Interim Ordinance Escape Hatch Affirmed

Today, the Supreme Court affirms the prior decisions in Pawn America v. St. Louis Park, confirming that there still is a “right way” to dodge a controversial project.  A little over a year ago, the Court of Appeals released its opinion in this case on the same day it released Pigs R Us LLC v Compton Township.  I thought the cases paralleled each other: landowner applies for permit, intially gets permit, citizens raise Cain, city/town backtracks and looks for a way out.  Compton Township chose to hastily rewrite its ordinance to rule out swine facilities; St. Louis Park voted to commission a zoning study and adopt an interim ordinance blocking pawnshops.  Both governments were clearly taking evasive action to avoid granting a permit to an unpopular use, but St. Louis Park prevailed in court while Compton Township has been forced to grant the permit and likely pay damages.  When the Supreme Court granted cert to Pawn America last October, it raised concern that the interim-ordinance dodge would disappear.

Not to worry.  The central question posed by Pawn America was whether the Court would grab hold of the implied “good faith” requirement that’s always been read into the interim ordinance statute (courtesy of a Supreme Court decision on moratoria issued the same day the statute was adopted) to dig into the City’s “real” reason for throwing up an interim ordinance, or whether mechanical compliance with the statute will do.  Justice Barry Anderson removes the doubt (and the need to overrule any past cases) in a footnote:

We view good faith, in this context, as non-arbitrary and non-capricious actions of municipalities, and not as a heightened standard of behavior that city officials must meet in order to exercise authority under Minn. Stat. § 462.355, subd. 4(a).

So there you go.  An interim ordinance is just like any other ordinance – it will be reviewed for “whether the ordinance is reasonably related to the planning process and the public health, safety, and welfare, or whether it is unreasonable, arbitrary, or capricious.”  In other words, a very low bar.

All that’s left is whether the city “is conducting studies or has authorized a study to be conducted,” the prerequisite to adopting an interim ordinance.  St. Louis Park cut this as close as you can, putting the study authorization and the interim ordinance into the very same resolution for simultaneous adoption.  Justice Anderson (writing for a unanimous Court, by the way) shrugs and holds simultaneous adoption is OK.  I’m sure it helped that St. Louis Park quickly followed up and conducted the study, adopting new rules within 4 months, but this isn’t a part of the new rule.  Commission a planning or zoning study, and you’re clear to adopt an interim ordinance relating to the subject(s) of study – even in the same motion with the study authorization.  As long as there’s a rational basis for the study, the other contextual details – such as the application that brought the matter to the City’s attention – won’t matter.

Let’s note that the Court is on a tear lately with land use decisions that negate long-standing practices in the field, practices often backed by a fair amount of either pre-statute precedent (like this one) or Court of Appeals precedent.  DNR authority in shoreland areas, variances in general, 15.99 practice, and now interim ordinances.

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Supreme Court 10.29.09

In August, I wrote about the same-day release of Pigs R Us v. Compton Township and Pawn America v. St. Louis Park.  Both cases involved the local government taking evasive action in the face of an unwanted project – a pig farm in the township, a pawnshop in the suburb.  Compton Township chose the “hastily rewrite the zoning code” maneuver; St. Louis Park enacted a moratorium.  Compton Township lost its case in district court and didn’t do any better on appeal.  St. Louis Park won its district court case and prevailed on appeal.  At the time, I thought the Court of Appeals might be mocking the Township by releasing the St. Louis Park opinion on the same day.  Paired together, there was a definite “right way, wrong way” feel to the decisions.

Well, the Supreme Court is taking the St. Louis Park case for review.  If you believe that “the Court grants cert to reverse,” perhaps there won’t be a “right way” to block an otherwise-permitted use when this case is resolved next year.  Compton Township, on the other hand, is headed back to District Court for a damages trial now that the Supreme Court denied its petition for review.

Court of Appeals 08.11.09

Today’s releases include a published opinion holding that immunities, either under the Municipal Tort Claims Act or official immunity, do not apply in mandamus actions.  The short version of the facts in Pigs R Us, LLC v. Compton Township: company applies for swine facility building permit, Town grants permit, citizens complain, Town pulls permit, Town hastily passes a zoning revision, Court grants writ of mandamus and awards damages.  The case on damages (Pigs R Us sought over $1.7 million) is where things got interesting.  The Court engages in a detailed discussion of statutory immunity and mandamus, reaching a clear conclusion that mandamus is outside the MTCA.  Less attention is paid to a vicarious official immunity claim, as it’s logically inconsistent to concede that a non-discretionary duty exists supporting mandamus (as the Town does here), but then claim official immunity, which only exists for discretionary acts.  The case came to the Court on a denial of summary judgment, so the opinion only reaches the questions of immunity. 

I don’t think the Court is trying to mock Compton Township, but it’s odd that the unpublished opinions can be read to say “hey, here’s how it’s done.”    The City of Rochester fares better making an immunity argument to the Court, obtaining a reversal for entry of judgment on a failure-to-warn claim.  The opinion follows the line of cases (Minder v. Anoka County, Krieger v. St. Paul) requiring actual knowledge of a defect to defeat statutory immunity.  Pawn America applied for an available pawnbroker license in St. Louis Park, citizens panicked, the City adopted a moratorium, studied and revised its zoning several months later, Pawn America gets no license.  City wins the lawsuit – the key difference likely being the adoption of a moratorium for study (reasonable) instead of an immediate rewrite of zoning ordinances (arbitrary).

And I didn’t get to it when it came out (real writing assignments always crowd out the blog assignments), but congratulations to my law school classmate Roy Christensen, who won a 60-day rule appeal for his landowner client last week.

Punctuation is Important

From last Thursday’s Senate introductions, a bill aimed at protecting feedlot projects from local moratorium ordinances (underlining indicates proposed new language):

In all other cases, no interim ordinance may halt, delay, or impede a subdivision that has been given preliminary approval or any development, including, but not limited to, feedlot construction or expansion that has been approved by a county board with planning and zoning responsibilities under chapter 394, nor may any interim ordinance extend the time deadline for agency action set forth in section 15.99 with respect to any application filed prior to the effective date of the interim ordinance.

The specific example makes it pretty clear what this amendment is aiming at.  But here’s the problem: is the example narrow – only “feedlot construction or expansion,” to put County Board approval on par with subdivision plat approvals – or is the whole segment the example, so that “any development” is now exempt from moratoria?  The latter seems unlikely, and one additional comma could fix the problem before it becomes a lawsuit, somewhere.