The discussion of conservation in Fish Creek goes back a long time. In the more recent past, in early 2008, I suggested the "public ownership option" -- that one way out of the CoPar situation would be for the city to acquire their land for conservation, possibly through a bonding referendum or other means (such as the bills later introduced by our area legislators).

My discussion of public ownership garnered immediate opposition from Dr. Julie Binko, who was then a parks commissioner and is now a city council candidate. In an e-mail sent far and wide in March 2008*, she wrote,

... I was not aware the City of Maplewood was a real estate owner or developer. It is the city's responsibility to protect the municipality from developers. Creating restrictive ordinances addressing endangered watersheds should be adequate. Place set backs or buffers to these lands and developers will not be able to go there. There is no need to cause the citizens of Maplewood to spend money and raise taxes.

In other words, rather than support a plan whereby the city could choose to purchase land for conservation and fairly compensate the land's owners, Binko advocates the creation of "restrictive ordinances" that would simply prevent private landowners from using their own land as they see fit. Then the public could get the conservation benefits for free, she argues.

I can better understand why some people have anxieties about things like the wetland ordinance, if they worry that someone with Binko's perspective might get elected to city council.

(*Binko's e-mail quoted above was CC'd to city staff, including acting city manager Chuck Ahl, and so should be available to the public via data practices request. It was sent on Sunday, March 02, 2008 at 10:03 AM.)

Labels: campaign 2009, development, environment

Posted by John Nephew at 8/22/2009 08:31:00 AM | Permalink | Comments

At the last meeting of the Planning Commission, on March 3rd, one agenda item was a request for rezoning a parcel in south Maplewood. A developer has applied for a change from R-1R (rural residential) to R-1S (small lot). Staff recommended against the zoning change, and the planning commission voted (unanimously, if memory serves) to recommend that the city council deny the request.

When the council considers this matter, what kind of decision will it be? How much discretion does the council have?

The answer is, whether or not to rezone a parcel is a legislative decision and a city council is given considerable latitude in deciding what to do. (In contrast, at issue in the CoPar development was a quasi-judicial matter of whether or not the developer's conditional use permit application could be denied on the basis of a zoning ordinance that, at the time, was in conflict with our comp plan.)

The League of Minnesota Cities publishes the Zoning Guide for Cities on its website. The guide explains (p. 32):

An application for a rezoning is a request for an amendment to the zoning ordinance. When reviewing applications for re-zoning, the court has ruled that the city continues to act in a legislative capacity, even though the re-zoning application may only relate to one specific parcel owned by one individual. The existing zoning ordinance is presumed to be constitutional, and an applicant is only entitled to a change if they can demonstrate that the existing zoning is unsupported by any rational basis related to the public health, safety and welfare.

In other words, unless there is no rational basis for the existing zoning, no one is entitled to a change of zoning. All else being equal, it's up to the council to decide what best serves the interests of the community, to rezone or not to rezone.

In this specific case, however, there is a second thing that we must keep in mind. The Zoning Guide for Cities (p. 40) states that a decision on a zoning question should be accompanied by findings of fact to support the decision, and, "If the city has followed a comprehensive planning process, the findings of fact should also indicate that the decision is consistent with the city’s comprehensive plan."

The problem is, this requested rezoning is not consistent with our comp plan. R-1S zoning allows for lots as small as 7,500 square feet; the current comp plan guides this land with parcels no smaller than 10,000 square feet. The pending changes to the comp plan, which came out of a lengthy process of study and public involvement over the past three years, will enact even larger minimum sizes (0.5 to 1.5 units per net acre).

Minnesota Statute 473.865 Subd. 2 decrees, "A local governmental unit shall not adopt any official control or fiscal device which is in conflict with its comprehensive plan or which permits activity in conflict with metropolitan system plans." It appears to me that to do what the developer requests would violate state law, which tells us not to adopt any official control (such as this zoning map change) that conflicts with our comp plan.

Clearly the Planning Commission was right to recommend denial of this proposed zoning change.

Labels: development

Posted by John Nephew at 3/07/2009 12:48:00 PM | Permalink | Comments

Two items on tonight's agenda will focus the council's attention on the topic of land use: Item K2, Comprehensive Plan Update, and item L4, Richie Place Subdivision Proposal on Labore Road (which involves a proposed change to the Comprehensive Land Use Plan).

In preparation for these items, I've been doing some reading this past weekend -- specifically, two Minnesota Supreme Court cases that shed light on council power and its limits when it comes to land use decisions.

In Mendota Golf, LLP, v. City of Mendota Heights (2006), the Supreme Court looked at a case where there was a conflict between the zoning and the land use plan for a golf course whose owner wanted to make it a residential development. The zoning was appropriate for this development, but the city did not want to amend its comp plan. The city was ordered to reconcile the conflict between the comp plan and the zoning -- but (unlike the original lower court ruling) the Supreme Court made it clear that how to reconcile the conflict was up to the city to decide.

Mendota Golf also made it clear that how the conflict was resolved could have further implications: "Our decision also does not foreclose Mendota Golf from asserting a regulatory takings claim if the parties cannot resolve their dispute," wrote the court.

So the upshot of this case is that a city must reconcile conflicts between zoning and the Comp Plan (such as the conflict we face on Richie Place, or the conflict in South Maplewood between the current zoning and comp plan), but courts give a city broad legislative authority to decide how to reconcile the conflict (e.g., change zoning to match the Comp Plan; change the Comp Plan to match the zoning; or change both to something else entirely). However, the court also opened the door to the possibility that some changes could result in a regulatory taking, that is, a situation where the city could be forced to compensate the landowners for regulating away the use of their land.

Last year some of these issues arose again in the case of Wensmann Realty v. Eagan (2007). This case focused on that open door to a regulatory takings claims, in a case where the city wanted to maintain an Open Space land use designation on private land to prevent a residential development. The court concluded that "a city’s denial of an application to amend its comprehensive plan to permit residential development of golf course property constitutes a regulatory taking under the Minnesota Constitution if the denial leaves no reasonable use of the property."

Considering the balance of factors to determine whether or not there is a regulatory taking, the court wrote, "The citizens of Eagan clearly value the open space that the golf course provides, but if the property owner is forced to leave the property undeveloped for the benefit of neighboring landowners without an opportunity to pursue a reasonable use of the property, the city is, in essence, asking the property owner to carry a burden that in all fairness should be borne by the entire community."

In the Wensmann case, the justices ultimately felt that the court record was insufficent to determine if in fact a taking had occurred, and so remanded the case to district court. Eagan and Wensmann subsequently worked out a compromise, which involved a referendum this fall on whether or not the city would buy the land in order to keep it as public open space.

In conclusion, I see two key guidelines when the council is considering changes to our comprehensive land use plan.

1. If there is a conflict between the comp plan and the zoning, we are obliged to reconcile that conflict. This is required by the Metropolitan Land Planning Act (Minnesota Statutes 473.865). We have legislative authority to decide how to reconcile the conflict, as long as our decision has a rational basis.
2. To avoid regulatory takings claims from landowners whose land use plan designation is changes, we need to make certain that the designation allows a reasonable use of the property. Again, a city has fairly wide latitude, since as the court writes in Wensmann, "A taking does not result simply because the property owner has been deprived of the most profitable use of the property."

Labels: development, process

Posted by John Nephew at 12/08/2008 12:15:00 PM | Permalink | Comments

On Tuesday, September 16th, the Planning Commission will be holding another hearing on the city's Comprehensive Plan. This hearing will focus on issues in the South Leg, particularly the future land use guidelines. It looks like the commission's discussions with staff and the consultants will revolve around the question of density for the Rural/Low Density Residential land guidance category.

The issue is made more complex by the change from gross acreage to net acreage for density calculations. The terrain of that neighborhood means that there is a big difference between gross and net acreage. The report to the commissioners uses an example of one actual lot of land in the area at issue. This lot is 6.9 acres (gross), but only 2.9 net acres after slopes, wetlands, etc., are excluded. So under the old idea that the neighborhood should have two-acre lots, this land could have had 3 homes built on it. With a new standard of simply 0.5 units per net acre, it would only be able to have 1 home on it (in other words, no change from its current use with a single house).

This is a difficult policy question, and the Planning Commission will be trying to come together and make a recommendation to the city council on what to do. If you are interested in this issue -- especially if you are a south leg resident in the area where the new land use category will apply -- I strongly encourage you to attend the meeting and share your views. While I unfortunately won't be able to attend this hearing in person (I will be out of town on business), I will be paying close attention to its outcome and to all of the citizen comment that is received.

Labels: development, events, process

Posted by John Nephew at 9/12/2008 04:44:00 PM | Permalink | Comments

Today's Pioneer Press has an article well worth reading, headlined "The War Over Affordable Housing." It's part one in a series of three about the issue of affordable housing in the Twin Cities, and I think it's well worth reading -- both to understand the nature of the problem and the community need (working families, often young and thus at the lower end of the wage scale, who can't afford to pay the market rate for housing in the suburbs), and also the opposition that "affordable housing" often engenders.

There's also a map that shows per capita affordable housing in various metro communities, including Maplewood.

Labels: development, media

Posted by John Nephew at 6/29/2008 09:14:00 PM | Permalink | Comments

It's difficult to overstate the importance of the "comp plan" for city planning and the related recommendations and decisions made by city staff the the city council. In the Twin Cities metro area, Minnesota state law has given a special role to the comp plan. The comp plan not only involves our vision for our community, but the update process engages neighboring communities and political subdivisions, so that development will occur in a way that is mindful of regional needs.

The City of Maplewood is hosting an open house for the public to review and comment on the proposed 2008 update to our Comprehensive Plan. It will take place at the Maplewood Community Center (2100 White Bear Ave.) on Thursday, May 22, from 6 to 8 PM.

Labels: development, events, process

Posted by John Nephew at 5/18/2008 01:42:00 PM | Permalink | Comments

At our next council meeting, May 12, we will again be taking up the matter of a possible settlement with CoPar over the Carver Crossing project. After a long meeting on May 5th, the council tabled the matter in order to allow CoPar to adjust their proposal, in light of the concerns raised in council discussions (the primary concern at the end of the night being money).

The packet for Monday's meeting includes a revised settlement proposal. In case you don't want to download the whole thing from the city website (it's one 28.7 MB file for the whole council meeting packet), I extracted the new material from the Item K3 agenda report -- a report from our Acting City Manager and our attorney in the case, and a possible resolution that the council could pass if we agree to the settlement.

There are two major changes from a week ago. The first is that the city's required financial outlay is eliminated. In the 165-unit settlement proposal of last week, the city would have "bought down" the density by agreeing to pay one third of the cost of public improvements. Now the whole cost is borne by the developer.

There's a change to the number of units. The baseline number of units is now 174 -- not the 165 of last week, but also not the original 191.

Several key points remain the same -- namely, the inclusion of a guard rail system along Henry Lane to address safety concerns; giving the city the option to explore a referendum or other means of funding to purchase land south of Fish Creek for conservation; and the developer agreeing to hold off on any major construction south of Fish Creek until 2009, to allow time for that process.

Speaking of other means of funding, the park fees generated by the project were part of the financial package for the "buy-down" in last week's iteration of the settlement proposal. That is no longer the case; those fees will now be available to help fund the conservation purchase, if the city wishes.

Finally, the agenda report includes a note of warning: "CoPar indicated that their willingness for sale of property in the southern area is contingent upon reaching a litigation settlement at this time. Should the plan be denied, they indicated that they will build the entire 191 unit plan without sales to the City for further open space considerations. "

Labels: development

Posted by John Nephew at 5/11/2008 10:59:00 AM | Permalink | Comments

Monday night's special meeting about the proposed CoPar settlement went late into the night, and the end result was tabling action until next week. While that may seem like a lot of sound and fury that signified nothing in the end, I think we may actually be on the verge of a breakthrough. For one thing, this may have been the first time the developer could directly witness the council discussing the settlement-related issues and identifying our individual concerns, without having it mediated by city staff and attorneys on both sides.

As I wrote in this blog two months ago, my chief concern in a settlement outcome has been to open the door for public ownership of land south of Fish Creek. When I wrote at that time, I posed it specifically in terms of a referendum, but I have become increasingly optimistic that there are other potential funding sources to explore as well. A letter delivered to us Monday evening from the Friends of the Mississippi River amplifies my optimism, as they offer their "assistance as a partner with the City and area stakeholders in helping to protect the land around Fish Creek as a natural and open space."

Some on the council may be cool to the idea of a bonding referendum. As a result, they may be reluctant to state unequivocal support for the conservation goal, out of a fear that it could imply their endorsement of city borrowing and spending. I can see how a politician might not want to face a choice between support of the environment and opposition to taxes. On the bright side, at least there seems to be acceptance of the conservation idea if money comes from somewhere else.

Labels: development, environment, process

Posted by John Nephew at 5/08/2008 01:09:00 PM | Permalink | Comments

Since it's sure to be part of the discussion at tonight's special meeting, I thought it would be helpful if folks at home had easy access to the city's R-1(R) zoning ordinance. Download the PDF and read it for yourself.

Labels: development

Posted by John Nephew at 5/05/2008 12:17:00 PM | Permalink | Comments

As I discussed in my last entry, if we go to court in the CoPar suit, a judge will determine whether the city, exercising quasi-judicial authority, was arbitrary, unreasonable or capricious in deciding not to approve CoPar's conditional use permit application.

Many people who look at the CoPar situation wonder how the city's decision in September 2006 could possibly be called arbitrary, unreasonable, or capricious. The R-1(R) zoning requires lots at least 2 acres in size; CoPar's proposal had smaller lots; therefore it was turned down because it did not comply with the zoning regulations. What's the matter with expecting people to follow the rules? And why would the developer think they could build more houses on that land in the first place?

The problem is that Maplewood's zoning and our comprehensive plan on this parcel do not agree with one another -- and in Minnesota, the comprehensive plan trumps zoning.


First of all, the problems with Maplewood's comp plan. The southern portion of CoPar's property is guided as "R-1."

On page 30 of the Comp Plan, we are told, "Table 5 (on page 33) shows the maximum number of people per gross acre allowed . . . If someone wants to know how many units of a certain type of dwelling they can build, they should use Table 5." Unfortunately, Table 5 on page 33 does not specifically mention the R-1 land use category. It does say that, for "Single Dwelling," the city expects 2.9 people per unit. It also seems to cross reference "Single Dwelling" with the R-3L and R-3M land uses for 4.1 and 4.6 units per acre, respectively -- but those are multiple dwelling land uses. This makes no sense. Maybe it means that R-1 can have up to 4.1 or 4.6 units per acre, if there are some kind of headers missing from the right columns of the table that would clarify what they mean?

On page 32 of the comp plan, there is a much more clear listing of the land use categories. Under residential land use, it specifies that R-1 means "Single Dwelling (10,000-square-foot lot areas)." In other words, roughly 4.3 units per acre.

The Residential Land Uses has three categories of "Residential Estate" uses (RE-20, RE-30, and RE-40), that do specify larger lots (of 20/30/40 thousand square feet each, respectively). If larger lots were intended, why wasn't the land guided as one of these?

Also the R-1(R) zoning ordinance mentions land where municipal sanitary sewer and water service are not foreseen, thus requiring larger lots for septic systems. If a developer is willing to install sewer and water, are the large lots still necessary, given that the comp plan allows for higher densities under the R-1 land use?

So we appear to have a problem between the comp plan (lots as small as 10,000 square feet) and zoning (lots no less than 2 acres, or 87,120 square feet) on this parcel. Which can the developer -- or the neighboring residents -- rely on?


Unfortunately for Maplewood, the law is quite clear: If there's a disagreement between the Comp Plan and the zoning controls, the comp plan wins.

In several places, the Metropolitan Land Use Planning Act suggests that the Comprehensive Plan outranks zoning and other official controls. For example:

473.865 ADOPTION; CONFLICTS, AMENDMENT OF CONTROLS, DEVICES.
Subdivision 1. Control copies to [met] council. Each local governmental unit shall adopt official controls as described in its adopted comprehensive plan and shall submit copies of the official controls to the council within 30 days following adoption thereof, for information purposes only.
Subd. 2. No conflict with plans. A local governmental unit shall not adopt any official control or fiscal device which is in conflict with its comprehensive plan or which permits activity in conflict with metropolitan system plans.
Subd. 3. Amendments. If an official control conflicts with a comprehensive plan as the result of an amendment to the plan, the official control shall be amended by the unit within nine months following the amendment to the plan so as to not conflict with the amended comprehensive plan.

In Metropolitics: A Regional Agenda for Community and Stability (Brookings Institution Press, 1997), former Minnesota legislator Myron Orfield discusses the Metropolitan Land Use Planning Act, which he actually introduced. He writes (p. 126):

In terms of enforcement, the Land Planning Act provided explicit authority for both the Met Council and interested citizens to sue to ensure that the Development Guide was followed. It reversed the so-called "Merriam Amendment," which had given local zoning laws precedence over comprehensive plans.

The language of the statute can be confusing sometimes to those of us who are not lawyers, but I think Mr. Orfield's words cut through the legalese of the Act to make his intent as its author clear. He intended to reverse the Merriam Amendment, and to give comprehensive plans precedence over zoning.

Usually developers have been on the other side of this issue in their lawsuits (as in Mendota Golf, LLP v. City of Mendota Heights, when the zoning was less restrictive than the comp plan; the developer sued to force the city to change the comp plan to match the zoning, and the Minnesota Supreme Court sided with the city). Developers know very well to look at the comp plan first, and property lawyers advise their clients to "rely only on the comprehensive plan’s use designation."


At the Planning Commission public hearing and in e-mails from residents since then, I've heard many folks who oppose the development asking that we go to court and trust that the judge will rule in our favor. Perhaps, some have suggested, this will be the test case to overturn the rule of comp plan over zoning.

If we go to court and hope to win, I think we need to be very clear on what we will be trying to persuade the judge to do. We not only will ask her to overturn precedents from previous court cases. We will want her to overturn the law itself, or somehow interpret it in a way directly contrary to the explicit intent of the legislators who wrote it.

While I'm not a lawyer, it seems to me that this is a pretty slim hope on which to pin the future of this land that our community values so highly.

Labels: development, process

Posted by John Nephew at 5/04/2008 05:29:00 PM | Permalink | Comments

Tomorrow we have to make a decision on a proposed settlement of the CoPar litigation. Like the rest of the council, I've spent an enormous amount of time studying this issue and searching for the best course of action. I think if I tried to write about all the aspects of this situation, this would be a very long entry, and I probably would not be done writing it before tomorrow night's meeting.

For whatever it's worth, I did want to spend some time writing about the legal issues of the case, as best as I have been able to understand them.

CoPar's application in 2006 was for a conditional use permit. This determined the way that the city council was allowed to evaluate the application. In training seminars sponsored by the League of Minnesota Cities, I've several times encountered the following diagram. (This particular version comes from "Land Use Issues Presentation: Comprehensive Plan and Land Use Ordinances.")
On the bottom of the pyramid, a city council makes broad-brush decisions -- such as the Comp Plan to guide the development of the community over decades to come. When you get to the narrow top of the pyramid, the council has less and less choice; the question is not about what the council would like. Instead, the council must judge what the current law allows given the facts placed before us.

A decision about what to put in the comp plan, or how to zone a property within the parameters permitted by the comp plan, is a legislative decision. According to another League of Minnesota Cities Insurance Trust document ("Zoning Decisions," p. 1),

When adopting or amending a zoning ordinance, a city council is exercising so-called “legislative” authority. The council is advancing health, safety, and welfare by making rules that apply throughout the entire community. When acting legislatively, the council has broad discretion and will be afforded considerable deference by any reviewing court. City councils are ultimately accountable to the voters for legislative decisions.

In contrast, when deciding how to apply the comprehensive plan and the zoning -- for example, by judging whether or not a specific conditional use permit should be issued -- the city council is making a quasi-judicial decision. The same LMCIT document goes on to say, with regard to quasi-judicial authority:

The task is to determine the facts associated with a particular request, and then apply those facts to the legal standards contained in the zoning ordinance and relevant state law. A city council has less discretion when acting quasi-judicially, and a reviewing court will examine whether the city council applied rules already in place to the facts before it. In general, if the facts indicate the applicant meets the relevant legal standard, then they are likely entitled to the approval.

The LMCIT document provides more information specific to conditional use permits (p. 3):

City councils sometimes misunderstand the level and the nature of discretion they have when reviewing applications for conditional use permits. If a proposed conditional use satisfies the conditional use standards set forth in the zoning ordinance, then generally the landowner is entitled to the conditional use permit. The city made the legislative decision about the appropriateness of a kind of use in a zoning district when the council adopted the ordinance providing for the use as conditional. When considering a conditional use permit application, the city is tasked with the more limited quasi-judicial role of considering whether the facts of a particular application satisfy the standards set forth in the ordinance.

Boiling things down, CoPar's argument is that the city was arbitrary or unreasonable in denying their application, because their proposal (in their view) did comply with the city's standards. In order to appeal the city's decision, they filed suit. If we proceed to court, a judge will examine the record and determine whether the city applied the law correctly to this situation.

The LMCIT document also discusses how a judge would review a decision (p. 5).

If the city action is challenged, courts will review the decision on the public record. The record must demonstrate the city exercised the appropriate level of discretion and applied the relevant standards in a reasonable fashion. It may not matter that the city acted reasonably if the city is unable to prove its actions through the public record. (emphasis added)

It is very important to understand the role of the record. The judge can only determine whether or not the decision was appropriate, based on the reasons given by the council when they made the decision. Was the law applied correctly, given the facts set out by the public record when the council's decision was made? If someone, after the decision, came up with an added reason or better explanation for why it was reasonable to turn down the application, that will not help the city win the case.

It should be no surprise that the LMCIT strongly recommends that a city create a written list of findings for quasi-judicial decisions such as those about conditional use permits (p. 6).

The written statement explaining the reasons for the zoning decision is particularly important for quasi-judicial decisions such as variances and conditional use permits. The League recommends the city adopt written findings of fact and conclusions of law whenever a city makes such decisions. The document should identify the relevant legal criteria such as statutory standards or code provisions, explain the relevant facts relating to the particular application, and then apply those facts to the legal criteria. The document should provide a court with everything needed to uphold the zoning decision.

Unfortunately, in the decision that led to the current lawsuit, those written findings were never produced. This is just one of the complications that we face, but the unique problems of our specific situation are better saved for a separate article.

Labels: development, process

Posted by John Nephew at 5/04/2008 02:19:00 PM | Permalink | Comments

At the March 24th city council meeting, we approved the final plat of a development on a 3-2 vote. Some neighbors objected to the completion of this development, and one of them wrote to me to express disappointment that I did not vote with Mayor Longrie and Councilmember Hjelle to deny the final plat. According to this resident, "The reason they voted against it is because they took the time to come out and look at it and saw first hand the problems with the design."

I sent a reply this morning, and thought it would be worth posting here as well. Not only does this touch on the general topic of land use decisions that come before the council (a final plat approval vote is not the place where you come up with new conditions to place on a developer), but it also illustrates the concerns expressed to us earlier this week by the League of Minnesota Cities Insurance Trust about council behavior that can limit our options or create legal problems for the city.


Dear [name withheld],

Thank you for writing with your concerns about the vote on the final plat approval for the Beaver Lake project at our last council meeting. Respectfully, I must stand by the vote that I took, which I believe was the legally correct and responsible action for the council to take.

Yesterday I attended the League of Minnesota Cities Safety & Loss Control Workshops in Brooklyn Park. Some workshops were on the topic of land use, and I had the opportunity to ask some legal experts in this field specifically about final plat decisions and what practical latitude a council has in voting on them. Also, the binder I received as an attendee had helpful information about preliminary and final plats.

According to the LMC's risk management information sheet, “Subdivisions, Plats, and Development Agreements–Oh My!” a council has very little discretion on a vote like the one that was before us. It states (p. 6):

The term “preliminary” approval can be misleading because preliminary plat approval establishes the nature, design, and scope of a development project. After a plat is preliminarily approved, the city generally cannot require further significant changes. Once the conditions and requirements of the preliminary plat approval are satisfied, the applicant is generally entitled to approval of the final plat.

City staff had informed us that the conditions required in the preliminary plat approval had been satisfied. This entitled the developer to final approval. In order for the council to vote otherwise, we would have needed to provide findings of fact that indicated deficiencies in the specific conditions that were set out by the city council long ago for this project. As the LMC's risk management information sheet “Ten Tips for Avoiding Land Use Claims” states (#8), “Neighborhood opposition alone is not a basis for denying an application.”

While Mayor Longrie and Mr. Hjelle voted against the final plat approval, they did not offer any findings of fact to support their votes. As you observed, at an earlier meeting I asked them for their reasoning, and I did not hear any satisfactory explanation at that time. If, as you suggest, they came out and looked at the site and agreed with problems that you perceive, they failed to communicate those issues to the council or place them on the record as reasons for their votes. On the contrary, the only reasons I recall were that Erik seemed to want to punish Mr. Schreier for allowing Will Rossbach to place lawn signs on other Maplewood properties he owns; and Mayor Longrie wanted to vote against the developer because in her view he always got his way.

I would humbly suggest that neither of these reasons would hold up in court, if I had voted with them and denied the final plat approval. For that matter, even if I had voted against the plat and had provided findings of fact, contrary to the staff's report, that suggested the conditions of final approval had not been met, I think the developer could have made a strong case that two of the three votes were, based on the public comments of Mr. Hjelle and Ms. Longrie, motivated by arbitrary or illegal reasons (such as an intent to punish Mr. Schreier for his implied expression of political views).

As you may have heard, this week we nearly lost our insurance coverage because of situations like this would have been. The League of Minnesota Cities Insurance Trust specifically expressed concerns about comments made by council members to the public and the media that undermine the ability to defend cases, by creating grounds for a plaintiff to argue that stated reasons for a decision were pretextual. As it stands, the losses created by council decisions in 2006-2007 are giving us a 38% premium increase and a 300% deductible increase in the coming year. In the interests of the entire city and all its taxpayers, this is really not a good time to invite further litigation, particularly not in the context of public councilmember remarks that could severely harm our prospects of prevailing in court.

Again, thank you for writing with your concerns. I know this is not the answer you wanted to hear, and that you are unhappy with that vote, but I hope I have provided you with a better understanding of my decision.

Sincerely,
John Nephew, Councilmember

Labels: council politics, development

Posted by John Nephew at 4/10/2008 10:02:00 AM | Permalink | Comments

A major item on the agenda for Monday's regular council meeting is the first reading of a revision of Maplewood's wetland ordinance, something our Environmental & Natural Resources Commission has been working on for quite some time. In case you'd rather not download the entire (20+ MB) packet for the whole meeting, there is a page on the city website just devoted to the proposed changes to the wetland ordinance. There you can find maps of the city's wetlands, and a helpful redlined version of the proposed ordinance (indicating what is the same and what is changed from current city law).

From reading the proposed ordinance, I gather that there are really two major aspects to the changes. The first is a reclassification of Maplewood wetlands, to bring our city's nomenclature in line with the Ramsey-Washington Metro Watershed District's. This standardization would have several benefits, including cost savings for city staff time. (If we piggyback on RWMWD's classifications, then we don't have to go out and classify all the wetlands ourselves according to our own separate system; we can use the work that the Watershed District has already done.) The ordinance also would create an "A+" classification, for the special wetlands that are already at the highest rating from the Watershed District, but are so valued that they need additional protection (larger protective buffers). The city has not yet identified which specific wetlands meet this standard, but it's believed that many of them already are on public land (for example, wetlands within the Priory neighborhood preserve).

You can also read a newsbrief about the wetland ordinance on the Maplewood Review website.

Like our community as a whole, I believe our city council has a strong shared interest in protecting our environment. Updating our wetland ordinance is one of the ways we can come together to do that.

Labels: development, environment

Posted by John Nephew at 3/23/2008 11:44:00 AM | Permalink | Comments

In each neighborhood of Maplewood, it appears that candidates Rokke and Cave are distributing a customized joint flyer that identifies a nearby park or neighborhood preserve as needing "saving."

The flyers say that the "#1 issue of concern" from meeting with homeowners in that neighborhood was how to save public parks and open space. (This is funny to me, because after talking to people in every neighborhood of Maplewood, I'm pretty confident in saying that the #1 issue of concern to residents is, "When can we get rid of that mayor?")

It says the problem is "how to stop developers from smooth talking your city council into selling your Parks and Open Spaces for building condos or apartments." The flyer also says "The crucial thing that our opponents want to 'Preserve' - is the ability to sell to developers at the simple will of the city council!"

What is ironic about this is the fact that, as far as I am aware, only one candidate has suggested the possible desirability of selling public open space -- and that would be Delray Rokke, one of the people producing and distributing this flyer.

Take a look at the candidate profile that Rocky completed for the Lillie News, presumably before he decided to team up with Rebecca, turn 180°, and dump his own positions in favor of her campaign's talking points. In response to the question, "What does the city need to do to preserve Maplewood’s parks and open spaces? Do you think conservation easements should play a role?" Rocky wrote:

We need to let the voters decide again whether they still support the city controlling large quantities of undeveloped, non-park land. We need to let residents know how much this costs in additional taxes per household. We should consider some additional safe, attractive and affordable senior housing so that more young families may move into many neighborhoods to enjoy the parks. Conservation easements should be considered on a case by case basis—not encouraged.

Am I reading this wrong? It sounds like he was saying that some neighborhood preserves (the "large quantities of undeveloped, non-park land") might better be developed with senior housing.

Perhaps he misspoke? Well, at the Chamber of Commerce debate on August 30th, Rocky again suggested that the neighborhood preserves needed "development" to make them more useful and accessible (I think he meant trails and amenities); then he went on to say that some should maybe have parking lots built on them! (I guess that would keep them "open.") Listen for yourself (228 kB MP3).

He also seemed strongly opposed to conservation easements in the candidate profile; this was the impression I had from a conversation I had with Rocky in August, too. Now, he apparently has decided that conservation easements are not only OK, but a centerpiece of his campaign.

I have wondered how Rebecca and Rocky could team up, since on Rebecca's core campaign issue (at least, what she says is the most important issue), Rocky was the one candidate who held the most extreme opposite view. I guess it makes me wonder how important it really is to either of them.

Labels: campaign 2007, development, parks

Posted by John Nephew at 10/15/2007 04:05:00 PM | Permalink | Comments

This past Monday, the theater in the Maplewood Community Center was overflowing with citizens who turned out for this special meeting of the city council, to express both support and concerns about the proposed Planned Unit Development on the site of St. Paul's Monastery.

I offered a couple of lines of thought, both rooted in my perspective as a businessman. First, I wanted to focus attention on the fact that we were talking about the Benedictine sisters' private land. The proposed development is in harmony both with existing zoning and with the city's comprehensive land use plan. Thus, it seems to me that the hurdle is set very high, in terms of the public interest that must be served in order to outweigh the private landowners' property rights. Second, I wanted to speak to the importance of affordable housing as a public good, in helping working families better their own situation and become more secure and self-sufficient, which benefits all of us as taxpayers and fellow citizens. When non-profit organizations are stepping forward to provide this affordable housing in our community, it's an opportunity we should not miss.



Because one of the five members of the city council was absent from the meeting on account of illness, the vote was tabled until tomorrow night's regular council meeting.

Labels: development, process, video

Posted by John Nephew at 5/13/2007 11:44:00 AM | Permalink | Comments

Next Monday, May 7th, there will be a special public meeting at the Maplewood Community Center, 7 PM, on the topic of the proposed developments at St. Paul's Monastery. The Benedictine sisters who call the Monastery home have found that it's more space than they need, so they propose building a new and smaller home for themselves; turning the existing building into a facility for the Tubman Family Alliance; and using another parcel of land for an affordable housing development in collaboration with Common Bond Communities. The plan requires approval from the Maplewood City Council.

I encountered five sisters from the monastery when they attended the Mayor's Forum at the start of April, where they had ready answers for all of the questions posed to them by fellow Maplewood residents, and additional information as well. Some of the information was surprising -- for example, the affordable housing income limit is somewhere around $43,000, if memory serves. Some citizens at the forum remarked in some amazement that they themselves could qualify to live there.

I know some neighbors have concerns about the development, about the effect on traffic for example, but what I've heard of the plan so far has made a positive impression on me. I admit I've always had a soft spot for Benedictine nuns (going back to when I was a little kid running around the halls of St. Scholastica, the Benedictine college where my dad is still an ethics professor, named after St. Benedict's twin sister). Sometimes people have an idea of the religious as being removed from the world in a kind of state of abstraction and disembodied prayer. In truth, these women have devoted themselves to bettering the world we live in, not just the world that may come hereafter; projects like this serve the living needs of the community, and thereby further the spiritual calling of the sisters as well.

If you have doubts about this project, you should attend in order to voice those doubts and see if they can be put to rest. (In fact, without waiting for the meeting, you might find that the monastery's web site already has the answers to your questions under the "Resources About the Planned Unit Development" section on its front page.) If the project sounds like a good idea, you should still attend, to learn more and to be visible in your support of the sisters' good works.

I plan to be there, and I hope you will be too.

Labels: development, events

Posted by John Nephew at 5/02/2007 05:31:00 PM | Permalink | Comments

The word on the street (hat tip to RC for passing along the news) is that the Minnesota Supreme Court has just overturned the appellate court on Hans Hagen Homes Inc. v. City of Minnetrista.

What does this have to do with Maplewood? It bears directly on the lawsuit against Maplewood by CoPar, the developer who had plans for south Maplewood around Fish Creek. Last year the city refused CoPar's plans, and then established the current development moratorium for a study of land use south of Carver Avenue.

CoPar has filed a motion for summary judgment in the suit (you can read CoPar's memorandum on Maplewood Voices). Basically, Minnesota law says that when a governmental body such as the city council denies a zoning or land use application like CoPar's, they have to provide a written denial, including reasons, within 60 days after the application. If they don't, the application is automatically approved. CoPar asserted that the court can issue a summary judgment, since the facts are not in dispute, just the interpretation of the law.

The city of Maplewood admitted that "it did not fully satisfy all of the literal duties" of the statute. However, the city contends that it "complied with both the spirit and the intent," since the matter was decided within the necessary time frame, representatives at CoPar were present at the meeting where the decision was made and reasons were provided, the minutes of the council meeting in which the decision was made are available on the city's website, etc. In other words, the matter was decided expeditiously, and the decision was obviously communicated to the applicants in a timely fashion, even if not in the precise manner laid out by the statute.

CoPar's memo cites numerous appellate court decisions that upheld a very strict reading of this law, including for example a case (Veit Company v. Lake County) where a written denial was provided -- but it did not state reasons for the denial, so the court granted automatic approval anyway. Looking at the way cases like this have been decided over the past decade, CoPar's argument for summary judgment on the basis of this technicality appeared to be very strong.

There was one really big wrinkle, however: the case in Minnetrista, which the Minnesota Supreme Court last year agreed to review. Responding to the summary judgment memo, Maplewood's lawyers wrote (again you can read the city's whole 18-page memo in the Maplewood Voices archives), "The court should either deny the motion or defer its ruling to await the Supreme Court's forthcoming decision in Hans Hagen Homes Inc. v. City of Minnetrista, argued January 10, 2007."

The lower courts in the Hagen/Minnetrista case had gone with the previous tradition of a very strict reading that granted automatic approvals. By overturning the lower courts, the Supreme Court has set a new precedent that automatic approval won't always result from a failure of local government to provide a written statement of reasons for denying an application.

I don't understand all the details of the CoPar suit (nor, for that matter, the details of the Supreme Court's Minnetrista ruling and whether it has any particulars that may affect how it applies to Maplewood's situation), and I'm sure this case is far from over, but the Supreme Court decision is in any case a very significant development. It looks to me like it makes it very unlikely that the court will grant CoPar the summary judgment they seek.

Update, 3/16, 10:27 AM: I found the Supreme Court's opinion posted on its website.

Labels: development

Posted by John Nephew at 3/15/2007 05:37:00 PM | Permalink | Comments

As part of educating myself about how city governance works, I plan to attend at least one meeting of each of Maplewood's resident boards and commissions. Maplewood citizens are appointed by the city council to serve on these bodies. They study issues and provide advice to the city council, and in some cases have additional statutory responsibilities (such as the Police Civil Service Commission's role in police department personnel decisions).

Last week I attended the latest meeting of the Planning Commission. I took notes, and they're now available on Maplewood Voices. On the whole the meeting seemed very well run and uncontroversial. I was impressed by the diligence that the commissioners put into this volunteer work — going out to visit the site of a proposed development that they were discussing at this meeting, for example — and the respect that they showed each other and the city staff.

Labels: development, process

Posted by John Nephew at 2/27/2007 01:12:00 PM | Permalink | Comments

What's going on with Gladstone and tax increment financing? The council majority is sending contradictory signals to two different groups. On the one hand, some citizens who oppose the use of TIF have been reassured at various times that it's off the table. On the other, the development plan for the Lake Phalen Estates (the former site of the Saint Paul Tourist Cabins) is structured around a significant amount of TIF money, and the council has been unwilling to come out and tell the developer to draw up plans that don't assume some public money.

Someone is being misled. Is it the citizens or the developer?

Last summer, council member Erik Hjelle voiced a clear position on TIF. He wrote (you can find this in the council packet of the 6/26/06 workshop, page 97):

Tourist cabins. I will not support any TIF for this project. A builder/developer should not need any enticements to build on lakeshore that is 10 minutes from downtown. This is not negotiable for me.

In an August 8th commentary in the Maplewood-Ramsey County Review, Hjelle rejected claims that Gladstone redevelopment was in limbo. He touted the plan for the cabins site as “a proposal to build a 150+ unit Class A development at the St. Paul Tourist Cabin site with $0 public financing.” And again Hjelle touted the no-public-subsidy aspect of the project in the City News of September 2006.

At the Mayor's Forum on February 3rd, one of the mayor's supporters asked if there would be a taxpayer subsidy for this development. Mayor Longrie said there was no tax increment financing approved for it. City Manager Copeland said an application for TIF had been received, and would be reviewed at an upcoming council workshop.

I made a data practices request to the City of Maplewood to get a copy of the audio recording, to make sure I got her words right. Here is what she said:

He can certainly apply. I mean, we haven't said that nobody can apply. I mean, anybody can apply. But one of the guiding principles of the Gladstone redevelopment plan was indeed that TIF was not encouraged or looked upon favorably. So that was one of the guiding principles that the council also voted on, so I mean that gives you an idea of, I mean, there's always, with anything there's always, you know, people can present proposals, and we look at our guiding principles that we've already enacted and what is our public policy. And certainly I can tell you that my public policy, from my perspective, is that I think being ten minutes from the capitol – gosh, that's prime land all by itself. It doesn't need my help. But that's just me.

(You can download an audio clip of the mayor saying this — it's an MP3 file, about 1 MB).

While she parsed her words very carefully, the mayor left forum attendees with a sense of reassurance that TIF was not going to be used on this project. At the least, she implied that she opposed TIF for this specific development.

Two days later, the developer in question was in front of the council for a workshop. Numerous times and in several different ways, the developer and city staff gave the council an opportunity to express their principles and public policy philosophy when it came to TIF and this project. Each time, the mayor evaded the question. She repeatedly said that the council doesn't take action at workshops, but what the developer wanted was not a decision but rather a frank discussion of the public policy values of the council members in this open meeting.

Someone is being misled. Either it is the citizens, who are being reassured that taxpayer dollars won't be spent to subsidize this project on lakefront property so close to the heart of the metro; or it's the developer, who is being asked to invest thousands in a study and much more in planning, working from a blueprint that assumes some level of assistance from TIF.

It seems to me that this is the wrong way to govern. If you have concluded, a priori, that a plan on this site should be able to succeed without TIF, why not be straight with the developer? Tell him the truth up front, and let him build his financial plan around that reality. Don't lead him to waste a whole lot of money preparing a course of action that would require you to violate your policy principles.

On the other hand, if the council majority is truly open to TIF — as opposed to just worrying that if they say no, they might scare the developer away and lose the $1.8 million Met Council grant they are so proud of, or the park fees from the development that are earmarked for the Gladstone Savannah — then they should spend some time acting like leaders, persuading the public that it's an idea worth considering. Then, if they do decide to create a TIF district, it won't come as a shock to people who have been promised that it will never happen.

Labels: development, finance, process

Posted by John Nephew at 2/23/2007 08:57:00 AM | Permalink