard is now extremely difficult to satisfy.  That, and if it involves a shoreline, bluffline, or scenic area, the DNR will sue you for approving it.


Variance Law Clarified By Supreme Court

The Court released its opinion in Krummenacher v. Minnetonka, which now turns out to be a landmark opinion on land-use variances, rather than a case about nonconforming uses.  Chief Justice Gildea wrote the unanimous opinion. 

The fireworks start on page 11, when J. Gildea picks up the meaning of the phrase, “the property in question cannot be put to reasonable use if used under conditions allowed by official controls.”  Background: for at least the past 20 years, cities (and for that matter, courts) have taken that phrase to mean that the proposed use is reasonable but blocked by the zoning code.  Short of something truly nutty, this is always the case, and the analysis moves on to whether the problem is or is not the landowner’s fault, or whether the proposal will “alter the character” of the area.  The City of Minnetonka analyzed the request along these lines, and the Court of Appeals approved.

The Supreme Court, on the other hand, decides that “put to reasonable use” is a very tough standard, one that should only be met when absolutely necessary to avoid a regulatory taking.  Justice Gildea eventually gets around to a fairly compelling justification for this holding: comparing “undue hardship” as it’s been understood to operate with our precedent on “practical difficulties,” which is supposed to be a more lenient standard.  Using the prevailing interpretation of “reasonable use,” she demonstrates that “undue hardship” has somehow become the easier standard to meet, and concludes that this cannot stand with the prior Supreme Court decisions on “practical difficulties” (the “undue hardship” cases have to this point been Court of Appeals decisions). 

I say, “eventually,” because for some reason the opinion tries to insist that the “plain language of the statute” requires a different finding.  Justice Gildea accuses the Court of Appeals of “rewriting the statute” (something that must be set as an AutoComplete phrase for her at this point) for following conventional wisdom and past precedent in the matter.  The “plain language” argument is horribly misplaced here.  The near quarter-century of contrary interpretation (without much controversy, either) is one fact that, at the very least, should destroy any notion that the language is “unambiguous.”  More troublesome, though, is that in decreeing a “plain meaning” for the statute, Justice Gildea herself rewrites the statute.  The statute reads: “put to reasonable use.”  The City, following conventional wisdom and precedent, applies the phrase as “put to a reasonable use.”  The challenger here insists that it should be “put to any reasonable use.”  That’s the whole debate – which modifier should be plugged in between “to” and “reasonable” to apply the statute to some facts?  You can, and Justice Gildea does, make a compelling contextual argument that “put to any reasonable use” is the right answer, but to insist that your conclusion is the “plain meaning of the statute” in this situation is just wrong.  If this is “strict constructionism,” then strict constructionism has no meaning.  We have settled methods for interpreting statutes, and they should be used when there is ambiguity, instead of doing partial analysis and then propping that up by declaring “plain meaning.”

So this case now goes back to Minnetonka for review under the variance standards as declared by the Court.  My question at the outset, and especially now, is: why did this get here?  Why is this application (to expand a non-conforming garage) going through variance?  As the Court made clear in the first half of its opinion, cities have the power to allow the expansion of nonconforming uses.  Moreover, cities can use any critieria they like in deciding whether to approve such an expansion – the sole requirement is to pass an ordinance allowing expansion, and describing how such permission can be obtained.  Minnetonka chose to use its variance procedure to consider these requests.  However, there is absolutely no reason that this must be tied to a variance procedure; to me, using variance considerations here make no sense.    The property is already nonconforming, thus is already at variance with the terms of the zoning code.  So from what, exactly, is the expansion request varying?  Under this Krummenacher decision, variance is now just an escape hatch used to avoid regulatory taking – which is exactly what nonconforming use doctrine is in the first place. 

My thought is that Minnetonka can moot this case, or at least make its life much easier at the re-consideration, by amending its ordinance to provide for a separate procedure to consider expansion of a nonconforming use or building.

Court of Appeals Clarifies Forfeiture Procedure

By Daniel J. Cragg

The Court of Appeals today in Mycka v. 2003 GMC Envoy, held that a seizure of a vehicle that occurred after a DWI suspect was released from jail and had rightfully reestablished possession of the vehicle was not “incident to a lawful arrest,” and therefore, the seizure was unlawful under Minn. Stat. § 169A.63, subd. 2.  The Court of Appeals reversed the District Court’s order of forfeiture outright without any remand.  Since the language of the DWI forfeiture statute regarding seizure is identical to the controlled substances forfeiture statute, see Minn. Stat. § 609.531, subd. 4, this holding will likely affect those proceedings as well.

The result was reached largely on statutory construction grounds and would seem relatively unremarkable, however, it has become fairly commonplace in some cities and counties for law enforcement to not seize a vehicle subject to forfeiture under Minn. Stat. § 169A.63 until after the criminal proceedings have concluded.  In such a case, it is now clear that the prosecuting authority must commence a judicial action for forfeiture and obtain either a writ of attachment or arrest warrant for the property subject to forfeiture.

The most remarkable part of the Court of Appeals analysis is a footnote that noted that the language of the statute is similar to phrases used in Fourth Amendment jurisprudence, including the phrase “incident to a lawful arrest,” but the Court found Fourth Amendment case law had “limited value” because it dealt with unlawful searches.  The Court did note that the Fourth Amendment prohibits “unreasonable searches and seizures,” before finding the related case law inapplicable.  (Emphasis added).

Practitioner’s pointer: Minn. Stat. § 570, et seq., on the subject of attachment, is only applicable to actions for the recovery of money, both in personam and quasi-in-rem, and certain actions brought by the Attorney-General.  A writ of attachment or arrest warrant for a true in rem action, such as a forfeiture proceeding, flows from the District Court’s authority under Minn. Stat. § 484.03 to issue, “all other writs, processes, and orders necessary to the complete exercise of the jurisdiction vested in [the District Court] by law…”

Amendments to MGDPA

On May 18, Governor Pawlenty signed into law a bill relating to data practices and data classifications. Although not imposing sweeping reforms, the law does contain some noteworthy changes. For example, the bill expanded what types of personnel data are classified as public, including classifying the “terms and conditions of employment relationship” as public data under § 13.43, subd. 2(a)(1); and also classifying “work-related continuing education” as public data in 13.43, subd. 2(a)(7).

More significantly, however, the Legislature reworked a subdivision that will undoubtedly impact public sector labor law. Minn. Stat. § 13.43, subd. 2(b) was amended so that disciplinary action will be not public data if an arbitrator sustains a grievance and reverses all aspects of the disciplinary action. Prior to the amendment, if a disciplinary grievance proceeded to arbitration under a collective bargaining agreement, the final disposition of the grievance, the specific reasons for the disciplinary action, and the data documenting the basis of the discipline were classified as “public data”—even if the grievance was ultimately sustained and the discipline reversed by the arbitrator. With the new amendment, however, if a grievance is sustained and all aspects of the discipline are reversed, then the disposition, the documentation, and the reasons for the disciplinary action are classified as “not public data.” This seems to bring the practical effect of the statute more in tune with its intent. A successful grievant need no longer be concerned that the “facts” giving rise to the disciplinary action will be disseminated to the public. It should be interesting, however, to see how parties interpret the phrase “all aspects of any disciplinary action.” For instance, if an arbitrator reverses a discharge but imposes a suspension, is that a reversal of “all aspects” of the disciplinary action? Perhaps more interesting (read, nuanced), if an arbitrator reverses a discharge and reinstates the employee but does not award backpay, is that a reversal of “all aspects” of discipline?

There were two other interesting amendments tucked into the bill. First, an amendment which classifies the “security features of building plans, building specifications, and building drawings of state-owned facilities and nonstate-owned facilities leased by the state” as “nonpublic data.” Second, parole and county probation authorities have been given access to firearms data (i.e. purchase/transfer documentation and applications for permits to purchase or carry) on individuals subject to their supervision.

Last, the procedure for a responsible government authority to seek permission to temporarily classify data as private or confidential (with respect to data on individuals), or nonpublic or protected nonpublic (with respect to data not on individuals) was amended. Most notably, an application may be withdrawn prior to the commissioner’s decision unless it affects similar government entities. The amended law also permits the responsible authority to request approval for a new or different use or dissemination of the data during the period of temporary classification.

Public Broadband, Ctd.

A good followup on the running battles between telecom companies and the cities and counties trying to spur broadband growth.

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.

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.