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HomeMy WebLinkAbout09-20-2018 Council and Advisory Boards Joint Meeting PacketCITY OF LINO LAKES SPECIAL JT MEETING CITY COUNCIL PLANNING & ZONING BOARD PARK BOARD ENVIRONMENTAL BOARD ECONOMIC DEVELOPMENT ADVISORY COMMITTEE September 20, 2018 NOTICE IS HEREBY GIVEN that the Lino Lakes City Council has scheduled a special council session to be held on September 20, 2018 at 6:00 p.m. for the purpose of participating in a Land Use Workshop to be conducted by City Attorney Jay Squires. The meeting will be held at Lino Lakes City Hall, 600 Town. Center Parkway, Lino Lakes, Minnesota. If you have any questions, please call 651-982-2406. Julie Bartell, City Clerk RUPP, ANDRRSON, SQUIRES & WALDSPURGH.R, P.A. 333 South Seventh Street, Suite 2800 Minneapolis, MN 55402 Office (612) 436 4300 Fax (612) 436 4340 www.raswlaw.com jay.squires.c .raswlaw.com MAKThG SOLID LAND USE DECISIONS. By Jay T. Squires Lino Lakes Training September 20, 2018 THE LEGAL BASIS TO REGULATE LAND USE A. Statutory basis for power to zone. 1. The authorization for the exercise of zoning is the police power. The police power allows government to regulate individual conduct for the common welfare of the community. The police power is inherent in the State, not local government Thus, the only power cities have is that delegated to them by the State. a. The power to zone is established in Minn. Stat. § 462.351 et. seq. NO1F,' These materials and the corresponding presentation are meant to infoiiii you of interesting and important legal developments. While current as of the date of presentation, the information that is provided may be superseded by court decisions, legislative amendments, rule changes, and opinions issued by bodies interpreting the area of law. We cannot render legal advice without an awareness and analysis of the facts of a particular situation. If you have questions about the application of concepts addressed in this outline or discussed in the presentation you should consult with your legal counsel. ©2016 Rupp, Anderson, Squires & Waldspurger, P.A. b. The Legislature has often considered but has up to this point refected the enactment of proposed joint planning laws covering counties, cities and townships. Consequently, counties and cities operate under different statutory schemes when they regulate land use, with some differences between them However, with amendments over the last decade, the statutory schemes have become more and more similar. B. Highlights of Minnesota Statutes 1. Foams of Official Controls. a. The zoning ordinance. i. A zoning ordinance establishes districts within the municipality, such as agricultural, residential, commercial and industrial. ii. Within each district there are certain development activities which can occur Some are peilnitted as of right in the zone. Some are conditional on certain requirements being met If a use is neither peiniitted nor conditional, then the common. position is it is not allowed in the zone. It is prudent and recommended to include a statement to this effect in your zoning ordinance. iii. Within each district there are perfoimance standards such as setback requirements, height limitations, lot size requirements and the like that may impact the use of the land. b. Subdivision regulations. i. Subdivision regulations of a municipality are invoked when a landowner proposes to divide a parcel into two or more smaller parcels of land. ii. "Subdivision'means the separation of an area, parcel, or tract of land under single ownership into two or more parcels, tracts, lots, or long-term leasehold interests where the creation of the leasehold interests necessitates the creation of streets, roads, or alleys, for residential, commercial, industrial or other use or any combination thereof. By definition, subdivision does not include the separation of an area or parcel into lots, tracts or interests that will be 20 acres or larger in size and 500 feet m width for residential uses and 5 acres or larger in size for commercial and industrial uses. It does not include cemetery lots, nor does it includethe separation resulting from court orders, or the adjustment of a lot line by relocation of a common boundary. 2 Hi. "Plat" means the drawing or map of a subdivision prepared for filing of record pursuant to Chapter 505 of Minnesota Statutes and containing all elements and requirements set forth in applicable local regulations adopted pursuant to Minn. Stat. § 462.358 and Chapter 505 of Minnesota Statutes. iv. The authority to enact subdivision regulations is set forth in Minn. Stat. §§ 462.358. A municipality may by ordinance adopt subdivision regulations establishing standards, requirements, and procedures for the review and approval or disapproval of subdivisions. Regulations may vary depending upon certain classes or kinds of subdivisions. However, the regulations are to be unifonn for each class or kind of subdivision. v. A municipality must approve a preliminary plat that meets the applicable standards and criteria contained in the municipality's zoning ordinance and subdivision regulations unless the municipality adopts written fmdings based on a record from the public proceedings why the application shall not be approved. See PPL, LLC v. Chisago County Board of Commissioners 656 N.W.2d 567 (Minn. App. 2003). c. Other official controls. i. Many other types of ordinances that local governmental entities are authorized to enact regulate the use of land. ii. Examples of other non -zoning land regulation ordinances would be floodplain ordinances, shoreland ordinances, solid waste ordinances, and sanitary and building codes. Other types of regulations can apply in special circumstances, such as Wild and Scenic Rivers Act regulations, the Mississippi Headwaters Corridor Act, etc. iii. Interim Uses/Minn. Stat. §462.3597 — This statute allows a.temporary use of property that is not necessarily paunitted by the zoning ordinance. II. LIMITATIONS ON LAND USE REGULATION A. The Federal Constitution Limits the exercise of local zoning powers. 1. The equal protection clause of the constitution is essentially a direction that similarly situated persons be treated the same. In the zoning context that means that regulations must be unifoluily applied. This is what is referred to as equal protection under the law. This means: a. Similarly situated landowners must be treated the same. b. Similarly situated refers to not only circumstances, but time. c. When an equal protection challenge is asserted, the municipality must offer a legitimate reason for distinction. d. Illustrative cases showing these principles in action are Anderson v Douglas County, 4 Fid 574 (8th Cir 1993); Barstad v. Murray County, 420 F.3' 880 (8th Cir 2005); and Northwestern College v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979). 2. Regulations cannot deny a property owner all economically viable use of property. This stems from the Fifth Amendment to the United States Constitution, which states that private property shall not be taken for public use without just compensation a. Such a denial equals a "taking." b. In Lundstrom v. Hubbard Co., the district court rejected a takings challenge to shoreland substandard contiguous lot combination requirements in the Hubbard County Shoreland Ordinance. c. In Graham v. Itasca County, 601 N. W. 2d 461 (Minn. App 1999) the District Court rejected a takings challenge to shoreland contiguous lot combination requirements d. In Lovrein v. City of Shorewood 1989 WL 29549 (Minn. App 1989) the Minnesota Court of Appeals held that use of land in its natural state constituted a reasonable use of property for purposes of a taking. analysis See Also Olsen v. City of Ironton, 2001 WL 379010 (Minn. App. 2001). e. In Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757 (Minn. 1982), the Court refected a takings challenge over the refusal to authorize a tower, noting the land could still be used for agiiculture purposes or open -space requirements. 3. Governmental action must be reasonable. a. This limitation on governmental action is often referred to as "substantive due process." b. Substantive due process requires an egregious set of facts to support a claim. It has been said that in order to be found egregious so as to call into question substantive due process, there must be something like a decision based on a coin flip. Lemke v. Cass County, 846 F.2d 469 (8th Cir. 1987). 4. The governmental process must be fair. a. This is referred to as procedural due process. b. Fairness does not include a right to cross-examine witnesses opposed to a particular peunit application Nor does it include anything resembling a judicial hearing. c. Fairness, in the context of zoning matters, equals notice and an opportunity to be heard. See Barton Contracting Co. v. City of Afton, 268 N.W. 2d 712(Minn. 1978). It is enough that the permit applicant had notice of the hearing and an opportunity to testify, introduce evidence and otherwise present his viewpoint. Axelson v. Goodhue County Board of Commissioners, 2015 WL 1514150 (Minn. App. 2015). d. Fairness also requires a decision maker open to hearing the facts and making permit decisions based on those facts In other words, a decision maker who has not prejudged the matter before it has been presented to him If, prior to the hearing being held, a decision maker takes a position m opposition to a peiniit request, and/or adopts an advocacy position before any hearing is held, there is a likelihood that a Court will say that is evidence of an arbitrary and capricious decision See Continental Properties Group v. City of Minneapolis, 2011 WL 1642510 (Minn. App. 2011). e. The right to due process does not require advance production of all written materials prepared or received by the municipality in connection with a hearing. Claims that advance copies of all written materials, or all potential evidence, must be provided to an applicant in advance of a hearing have been unifoimy rejected. See Barton, Axelson. B. State Law limits the exercise of local zoning powers. 1. The Conflicts Doctrine. • a. A municipality may not enact local regulations that conflict with State law. When it does so, the local ordinance is invalid. 5 b. As a general rule, conflicts that would render an ordinance invalid exist only when both the ordinance and the statute contain express or implied terns that are irreconcilable with each other. c. More specifically, and within the above framework, it has been said that conflict exists where an ordinance penniits what the statute forbids, or where the ordinance forbids what a statute expressly peiniits. d. In attempting to determine conflict issues, Courts say that no conflict exists if the ordinance, though different than the statute, is merely additional and/or complimentary to, or in aid and furtherance of, the statute. e. For a representative discussion of the conflicts doctrine, see the cases Midwest Mangold Co. v. Village of Richfield, 143 N.W. 2d 813 (Minn. 1966) and State of Minnesota v Apple Valley Redi-Mix, Inc., 379 N.W. 2d 136 ( Minn. App. 1985). f. The conflicts doctrine also applies when dealing with a State Agency's Rules. See In re Denial of the Certification of the Haslund Variance, 759 N.W. 2d 680 (Minn. App. 2009). 2. The Doctrine of Preemption a. Preemption is a doctrine that invalidates a local ordinance when the State, through its body of laws, so occupies the field that there is no room left for local regulation. b. A court will look at 4 factors to determine this: (1) what is the subject matter being regulated; (2), has the subject matter been so covered by State law as to have become solely a mailer of state concern; (3), has the legislature in regulating the matter indicated that it is solely a matter of state concern; and (4), is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the public c. For a representative discussion of the doctrine of preemption, see the case of City of Morris v Sax Investments, Inc., 749 N.W. 2d 1 (Minn. 2008). III. PARTICULAR LAND USE PERMITS AND CONTROLS A. Variances. 1. Key Principles. a A variance allows a use of property in a manner otherwise forbidden by a zoning ordinance by `varying" one or more of the perfotntance standards such as lot size, setbacks, etc. Minn. Stat. § 462.357. b. A variance is the exercise of governmental authority to grant relief from the literal application of tetnis of a zoning ordinance Arcadia Development Corp. v. City of Bloomington, 125 N.W.2d 846 (Minn. 1964). c. The applicant has the burden of proof in showing that he or she satisfies the criteria for the granting of a variance. See Minn. Stat. § 462.357, subd. 6. 2. The Concept of Use Variances. a. Minn. Stat. § 462.357, subd. 6 prohibits the granting of use variances. b. A use variance would allow a landowner to undertake a use that is not allowed as a peitnitted or conditional use in the District, and that is not already an existing legal nonconfottnity in that specific District. The granting of a use variance would be "per se" arbitrary and capricious, and therefore subject to summary reversal upon district court review. See In Re Stadsvold, 754 N.W.2d 323 (Minn. 2008), Kismet Investors v. Benton County, 617 N.W.2d 85 (Minn. App. 2000), and In Re Appeal of Kenney, 374 I.W. 2d 271 (Minn. 1985) which discuss a narrow exception of allowable use variances. This exception applies to variances involving established legal non -conforming uses 3. The Standards for Granting Variances Prior to 2011. a. The standards for granting variances changed substantially for both cities and counties with the decisions in In re Stadsvold, 754 I.W. 2d 323 (Minn.2008)(counties) and Krummenacher v. City of Minnetonka, 783 N.W. 2d 721 (Minn. 2010)(cities and towns). Stadsvold adopted a new standard/ criteria to look at in deciding practical difficulties Krummenacher decided that an applicant for a variance had to prove s/he had no reasonable use of the property without a variance. 7 4. The Current Statutory Standards. Minn. Stat. § 462.357 subd. 6 was amended in 2011 to, among other things, remove the word hardship and make all area variance applications judged by the "practical difficulty ' standard. The law defines practical difficulty. The purpose and effect of these amendments was to render both Stadsvold and Krummenacher ineffective—no longer valid in defining the meaning of aspects of practical difficulty or particular hardship a The variance must be in harmony with the general purpose and intent of official controls: i. The variance should be consistent with and supported by the statement of purposes, policies, goals and objectives in the ordinances. ii. The variance should not be inconsistent with the comprehensive plan or plans in place in the municipality. b. Variances may only be granted when there are practical difficulties in complying with the official control. i. The reasonable use component a. This means that the property owner proposes to use the property in a reasonable manner not peiniitted by an official control. This is consistent with the old test used for 20 years and adopted in Rowell v. Board of Adjustment, 446 N.W.2d 917 (Minn App. 1989). ii. The plight of the landowner must be due to circumstances unique to the property not created by the landowners. a. This is the old self-imposed hardship rule. b. the rule used to be that if you took ownership of land with restrictions in place affecting its use, you could not obtain a variance from those restrictions because your hardship would be deemed self-imposed. Hedlund v. City of Maplewood, 366 N.W.2d 624 (Minn. App. 1985). c. In Myron v. City of Plymouth, 562 N.W.2d 21 (Minn App 1998), the court changed the above rule. Under Myron, a landowner is not automatically precluded from obtaming a variance in the above circumstances d. A practical difficulty directly created or attributed to the applicant for the variance would be deemed self-imposed. c. The variance must not alter the essential character of the locality. i. Alteration of the essential character of a locality is more likely to exist when proposing a new use as opposed to enlargement of or addition to a preexisting use ii. No case has defined the teen "locality" for purposes of consideration of an application for a variance. iii. No case has defined the phrase "essential character." d hconomic considerations alone do not constitute practical difficulties so as to justify the granting of a variance. i. By using the phrase "alone" the Legislature presumably believed that economic considerations are one factor to consider in the variance decision process. ii. Is there any circumstance under which economic considerations play so great a role that they become controlling in the decision to grant or deny a variance? 5. Lino Lakes Ordinance Provisions a. § 1007.018 contains the criteria pertinent to variances. The standards mirror state law. b. The ordinance provision puts the burden on the applicant to prove that the variance request meets the criteria. 6. After -the -fact Variances. a. The 2009 Stadsvold decision suggested that in an after -the -fact variance situation, additional factors should be looked by county boards of adjustment. The Court noted that an after -the -fact variance is fundamentally different from regular variances, noting that treating them the same can produce unfair results. Questions exist as to whether those factors are still to be looked at in light of the Legislature's 2011 amendment. Questions also exist as to how to apply the factors with the statutory requirements for the granting of a variance. b. Stadsvold's Additional Afler-the-Fact Standards. i. Whether the construction was complete. ii. Whether there are similar structures in the area. iii The benefit to the municipality of enforcement, compared to the burden on the applicant if compliance was required. iv. Whether the violation was intentional or unintentional 7. The Imposition of Conditions a. There must be a nexus between the condition imposed and the variance request itself. The prior version of the statute specifically said that conditions that insure compliance with the variance, and/or protect adjacent properties and the public interest were proper. A recent U.S. Supreme Court case may have implications in this area. Koontz v. St. John's River Water Management District, 133 S.Ct. 2586 (2013) discusses the concepts of nexus and rough proportionality in the context of attaching conditions to an approval. b. The new 2011 legislation deleted the provision referencing conditions to insure compliance, and now says that a condition must be directly related to and must bear a rough proportionality to the impact created by the variance. 8. Processing of Variances. a. A certified copy of the variance must be recorded with the county recorder or registrar of titles. b. The order must contain a legal description of the property involved. c. The city council should designate by ordinance an employee to be responsible for filing variances. d. There exists a question as to the foim of notice required to be given in order to start the running of the time to appeal a decision on a variance to district court The statute merely refers to "receipt of notice" as beginning the appeal time. e. 1'here also are questions as to who may appeal a decision on a variance to the district court The applicant certainly can. The statute also states that any department, board or commission of the jurisdiction or of the state can appeal. The statute also gives the right to appeal to "any aggrieved person." f. The process for initiating a case in district court for review of a decision on a variance has been argued over for some time In a county case, it was defmitively decided in 2013 that even though the statute identifies the judicial review as an `appeal" that you initiate the case just as any other against a County: by personally serving the Chair of the County Board of Commissioners or the County Auditor. See In re Application of Skyline Materials, Ltd , 835 N.W. 2d 472 (Minn 2013). For a city, that would mean serving the chief executive officer or the clerk. B. Conditional Use Permits. Conditional Use Permits in General. a. Conditional use peimits (CUP's) give a municipality flexibility and discretion designed to meet the problem which arises where certain uses, although generally compatible with the basic use classification of a particular zone, should not be peiniitted to be located anywhere as a matter of right. b. Conditional use designations are appropriate in situations where specific uses, while considered essentially desirable to the community, should not be absolutely authorized without consideration of such issues as current and anticipated traffic congestion, pollution issues, smell, population density noise, effect on adjoining land values, or any other considerations involving public health, safety or general welfare. c. Contrast this with permitted uses which are absolutely allowed in a district. 2. A Zoning Ordinance Must Contain the Standards to Consider in Granting or Denying a Conditional Use Peimit a. When a district court reviews a conditional use permit decision, the court will refer directly to the standards and criteria in the ordinance in reviewing the decision. b. Minn Stat. § 462.3595 states that the applicant bears the burden of proof to show an entitlement to a CUP by showing "the standards and criteria stated in the ordinance will be satisfied." c. If there are specific standards/factors set forth for the issuance of the conditional use permit and the applicant proves he or she satisfies them, then the conditional use permit must be granted. d. In a 2015 case, the Minnesota Supreme Court held that a standard in a zoning ordinance that required the applicant to show that a proposed use would not be injurious to the surrounding neighborhood or otherwise harm the public health, safety or welfare was sufficient under law. See RDFT v. City of Bloomington, 861 I\ . W.2d 71 (Minn. 2015). 3 Lino Lakes Ordinance Provisions a. § 1007.016 contains the standards pertinent to condition use permits b. The ordinance provision contains a sunset clause that requires commencement of a project within one year of the date of the CUP, or the CUP is void. 4. The Imposition of Conditions. a. There must be a nexus between the condition imposed and the land use desired. A recent U.S. Supreme Court case may have implications in this area. Koontz v. St. John's River Water Management District, 133 S.Ct. 2586 (2013) discusses the concepts of nexus and rough proportionality in the context of attaching conditions to an approval. b. The Court's decision in Middlemist v. City of Plymouth, 3871\.W.2d 190 (Minn App. 1986), is a good example of the "nexus " In this case, the city had required donation of land for a collector street as a condition of pennnt approval. On remand in the district court, the court held there was not a sufficient nexus between the proposed land use and the need for collector road. Violation of a condition may be sufficient grounds for revocation of the penniit. d. For some time there was uncertainty in the law as to whether the failure to consider mitigating conditions that are raised at the time of the hearing may support a conclusion that a denial of the peiinit was arbitrary, or whether the municipality had a duty to suggest or impose mitigating conditions Two cases in 2009 suggested that should be done. See In re Lawrence, 2009 WL 438058 (Minn App. 2009) and Buberl Recycling & Compost, Inc. v. Chisago County, 2009 WL 274623 (Minn. App. 2009). See also, Trisko v. County of Waite Park, 566 N.W.2d 349 (Minn. App. 1997). But other cases appear to take an opposite view See Kotten v. Brown County, 2011 WL 382811 (Minn App.2011) and VONCO v. Mower.County, 2013 WL 599370 (Minn. App.2013). This issue was 12 definitively decided by the Supreme Court last year in RDNT v. City of Bloomington, 861 N.W. 2d 71 (Minn. 2015), which indicated there was no duty to .suggest or impose such conditions. However, the RDNT Court did indicate that if the applicant proved that by imposing reasonableconditions the standards of the ordinance would be met, then "it follows' that to deny the pemmit application would be arbitrary and capricious. Id., at 78. 5. Amendment of Conditional Use Permits a. The same procedure should be used for an amendment to a conditional use permit as is used for the initial granting of such a permit In other words, notice to the general public written notice to certain landowners, and the general conduct of the hearing. b. When considering an amendment to a conditional use permit, a municipality may not add conditions that have no relationship to the sought after amendment. See Minnewawa Sportman's Club v. County of Aitkin, 2008 WL 314495 (Minn. App. 2008). In other words, the amendment process is not allowed to be used for adding conditions that the City or County, in hindsight, wish they had imposed when the original conditional use permit was granted. c. In general, a municipality may not unilaterally amend a conditional use permit without the peumit holder's agreement. See Upper Minnetonka Yacht Club v. City of Shorewood, 770 N.W. 2d 184 (Minn. App. 2009). But, when a County chose to amend a conditional use permit as an alternative to revoking the permit, the Court upheld that amendment in Delanghe v Lyon County, 2011 WL 3795146 (Mmn. App. 2011). See also Axelson v Goodhue County Board of Commissioners, 2012 WL 3263901 (Minn.. App. 2012)(suggesting amending the permit as an alternative to revocation). 6. Legal Principles. a. The granting of a conditional use permit is a quasi-judicial act. A decision to deny a permit will be overturned only if it is found to be arbitrary, capricious and/or unreasonable. b. Some courts characterize the standard of review as one of "reasonableness." c. If standards in the ordinance are met, the municipality has no discretion in the issuance of the permit. d. If the municipality concludes the conditional use peftnit standards in the ordinance are not met, the municipality must make written findings supporting any denial e. Any conditions imposed on the permit must have support or findings in the record or a court may fmd the condition itself to be arbitrary, capricious and/or unreasonable. f. Once issued, a conditional use permit is not a personal license, but rather, it is a property right that attaches to the land in question. In that regard cases say "it runs with the land." The CUP remains in effect so long as the conditions attached to it are complied with. See Minn Stat. § 462.3595; Dege v. City of Maplewood, 416 I.W. 2d 854 (Minn.1987); State v. Doty, 396 N.W. 2d 55 (Minn 1986) This means that transfer of ownership of the land does not affect the validity of the conditional use permit g. There is little law on the mechanics or grounds of revocation Because the CUP is a property nght, revocations should be based upon a substantial violations of the conditions. They must be proceeded by notice and hearing, according the permit holder adequate due process. For examples of court review of revocation decisions, see 1-4,dling v. Isanti County. 2006 WL 1806397 (Minn. App 2006); Axelson v Goodhue County Board of Commissioners, 2012 WL 3263901 (Minn. App. 2012); and the second Axelson case, Axelson v Goodhue County Board of Commissioners, 2015 WL 1514160 (Minn. App. 2015). These cases show that the courts apply the same basic principals to revocation proceedings that they do in other land use permitting cases. 7. Processing of Conditional Use Permits. a. By ordinance, the municipal body can deter nine whether it, a planning commission, or some other `designated authority" acts as the final authority on the conditional use peiuiits. b. A public hearing on a conditional use permit application must be held. However, there is no requirement that there be more than one public hearing c Like a variance, a certified copy of a conditional use petinit must be recorded with the county recorder or registrar of titles. C. Moratoria. Moratoria, or interim zoning, are two separate phrases for the same concept: A full or partial development freeze for a period of time while a municipality considers the 14 adoption or amendment of official controls and/or comprehensive plans. Minn. Stat. § 462.355. 1. The word "interim" is defined as a temporary or provisional. arrangement; stopgap; makeshift. More specifically, in this statutory context, interim means to come or occur between two times or two events. An interim ordinance is something that comes between the beginning of some type of planning process and the end of that process, resulting in some decision regarding the adoption or amendment of an official control or a comprehensive plan. 2. An interim zoning ordinance typically involves a full or partial development freeze on some types of development or uses within a municipality for a period of time while the municipality considers the adoption or amendment of official controls and/or comprehensive plans. It could involve a total freeze on all development. Stated a little more broadly an interim ordmance may regulate, restrict or prohibit any use, development or subdivision (that has not already received preliminary plat approval) within all or a portion of the municipality for a limited period of time See Minn. Stat. § 462.355, subd. 4. See also Semler Construction Inc v City of Hanover, 667 I.W. 2d 457 (Minn. App. 2003). 3. The purpose of an interim ordinance is to protect the planning process, and thus through that the health, safety and welfare of the public It prevents disruption of the ultimate goal of the examination of the official controls and/or the comprehensive plan. Courts have said that interim zoning ordinances deter last minute efforts to race through the gamut of permitting procedures and discourage exploitation of the delays inherent in the municipal planning process. See Almquist v. Town of Marshan, 245 I.W. 2d 819 (Minn. 1976). In short, what an interim zoning ordinance does is preserve the status quo while a county is engaged in the planning process. 4. The development freeze, or limitation on development, is commonly referred to as a moratorium. The means of putting the moratorium in place is the interims zoning ordinance. 5. To adopt a moratorium a municipality must find that one of four conditions exist: a. The "municipality is conducting studies ' to consider the adoption or amendment of a comprehensive plan or a zoning ordinance; b. The "municipality has authorized a study to be conducted" regarding the adoption or amendment of a comprehensive plan or zoning control ordinance; c. The "municipality has scheduled a hearing" for the purpose of adopting or amending a comprehensive guide plan or zoning ordinance; and/or d. The municipality has "annexed new territory" for which there are no existing plans or controls. For a County, this could be a planned annexation. 6. In a case decided a number of years ago, the court held that in a city, no special public notice is required for the consideration and/or adoption of an interim ordinance, as the court held that an interim ordinance is not an official control. See Duncanson v. Danville Township, 551 N.W.2d 248 (Minn. App. 1996). 7. For an in-depth discussion of the law relating to moratoria, see Pawn America v. City of St. Louis Park, 787 N.W.2d 565 (Minn. 2010). 8. The initial moratorium ordinance is effective for a period up to one year in both counties and cities. A county can extend the moratorium ordinance up to one additional year. Under limited circumstances, a city can extend the moratorium ordinance an additional 18 months. 9. The law, as construed by the courts, allows a County to decide whether a moratorium applies to pending applications or not. For cities and towns an amendment to the Statute states that no interim ordinance may halt a subdivision that has already received preliminary approval. It also now says that the interim ordinance does not extend the time deadline set forth Minn Stat. § 15.99 with respect to any application filed before the effective date of the interim ordinance. 10. The most significant early case on interim ordinances and moratoria arose in a dispute involving a Township before the Municipal Planning Act had a provision on interim ordinances (before Minn. Stat. § 462.355, subd. 4 was added). The court held that under general principles conferring on municipalities broad police powers, they had the authority to adopt moratoriuin ordinances of limited duration provided they are enacted "in good faith and without discrimination.' See Almquist, supra. In Wedemeyer v. City of Minneapolis, 540 N.W. 2d 539 (Minn App. 1995) the court held that the passage of the interim ordmance provision in the Municipal Planning Act did not supersede or do away with the ability of a municipality to enact a moratorium under the general police power referred to in Almquist. 11. The requirement that the municipality act in good faith and without discrimination articulated in Almquist has survived. the Pawn America court indicated that the statutory language that states that such an ordinance is to be passed for purposes of protecting the planning process and the health, safety and welfare of the community is a good faith requirement 12. Offen municipalities act on moratoria in situations where an application is made, or they become aware of a pending application, and put in place a moratorium that ends up stopping the person or business from undertaking the use they had intended. There is often a claim that these were actions taken in bad faith and solely to impede the one development. One early case struck down a moratorium on that basis, Medical Services Inc v City of Savage, 487 N.W. 2d 263 (Minn. App. 1992). While that led some to claim you could not enact a moratorium in response to a particular application, or apply a moratorium to a pending application, that has not been and is not the law The Medical Services case is very specific to its facts, unusual in its facts, and has not been the basis for other moratoriums to be declared invalid. Instead what has happened is that it has now been clearly stated by our courts that Court's have said that enacting an interim ordinance in response to a particular license application does not, by itself, make the ordinance invalid. Using a moratorium to impede a particular development while the situation is studied is not a violation of the statute. Pawn America Minnesota, supra. A Court looks at whether the interim ordinance is reasonably related to the planning process and public health, safety and welfare. Preserving the status quo while studying a particular situation is deemed to be acting in good faith. What courts do is examine the particular facts, what action the municipality took, whether they followed through on their study, how long the process took, etc., in deciding whether there was a reasonable relationship between the interim ordinance and the planning process. D. Nonconformities. 1. A nonconformity is a use of property that was lawful at the time the use was instituted but is no longer consistent with applicable official controls or zoning regulations. 2. These uses are allowed to continue so that municipalities may amend their official controls in ways that may be more restrictive than in the past Immediate elimination of nonconforming uses would be considered a taking by the courts. 3. In most circumstances, municipalities may no longer adopt regulations that provide for the gradual elimination, or what is called ` amortization," of nonconforming uses. Over a decade ago the legislature amended Minn Stat. § 462.357 to prohibit such amortization, except where it applies to adults -only book stores, adults -only theaters, or similar adults -only businesses. 4. Cities have wide discretion to determine whether, and to what extent they will peiniit enlargement of a nonconfoiniing use 17 5. Municipalities may by ordinance impose reasonable regulations upon nonconforniities to protect public health, safety and welfare. Minn Stat. § 462.357, subd. le. 6. The statutes provide that nonconformities may be continued, including through ` repair, replacement, restoration maintenance or improvement, but not including expansion' In a recent decision involving Isanti County, the court of appeals determined that adding more junk cars to a property constituted "expansion" of a nonconformity. This case may cause us to take a closer look at what the "nonconformity' is in any given case. 7. Minn Stat. § 462.357, subd.1(e) specifies that if a nonconforming use is discontinued for one year, or if any nonconforming use, building or structure is destroyed to the extent of 50% of its market value, any subsequent use shall be a conforming use, with a key exception a. For cities the exception applies to any nonconforming use. The statute allows such nonconfornity, even if destroyed by fire or other peril to the extent of 50% of its market value, to be rebuilt, as long as a building permit has been applied for within 180 days of when the property is damaged. A municipality may impose reasonable conditions upon a building peiinit in order to mitigate any newly created impact on adjacent property. E. Interim Use Permits. 1. An interim use permit is a temporary allowed use of property. 2. A zoning ordinance may but is not required to have provisions that authorize interim uses of property. 3. The statute is unclear on the breadth of authority under interim uses: does the authority allow the issuance of interim use permits for uses that are not otherwise allowed in a zonmg district, or does it simply allow for flexible application of quantitative standards of the ordinance? TV. ORDINANCE ADMINISTRATION AND PROCESSING OF APPLICATIONS A. Structure and Functions in Ordinance Administration 1 Zoning Administrator Duties. 18 a. Assist applicants in completing zoning permit application forms, and advise them of requirements b. Review and process land use applications c. Remain current with legal developments and insure the zoning ordinance is appropriately updated. d. Advise the Planning and Zoning Commission, Board of Adjustment and County Board/Ci y Council on applications/amendments to official controls. 2. The Function of the Hoard of Adjustment a. A Board of Adjustment and Appeals (when referring to a city/township) is mandatory when official controls have been adopted. Minn. Stat. § 462.354. b. The basic functions of the Board of Adjustment are: i. To hear and decide variances; and ii To hear and decide appeals from orders and decisions of the zoning Administrator. 3. The Planning Commission a. The basic functions of the planning commission are: i. To assist the City Council in its decision-making process; ii. To collect pertinent data on permit applications and proposed changes/additions to official controls; and iii. To review proposed zoning amendments. 4. The City Council a. In most cases, the City Council is the final decision-making body on zoning matters. B. Timely Processing: The Sixty Day Rule 1. Minn. Stat. § 15.99 specifies that written requests relating to zoning, septic systems, SWCD reviev., watershed district review, and/or the expansion of the Metropolitan Urban Service Area, for a permit, license, or other governmental approval, must be approved or denied within 60 days from the date of application A failure to comply with the requirement that the application be approved or denied within 60 days results in a penalty of automatic approval. Other requirements of the statute have been held to not have the penalty apply if they are not met by the municipality. 2. What applications are within the statute? a. The statute applies to those applications that are "a written request relating to zoning, septic systems, watershed district review, [SWCD] review...for a permit, license or other governmental approval ofaction." No definition of these terms is set forth in the statute. b In Advantage Capital Management v. City of Northfield, 604 N.W.2d 421 (Minn App. 2003), a building permit case, the Court said that a request "relating to" zoning was a request to conduct a specific use of land within the regulatory framework relating to zoning. c. More recently, the Minnesota Supreme Court defined the words "relating to" more expansively. In 500, LLC v. City of Minneapolis, 837 N.W.2d 287 (Minn. 2013), the Court held that the phrase `relatmg to zonmg' refers to a written request that has a connection, association or logical relationship to the regulation of building development or the uses of property. d. The statute does not apply to a building permit application Advantage Capital Management v. City of Northfield, 604 N.W.2d 421 (Minn. App. 2003). Nor does it apply to an appeal of a zoning administrator's cease and desist order to the board of adjustment Tompkins v Lake County, 2009 WL 66350 (Minn. App. 2009). It also does not apply to a request to amend a zoning ordinance. Motokazie' v. Rice County, 824 N.W. 2d 341 (Minn. App. 2012). e. The 500, LLC case decided that the 60 day rule applied to an application for a certificate of appropriateness under the City's historic preservation ordinances. And in Calm Waters v. Kanabec County, 756 N.W.2d 716 (Minn. 2008), the Supreme Court assumed, without deciding, that the 60 day rule applied to subdivision requests. Given this decision, counties should process subdivision requests per the requirements of the 60 -day rule. See also, Mesenbrink 20 Construction & Engineering, Inc v Rice County, 2008 WL 5334251 (Minn. App. 2008) (citing Calm Waters in applying 60 -day rule to an application for a planned unit development) 3. Extension. The 60 -day period can be extended for an additional 60 days by the municipality by providing written notice to the applicant, prior to the expiration of the deadline, stating the reasons for the extension, and stating it's length a. The Supreme Court and Court of Appeals have upheld a 60 -day extension where the letter to the applicant merely noted the municipality wished to take more time to decide. The court noted that since the statute does not specify the contents or type of reasons a municipality is to provide, what was said was sufficient. American Tower, LP v. City of Grant, 636 N W.2d 309 (Minn. 2001); Manco of Fairmont, Inc. v. Rock Dell Township, 583 N.W.2d 293 (Minn. App. 1998). b. Oral notice of an extension is not sufficient. See Demolition Landfill Services v. City of Duluth, 2000 WL 1015893 (Minn. App. 2000). The applicant may request an extension of the time limit "by written notice." Northern States Power Company v. City of Mendota Heights, 646 N.W.2d 919 (Minn. App. 2002). d. In Calm Waters, LLC v. Kanabec County, 756 N.W.2d 716 (Minn 2008), the Supreme Court determined a zoning administrator had the authority to extend the 60 day rule. Delegation of authority was also an issue in Borglum v. Waseca Soil and Water Conservation District, 2009 WL 5090021 (Minn App. 2009). 4. Completeness. I he 60 -day time period begins to run on the municipality's receipt of an application containing all information required by law or a previously adopted rule ordinance or policy. The municipality must send notice within 15 business days of receipt of the request telling the applicant exactly what is missing in order for an incomplete application to stop the running of the 60 -day period. a. Completeness under the 60 -day rule can only be detettnined by reference to a pre-existing rule, ordinance or policy. In Calm Waters v. Kanabec County, 756 N.W.2d 716 (Minn 2008) the Supreme Court refected the argument that a County could not require mfountation be submitted with an application that was not specified as necessary in the ordinance. The required infounation identified on the application itself was evidence of a pre-existing policy. b. In Stokke v. Marshan Township, 2010 WI, 3545944 (Minn. App. 2010), the application foint for a conditional use permit stated that the applicant may be required to submit additional "property descriptions, property surveys, site plans, 21 building plans and other information...before the application is accepted." Because the applicant did not respond to the Town s written request for supplemental information, the Court held the application was incomplete. In Bender v. Todd County, 1998 WL 170104 (Minn. App.1998) the court held that oral notice of the defect complies with the statute. d. The definition of what a request is states that it is something submitted in writing on an application form provided by the agency, if one exists Subdivision 1(c) specifies that an agency may reject as incomplete a request not on the agency's form "if the request does not include information required by the agency." Subdivision 3(a) makes it clear that an application is not complete until any applicable fee is paid. e. When an applicant makes an amendment to its request that is "material or significant' the 60 -day period begins anew and runs from the amendment. Tollefson Development v. City of Elk River, 665 N.W.2d 554 (Minn. App. 2003). f. Submittal requirements should be in writing to avoid the argument that existence of an unwritten policy is not sufficient grounds under the 60 -day rule to reject an application. g. Municipalities should have a submittal requirement sheet for each type of application to insure completeness is accomplished. 5. Results of particular violations. a. Failure to provide an applicant with a written statement of the 'reasons for the denial of an application within 60 days does not result m automatic approval of the application under the statute. Hans Hagen Homes, Inc v City of Minnetrista, 728 N.W.2d 536 (Minn. 2007). b. The statute specifically says that if an agency denies the request, it must state in writing the reasons for the denial at the time it denies the request. See Demolition Landfill Services v. City of Duluth, 609 N.W.2d 278 (Minn. App. 2000). But failure to state in writing the reasons to support denial at the time of denial does not result m automatic approval. Johnson v. Cook County, 786 N.W.2d 291 (Minn. 2010). c. A municipality's failure to comply with the 60 -day rule does not entitle the landowner to a permit that he would not be entitled to under substantive law. See Breza v. City of Minnetrista, 725 N.W.2d 106 (Minn. 2006). Breza sought to fill 22 over 5,000 square feet of wetland. Under state law, the maximum amount that the city could have authorized was 400 square feet The city failed to act on Breza's application within the deadline of Minn. Stat. § 15.99. While the court held that the application was approved as a matter of law, it was only approved for the 400 square feet. 6. Procedure to approve or deny. In a 60 -day rule case, the Court of Appeals held that a failed motion to approve a penult was not a denial of the application. Therefore, the permit was approved as a matter of law pursuant to the 60 -day rule. Demolition Landfill Services v. City of Duluth, 609 N.W.2d 278 (Minn. App 2000). a. The legislature addressed this issue in the 2003 amendments The statute provides that a rejection of a motion to approve constitutes a denial if those voting against approval "state on the record the reasons why they oppose the request." Minn Stat. § 15.99, subd. 2(b). 7. What constitutes a denial. a. In Moreno v. City of Minneapolis, 676 N.W.2d 1 (Minn. App. 2004), the Court held that a zoning application is not approved or denied for purposes of the 60 - day rule until the City has decided all appeals challenging the approval of the zoning application. b In Carda v. Kanabec County, 2007 WL 3343017 (Minn App 2007), the Court of Appeals upheld the notion that rejection of a peuuit as improper, on an administrative level, constituted a denial under the 60 day rule. c. In Mesenbrink Construction v Rice County, 2008 WL 5334251 (Minn. App. 2008), the court held that the return of an application that was subject to a moratorium that stated no application of that nature would be processed or approved satisfied the requirement of denial C. Conducting the Public bearing. 1. The Open Meeting Law. a. The Open Meeting Law applies to City Council and Planning Commission meetings. b. The definition of a meeting for purposes of the law has been said by the Courts to be a gathering of a quorum or more of the body at which members discuss, decide or receive information as a group on issues relating to the official business of the body. See Moberg v. ISD No. 281, 336 N.W. 2d 510 (Minn. 1983). 23 A training program that is attended by a quorum or more of a body to develop skills and understanding regarding the body's responsibilities and is directed towards general matters, rather than specific problems, is not a meeting. Op. Minn. Atty. Gen, 63a-5 (Feb.5, 1975). c. Site visits where a quorum of the body is present are meetings under the Open Meeting Law. Give notice of such meetings as provided for under the Law. d. Under the Open Meeting Law at least one copy of the agenda and other written materials must be made available in the meeting room for public inspection during the meeting. Materials that were distributed to all members before or at the meeting, or available to all members at the meeting, are the materials that have to be made available. l he exceptions to this rule are for data classified as nonpublic under the Data Practices Act, and data relating to discussions at a closed session. of the body e. The law does not absolutely prohibit discussions among Board members outside of an open meeting, either in person, by phone, or in writing. See Moberg, supra; MEA v. Bennett, 321 N.W. 2d 395 (Minn 1982), Mankato Free Press v. City of Mankato, 563 N.W. 2d 291 (Minn App. 1997). However, such communications can be problematic in land use decision making. f. Avoidance of Open Meeting Law Problems 2. Pre -hearing Notice Requirements. a. Minn Stat. § 462.357, subd 3, set forth the notice requirements for public hearings involving conditional use permits and variances. This includes requirements regarding published notice, notice to neighbors, and notice to affected towns and cities. b. The notice requirements contained in Chapter 462, require notice of the general purpose of the hearing. They do not require that the details of the proposal be disclosed. Kreuz v. St Louis County Planning and Zoning Commission, 1996 WL 469406 (Minn. App 1996). c. State law also contains requirements for notice of enactment or amendment of ordinances. This includes publication requirements. Minn. Stat. § 375.51 See Bartheld v. Koochiching County, 716 N.W. 2d 406 (Minn. App. 2006). The best practice is to publish notice that states the municipality's intent to enact the particular ordinance. However, where a published notice says an ordinance is recommended for adoption by the Board that has been held to be sufficient. Itasca County v. Radenz, 268 N.W.2d 423 (Minn. 1978). 24 3. Procedural Due Process /Fair and Impartial Proceedings. a. Under state and federal law the right to due process means the right to notice and an opportunity to be heard. Barton Contracting Co. v. City of Afton, 268 N.W.2d 712 (1978). b. The right to procedural due process does not normally include the right to cross examine witnesses or invoke the full panoply of procedures that apply in a courtroom. It is enough that a penult applicant had notice of the hearing, and an opportunity to testify, introduce evidence and otherwise present his viewpoint. Axelson v. Goodhue County Board of Commissioners, 2015 WL 1514150 (Minn App. 2015). c. The right to procedural due process can be analogized to a right to a fundamentally fair process. d. The right to due process does not require advance production of all written materials prepared or received by the municipality in connection with a hearing. Claims that advance copies of all written materials, or all potential evidence, must be provided to an applicant in advance of a hearing have been uniformly rejected. See Barton, Axelson. 4. Conduct of the Zoning Hearing. a. Remember that the Council or Commission controls its own meetings, agendas, parliamentary procedure, and all other aspects of its own business and functions Establish rules of procedure as necessary to maintain control of the hearing provide for appropriate public input under the circumstances, and keep the length of hearings reasonable. b. The Chair plays a large role in insuring the meeting and the hearing runs smoothly. That is the Chair's primary function.. The Chair should explain the procedure that will be followed at the beginning of the meeting. The rules of conduct should be explained. It can be effective to explain the general order of presentation and manner of conducting the hearing so that people attending understand the manner and timing of their ability to participate. c Bylaws often provide specific rules of procedure to follow in a meeting. If not, specific rules of procedure can be adopted. A system of rules which aid in transacting business is important to the functioning of the body, to preserve order, expedite business, and protect the rights of those involved in the decision making process. Roberts Rules of Order is the most used and well known system 25 of parliamentary procedure However, it is meant for a body involving large numbers of members, is not easy to follow, and can be cumbersome and inefficient for smaller bodies of the number usually involved in zoning matters. Therefore it is not recommended that Roberts Rules or other similar rules be fully adopted. It could be better stated that "the procedure followed will be based on but not bound by the principles set forth in Roberts Rules of Order, as modified by the ordinary practice of the Planning Commission," or a similar type statement. d An order of business typically follows the layout of the agenda. An example of a fairly typical order of business is as follows: Call to Order, Roll Call, Approval of Minutes of the previous Meeting, Old business, New business, Adjournment e. At the hearing allow an applicant to inspect documents, present evidence, and fully present the case. Make all pertinent documents part of record of the proceedings. Keep in mind that when people present documents or photographs that they should be made a part of the record. Make it a practice to require those speaking to identify themselves. f. Procedurally, hearings often start with the staff presentation 'l'hen, the applicant presents his or her case This is most often followed by statements from members of the public During each stage the board or commission can and should ask questions. Often the applicant is given an opportunity to respond to public comments. Then, the hearing is closed and the body should then discuss the proposal. This may include asking the applicant or staff follow-up questions. V. THE RECORD A. What is the Record? 1. The record consists of that evidence considered by the municipality when making the permit decision Swanson v. City of Bloomington, 421 N.W.2d 307 (Minn. 1988). 2. The record includes all documents that come before the Board or Commission as a part of "the file", including reports, letters, applications, other submittals and findings. See Kotton v Brown County, 2011 WL 382811 (Minn App. 2011). It also includes those documents showing the action taken on the application, meaning meeting agendas, minutes, and tapes of the hearing. 3. The record may also include documents that were not physically submitted at the hearing on an application if the documents were referred to or testified to at the 26 hearing and can be proved to have been received by the decision -maker previously Barton Contracting Co. v. City of Afton, 268 N.W.2d 712 (Minn. 1978). 4. Documents reflecting the historical designation, regulation and character of the property, including photographs, are part of the record even if they were not presented to the decision-making body. Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162 (Minn. 2006). 5. Observations at a site visit are part of the record if they are reduced to some sort of writing. For example, Council or Commission members' shared observations of what they saw at a property are often reflected in minutes. B. Why is the Record Important? The purpose of requiring a record be created is to assist the judiciary in its reviewing role: to insure that the decision is based upon legitimate governmental reasons, and not the "mere individual whim of the council members." Corwin v Crow Wing County, 244 N.W.2d 482 (Minn. 1976). 2. During judicial review a court will review the record, and determine whether the decision of the Council or Commission was reasonable in light of record evidence. 3. Where the municipal body has foimal findings contemporaneously made with its decision, and there is an accurate verbatim transcript of the proceedings, a, court will conclude that the record is clear and complete. 4. When there is a record that is clear and complete, a court will conclude that there is an "adequate record" for review. 5. When there is an "adequate record," the district court will receive additional evidence only on substantive issues raised and considered by the municipal body, and then only after deteimining that the additional evidence is material and that there were good reasons for failure to present it at the municipal proceedings. Swanson v. City of Bloomington, 421 N.W.2d 307 (Minn. 1988). 6. If there is an adequate record on review, the burden is on the person challenging the decision to prove that the action is arbitrary and capricious. 7. If there is an inadequate record on appeal, then the decision of the municipal decision -maker is presumed to be arbitrary and capricious. This presumption is rebuttable. 8. The municipality can offer evidence to rebut this presumption, but in order to prevent unfairness and after the fact justification, this evidence can only be offered 27 as to issues that were raised and considered before the municipal body at the time it made its decision. Honn v. City of Coon Rapids, 313 N.W.2d 408 (Minn. 1981). 9. If there is not an adequate record on review, the burden is on the municipality to prove that it acted in a reasonable manner. 10 When there is an adequate record, the court will not consider an issue on review that was not properly raised before a local zoning authority. Big Lake Ass'n. v. St Louis County Planning, Comm., 761 N.W.2d 487 (Minn. 2009). C. The Record in Reference to the Standard of Review Zoning cases state that the same standard of review is followed in any zoning matter. The standard is one of reasonableness. The manner in which reasonableness is measured may be stated somewhat differently depending upon the circumstances and the action being reviewed. 1. When looking at a quasi-judicial act, such as a decision on a conditional use permit application, the decision of a municipal body is "reasonable" when it is based upon legally sufficient reasons that have some support in the record. 2. In the area of legislative actions, such as when•a municipality adopts or amends a zoning ordinance, `reasonableness" is measured by the `rational basis" test. A zoning decision deemed legislative in nature will be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals or general welfare. State, by Rochester Ass'n of Neighborhoods v. City of Rochester, 268 N.W.2d 885 (Minn. 1978). 3. In cases involving variances, the courts have stated that reasonableness is measured by the standards set out in the ordinances. Courts say that a municipality's variance decision will not be invalidated if the municipality "acted in good faith and within the broad discretion afforded it by statutes and ordinances" and its stated reasons are legally sufficient and with a factual basis Sagstetter v. City of St. Paul, 529 N.W.2d 488 (Minn. App. 1995); VanLandSchoott v. City of Mendota Heights, 336 N.W.2d. 4. In each instance the Court will review the action being challenged in reference to the record created by the City. D. Findings as Part of the Record 1. Findings of Fact. a. Findings of fact are necessary as part of a peiunt denial. They should be done when a peihiit is granted. They are desirable to have as part of the record for any decision made by a body given authority in land use matters. 28 b. Findings of fact should constitute an exercise of the application of the record evidence to the standards set forth in the ordinance. c. Findings of fact should use the applicable decisional standards. d. Findings of fact on specific conditions are necessary when the decision-making authority imposes an unwanted condition on a pellnit applicant. 2. Contemporaneous Findings of Fact. a. Court cases long ago established the rule that there are to be contemporaneous findings of fact and a contemporaneous record created that supports the denial of a permit. Kehr v. City of Roseville, 426 N.W.2d 233 (Minn. App. 1988). b. Requiring contemporaneously made findings is meant to prevent after -the -fact justifications unrelated to the actual reasons for the decision. c. However, as long as the fmdings are prepared within a reasonable amount of time from the zoning decision, the contemporaneous requirement has been deemed to have been met. Findings made two weeks after the hearing and 26 days after the hearing have been held to be contemporaneous. BBY Investors v. City of Maplewood, 467 N.W.2d 631 (Minn App. 1991); R.A. Putnam v. Mendota Heights, 510 N.W.2d 264 (Minn App. 1994). d. It has been noted that where findings a e prepared after a hearing, the absence of a full or verbatim record of the meeting, made either manually or electronically, may result in a decision that the findings are not contemporaneous. Hurrle v. Sherburne County, 594 N.W.2d 246 (Minn. App. 1999). e. There is some small dichotomy between this case law on contemporaneousness and the directive in the 60 Day Rule Minn. Stat. § 15.99, that if a multimember governing body denies the request, it must state the reasons for denial on the record and provide the applicant in writing a statement of the reasons for denial. The statute goes on to state that if the written statement is not adopted at the same time as the denial it must be adopted at the next meeting following the denial of the request but before the expiration of the 60 days (or any extension taken or granted). the Supreme Court has held that a County's failure to comply with these requirements, as long as it's decision was made within 60 days, does not trigger the automatic approval penalty of the statute. Johnson v Cook County, 786 N.W. 2d 291 (Minn 2010); Hans Hagen Homes v. City of Minnetrista, 728 N.W. 2d 536 (Minn. 2007). E What is a fact for purposes of a zoning decision? This may look and sound a little simple or nonsensical. In reality it is an important question. What it raises is the question of what evidence (or what facts) is sufficient to support a land use decision. 1. Questions often arise as to what is sufficient, and what can be relied upon, in making a land use decision. 2. In the land use hearing, the quality of the evidence and testimony does not have to meet the full standards of a judicial hearing. 3. It is the province of the decision maker to weigh the evidence and to detetmine whether it finds particular evidence credible or not. 4. the saying that "neighborhood opposition itself is not enough to justify the denial of a permit" is shorthand for a more nuanced principle. Neighbors can and often do have information pertinent to the decision being made. Concrete information from neighbors can be pertinent and relied upon. Observations concerning personal experiences regarding current conditions capable of being observed by average citizens are the type of information courts say is "concrete" and capable of being relied upon by decision makers. Generalized statements reflecting speculative fears of future occurrences, and statements not within the realm of the person's personal knowledge, are not concrete. They are the type of "neighborhood opposition" that cannot be relied upon For a general discussion on the sufficiency of evidence from neighbors see August v. Chisago County, 868 KW. 2d 741 (Minn. App. 2015); Kotten v. Brown County, 2100 WL 382811 (Minn. App. 2011). 5. Principles to keep in mind. a. Rejection of expert testimony need not be based on expert testimony In a case involving traffic experts and traffic safety issues, the city could reject the expert's testimony and rely upon ` concrete information" presented by neighbors about already existing traffic problems in the area. See SuperAmerica Group, Inc., v. City of Little Canada, 539 N.W.2d 264 (Minn. App. 1995). See also Roselawn Cemetery v. City of Roseville, 689 N.W. 2d 254 (Minn.. App. 2004). Compare these with Scott County Lumber Co , v. City of Shakopee, 417 N.W.2d 721 (Minn. App. 1988), Yang v. Carver County, 660 N.W. 828 (Minn. App. 2003), aiid Magone v Denmark Township, 2003 WL 21524888 (Minn. App. 2003), cases where a permit was denied based upon fear, speculation,. and evidence outside of the realm of personal knowledge of the person presenting it. b. In Carlson v Blue Earth County, 2000 WL 1239734 (Minn. App. 2000) testimony regardingexisting respiratory problems due to existing feedlots, and personal experiences where odor from existing feedlots interfered with neighbors' use and enjoyment of their land justified the permit denial. This was "concrete infoiniation " In addition, neighbors bolstered their own experiences with submitted published academic studies they submitted that addressed possible adverse health risks of high-density hog farming. c. Anderson v Winona County, 2000 WL 1780321 (Minn. App. 2000). This is a case that stands for the proposition that where proponents and opponents of a proposed project submit differing expert reports and opinions, it is for the municipal decision maker to determine which they find more credible. A court will not review the decision making process to determine which expert is more credible. The Roselawn case also stands for the same principle. See Also McDuffee v. Monison County, 2008 WL 2492323 (Minn App 2008) (involving conflicting infoiniation on property values) and Solum v. Houston County, 2008 WL 4224493 (Minn. App. 2008). d. Schwardt v. County of Watonwan, 656 N.W.2d 383 (Minn. 2003) stands for the proposition that the municipal decision maker may discount evidence that lacks relevance or credibility e. Kotten v. Brown County, 2011 WL 382811 (Minn. App. 2011) stands for the proposition that personal knowledge of decision makers can be proper evidence to consider as long as it is identified at the hearing so the applicant has an opportunity to respond. In other words, say what you know VI. INSURING THE CREATION OF A GOOD RECORD A. Preparation of the documentary record 1. Step One• Review. Every relevant county regulation and plan should be reviewed as part of the evaluation process of the particular permit application. Include pertinent provisions of the Ordinances and plans m the staff report This review helps you identify possible issues that may be raised at a hearing. And that in tum will help guide your infounation gathering process and insure the relevant data is included in the record. 2. Step Two: Consult as necessary This may be the case in the context of a technically -oriented application Or it may be that in reading a particular provision of your ordinances for the 57th time, the facts 31 of this particular application raise an issue of interpretation you've not thought of before. Consult internal and outside experts as necessary, legal or otherwise. Obtain information from them m written form Add it to the file. Reference it as necessary in your staff report. 3. Step Three: Compile the materials to go to the Council. The easiest and most fool proof method of ensuring that anything of relevance is included in the record in any later review is to have those records submitted to the decision maker as part of the proceedings. However, those may be voluminous. Or they may be of limited or uncertain value. In the case of voluminous records, or records of uncertain value, the staff report should at a minimum reference the documents and summarize them As an example, the staff report could summarize complaints that have been made regarding a use letters, e-mails, other communications; the period of time involved; actionsand responses, etc. Another example: compliance issues with ordinances or CUP conditions could be referenced and summarized. While the above is not fool proof for getting all the documents in the record, it certainly insures that all the information represented by those documents is in the record. 4. Document the site visit. Best practice would be to make site visits a matter of practice relative to each application. Site visits promote familiarity with site conditions Council members are encouraged to be familiar with the site. Be present, invite questions and use it to your advantage. Document what went on there. 5. Keep a record of what was submitted to the Council While this should go without saying, it must be done. Maintain those records as a record of the proceeding. Too often staff and Council members may be uncertain as to what they saw or what was provided. Adopt a standard operating procedure for documenting what is sent. Then follow the procedure. B. Preparing the record of the proceeding 1. Conduct the meeting in a fair and impartial manner. 2. Record the proceeding. A verbatim or close to verbatim transcript of the proceedings in front of the body holding the hearing and the body making the decision should be made. The most appropriate way to do this is to record the proceedings. a. All implements used for the recording should be checked to insure proper operation before each use. Items powered by batteries should be checked to insure the batteries are operable. 3. Make Findings of Fact. a. Findings should reference facts from the record that justify the answer to the specific question referenced in the findings. It is the "why" of the answer to the specific fmding. As in " we answer this question yes/no because of the following facts. ' 4. Make a motion that encompasses in a very specific and exact manner what the City is doing. a. This includes insuring that all conditions that attach to the pen lit are identified. b. Typically a motion is made by a member asking the chair for the floor to be allowed to make a motion. The chair then recognizes the member the member states the motion; and another member then seconds the motion. The chair should then repeat the motion for the record and invite discussion The motion may be fine tuned through this discussion, which may call for an amendment, a second to the amendment, and the repeat of the amended motion again. At the conclusion of any discussion the chair will call for a vote on the motion. VI. JUDICIAL REVIEW OF ZONING ACTIONS A. General Principles 1. The standard of judicial review in all zoning matters is whether the zoning authority s action was reasonable. Honn. v. City of Coon Rapids, 313 N.W.2d 408 (_Minn. 1981). What this means in each circumstance differs slightly. 2. Great deference is given to the decisions of municipalities in zoning matter. Court's say that the role of the judiciary is "limited and sparingly invoked." 3. The Minnesota Supreme Court has repeatedly stated that it is not the province of the court to substitute its judgment for that of the municipality, but merely to determine whether the body was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively or unreasonably, and to detennine 33 whether the evidence could reasonably support or justify the determination. In Re Appeal of Brine, 460 N.W.2d 53 (Minn. 1990). B. What Court Conducts Review 1. A person aggrieved by a decision on a variance seeks judicial review by petitioning the district court for review within 30 days of receipt of notice of the decision. Minn. Stat. § 462.361. 2. Challenges to city conditional use or interim permit decisions are resolved in district court. Minn. Stat. § 462.361. a. When a county zoning ordinance directs that judicial review of a conditional use permit is to be by the district court that can supersede and replace the general rule discussed above. 3. Any taxpayer in the City may institute mandamus proceedings in district court to compel specific performance by the proper official of a duty required to be done under Chapter 462. Specific rules and principles apply to when such actions can be maintained. RASW: 117914 • 34