Loading...
HomeMy WebLinkAbout09-22-75 PZMPRESENT: EMERSON MINING PERMIT PUBLIC HEARING CITY OF LAKE ELMO PLANNING AND ZONING COMMISSION MINUTES OF THE MEETING OF SEPTEMBER 22, 1975 Meeting called to order at 7:43 by Vice -Chairman Williams. Williams, Dreher, Lundquist, Novak, Sovereign, Armstrong. Mr. Folz and Paul Emerson made a brief presentation con-- ceLning the request for a special use mining permit for the Eden Park plat. Folz estimated that there is 10,000 yards of gravel on the site. This will be removed from the area in the southwest corner where a roadway is to be placed. The material will be remaveddown to the grade of the road. It will then be hauled further north to an area near Downs Lake where a crusher will be installed. 4,000 yards will be used for making the streets within the plat and the other 6,000 yards will be hauled off -site. The present berm between the proposed site of the crusher and Downs Lake will be extended further south so that there will be no errosion to Downs Lake. Hauling of the ma- terial off -site will be done by Emerson. No neighboring land owners were present at the hearing. MOTION by Armstrong That the PZC recommends approval of issuance of a mining special use permit to mine and crush 4200 cu. yards of Class Five gravel for use as street base on the Eden Park Subdivision and to mine, crush and haul off -site about 6,000 cu. yards of class 5 gravel. This permit shall be limited to 90 operating days, not to exceed July 1, 1976, with inspection as required by the Council. SECOND by Sovereign. VOTE All in favor. MINUTES MOTION by Dreher That the Minutes of the meeting of September 9, 1975, be approved with the following amendments: 1. At page 3, SEWERS, MOTION by Sovereign, Alternative 4 of the Tri-Lakes Sewer Study" should be changed to read "Facilities Plan Alternative 3". 2. At page 4, SEWERS, points 5, 6 and 7, "4" should be "3". MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE TWO MINUTES (Cont.) PUBLIC HEARING WASHINGTON 37 AND WILLARD MORTON 3. At LAKE ELMO SEWERS, line 4, change "area, the" to read "area, and the". 4. At LAKE ELMO SEWERS, line 32, change "be" to read "by". 5. At LAKE ELMO SEWERS, line 35, change "properly" to read "properly". 6. At PARRANTO, line 4, change "Lichte" to read "Licht". 7. At PARRANTO, lines 13,14 and 17, change "Aslanitis" to "Aslanidis". SECOND by Sovereign. VOTE all in favor. Mr. Aslanidis made a brief presentation concerning the 77-1/2 acre site located at the intersection of County Roads 17 and 70 and described as the South 1/2 of the SW 1/4, Section 25. Aslanidis said that there is no slope exceeding 15%. The southern portion of the property will be heavy density, the center portion will be medium density, townhouses, and the northern portion will be low density housing. The eastern area will be dedicated to park and it contains a lake. Lundquist asked what the staging and development would be in the site. Aslanidis answered that, if the Metropolitan Council population estimates are correct (and in Aslanidis' opinion, the Metropolitan Council's estimates have always been low), the area could be developed before 1990. Parranto, upon being questioned, explained that the east 40 acres is owned by Willard Morton, the west 37 acres is owned by Washington 37, which is a limited partnership comprised of 20 to 22 limited partners, with Bob Marriott as the general partner. Parranto Brothers is employed by both these parties. The division of the land will be as follows: Rights -of -way Low density residential Medium density residential High density residential (Total residential) Neighborhood commercial Open space 10.25 acres 12.73 acres 16.98 acres 17.41 acres 47.12 acres 6.17 acres 14.02 acres 13. 21% 16.40% 21. 88% 22.440 60.73% 7.95% 18. 07% MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE THREE PUBLIC HEARING WASHINGTON 37. ND WILLARD MORTON (Cont.) Parranto stated, upon questioning by Armstrong, that the reason that this planning was done at such an early stage was that it was requested by Howard Dahlgren. Parranto stated that the Council had asked Dahlgren to request that some plans be submitted for the property. Councilman Abercrombie was present and indicated that the Council never asked for plans and that the Council was not aware that Parranto was developing the area until this request was made. Parranto stated that they spent $4,000 to $5,000 on planning and the same requests had been made for the Peltier property. Parranto went on to say that any project like this needs three to four years advance approval by the community in order to obtain an investor. He stated that the front money needed is very large and that an investor would not put up this money unless there was an indication that the community accepted the project. Acceptance by Lake Elmo of this area for PUD would be an indication of the City`;s approval of the concept plan and he, therefore, would be able to get an investor to come up with the front money for further planning. Lundquist stated that the PUD ordinance has a three -step concept: 1. The Concept Plan 2. The PUD Permit 3. The Staging Plan The City can require a bond at the beginning of construction to guarantee that the entire project will be built. There is one 2-1/2 acre area, 160 feet wide and 660 feet deep, owned by Mr. Franklin, which Washington 37 does not own. Parranto indicated that they made an offer for purchase of the 2-1/2 acres and it has not yet been accepted. Sovereign indicated that the PZC does not have the necessary documentation as required by the Lake Elmo PUD ordinance. Parranto replied that all the documentation had been sent but that it was lost some place between City Clerk's Office and the City Attorney's Office. The following people were present: R. B. Abercrombie, 3091 Layton Court North Michael Ahrens (Cimarron), 901 Lake Elmo Ave. No. Bob Marriott, Parranto Bros. Steven Schmidt, Washington 37 Properties Tom Roe, Washington 37 Properties Dorothy Lyons, 10072 North l0th Street Pete Parranto, 1212 Commerce Bldg., St. Paul Barbara L. Senness of Midwest Planning indicated that Dave Licht and the City Attorney had discussed this request and the PUD Ordinance and determined that this request is for a conditional use permit. The PZC has 60 days to act after the request was made. There was no questioning by any of the public present. MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE FOUR Pr 'IC Hh__:ING WASHINGTON 37 AND WILLARD MORTON (Cont.) SEWER STAGING PLAN 3M AERIAL PHOTOGRAPHS MOTION By Armstrong That the Washington 37 and Willard Morton application be tabled until the further information as required under Lake Elmo Ordinance No. 302.030, Subdivisions B, C, D and E is furnished. SECOND by Grace. VOTE all in favor. Barbara Senness indicated that the Council had approved a sewer staging plan, a copy of which was passed around to the PZC members, which was different from the PZC plan. She asked that some unified plan be adopted so that Midwest Planning could incorporate this in the comprehensive plan. She requested that Midwest be furnished with a copy of the Council's plan, which was prepared by Otto Bonestroo. PZC also requested copies of this plan. Barbara Senness informed the PZC that it was required by law to forward the change to the Lake Elmo Comprehensive Plan to the Metropolitan Council. Abercrombie stated that the City Attorney, Don Raleigh, had indicated to the Council that this was not required, since the original Comprehensive Plan of Lake Elmo had never been approved by the Metropolitan Council. MOTION by Armstrong That the PZC request an opinion of the City Attorney con- cerning the Commission's responsibilities as to forwarding this change to the Comprehensive Plan to the Metropolitan Council. SECOND by Sovereign. VOTE all in favor. Lundquist stated that the Metropolitan Council had taken aerial photos of the Metro area and that these were avail- able by contacting Tom Caswell or Kathleen Johnson of the Council staff at 227-9421. Lundquist stated that it might be a good idea for Lake Elmo to have two -foot contours drawn from these maps and then to sell them to the indi- vidual developers when the site is developed. Lundquist will inquire further about the aerial photos and inform the PZC. MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE FIVE BT 'ET The planning costs for 1975 through August amounted to $12,176.93 for Midwest Planning and $233.94 in other costs. Williams asked that Councilman Abercrombie get a breakdown of the past costs so that the PZC could effectively put together a budget for the next year. 3M The proposed meetings on the Environmental Impact State- E.I.S. ment of 3M were discussed. The Oakdale Planning and Zoning Commission will be holding a meeting on Thursday, October 9, at 7:30 p.m. in the Oakdale City Hall. This is to determine whether their Comprehensive Plan should be amended for the 3M Development. PARK PLAN MOTION by Novak The PZC recommends that the Joint Planning Commissions Committee of Oakdale and Lake Elmo be reactivated and become part of the Policy Input Committee of Lake Elmo and Oakdale; and that this Committee hold at least three meetings previous to December 5. SECOND by Dreher. VOTE all in favor. The Policy Input Committee is composed of Mayor Graske and Councilman Hanson of Oakdale and Mayor Eder and Councilman Abercrombie of Lake Elmo. The chairman of the Oakdale Planning and Zoning Commission is Bill Hemmings. The Washington County Planning Department will make a presentation to the City Council at the October 7 meeting concerning the Park Development. All members of the PZC are invited. 694 INTER- Sovereign suggested that the 3M Development might be enhanced CHANGE by an interchange on 694 to be built at the 45th Street intersection with 694. She suggested that this would relieve the traffic from 212 and Ideal Street. ADJOURNMENT The meeting was adjourned at 10:26 p.m. THE NEXT SCHEDULED MEETING IS TUESDAY, OCTOBER 14, at 7:30 Respectfully submitted, Thomas G. Armstrong Secretary OLA- p. m. AGENDA--PLANNING-ZONING COMMISSION CITY OF LAKE ELMO, MINN. 55042 MEETING TO BE HELD MONDAY, SEPTEMBER 22, 1975. 7:30 P.M. 7:30 P.M. 8:15 P.M. 9:00 P.M. Roll Call Hearing-- Mining Permit for Eden Park --Paul Emerson Hearing-- Washington 37 Properties & Willard Morton Application fFir Planned Unit Development Sewer and Development Staging. Resolution of differences between Council and PZC on Sewer Time Table. 9:30 P.M. Discussion Period for PZC Members ITEMS FOR DISCUSSION: --1976 Budget --Recommendation of PZC to Council on level funding for Planning in 1976. Note: Planning costs for $ `233.94 $12,176.93 $12,400.87 1975 through August: PZC Direct costs (supplies etc.) •-- Midwest Planning --PZC Input to 3M E.T.S. Policy Input Committee of CITY OF LAKE ELMO PLANNING AND ZONING COMMISSION MINUTES OF THE MEETING OF SEPTEMBER 22, 1975 Meeting called to order at 7:43 by Vice -Chairman Williams. PRESENT: Williams, Dreher, Lundquist, Novak, Sovereign, Armstrong. EMERSON Mr:.. Folz and Paul Emerson made a brief presentation con - MINING cerning the request for a special use mining permit for PERMIT the Eden Park plat. Folz estimated that there is 10,000 PUBLIC yards of gravel on the site. This will be removed from HEARING the area in the southwest corner where a roadway is to be placed. The material will be rennveddown to the grade of the road. It will then be hauled further north to an area near Downs Lake where a crusher will be installed. 4,000 yards will be used for making the streets within the plat and the other 6,000 yards will be hauled off -site. The present berm between the proposed site of the crusher and Downs Lake will be extended further south so that there will be no errosion to Downs Lake. Hauling of the ma- terial off -site will be done by Emerson. No neighboring land owners were present at the hearing. MOTION by Armstrong That the PZC recommends approval of issuance of a mining special use permit to mine and crush 4200 cu. yards of Class Five gravel for use as street base on the Eden Park Subdivision and to mine, crush and haul off -site about 6,000 cu. yards of class 5 gravel. This permit shall be limited to 90 operating days, not to exceed July 1, 1976, with inspection as required by the Council. SECOND by Sovereign. VOTE All in favor. MINUTES MOTION by Dreher That the Minutes of the meeting of September 9, 1975, be approved with the following amendments: 1. At page 3, SEWERS, MOTION by Sovereign, "Alternative 4 of the Tri-Lakes Sewer Study" should be changed to read "Facilities Plan Alternative 3". 2. At page 4, SEWERS, points 5, 6 and 7, "4" should be "3". MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE TWO MINUTES (Cont.) PUBLIC HEARING WASHINGTON 37 AND WILLARD MORTON 3. At LAKE ELMO SEWERS, line 4, change "area, the" to read "area, and the". 4. At LAKE ELMO SEWERS, line 32, change "be" to read "by". 5. At LAKE ELMO SEWERS, line 35, change "preperly" to read "properly". 6. At PARRANTO, line 4, change "Lichte" to read "Licht". 7. At PARRANTO, lines 13,14 and 17, change "Aslanitis" to "Aslanidis". SECOND by Sovereign. VOTE all in favor. Mr. Aslanidis made a brief presentation concerning the 77-1/2 acre site located at the intersection of County Roads 17 and 70 and described as the South 1/2 of the SW 1/4, Section 25. Aslanidis said that there is no slope exceeding 15%. The southern portion of the property will be heavy density, the center portion will be medium density, townhouses, and the northern portion will be low density housing. The eastern area will be dedicated to park and it contains a lake. Lundquist asked what the staging and development would be in the site. Aslanidis answered that, if the Metropolitan Council population estimates are correct (and in Aslanidis' opinion, the Metropolitan Council's estimates have always been low), the area could be developed before 1990. Parranto, upon being questioned, explained that the east 40 acres is owned by Willard Morton, the west 37 acres is owned by Washington 37, which is a limited partnership comprised of 20 to 22 limited partners, with Bob Marriott as the general partner. Parranto Brothers is employed by both these parties. The division of the land will be as follows: Rights -of -way Low density residential Medium density residential High density residential (Total residential) Neighborhood commercial Open space 10.25 acres 12.73 acres 16.98 acres 17.41 acres 13.21% 16.40% 21. 88% 22.440 47.12 acres 60.73% 6.17 acres 14.02 acres 7.950 18.07% MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE THREE PUBLIC Parranto stated, upon questioning by Armstrong, that the HEARING reason that this planning was done at such an early stage \SHINGTON 37 was that it was requested by Howard Dahlgren. Parranto ND stated that the Council had asked Dahlgren to request that WILLARD MORTON some plans be submitted for the property. Councilman (Cont.) Abercrombie was present and indicated that the Council never asked for plans and that the Council was not aware that Parranto was developing the area until this request was made. Parranto stated that they spent $4,000 to $5,000 on planning and the same requests had been made for the Peltier property. Parranto went on to say that any project like this needs three to four years advance approval by the community in order to obtain an investor. He stated that the front money needed is very large and that an investor would not put up this money unless there was an indication that the community accepted the project. Acceptance by Lake Elmo of this area for PUD would be an indication of the City',s approval of the concept plan and he, therefore, would be able to get an investor to come up with the front money for further planning. Lundquist stated that the PUD ordinance has a three -step concept: 1. The Concept Plan 2. The PUD Permit 3. The Staging Plan The City can require a bond at the beginning of construction to guarantee that the entire project will be built. There is one 2-1/2 acre area, 160 feet wide and 660 feet deep, owned by Mr. Franklin, which Washington 37 does not own. Parranto indicated that they made an offer for purchase of the 2-1/2 acres and it has not yet been accepted. Sovereign indicated that the PZC does not have the necessary documentation as required by the Lake Elmo PUD ordinance. Parranto replied that all the documentation had been sent but that it was lost some place between City Clerk's Office and the City Attorney's Office. The following people were present: R. B. Abercrombie, 3091 Layton Court North Michael Ahrens (Cimarron), 901 Lake Elmo Ave. No. Bob Marriott, Parranto Bros. Steven Schmidt, Washington 37 Properties Tom Roe, Washington 37 Properties Dorothy Lyons, 10072 North loth Street Pete Parranto, 1212 Commerce Bldg., St. Paul Barbara L. Senness of Midwest Planning indicated that Dave Licht and the City Attorney had discussed this request and the PUD Ordinance and determined that this request is for a conditional use permit. The PZC has 60 days to act after the request was made. There was no questioning by any of the_public present. MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE FOUR PUBLIC HEARING WASHINGTON 37 ID WILLARD MORTON (Cont.) SEWER STAGING PLAN MOTION Bt Armstrong That the Washington 37 and Willard Morton application be tabled until the further information as required under Lake Elmo Ordinance No. 302.030, Subdivisions B, C, D and E is furnished. SECOND by Grace. VOTE all in favor. Barbara Senness indicated that the Council had approved a sewer staging plan, a copy of which was passed around to the PZC members, which was different from the PZC plan. She asked that some unified plan be adopted so that Midwest Planning could incorporate this in the comprehensive plan. She requested that Midwest be furnished with a copy of the Council's plan, which was prepared by Otto Bonestroo. PZC also requested copies of this plan. 3M Barbara Senness informed the PZC that it was required by law to forward the change to the Lake Elmo Comprehensive Plan to the Metropolitan Council. Abercrombie stated that the City Attorney, Don Raleigh, had indicated to the Council that this was not required, since the original Comprehensive Plan of Lake Elmo had never been approved by the Metropolitan Council. AERIAL PHOTOGRAPHS MOTION by Armstrong That the PZC request an opinion of the City Attorney con- cerning the Commission's responsibilities as to forwarding this change to the Comprehensive Plan to the Metropolitan Council. SECOND by Sovereign. VOTE all in favor. Lundquist stated that the Metropolitan Council had taken aerial photos- of the Metro area and that these were avail- able by contacting Tom Caswell or Kathleen Johnson of the Council staff at 227-9421. Lundquist stated that it might be a good idea for Lake Elmo to have two -foot contours drawn from these maps and then to sell them to the indi- vidual developers when the site is developed. Lundquist will inquire further about the aerial photos and inform the PZC. MEETING OF THE PLANNING AND ZONING COMMISSION SEPTEMBER 22, 1975 PAGE FIVE BUDGET The planning costs for 1975 through August amounted to $12,176.93 for Midwest Planning and $233.94 in other costs. Williams asked that Councilman Abercrombie get a breakdown of the past costs so that the PZC could effectively put together a budget for the next year. 3M The proposed meetings on the Environmental Impact State- E.I.S. ment of 3M were discussed. The Oakdale Planning and Zoning Commission will be holding a meeting on Thursday, October 9, at 7:30 p.m. in the Oakdale City Hall. This is to determine whether their Comprehensive Plan should be amended for the 3M Development. ARK PLAN MOTION by Novak The PZC recommends that the Joint Planning Commissions Committee of Oakdale and Lake Elmo be reactivated and become part of the Policy Input Committee of Lake Elmo and Oakdale; and that this Committee hold at least three meetings previous to December 5. SECOND by Dreher. VOTE all in favor. The Policy Input Committee is composed of Mayor Graske and Councilman Hanson of Oakdale and Mayor Eder and Councilman Abercrombie of Lake Elmo. The chairman of the Oakdale Planning and Zoning Commission is Bill Hemmings. The Washington County Planning Department will make a presentation to the City Council at the October 7 meeting concerning the Park Development. All members of the PZC are invited. 694 INTER- Sovereign suggested that the 3M Development might be enhanced CHANGE by an interchange on 694 to be built at the 45th Street intersection with 694. She suggested that this would relieve the traffic from 212 and Ideal Street. ADJOURNMENT The meeting was adjourned at 10:26 p.m. THE NEXT SCHEDULED MEETING IS TUESDAY, OCTOBER 14, at 7:30 p.m. Respectfully submitted, Thomas G. Armstrong Secretary 1'LANN Nfj, Z(3.NiN'G PLANNING, ZONING 62. 5 MUNICIPAL PLANNING MEW] 462.351 Municipal planning and development; statement of policy The legislature finds that municipalities are faced with mounting prob- le,: s p, o7iding means of guiding future development of land so as to inbure a safer, more pleasant and more economical environment for residential, commercial, industrial and public activities and to promote the public health, safety, morals and general welfare. Municipalities can prepare for anticipated changes and by such preparations bring about significant savings in both private and public expenditures. Municipal planning, by providing public guides to future municipal action, enables other public and private agencies to plan their activities in harmony with the municipality's plans. Municipal planning will assist in developing lands more wisely to serve citizens more effectively, will make the provision of public services less costly, and will achieve a more secure tax base. It is the purpose of sections 462.351 to 462.364 to provide municipalities, in a single body of law, with the necessary powers and a uniform procedure for adequately conducting and implementing municipal planning. Laws 1965, c. 670, § 1, eff. Jan. 1, I966. .Approved May 22, 1965. Title of Act: An Act relating to municipal planning and development and providing for zoning, official maps, subdivision regu- lations and other official controls; re- pealing Minnesota Statutes 1961, sec- tions 4I2.221. subdivision 29; 462.01 to 462.11; 462.18 to 462.23; 465.21 to 465.25 and 471.26 to 471.33. Laws 1965, c. 670. Law Review Commentaries rand use controls. Jerome F. Fitz- gerald, 24 Bench and Bar No. 2. p. 17 (Feb. 1967). Zoning flexibility devices. April 1965, 49 Minn.Law Review 973. Zoning: Minnesota supreme court 1971-1972. 1973, 57 Minn.Law Review 940. Library references Municipal Corporations «41. C.J.S. Municipal Corporations §§ 83, 84. Index to Notes In general 1 Review 2 1. In general Zoning reclassification cannot be used as a tool to depress the market value of the property so as to defeat payment of a just price when land is taken. San- derson v. City of Willmar, 1968, 282 Minn. 1, 162 N.W.2d 494. Mere public desire to improve public condition is not enough to warrant achieving the desire by use of zoning power rather than eminent domain. Id. Amendment of zoning ordinance con- ditioned upon the successful annexation of te lim- its land of the city wouas vade lid. e cOp.Atty.Gen., 59-a-32. Oct. 8, 1970. City could not enforce zoning ordi- nance against school property where the ordinance was in conflict with the law- ful exercise of state control prescribed by § 121.15, but the city could enforce an ordinance against school property which was not in conflict with the pro- visions of the cited statute. Op.Atty. Gen., 59-a-32, Sept. 25, 1969. A press box constructed on a school athletic field would not be a school building within the meaning of § 121.15, and would be subject to the zoning reg- ulations of the municipality. Id. Village zoning plan whereby endeavor would be to preserve the 19th century look to buildings within a small nonin- dustrial village could be accomplished by the adoption of a comprehensive mu- nicipal plan pursuant to § 462.355. Op. Atty.Gen., 477b-3, May 25, 1967. School boards would be required to advise a planning agency in those mu- nicipalities which have a comprehen- sive municipal plan of their plans to acquire. dispose of or improve the school district property. tut the planning agency could not compel the school dis- trict to comply with its, plans for com- munity development. Op.Atty.Gen., 161-b, Aug. 8, 1966. 2. Review When a municipal governing body acts under its delegated police powers to adopt or amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review must necessarily be narrow. Sun Oil Co. v. Village of New Hope, 1974. 220 N.W.2d 256. In order to challenge successfully a municipal governing body's zoning de- termination, proof must be submitted to taking ors an h fther act on nine excess of tinal the powers delegated to the legislative body. Id. 462.352 Definitions Subdivision 1. For the purposes of sections 462.351 to 462.364 the terms defined in this section have the meanings given them. Subd. 2. "Municipality" means any city, including a city operating under a home rule charter, and any town having the powers of statutory cities pur- suant to section 368.01. Subd. 3. "Planning agency" means the planning commission or the plan- ning department of a municipality. 48 Subd. 4. "Platting authority" means the governing bod; _ other agency responsible under statute or charter for the approval of plats of land within the municipality or within its area of platting control. Subd. 5. "Comprehensive municipal plan" means a compilation of policy statements, goals, standards, and maps for guiding the physical, social and economic development, both private and public, of the municipality and its environs and may include, but is not limited to, the following: statements of policies, goals, standards, a land use plan, a community facilities plan, a transportation plan, and recommendations for plan execution. A comprehen- sive plan represents the planning agency's recommendations for'the future development of the community. Subd. 6. "Land use plan" means a compilation of policy statements, goals, standards, and maps, and action programs for guiding the future devel- opment of private and public property. The term includes a plan designating types of uses for the entire municipality as well as a specialized plan showing specific areas or specific types of land uses, such as residential, commercial, industrial, public or semi-public uses or any combination of such uses. Subd. 7. "Transportation plan" means a compilation of policy statements, goals, standards, maps and action programs for guiding the future develop- ment of the various modes of transportation of the municipality and its environs such as streets and highways, mass transit, railroads, air trans- portation, trucking and water transportation, and includes a major thorough- fare plan. Subd. 8. "Community facilities plan" means a compilation of policy state- ments, goals, standards, maps and action programs for guiding the future development of the public or semi-public facilities of the municipality such as recreational, educational and cultural facilities. Subd- 9. "Capital improvement program" means an itemized program setting forth the schedule and details of specific contemplated public improve- ments by fiscal year, together with their estimated cost, the justification for each improvement, the impact that such improvements will have on the cur- rent operating expense of the municipality, and such other information on capital improvements as may be pertinent. Subd. 10. "Official map" means a map adopted in accordance with section 462.359 showing existing streets, proposed future streets and the area needed for widening of existing streets of the municipality. An official map may also show the location of existing and future public land 'and facilities within the municipality. In counties in the metropolitan area as defined in Min- nesota Statutes, Section 473B.02, Subdivision 1, official maps may for a period of up to five years designate the boundaries of areas reserved for purposes of soil conservation, water supply conservation, flood control and surface water drainage and removal including appropriate regulations protecting such areas against encroachment by buildings, other physical structures or facilities. Subd. 11. "Governing body" in the ease of cities means the council by what- ever name known, and in the case of a town, means the town board_ Laws1965, c. 650, § 2, eff, Jan. 1, 1966. Amended by Laws 1973, c. 123, art. 5, § 7; Laws 1974, e. 317, § 2. 1973 Amendment. Laws 1973, c. 123. art. 5, § 7, was a general authority per- mitting the consolidation of the terms "villages" and "boroughs" into the term "cities" or the substitution of the term "statutory cites" for "villages" and/or "boroughs." 1974 Amendment. Added the third sentence of subd. 10 relating to metro- politan area maps, Cross References Thcemptions to the subdivided land sales act, see § 83.26. Library references Municipal Corporations p41. C.J.S. Municipal Corporations §§ 83, 84. 26 Mi1u:.S"74 .A.P-4 1 P 49 1. In general If land cannot be used for residential purposes as zoned, it may be unconsti- tutional taking without due process' to deny rezoning. Freeborn County v. Claussen, 1972, 295 Minn- 96, 203 N.W- 2d 323. School boards would be required to advise a planning agency in those mu- nicipalities which have a comprehen- sive municipal plan of their plans to acquire. dispose of or improve the school district property. but the plan- ning agency could not compel the school district to comply with its plans for community development Op.Atty.Gen.. 161-b. Aug. 8, 1966. -x 1..§4es Oc.10 PLANNING, ZONING 46 Authority to plan Suudivfsion I. General authority. A. municipality may carry on com- prehensive municipal planning activities for guiding the future develop- ment and improvement of the municipality and may prepare, adopt and amend a comprehensive municipal plan and implement such plan by ordinance and other o.Tieial actions in accordance with the provisions of sections 462.351 to Snloi. 2. Studies and reports. In exercising its powers under subdivision 1, a municipality may collect and analyze data, prepare maps, charts, tables, and other illustrations and displays, and conduct necessary studies. A municipality may publicize its purposes, suggestions, and findings on planning matters, may distribute reports thereon, and may advise the public on the planning matters within the scopes of its dugs and objectives. Subd. 3. Appropriation and contracts. A municipality may appropriate monies from any fund not dedicated to other purposes in order to finance its planning activities. A municipality may receive and expend grants and gifts for planning purposes and may enter into contracts with the federal and state governments or with other public or private agencies in furtherance of the planning activities authorized by sections 462.351 to 402.364. Laws 1965, c. 670, § 3, eff. Jan. 1, 1966. Library references Municipal Corporations C=41. C.J.S. Municipal Corporations §§ 83. 84. 1. Prior zoning ordinances Where landowner owned lot which was severed into two lots by sale, prior Supreme Court decision established that landowner had right to use first parcel commercially under zoning ordinance, and city changed zoning ordinance, and thereafter district court rendered deci- sion that landowner was still entitled to use first parcel commercially, such deci- sions did not establish any right to use second parcel commercially even though prior decisions were res judicata on question of first lot. Olsen v. City of Hopkins, 1970, 288 Minn. 25, 178 N.W. 2d 719. Prior decision. based on repealed ordi- nance, establishing landowner's right to use part of lot commercially had no ef- fect on question of whether second lot could be used commercially under new ordinance, and where new ordinance was not attacked as invalid, and it clearly set boundary which did not in- clude landowner's lot, landowner was not entitled to use property commercial- ly under ordinance. Id. 462.354 Organization for planning Subdivision i. Planning agency. A municipality may by charter or or- dinance create a planning agency. A planning agency created by ordinance may be abolished by two-thirds cote of aft the members of the governing body. The planning agency shall be advisory, except as other powers and duties are imposed on it by sections 462.351 to 462.364, by statute, by charter, or by ordinance consistent with the municipal charter. The planning agency may take the following alternative forms: (1) It may consist of a planning commission, which may or may not include municipal officials among its members. The planning commission may be provided with staff which may be a division of the administrative structure of the municipal government. The commission shall be advisory directly to the governing body. (2) It may consist of a planning department with a planning commission advisory to it and shall function as a department advisory to the governing body and the municipal administration, The planning department may be provided with an executive director and other staff as in the case of other municipal departments. Subd. 2. Board of adjustments and appeals. The governing body of any municipality adopting or having in effect a zoning ordinance or an official map shall provide by ordinance for a board of appeals and adjustments. The board shall have the powers set forth in section 462.357, subdivision 6 and section 462.359, subdivision 4. Except as otherwise provided by charter, the governing body may provide alternatively that there be a separate board of appeals and adjustments or that the governing body or the planning commis- sion or a committee of the planning commission serve as the hoard of appeals and adjustments, and it may provide an appropriate name for the board. The board may be given such other duties as the governing hody may direct. PLANNING, ZONING§^`-62,:555 In any municipality where the council does not serve as _.e board, the governing body may, except as otherwise provided by charter, provide that the decisions of the board on matters within itsjurisdiction are f intl. l and thsibiect to judicial review or are final subject to appeal the- of later judicial review or are advisors to the council. Hearings by the box""' of appeals and adjustments shall be held within such time and upon suet notice to interested parties as is provided in the ordinance establishing the board. The board shall within a reasonable time make its order deciding the matter and shall serve a copy of such the at r der n the ipappellantrson or or y agent or petition- er by mail. Any party may appear attorney. Subject to such limitations as may be imposed by the governing body, the board may adopt rules for the conduct of proceedings before it Such rules may include provisions for the giving of oaths to witnesses and the filing of written briefs by the parties. The board shall provide for a record of nd its proceedings which shall include the minutes of its meetings, gs, itsifindings, and the action taken on each matter heard by it, ding act as the board In any municipality in which the planning agency does notof adjustments and appeals, the board shall make no decision on an appeal or petition until the planning agency, if there is one, or a representative author- - ized by it has had reasonable opportunity, not to exceed 60 days, to review and report to the board of adjustments and appeals upon the appeal or petition. Laws 1965, e. 670, § 4, eff. Jan. 1, 1966; Subd. 2 amended by Laws 1967, c. 493, § 1, eff. play 17, 1967. 1967 Amendment. Correction bill. The powers of the board of appe la Reference to § 462,357, sub& 6 was sub- and adjustments are set forth in §§ 462.- 5tituted for reference to ¢ 462.357, subd. 359. and 0son 5. intent ofubd. 2of this ecti can be accomplished only by reference to § 462.357, sub6. op' tty.Gen.. In 5 9a- 32 (Gr. #5),an. opinion the Attorney General stated: "A review of the Senate Journal dis- closes that the original bill, introduced in the Senate as S.F. ,#826, carried the provisions now appearing es § 7 1462.3571, subd. 6, in § 7, subd. 5. A (new) subd. 5, applicable only to cities of the first class, was introduced before the Committee of the Whole on'S y 12. 1965, at which time the previous subd. 5 was renumbered as subd. 6- Senate Journal, page 1696. The Committee in- advertently failed to correct the refer- ence to (former) subd. 5, which occurs in § 4 1462.3541, subd. 2- ' We conclude the intention of the leg- islature was that § 4, subd. 2 relate to a subdivision originally numbSectiered 4, 5s boa Law Review Commentaries land use controls. Jerome F. Fitz- gerald. 24 Bench and Bar No. 2, p. 17 (Feb. 1967). Library references Municipal Corporations Co177. C.J.S. Municipal Corporations § 551 et seq. 1. Construction and application Proposed acquisition of real property for interstate or state trunk highway construction should be referred to the planning agency created by h muni- cipality under this section prior to the acquisition of the property. Op.Atty. Gen., 63-b-24, Dec. 9, 1971. A planning commission established by a village zoning ordinance is not a plan- ning agency within the meaning of subd. 1, so as to require a two-thirds vote of the village council for its abolishment later renumbereu 'Theboard shall and therefore an amendment to a village 2ns perth r torebe interpreted to read zoning ordinance passed by majority vote would bee effective for this purpose. have the powers follows: forth in section 7. Op.Atty.Gen., 110-A, Oct. 17. 1969- and section 9, subdivision s " 462.355 Preparation, adoption, and amendment et comprehensive munlclpah plan Subdivision I. Preparation and review. The planning agency shall pre- pare the comprehensive municipal plan. In discharging this duty the plan- ning agency shall consult with and coordinate the planning activities of other departments and agencies of the municipality to insure conformity with and to assist in the development of the comprehensive municipal plan. In its planning activities the planning agency shall take due cognizance of the planning activities of adjacent units of government and other affected public agencies. The planning agency shall periodically review the plan and recom- mend amendments whenever necessary. Subd. 2. Procedure for plan adoption and amendment. The planning agency may, unless otherwise provided by charter or ordinance consistent with the municipal charter, adopt and amend from time to time a compre- hensive Thc municipal plan as its recommendation to the governing body. plan may be prepared and adopted in sectios,eachsof ofwhieh the rmelates tota major subject of the plan or to a major geographical sn4 50 T}^-everning body may propose amendments to the comprehensive municipal p+ y resolution submitted to the planning ageney. Before adopting the com- prehensive municipal plan or any section or amendment of the plan, the planning agency shall hold at least one public hearing thereon. A notice of the time, place and purpose of the hearing shall be published once in the official newspaper of the municipality- at least ten days before the day of the hearing. The proposed plan, section of the plan, or amendment shall be trans- mitted to the governing body prior to the publication of the notice of hearing. Adoption and amendment of the comprehensive municipal plan or of any section thereof shall be by resolution adopted by a majority of all the members of the planning commission.. A copy of the plan or of any section or amend- ment thereof adopted by the planning agency shall be certified to the govern- ing body of the municipality. Subd. 3. Adoption by governing body. Unless otherwise provided by char- ter, the governing body may by resolution of a majority of its members adopt and amend the comprehensive plan or portion thereof so recommended as the official municipal plan upon such notice and hearing as may be prescribed by ordinance. Until so adopted by the governing body, the plan shall constitute only the recommendation of the planning agency. Laws 1965, a 670, § 5, eff. Jan. 1, 1966. Library references Municipal Corporations c2=:+41, C.T84.S. Municipal Corporations §§ 83, Supplementary Index to Notes Amendment 2 Village zoning plan whereby endeavor would be to preserve the 19th century look to buildings within a small nonin- dustrial village could be accomplished by the adoption of a comprehensive mu- nicipal plan pursuant to this section. Op.Atty.Gen., 477b-3, May 25, 1967. 2. Amendment 4. Construction and applicationMunicipality may amend its zoning or - Amendment to dinance in furtherance of public health, plan which results in comprehensive tal destruction Hopkiins,safety n1970. welfare.d 288 Minn.l 25, 178 N.W.2d or substantial diminution of value of 719. property affected thereby without just Amend compensation therefor constitutes a tak- meet the zoning ordinance coo- ing of the property without due process. oftlanddlying utsidecthe scorporate lim- Sanderson v. City of Willmar, 1968, 282 its of the city was valid. Op.Atty.Gen., Minn. 1, 162 N.W.2d 494. 59-s.-32, Oct. 8, 1970. • 462.356 Procedure for plan effectuation: generally Subdivision 1. Recommendations for plan execution. Upon the recom- mendation by the planning ageney of the comprehensive municipal plan or sections thereof, the planning agency shall study and propose to the governing body reasonable and practicable means for putting the plan or section of the plan into effect. Subject to the limitations of the following sections, such means include, but are not limited to, zoning regulations, regu- lations for the subdivision of land, an official map, a program for coordination of the normal public improvements and services of the municipality, urban renewal and a capital improvements program. Subd. 2. Compliance with plan. After a comprehensive municipal plan or section thereof has been recommended by the planning agency and a copy filed with the governing body, no publicly owned interest in real property within the municipality shall be acquired or disposed of, nor shall any capital im- provement be authorized by the municipality or special district or agency there- of or any other political subdivision having jurisdiction within the munici- pality until after the planning agency has reviewed the proposed acquisition, disposal, or capital improvement and reported in writing to the governing body or other special district or agency or political subdivision concerned, its findings as to compliance of the proposed acquisition, disposal or improvement with the comprehensive municipal plan. Failure of the planning agency to report on the proposal within 45 days after such a reference, or such other period as may be designated by the governing body shall be deemed to have satisfied the requirements of this subdivision. The governing body may, by resolution adopted by two-thirds vote dispense with the requirements of this subdivision when in its judgment it finds that the proposed acquisition or 52 PLANNING, ZONING 3 �2��•�v disposal of real property or capital improvement has no rela ;hip to the comprehensive municipal plan. Laws 1965, e. 670, § 6, eff. Jan. 1, 1966. Library references Municipal Corporations a41. C.J.S. Municipal Corporations §§ 83, 84. 1. In general Concept, as embodied in resolution adopting comprehensive zoning plan, that approval of planned unit develop- ment amends comprehensive plan to extent that the plan is not otherwise in conformity with it is not impermissible, so long as procedures for securing a permit for a planned unit development fairly provide for airing the topic. Chandler v. Kroiss, 1971, 291 Minn. 196, 190 N.W.2d 472. Granting motion of city to reopen in order to introduce additional evidence relating to subsequent action of planning commission approving acquisition of land for bridges was not abuse of dis- cretion, where ordinarily there would not have been a trial on the merits of taxpayer's action challenging construc- tion of bridges until subsequent date and where action taken was relevant to determination of whether city had com- plied with statutory requirements relat- ing to planning commission review of acquisition of property prior to author- ization thereof. Lerner v. City of Min- neapolis, 1969, 284 Minn. 46, 169 N.W.2d 380. Purpose of this section is to provide review' of overall municipal development of planning commission, the authority charged with responsibility of recom- mending comprehensive land use plan for the municipality. Id. Where planning commission had rec- ommended construction of bridges and had instituted action on its own initia- tive to amend city's land use plan to 161-b, Aug. 8, 1966. provide for them, city, which referred matter of acquisition of land required for roadway connecting bridges to plan- ning commission, and which approved the acquisition during time hearing was held in taxpayer's action to enjoin con- struction of the bridges, complied with requirements of statute that planning agency, which was to be advisory to city council, review acquisition and disposal of property prior to authorization there- of. Id. Proposed acquisition of real property for interstate or state trunk highway construction should be referred to the planning agency created by the munici- pality under § 462.354 prior to the ac- quisition of the property. Op.Atty. Gen., 63-b-24, Dec. 9, 1971. City could not enforce zoning ordi- nance against school property where the ordinance was in conflict with the law- ful exercise of state control prescribed by § 121.15, but the city could enforce an ordinance against school property which was not in conflict with the pro- visions of the cited statute. Op.Atty. Gen., 59-a-32, Sept. 25- 1969. A. press box constructed on a school athletic field would not be a school building within the meaning of § 121.15. and would be subject to the zoning reg- ulations of the municipality. Id. School boards would be required to advise a planning agency in those mu- nicipalities which have a comprehen- sive municipal plan of their plans to acquire, dispose of or improve the school district property, but the plan- ning agency could not compel the school district to comely with its plans for community development. Op.Atty.Gen., 462.357 Procedure for plan effectuation; zoning Subdivision I. Authority for zoning. For the purpose of promoting the public health, safety, morals and general welfare, a municipality may by ordi- nance regulate the Iocation, height, hulk, number of stories, size of buildings and other structures, the percentage of lot which may be occupied, the size of yards and other open spaces, the density and distribution of population, the uses of buildings and structures for trade, industry, residence, recreation, pub- lic activities, or other purposes, and the uses of land for trade, industry, resi- dence, recreation, agriculture, forestry, soil conservation, water supply conser- vation, conservation of shorelands, as defined in section I05.485, flood control or other purposes, and may establish standards and procedures regulating such uses. The regulations may divide the municipality into districts or zones of suitable numbers, shape and area. The regulations shall be uniform for each class or kind of buildings, structures or land and for each class or kind of use throughout such district, but the regulations in one district may differ from those in other districts. The ordinance embodying these regula- tions shall be known as the Zoning Ordinance and shall consist of text and maps. A city may by ordinance extend the application of its zoning regula- tions to unincorporated territory located within two miles of its limits in any direction, but not in a county or town which has adopted zoning regulations; provided that where two or more noncontiguous municipalities have boundaries less than four miles apart, each is authorized to control the zoning of land on its side of a line equidistant between the two noncontiguous municipalities unless a town or county in the affected area has adopted zoning regulations. Any city may thereafter enforce such regulations in the area to the same ex- tent as if such property were situated within its corporate limits, until the county or town hoard adopts a comprehensive zoning regulation which includes the area. Subd. 2. General requirements. At any time after the adoption of a land use plan for the municipality, the planning agency, for the purpose of carrying 53 • §-462.357 PLANNING, ZONING out the policies and goals of the land use plan, may prepare a proposed zoning ordinance and submit it to the governing body with its recommendations for adoption. Subject to the requirements of subdivisions 3, 4 and 5, the govern- ing body may adopt and amend a zoning ordinance by a two-thirds vote of all its members. Subd. 3. Public hearings. No zoning ordinance or amendment thereto shall be adopted until a public hearing has been held thereon by the planning agency or by the governing body. A notice of the time, place and purpose of the hearing shall be published in the official newspaper of the municipality at Ieast ten days prior to the day of the hearing. When an amendment in- volves changes in district boundaries affecting an area of five acres or less a similar notice shall be mailed at least ten days before the day of the hearing to each owner of affected property and property situated wholly or partly within 350 feet of the property to which the amendment relates. For the purpose of giving mailed notice, the person responsible for mailing the notice may use any appropriate records to determine the names and addresses of owners. A copy of the notice and a list of the owners and addresses to which the notice was sent shall be attested to by the responsible person and shall be made a part of the records of the proceedings. The failure to give mailed no- tice to individual property owners, or defects in the notice shall not invali- date the proceedings, provided a bona fide, attempt to comply with this subdi- vision has been made. Subd. 4. Amendments. An amendment• to a zoning ordinance may be Initiated by the governing body, the planning agency, or by petition of affected property owners as defined in the zoning ordinance. An amendment not initiated by the planning agency shall be referred to the planning agency, if there is one, for study and report and may not be acted upon by the governing body until it has received the recommendation of the planning agency on the proposed amendment or until 60 days have elapsed from the date of reference of the amendment without a report by the planning agency. Subd. 5. Amendment; certain cities of the first class. The provisions of this subdivision apply to cities of the first class. In such cities amendments to a zoning ordinance shall be made in conformance with this section but only after there shall have been filed in the office of the city clerk a written consent of the owners of two-thirds of the several descriptions of real estate situate within 100 feet of the total contiguous descriptions of real estate held . by the same owner or any party purchasing any such contiguous property within one year preceding the request, and after the affirmative vote in favor thereof by a majority of the members of the governing body of any such city. The governing body of such city may, by a two-thirds vote of its members, after hearing, adopt a new zoning ordinance without such written consent whenever the planning commission or planning board of such city shall have made a survey of the whole area of the city or of an area of not less than 40 acres, within which the new ordinance or the amendments or alterations of the existing ordinance would take effect when adopted, and shall have consid- ered whether the number of descriptions of real estate affected by such changes and alterations renders the obtaining of such written consent imprac- tical, and such planning commission or planning board shall report in writing as to whether in its opinion the proposals of the governing body in any case are reasonably related to the overall needs of the conununity, to existing land use, or to a plan for future land use, and shall have conducted a public hear- ing on such proposed ordinance, changes or alterations, of which hearing pub- lished notice shall have been given in a daily newspaper of general circula- tion at least once each week for three successive weeks prior to such hearing, which notice shall state the time, place and purpose of such hearing, and shall have reported to the governing body of the city its findings and recom- mendations in writing. Subd. 6. Appeals, and adjustments. Appeals to the board of appeals and adjustments may be taken by any affected person upon compliance with any reasonable conditions imposed by the zoning ordinance. The board of ap- PLANNING, ZONING § 62.357 Note 1 peals and adjustments has the following powers with respect to the zoning (1) To hear and decide appeals where it is alleged that there is an error in ordinance: any order, requirement, decision, or determination made by an administrative officer in the enforcement of the zoning ordinance. (2) To bear requests for variances from the literal provisions of the ordi- nance in instances where their strict enforcement would cause under undue hardship because of circumstances unique to the individual property ra- tion, and to grant such variances only hen i intentoof Crthated that such ae- Lions will be in keeping with the spirit as nce. The board of appeals and adjustments or theh governing i g body permitted the case may be, may not permit as a variance any use riot's land is located. ordi- nance for property in the zone where the affected pe rmil as a to a ed. The board or governing body as the ease may be, may pe ce the temporary use of a one family dwelling as a two f2 ilcyond dwelling. tions in the board or governing body as the ease may be may rties. granting of variances to insure compliance and to protect adjacent prope Laws 1969, e. 670, § 7, eff. Jan_ 1, 1966. Amended b1y Laws c. 379, , 4,259, 1, eff. May 1, 7L3ws 539, c. Haws 973, c. 7; Laws §§ 1, 2. 1973 ; Laws 1973, c. 539, § 1; 1969 Amendment. Added the last two ten- Validity afaordinances 2 sentences i subd. 1 intoing to un ncor- Variance 45 sion e zoningregulations po1973 Arend.1973.i975, Amendments. Laws authority y 1e3- art i5,n § 7, was a general a of the terms Pm- "vitingthe consolidation of tiintoe the "villages" and "boroughs" term 'cities" or the substitution illages" e term "statutory cities" audios "b73oughs.', included -within the purposes s for or zoning, Laws 1973.c. "conservation of fn 4ands, defined in section 105.e 485,85," and added subd. 8 delineating the extent of that authority. Laws 1973, c. 539. inserted the third sentence of subd. 6(2)- Taws 1973. c. 559, increased area in which notice must be sent to owners property from 200 to 350 feet from the property to which the amendment re- lates in subd. 3, and in subd. 5 substi- tuted "total contiguous descriptions of real estate held by the same owner or any party purchasing any contiguous e properwithin " for"real estatepreceding affected"gym subd. 5. Cross References Extent of municipal authority relat- ing to standards. se shoreland ev33o105-485. beyond Zoning and subdivision regulation within orderly annexation areas, see § 414.068. Law Review Commentaries Land use controls. Jerome F. Fitz- gerald. 24 tench and Bar No- 2, p. 17 (Feb. 1967). Minnesota's Flood Plain Management cStguidance land evie con- trols. 1971,5Mi n.LawReview 1163. Zoning: Minnesota supreme court 1971-1972. 1973. 57 Minn. Law Review 940. Library references Municipal Corporations @:=601.1. C.J.S. Municipai Corporations §§ 224. 225. 46, 81 et seq., 201 et C.J.S. Zoning §§ 5. seq. Supplementary index to Notes In general 3 Referendum 4 Review 5 Rezoning 4.7 /z. Validity This section and ordinance requiring consent to rezoning by orders of two- thirds of descriptions of real estate situated within 100 feet of property sought to be rezoned did not constitute unconstitutional delegtoation of legisla- O'Brienuthority v. ity of Saint' Pau1,r 1970. 285 Minn. 378, 173 N.W.2d 462. 1. Construction and application Refusal to grant property owners a conditional use permit to construct a gasoline service station on property in an area zoned for industrial use was ar- bitrary where, inter alia. the area waas zoned for industrial purposes. the were two. gasoline service stations di- rectly across the street. city planter re- vealed that he would hapen no hex taiion in acquiescing use was that owners' nonconforming discontinued, concern for health a nd safety of those residing on the was couched only in general terms, and Where evidence supported finding that city council'srm apparent was totendotive then form- fus- ing the perm ton u19. Enright v. City of N.W2d ton, 1973. 295 Minn 186, 203 396. Where city council is the final author- ity as to whether or not a and ditional use permit will be granted. council has no discretion to deny the permit if the party seeking it meets all the standards prescribed in the ordi- nance, refusal to grant a permit in such circumstances Is arbitrary as a natter of law, and mandamus will lie to compel the council to grant the permit. Where governing body of municipality presented no evidence to sustain its . finding that numberwhich of descriptions coun- cil area real estate affected• rendered obtaining oil sought to rezone, tactical. of consent from owners have acted council could be held to without jurisdiction in adopting ordi- nance purporting to rezone such area. LaCourse v. City of St. Paul, 19TE, 294 Minn. 335. 200 N.W.2d 905. This section permitting cities of first class to amend zoning ordinance with- out written real estate within 100 two-thirds of Ct: a a9.363.00 PLANNING, ZONING N^%-a 1 rt tate affected if number of de- sc ons of real estate affected renders obtaining of such n-ritten consent im- practical requires council not only to consider number of descriptions but to base its determination on persuasive probative evidence and same is true with regard to city zoning code permit- ting amendment without such written consent after determination that the number of descriptions affected by changes render obtaining a written con- sent impractical. Id. Finding of impracticality under this section permitting city of first class to amend zoning ordinance without written consent of owners of two-thirds of real estate within 100 feet of real estate af- fected if number of descriptions of real estate affected renders obtaining of ' such written consent impractical and under city zoning code to same effect must be based on number of owners in- volved and not simply on difficulty of securing consent from particular own- ers. Id. Where zoning ordinance permitted re- zoning for planned unit development by means of special -use permit. land- owner, which sought to develop entire property, was not required to apply for variance rather than special -use permit, notwithstanding that multiple dwellings were not a use permitted in residential zone under zoning ordi- nances. Chandler v, Kroiss, 1971, 291 Minn. 196. 190 N.W.2d 472, Where area immediately surrounding realty of applicant to rezone four lots from two-family residence district to residential -business district was devot- ed almost entirely to single-family dwellings. and city council wished to preserve, for the present, the residen- tial character of the neighborhood, city council did not act unreasonably, ar- bitrarily, or capriciously in denying ap- plication to rezone the four lots to permit a residential -business use, though only two other properties in one -mile strip were zoned as restric- tively as four lots of applicant. and value of his lots would be greatly en- hanced if rezoned to permit residential - business use. Iielber v, City of St. Louis Park, 1971, 289 Minn. 456, 185 N.W.2d 526. Even though landowner was not enti- tled to use property for commercial pur- poses on basis that frontage was less than that required for residential prop- erty and that he had sold land so that property had less frontage, he could ap- ply for variance or special waiver under other provisions of zoning ordinance. Olsen v. City of Hopkins, 1970, 288 Minn- 25, 178 N.W.2d 719. Statute enabling municipalities to es- tablish standards and procedures regu- lating uses of land for trade and indus- try implicitly confers power upon mu- nicipalities to provide for special -use permits, Zylka v. City of Crystal, 1969, 283 Minn. 192, 167 N lV.2d 45. Enabling statutes and city special -use ordinance did not require that either planning commission or city council, in acting upon an application for special - use permit. accompany its decision by findings of fact specifying reason or reasons supporting it. Id. Where no standards are provided. de- cision of governing body on application for special -use permit should be accom- panied by findings of fact specifying reasoning on which decision was based. Id. Where applicant established that nei- ther governing body preserved any rec- ord of hearing before it. made any find- ings of fact or recorded any reasons for Its action denying special -use permit, prima facie case of arbitrariness was established Id. Provision of proposed zoning ordi- nance which would give city first re- fusal if landowners should wish to sell would deny due process and would vio- late prohibition against damaging or taking private property for public use without compensation. Sanderson v. City of Willmar, 1963, 282 Minn. 1, 162 N.W.2d 494. While no statute expressly or specific- ally authorizes a municipality to enact an amortization zoning ordinance re- quiring removal of pre-existing noncon- forming billboards from exclusively resi- dential districts before stated date, such poster must necessarily be implied to effectuate grant of powers that author- ize municipalities to enact ordinances which promote general welfare of com- munity, and which authorize municipal- ities to create residential districts pur- suant to comprehensive municipal plan. Naegete Outdoor Advertising Co. of Minn. v. Village of Minnetonka, 1968, 281 Minn. 492, 162 N.W.2d 206. Mere fact that adoption of zoning or- dinance reflects desire to achieve aes- thetic ends should not in -validate an oth- erwise valid ordinance. Id. Zoning ordinance, which was enacted by village pursuant to its police power, which was part of comprehensive mu- nicipal plan, which prohibited construc- tion of all commercial enterprises, in- cluding billboards, in residential dis- tricts and which required removal of all pre-existing billboards within a three- year period was not so arbitrary, unrea- sonable, or unrelated to the general wel- fare of the community as to be uncon- stitutional by its terms. Id. Where restrictive ordinance that re- quired removal of billboards at end of three-year grace period was constitu- tional on its face. there must have been taking from plaintiff of some valuable property interest without payment of just compensation to render ordinance unconstitutional as applied to plaintiff. Id. Even where reasonableness of zoning ordinance is debatable, or where there are conflicting opinions as to desirabil- ity of restrictions it imposes, it is not function of courts to interfere with leg- islative discretion on such issues. Id. Three-year amortization period of zoning ordinance requiring billboard re- moval within three years of enactment was reasonable and not unconstitutional on its face for failure to compensate for removal when value of billboards would either be extinguished before or at end of grace period, or would equal in value their increased worth, by virtue of monopoly, enjoyed during statutory period. Id. A condominium apartment unit con- stitutes a "description" of real estate for purposes of the consent provision of this section. Op.Atty.Gen. 59a-32 (Grp. 1), Dec. 18, 1973. A cooperative apartment unit does not constitute a "description" of real estate for purposes of the consent provision of this section. Id. A county may amend its zoning ordi- nance so that it does not apply to un- incorporated areas within two miles of the boundaries of a village and the vil- lage may then extend the application of its zoning ordinance to such areas pur- suant to this section. Op.Atty.Gen.. 469a-18. Sept 4. 1973. Affected property owner of the city of Minneapolis may petition under this section for the amendment of a city zoning ordinance relating to require- ments as to yards and other open spaces without complying with the re - PLANNING, ZONING § r 62.357 Note 4.5 quirements of subd. 5 of this section sonableness and freedom from arbitrari- relative to the filing aof nd the written c city plant ness or 4 provision in flan zoning ordinance of property owners,granting of cendi- ning commission would not be Obli- which authorizes the d7i- gated to institute a survey and other tionai use permits by majority vote of procedures relative to areas of not less the council is valid. Op.Atty.Gen., than 40 acres prescribed under subd. 5. B-34. March 20. 1973. Op.Atty.Gen., 59-a-32. Dec. 31, 1910. A zoning ordinance may validly be Subdivision 4 of this section applies major- ity vote ofotheguire council in the ger rann ting of to the city of Minneapolis. Id. A. planning commission established by conditional use permits. Id. Amendment of oning is not a a villagenagency within theemean meaning of ditl ned upon the zsuccessfordinance annexation planning § 462.354. subd. 1, so as to require a of land lying outside the corporate bin - two -thirds vote of the village council for its of the city was valid. Op.Atty.Gen.. its abolishment and therefore an amend- 59-a-32, Oct. 8, 1970. ment to a village zoning ordinance pass- 3. In general ed by a majority vote would be effec- Sustaining a denial of a special use tive for this purpose. Op.Atty.Gen., permit based on reasons not articu12trola' O 110-A, Oct. 17, 1969. by the city council is error. City councii's amendment to a zoning Inc Minn. .City 2, of 211 Brooklyn 35&ark. 1973, ordinance rezoning certain property from a "residential" to a "multiple resi- Denial of application for special use deuce" classification is an administra- permit to erect gasoline station which tive matter which is not subject to the was compatible -with area zoned com- referendum provisions of the city char- mercial, which conformed to require - ter. Op.Atty.Gen., 59a„2, Oct. 7, 1968. incurs of city, which was compatible The powers of the board of appeals with area zoned commercial. which con - and adjustments are set forth in § 462.- formed adjacent chi ecru aand consistent with an subd. 4,a and 46 section.,subd.subd. 6, endanger public health" safety or gen- be o intent of § by 2, can eral welfare of community was arbi- 46 accomplished,subd. only At .n..reference5 to § tray. Id. (6 r. # subd. 1 Op6. In this pinion Limitation of the number of one e. Attorney Jan. en, al s. In this opinion type of business or, use in a particular the theeal stated: area does not bear a sufficient relao- "A review of Senate Journal dis- tionship to public health. Y r closes that the original bill, introduced general welfare et community to justify in the Senate as S.F. n826, carried the denial of a special use permit. Id. the provisions, now appearing 8S § A municipality's power to regulate (new[462.357], subd. 6, in § 7, subd. 5. A land use by zoning exists by virtue of (new) subd. 5, applicable only to cities authority delegatedf to Duluth the 7i tavt9 of the first class, was introduced before Denney v. City the Committee of the Whole on May 12, Minn. 22. 202 N 4V.2d 892. 1965, at which time the previous subd. Governing body of a municipality acts 5 was renumbered as subd. 6.•r Se�nane in a legislative and not an administra- rice capacity when by ordinance, as re- quired by its zoning code. it amends the boundaries or land use classifications of its comprehensive zoning plan. ld. Where a municipality in the exercise of delegated authority embarks upon a policy of zoning for the purpose Of regu- lating and restricting land use and the construction of buildings within a fixed area, it is exercising legislative power. Id. Journal, page 1696. The Co.._-- ref- erence failed to correct the h ef- erence to (former) subd. 5, which in § 4 [462.3543, subd. 2. "We conclude the intention of the leg- islature was that § 4, subd. 2 relate to a subdivision originally numbered 5 and later renumbered 6. Section 4. subd. 2 should therefore be interpreted to read in part as follows: 'The board shall have the powers set forth in section 7, subdivision 6 and section 9, subdivision 2. Validity of ordinances ' Neither zoning ordinance which per- mitted village council to grant or deny special use permit in any zoning district and to impose conditions it considered necessary to protect public health, safety, and -welfareh nor ordinance whin]; related to planned unit developments _5 Variance and which stated conditions under } This riancon does not, by implication, prohibit the granting of nonuse vari- froich developments from requirementsnss might be excluoee of municipal code ances such as those of area, height, set- ensity, and parking require - were unconstitutionally vague and9i 91 back. dif the granting thereof is in precise. Chandler v. Kroiss, ments, Minn. 196, 190 d 472. keeping with the spirit and intent of Where propertyty owner has reduced his the ordinance and it refusal to grant a property so that it does not meet mini- variance would cause undue hardship. mum frontage requirements of zoning Merriam Park Community Council_ Inc. ordinance for residential property, he is c• McDonough, 1973, 297 Minn. 285, 210 not deprived of equal protection of law C bV 2d 416. by refusal. to allow him to use property dispute justified for commercial purposOlsen vz City determination thatn if variances were of 25o719. 1970, 283 Minn.S25, 178 not granted the property owner would kC2d 719. When safety.reasonablyne ls,related to wel- ' circumstances ublic hardship nethreflective of co of die health" zoning morals, oe g tar a za vali ordinances are police pow- ; where setback requirement was unique as a valid exercise of the llmar, pow' to the tract, as compared to usual er.set- 282 Sanderson 1, 162 v. City Willmar, 1968, back requirements. where off-street Minn.. 1, lnN.W.2desare subject parkingrequirement was amended one Zoning ordinances co oalitto theaear ater owners application for vari- usual legal and constitutional limiters which undue delay polic and requirements including affecting other ances were made, police measures, including those of rea- was not the fault of the owner. and 4. Referendum Since city council was under a duty to amend the boundaries of single-family residential zone by means of an ordi- nance, and since such act was legisla- tive in nature. the amending ordinance was subject to referendum provisions of 1972,c29 5 Min. Denney, 02 � 1G 2d of Duluth, r-e 56 _' 462357 PLANNING, ZONING to 4.5 -sere general state of obsolescence of existing structures on the tract could reasonably have been considered by city council which granted variances as unique to the subject tract. Id. 4.7 Rezoning Even though there may be a signifi- cant change in the character of the neighborhood of property for which re- zoning is requested, such change in it- self does not compel a rezoning absent probative evidence that no reasonable use can be made of the property in its current zoning classification. Sun Oil Co. v. Village of New Hope, 1974. 220 N.W.2d 256. Mere physical proximity between ex- isting and proposed land uses does not of itself merit a rezoning of the sub- ject property. Id. Change in plans of city for intersec- tion of limited access freeway and city street, where property was located for which the oil company had requested a rezoning to permit erection of a gaso- line service station. from no interchange to a diamond interchange, resulting in greater traffic flow. did not compel a - rezoning from limited business to gener- al business as the oil company offered no evidence to show that it could not snake reasonable use of the property un- der the permitted uses of the limited business classification. Id. Village council's denial of oil com- pany's petition for rezoning of oil com- pany's land to permit erection of a service station thereon on the ground that a service station was not the best use of the land and was not compatible with the councils comprehensive zon- ing ordinance did not. without evidence to the contrary, constitute arbitrary or capricious action on the part of the village council. Id. Where village council's denial of oil company's petition to rezone its tract of land from limited business to general business to allow erection of a gasoline service station was based upon a legis- lative determination to perpetuate the council's preexisting comprehensive zon- ing ordinance which was not proven in- valid nor shown to deny petitioner a reasonable use of its land. the village council should not have been ordered to rezone the tract. Id. 5. Review Where reasonableness of zoning ordi- nance is debatable or where opinions differ as to desirability of restriction it imposes, courts are not to interfere with legislative discretion. Freeborn County v. Claussen, 1972. 295 Minn. 96, 203 N. W.2d 323. 462.3513 Procedure for plan effectuation: subdivision regulations Subdivision 1- Authority to regulate. To provide for orderly, economic, and safe development of land and urban services and facilities, and to promote the public health safety, morals and general welfare, a municipality may adopt subdivision regulations which include minimum physical standards and design requirements as to such urban services and facilities, and proce- dures for plat approval, including a procedure for appeals from actions of the platting authority. Subdivision regulations shall be adopted by ordinance when the governing body is the platting authority and by resolution when the platting authority is an agency other than the governing body. A municipality may by resolution extend the application of its subdivision regulations to un- incorporated territory located within two miles of its limits in any direction but not in a town which has adopted subdivision regulations; provided that where two or more noncontiguous municipalities have boundaries less than four miles apart, each is authorized to control the subdivision of land equi- - distant from its boundaries within this area. Subd. 2. Terms of regulations. Subdivision regulations shall require that a proposed subdivision plat shall be in conformity with the official map if such exist. In establishing requirements for the location and width of streets, the municipality shall take into consideration anticipated traffic needs and the prospective character of the development and make any reason- able requirements therefor. As a condition to the approval of any subdivision plat of lands to which the regulations apply, subdivision regulations may pre- scribe requirements concerning the extent and manner in which streets shall be graded and improved, and electric and gas distribution lines or piping, wa- ter, sewer, or other facilities shall be installed. The regulations may provide, or authorize the governing body or other platting authority to provide, that, in lieu of the completion of such work before the final approval of the plat, the governing body or platting authority may accept or require- a contract se- cured by a cash deposit, certified check, or a bond in an amount and with surety and conditions satisfactory to it, to assure the municipality that such improvements and utilities will be actually constructed and installed ac- cording to the specifications approved by the governing body or platting authority as expressed in the contract; and the municipality may enforce such contracts by appropriate legal and equitable remedies. The subdi- vision regulations may require that in appropriate plots of subdivisions to be developed for residential, commercial, industrial or other uses, or as a planned development which includes residential, commercial and industrial PLANNING, ZONING s 462.358 rises, or any combination thereof, that a reasonable portion of each proposed subdivision be dedicated to the public for public use as parks, playgrounds, public open space, or storm water holding areas or ponds, or that the subdivi- der contribute an equivalent amount in cash based on the fair market value of the undeveloped land, as defined by the regulations, provided that cash payments received under such regulations shall be placed in a special fund by the municipality and used only for the acquisition of land for parks, play- grounds, public open spaee and storm water holding areas or ponds, develop- ment of existing park and playground sites, public open space and storm wa- ter holding areas or ponds, and debt retirement in connection with land pre- viously acquired for such public purposes. The subdivision regulations, in setting forth the reasonable portion of each proposed subdivision to be dedi- cated to the public for public use as provided above, may take into considera- tion the open space, park, recreational or common areas and facilities which the subdivider has provided for the exclusive use of the residents of the sub- division. A. municipality may, through subdivision regulations, prohibit or restrict - development for purposes of soil and water conservation. Such soil and water conservation regulations may call for site development plans with provisions for the control of drainage, erosion, and siltation. Subd. 3. Plat approval. After a municipality adopts subdivision regula- tions, copies of the regulations shall be filed with the county register of deeds as provided in sections 462,351 to 462.364. Thereafter, no subdivision plat for land within the area to which the regulations are applicable shall be filed or accepted for filing unless it is accompanied by Certified copy of the resolution approving it. Before a subdivision plat is approved, it shall 'be reviewed by the platting 'authority as to its conformity to subdivision regulations. The platting authority may provide that proposed plats and subdivision developments be referred to the planning agency for review and recommendation. Unless otherwise provided by law or charter, prior to the approval of a plat by the platting authority, a public hearing shall be held thereon after notice of the time and place thereof has been pub- lished once in the official newspaper at least ten days before the day of the hearing. At the hearing all persons interested in the plat shall be heard and the platting authority may thereafter approve or disapprove the plat but failure of the platting authority to act on the application within n 60 days is deemed approval. The grounds for any refusal to approve plat shall be set forth in the proceedings of the platting authority and re- ported to the applicant. After approval a plat may be 'filed or recorded as otherwise provided by law. Subd. 4. Restrictions on filing and recording conveyances. In a munici- pality in which subdivision regulations are in force and have been filed or recorded as provided in this section, no conveyance of Iand to which the regu- lations are applicable shall be filed or recorded, if the land is described in the conveyance by metes and bounds or by reference to an unapproved regis- tered land survey made after April 21, 1961 or to an unapproved plat made after such regulations become effective. The foregoing provision does not apply to a conveyance if the land described: (1) was a separate parcel of record April 1, 1945 or the date of adoption of subdivision regulations under Laws 1945, Chapter 287,1 whichever is the later, or of the adoption of subdivision regulations pursuant to a home rule char- ter, or - (2) was the subject of a written agreement to convey entered into prior to' such time, (3) was a separate parcel of not less than two and one-half acres in area and 150 feet in width on January 1, 1966 or is a single parcel of land of not less than five acres and having a width of not less than 300 feet. In any case in which compliance with the foregoing restrictions will create an unnecessary hardship and failure to comply does not interfere with the purpose of the subdivision regulations, the platting authority may waive such compliance by adoption of a resolution to that effect and the conveyance may FR S 462,358 PLANNING, ZONING -n be fled or recorded. Any owner or agent of the owner of land who con- veys a lot or parcel in violation of the provisions of this subdivision shall for- feit and pay to the municipality a penalty of not less than $100 for each lot or parcel so conveyed. A municipality may enjoin such conveyance or may recover such penalty by a civil action in any court of competent jurisdiction. Subd. 5. Permits. Except as otherwise provided by this section all elec- tric and gas distribution lines or piping, roadways, curbs, walks and other similar improvements shall be constructed only on a street, alley or other public way or easement which is designated on an approved plat, or properly indicated on the official map of the municipality, or which has otherwise been approved by the governing body. When a municipality has adopted an official map, no permit for the erection of any building shall be issued unless the build- ing is to be located upon a parcel of land abutting on a street or highway which has been designated upon an approved glat or on the official snap or which has been otherwise approved by the governing body, and unless the buildings conform to the established building line. This limitation on issu- ing permits shall not apply to planned developments approved by the govern- ing body pursuant to its zoning ordinance. No permit shall be issued for the construction of a building on any lot or parcel conveyed in violation of the provisions of this section. Subd. 6. Variances. Subdivision regulations may provide for a procedure for varying the regulations as they apply to specific properties where an un- usual hardship on the land exists but variances may be granted only upon the specific grounds set forth in the regulations. Subd. 7. Vacation. The governing body of a municipality may vacate any publicly owned utility easement or boulevard reserve or any portion thereof, which are not being used for sewer, drainage, electric, telegraph, telephone, gas and steam purposes or for boulevard reserve purposes, in the same man- ner as vacation proceedings are conducted for streets, alleys and other public ways under a home rule charter or other provisions of law. A boulevard reserve means an easement established adjacent to a dedicated street for the purpose of establishing open space adjacent to the street and ,which area is designated on the recorded plat as "boulevard reserve". Subd. 8. Plat approval under other caws. Nothing in this section is to be construed as a limitation on the authority of municipalities which have not adopted subdivision regulations to approve plats under any other provision of law. Laws 1965, c. 670, § 8, eff. Jan. 1, 1966. Amended by Laws 1971 c. 842, § 1, eff. June 5, 1971; Laws 1973, c. 67, § 1; Laws 1973, c. 176, § 1. t See former §§ 471.28-471.31 and 471.323. 1971 Amendment. Rewrote the fifth 36 acres. contribute an equivalent sentence of subd. 2 which formerly amount in cash based on the undevel- read: aped land value, as defined by the regu- The subdivision regulations may re- lations, provided that cash payments re- quire that in appropriate plots of sub- ceived under such regulations shall be divisions to be developed for residential placed in a special fund by the mu - uses that a reasonable portion of each nicipality and used only for the acqui- proposed subdivision be dedicated to the sition of land for parks and play - public for public use as parks. and play- grounds. development of existing park grounds, or that the subdivider at his and playground sites, and debt retire - option contribute an equivalent amount ment in connection with land previously in cash as defined by the reg-ulations. acquired for parks and playgrounds. provided that cash payments received In residential subdivisions of less than under such regulations shall be placed 30 acres, the subdivision regulations in a special fund by the municipality may provide that the subdivider, at the and used only for the acquisition of municipality's option, in lieu of the land for parks and playgrounds." dedication of land for public use, con - Added the last two sentences to subd. tribute an equivalent amount in cash 2. based on the undeveloped land value as 1973 Amendments. Laws I973. a 176, defined by the regulations, for use as rewrote the fifth sentence and deleted above provided?' the former sixth sentence of subd. 2 Laws 1973. c. 67 added the paragraph which read: of subd. 2 allowing the prohibition or The subdivision regulations may re- restriction of developments for pur- quire that in appropriate plots of sub- poses of soil and water conservation. divisions to be developed for residential Library references uses that a reasonable portion of each Municipal Corporations em41-43, 621, proposed subdivision be dedicated to the 690. public for public use as parks, and C.J.S. Municipal Corporations §§ 83. playgrounds, or that the subdivider at 84, 167-175. his option in subdivisions in excess of C.J.S. Zoning §§ 219-249, 1740. PLANNING, ZONING § 462.359 3, of this section. 0, .y.Gen., 63b- 1, In general lication of its 24, Jan. 31. 1968. If a o regulations,guthe application rove- A law or charter which did not pro- refor subdivision apvalincluding p sur?s otPlut apprpursuantterritory to this - precedenDe hover noticeld not subd. 3 ke section cated it inunincorporatedmilf limits of other - when the towntwo in which such tt territory wise iprovided- u lause.nder reId. "unless lies has not adopted the subdivision reg- regulations adopted by aons but the cowould unty the has, the platting body city ofL fourth class pursuant tot formeap- §; 4TL26-471.33, which extended the ap- authoritytherdesignated agencyofithebc ty pileation of the regulations for one mile and the county's authority in this re- beyond the city limits remained in effect following the repeal of the §§ 47 26- g tort' 15lq be superseded.Op.tato the 559a-be 23 Dec..n question. Op. 4tty.Gen., ati e3 andcouldaction of ra-:dtown by pthe 32, D1. 1aT2. ula- A city may, pursuant to this section adoption of its own subdivision 29, rxtendegula application of its d erritiry [ions. Op.Atty.Gen., 59a-32. regulations to unincorporated territory 1967- of'Municipality which had accepted deeds located within two miles uch to its y Bess to certain lands without the formalities when town in subdivision is on to sectionsations 505.01 et seq. or statu- has not adoptedrequired by § pursuant to an ordi- but county has, pursuant to tort' dedication 505.13 to 3ted s, such regulations.sections 503.09. to nance drafted in the nature of the 50The adopted sixty-day pecId. authorization of Subd. 2, of this section The sf tyi period in which in relating to the acceptance of land for subd. 3 of this Acton within which a avoidd use as parks and playgrounds in con - automatic must act in order n tnection with the approval of a subdi- crutfn f theeva7 wouldbegin at the vision plat, could not sell its interest 63-b-25.conclusion Jan. hearing.69Op.Atty.Gen., in the land since the fee had as a Inthe nof matter of law, even though not so In absence of time rBthe re- - designated in the deeds. been reserved lion of a period of time after approval in the dedicators, leaving the city with c within of hl h theatith for plat must hold an easement for playground or park within warin . authority a publ u uses. Op.AttY•Gen.. 59a-40, April issueec hearing, notice t hearing should 1 rD within 0 t. reasonable time d 14, 1bdi regulations adopted under the receipt of the application, and could Subdivision be compelled . an action in the nature the 19e5 MunicipalihPlanning Act need only be filed with the register of deeds. of mandamus. Id. or- and need not be recorded against in - Subdivision regulationmaprovisited on for dividual parcels of property in a tract hearingand which made no p 21, 19ed. hearing ariagnoticelof hearing prior to indextGen., t59a-54. Oct odeeds. p plat approval wring provisionsbe controlled bys the notice and hearing of subd- 462.359 Procedure for plan effectuation; official maps Subdivision I. Statement of purpose. Land that is needed for future street purposes and as sites for other necessary public facilities and serv- ices is frequently diverted to non-public uses which could have been locat- ed on other lands without hardship or inconvenience to the owners. When this happens, public uses of land may be denied or may be obtained later only at prohibitive cost or at the expense of dislocating the owners and occupants of the land. Identification on an official neap of land needed for future pub- lic uses permits both the public and private property owners to adjust their building plans equitably and conveniently before investments are made which will make such adjustments difficult to accomplish. Subd. 2. Adoption. After the planning agency has adopted a major thor- oughfare plan and a community facilities plan, it may, for the purpose of carrying out the polities of the major thoroughfare plan and community facil- ities plan, prepare and recommend to the governing body a proposed official map covering the entire municipality or any portion thereof. The governing body may, after holding a public hearing, adopt and c men the end the offs pal snap - by ordinance. A notice of the time, place'and p Po be published in the official newspaper of the municipality at least ten days prior to the date of the hearing. The official map or maps shall be prepared in sufficient detail to permit the establishment of the future acquisition lines on the ground. In unplatted areas a minimum of a centerline survey shall have been made prior to the preparation of the final draft of the official map. The accuracy of the future acquisition lines shown on the official map shall be attested to by a registered land surveyor. After adoptingadoption, o a copce y of the official map, or sections thereof with a copy of theed shall be filed with the register of deeds as provided in sections 462.351 to 462.364. the Subd. 3. Effect. After an official map has been adopted and filed, is- suance of building permits by the municipality shall be subject to the provi- sions of this section. Whenever any street or highway is widened or improved 61 g_443Z,50 PLANNING, ZONING - .ny new street is opened, or interests in Iands for other public purpose:. are acquired by the municipality, it is not required in such proceedings to pay for any building or structure placed without a permit or in violation of con- ditions of a permit within the limits of the mapped street or outside of any building line that may have been established upon the existing street or with- in any area thus identified for public purposes- The adoption of an official map does not give the municipality any right, title, or interest in areas iden- tified for public purposes thereon, but the adoption of the map does authorize the municipality to acquire such interests without paying compensation for buildings or structures erected in such areas without a permit or in violation of the conditions of a permit. Subd. 4. Appeals. If a permit for a building in such location is denied, the board of appeals and adjustments shall have the power, upon appeal filed with it by the owner of the land, to grant a permit for building in such loca- tion in any ease in which the board finds, upon the evidence and the arguments presented to it, (a) that the entire property of the appellant of which such area identified for public purposes forms a part cannot yield a reasonable re- turn to the owner unless such a permit is granted, and (b) that balancing the interest of the municipality in preserving the integrity of the official map and of the comprehensive municipal plan and the interest of the owner of the property in the use of his property and in the benefits of ownership, the grant of such permit is required by considerations of justice and equity. In addi- tion to the notice of hearing required by section 462.354, subdivision 2, a notice shall be published in the official newspaper once at least ten days before the day of the hearing. If the board of appeals and adjustments authorizes the issuance of a permit the governing body or other board or commission having jurisdiction shall have six montbs from the date of the decision of the board to institute proceedings to acquire such land or interest therein, and if no such proceedings are started within that time, the officer responsible for issuing building permits shall issue the permit if the application otherwise conforms to local ordinances. The board shall specify the exact location, ground area, height and other details as to the extent and character of the building for which the permit is granted. Laws 1965, c. 670, § 9, eff, Jan. 1, 1966. Library references Municipal Corporations G-41, 42, 621, 650. C.J.S. Municipal Corporations §§ 83, 84. 1, 1658. JZonin C. .S. Zoning §§ 219-249. I. Construction and application Residential zoning ordinance may con- stitutionally prohibit creation of non- conforming uses but existing noncon- forming uses must either be permitted to remain or be eliminated by use of eminent domain; preexisting noncon- forming uses need not be allowed to ex- pand or enlarge. Freeborn County v. Claussen, 1972. 295 Minn. 96, 203 N.W.2d 323. That defendant's brother conducted similar nonconforming business on adja- cent land and that enclosing within building that which was formerly per- formed in open would be aesthetically beneficial did not overcome presumption that legislative body acted reasonably and in manner consistent with general welfare in refusing to rezone to permit construction of building to house earth -moving equipment which had been kept in open as nonconforming use. Id. If land cannot be used for residential purposes as zoned, it may be unconsti- tutional taking without due process to deny rezoning. Id. The powers of the board of appeals and adjustments are set forth in § 462.- 357. subd. 6, and subd. 4 of this section, and the intent of § 462.354, subd. 2, can be accomplished only by reference to § 462.357, subd. 6. Op.Atty.Gen., 59a-32 (Gr. #5). Jan. 13, 1966. In this opinion the Attorney General stated: "A review of the Senate Journal dis- closes that the original bill, introduced in the Senate as S.F. #826, carried the 357] subd. 6, in§ 7. subd. 5. rovisions. now aearinas§A 7(new) subd. 5, applicable only to cities of the first class, was introduced before the Committee of the Whole on May 12. 1965. at which time the previous subd. 5 was renumbered as subd. 6. Senate Journal. page 1696. The Committee inadvertently failed to correct the ref- erence to (former) subd. a', which oc- curs in § 4 [462.3541, subd. 2. "We conclude the intention of the leg- islature was that § 4. subd. 2 relate to a subdivision originally numbered 5 and later renumbered 6. Section 4. subd. 2 should therefore be interpreted to read in part as follows: 'The board shall have the powers set forth in section 7. subdivision 6 and section 9, subdivision 462.36 Certified copies filed with register of deeds Subdivision 1. Required documents. A certified copy of every ordinance, resolution, map, or regulation adopted under the provisions of sections PLANNING, ZONING § 462.362 462.358 and 462.359 and amendments thereto shall be filed -it the regis- ter r ality it is located.a counties Ordinances, resolutions,maps or reguiat o s fiI dpwith theopting rregis- ter of deeds pursuant to this subdivision do not constitute encumbrances on real property- authorities. A cops of a com- Subd. 2. Filing with contiguous planning prehensive plan adopted by a planning agency under the provisions of sections 462.351 to 463.364 shall be filed withthe governing body of each contiguousmunicipality and with the regional planning agency, if any, established to is serve the area in which the municipality Copies of located, Subd. 3. Piat approval:resolutions approving subdivision filing. plats of land within a municipality, but contiguous to another municipality shall be filed with the governing body of the contiguous municipality. Copies of resolutions approving subdivision plats of land outside a municipalitybut subject to its subdivision regulations shall be filed -with Laws 1965, e. 670, § 10, thef. clan if the town in which the land is situated. _ 7 to general Library references }S 42. 109-Subdivision regulations adopted under Municipal Corporations oGnthe 1565 Municipal Planning Act need Cis. Municipalipnal Corporations 5§ 83• only be filed with the register ofeeds. 84, 426. - and need not be recorded against - in- dividual parcels of property in a tract Ate register of deeds, Op. yGen-, of59aa 54, Oct, 1, 1966. 462.361 Judicial review person aggrieved by an ordi- nance, 1. Review of action. Any P rule, regulation, decision or order of a governing body or board of adjustmentsesuchordinance, ud appels acn pd eision or order, nt to sections rev ewed by an2.351 to 6appro- prla such drule,regulation, priate remedy in the district court, subject to the provisions of this section. Subd. 2. Exhaustion of remedies. In actions brought under this section, has a municipality may raise as a defense the fact ethat f p,heecureslaning as toy him not attempted to remedy his grievance by n 462.364, if the purpose court underordinance that remediesunder for that such have not been exhaust ed, it shall require the complaining party to pursue those remedies unless it finds that the use of such remedies would serve no useful purpose under the cir- cumstances of the ease. Laws 1965, c. 670t§T11,1, s wJan.n. proof,966. mu n be submitted to Library references Administrative Law and Procedure establish either an unconstitutional tak- ing or an action in excess of the powers �}cseq. 121. delegated to the legislative body. Id. Municippall Corporations G�41, 88 Zoning board's decision that ordinance C.J.S. 8 et Municipal Corporations §§ did not allow property owners to use 84, 428 et sefl- property for commercial purp review - quasi -Judicial" and, therefore, of C.J. and public Administrative Bodies able by certiorari. Olsen v. City Procedure § 160 et Seq. 19908N.W. Hopkins, 288 Minn.3Iinn, 25, I. In general 2d 719. Where trial court (had d€cidedfithat landowner had rig ng station, a commercial use. on property and there was no appeal, issue was not before Supreme Court on appeal of volv- ing question of whether part which was severed by sale could be used commercially, anI and trial court's decision reswas When a municipal governing body n powers acts under its delegated police to adopt or amend a zoning it acts in a legislative capacity and the scope of judicial review must neces- sarily be narrow. S n0 011 NCo. v. v 256. llage of New Hope, In order to challenge successfully a municipal governing body's zoning de- 462.362 Enforcement and penalty Arounieffiality adoPted unday by er sectioninance s 462.351 ovide for e462.364ea dtpro�denor red rovision penal- ties for violation thereof. A municipality may also enforce any P of sections 462.351 to 462.364 or of any ordinance adopted thereunder by of man- mpe- damus, injunction, or any other appropriate eff. Jan. rem 1966. Law tent jurisdiction. Laws 1965, e. 670, § Law Review Commentaries Land use controls. Jerome F. Fitz- geraidi7 . Feb. 1967, 24 Bench and Bar of Minn. 57