John Nephew

Setting the 2009 Maximum Levy

noreply@blogger.com (John Nephew) — Sun, 07 Sep 2008 14:41:00 +0000

The upcoming Sept. 8th council meeting may have the shortest agenda yet for a regular meeting since I've been on the council. However, it has a particularly important item of business: a resolution setting the maximum tax levy for 2009.

At our last council-manager workshop, we discussed the 2009 budget and the possible levy increase. Staff told us that, under the levy limits set by the legislature and governor earlier this year, Maplewood's maximum possible total levy increase would be 9.2%. From the visitor presentations in our subsequent council meeting, it seems that some residents and commentators thought the staff was proposing a 9.2% increase in the levy. Actually, they were telling us what was the ceiling under the new law, and looking for direction from the council on where to go from there. (I think the council was unified in saying �go lower than 9.2%, please.�)

Be that as it may, you'll notice that this is a much higher number than the 3.9% cap set by the state. The reason is that the new levy limit law sets out various modifiers and exceptions. For example, debt service is outside of the limits, so we need to collect taxes to make payments on the bonds issued in the past two years. For another example, there is a modifier to account for growth in the city's tax base from new construction.

The law says that we must set our maximum levy by September 15th. In December, we will set the final levy, after the Truth in Taxation hearing. The final levy number can be lower than the one we set at our meeting on Monday, but not higher. As we move further along in the budget process, the council will be able to weigh its priorities in terms of spending for 2009 and balancing those needs against taxes and fees.

As you can see from the relevant item in the council packet, the staff took our input at the workshop and came up with a proposed maximum levy of $16,481,820, which in total represents a 6.0% increase over the 2008 levy.

Busy Summer and Budgets

noreply@blogger.com (John Nephew) — Sat, 30 Aug 2008 15:02:00 +0000

I sure have dropped off in how much I've written in the blog lately. It's been a busy summer, but as I think about it, there has been no shortage of topics that I could have been writing about -- important council issues such as the Gethsemane Senior Housing project (which passed the council 5-0 for its approvals and also for its TIF application), the direction to staff to complete negotiations to buy the remaining 4 acres of Gethsemane Park (3-2 vote there), the dynamic sign ordinance, and the approval of the 2009-2013 capital improvement plan (we amended it to space out some road projects, in order to reduce the future impact of debt service on the city's tax levy; and passed the revised CIP 5-0 this past Thursday).

In meetings this week we received news on a couple of budget-related topics that I think are worth mentioning. One is that while residential property values in Maplewood declined by 6%, the commercial properties increased by 13%, and the net taxable value of the city in total did increase slightly. This is good news for homeowners, since it makes it less likely that one home will see both declining property value and rising taxes. It's not as good news for businesses, whose rising property values will mean that all else being equal, tax burden will shift from homes to commercial properties. Later in the budget process we'll get more detailed information on what this means (e.g., what a change of a given percent in the levy would mean for the median-value Maplewood home's city taxes).

Another important data point came in a side comment this week -- apparently we are anticipating an 18% rise in the cost of the city's health insurance. Let's be clear, this is a frightening number. However, earlier in the year we were told the increase could be over 40%. So while an 18% premium hike isn't much to celebrate in itself, it's a lot easier on the 2009 budget than a potential increase more than twice as high.

Search Firm Questions

noreply@blogger.com (John Nephew) — Tue, 29 Jul 2008 14:25:00 +0000

In preparation for last night's interviews of the two search firm finalists, I prepared three questions in advance to ask them both.

Maplewood was in the media a lot in the past couple of years, and often not in a positive light. How would you describe this publicity to a prospective applicant in a way that is honest but still makes Maplewood attractive as a place to work?
We are a council with some strong differences of opinion and personality. Although I hope for unanimous support of a final choice, it may not be possible for us to unite behind the one candidate in the end. From your experience and professional judgement, do you think this is a major problem for Maplewood's ability to attract and retain a highly qualified city manager; and what will you do, as part of your role in the process, to mitigate the problem?
I've heard it said that it is especially hard to attract candidates from outside of Minnesota because of factors such as the salary caps in place in our state. Do you think it is possible to recruit on a truly nation-wide basis, and how do you plan to achieve that?

Manager Search RFP

noreply@blogger.com (John Nephew) — Tue, 01 Jul 2008 22:19:00 +0000

At our last council meeting I asked for an update on the request for proposals to city manager search firms. We were told that the RFP had been sent out to a number of firms, and after the meeting the RFP document itself was provided to the council by e-mail. I'm not sure if it's on the city website, but for folks who are curious I thought I'd make it into a PDF and put it on my website here so that anyone who is curious can download it.

Popovich Award

noreply@blogger.com (John Nephew) — Mon, 30 Jun 2008 18:42:00 +0000

Hearty congratulations are due to Maplewood resident Mary Flister, one of two recipients of the Peter S. Popovich Award this year from the Society of Professional Journalists. The award is given to "the person or organization that exemplifies the fight for First Amendment Rights." According to the SPJ:

After attending a �Mayor�s Forum� in Maplewood, where people openly complained about their neighbors and elected officials, Flister began to tape record the public meetings and make them available to the city clerk, and thus any citizen. Flister, concerned the personal attacks would influence public policy, has dutifully recorded the meetings since then, despite numerous public admonishments that city officials make no attempt to diminish. Elected leaders are now considering officially recording meetings �since they�re being recorded anyway.�

Mary's quiet, patient commitment to her belief that the content of these forums should be available to those unable to attend in person, even in the face of withering personal attacks from some angry individuals, is an inspiration to me. It's great to see the Society of Professional Journalists recognize it as well.

Affordable Housing in the Suburbs

noreply@blogger.com (John Nephew) — Mon, 30 Jun 2008 02:14:00 +0000

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.

Inspiration

noreply@blogger.com (John Nephew) — Fri, 27 Jun 2008 19:53:00 +0000

This has nothing in particular to do with Maplewood or City Council, but everything to do in general with being a human being in the 21st Century. I think it's the most touching and thought-provoking work of art I've encountered in a while. Enjoy, and thanks to LC for sending me the link.

Read more about this video and its creators (including the 17-year-old vocalist from Minneapolis), if you're curious, on MinnPost.com.

Visibility

noreply@blogger.com (John Nephew) — Tue, 17 Jun 2008 22:11:00 +0000

Last week I mentioned that I was attending the League of Minnesota Cities annual conference in Rochester. But I should add that I was not the only Maplewood representative there -- in fact, 80% of the council attended (Will Rossbach, Kathy Juenemann, Diana Longrie, and me).

I think this is a very good thing. Part of the value of the conference were the round-tables and seminars (I attended ones on such topics as city government ethics, how to involve younger people in city government, and the laws that define and govern public purpose expenditures for cities). A bigger value, as I've found to be true of private sector conventions, is the networking. It was a chance to meet peers in other cities, learn about what issues they are facing, get ideas that may be adapted to our city, and so on. There was also a room of exhibitors who offer goods and services to cities -- architects, engineers, accountants, and other consultants, for example -- and that was an opportunity to meet some new people and also touch base with some who already work with Maplewood. And you never know when an acquaintanceship struck at a conference may provide just the connection you need sometime in the future.

In Maplewood's particular situation, as we are moving ahead with our city manager search, I think it was especially good to have four of us visible at the conference. I certainly received numerous questions about how things are going, and particularly about the manager search, and was pleased to be able to tell people that at our last meeting we had approved an RFP to send out to search firms. A couple of folks commented to me that they knew people who were interested in the position. Every positive impression we made in Rochester may encourage someone to apply, and the more and better candidates we get, the better for Maplewood!

Update: Will Rossbach talks about the LMC conference on his website; the LMC itself provides a "post-game" report.

Taste of Maplewood 2008

noreply@blogger.com (John Nephew) — Mon, 16 Jun 2008 15:37:00 +0000

The 2008 Taste of Maplewood celebration will take place this Thursday, June 19th, at the Maplewood Community Center from 5 to 9 PM. The council has gotten reports of the very high level of interest in the event, with more than 50 vendors participating.

To accomodate the potentially large turnout, there will be overflow parking available at Aldrich Arena and shuttle service to and from the community center.

Be sure to come by and check it out!

Back in Rochester

noreply@blogger.com (John Nephew) — Thu, 12 Jun 2008 01:50:00 +0000

Only a couple of days, and I'm back down in Rochester -- this time for the League of Minnesota Cities annual conference. I'm looking forward to tomorrow's schedule of seminars, and am pleased that after having attended several League events since getting elected, there is an increasing number of faces familiar to me, both among fellow elected officials and staff of other cities and League staff.

Recognizing Volunteers

noreply@blogger.com (John Nephew) — Tue, 10 Jun 2008 17:04:00 +0000

Being at the DFL state convention last weekend reminded me of something I wanted to express: How incredibly important volunteers are to political campaigns and the political process. I sure came to appreciate them on the campaign trail last year. Being in a setting filled with with passionate, hard-working, and very unpaid supporters of multiple candidates (the Nelson-Pallmeyer and Franken volunteers were of course the most visible, given their contest for the Senate endorsement, but there were many more), reinforced that appreciation.

If you have ever volunteered for any candidate, for any party, I'd like to offer my thanks. Your participation is a key part of what makes our democracy work. As the election season moves forward, I encourage every citizen to get out there and participate in at least one campaign, for any candidate you support in any race. It's easy to become cynical about the political process if you only experience it through TV ads and the news media's jaded commentary. But when you join with other volunteers working towards your shared ideals and aspirations, it's hard not to be inspired and energized.

Here's another photo from last weekend, from the Franken war room. After accepting the convention's nomination, he gave a short and funny speech to thank his volunteers and rev them up for all the campaigning work yet to come.

DFL State Convention

noreply@blogger.com (John Nephew) — Sun, 08 Jun 2008 14:23:00 +0000

This weekend, Michelle and I have been at the DFL State Convention, where she is a delegate and I have had a lot of free time (which is good, since I am still working my way through an enormous packet for Monday's council meeting).

Yesterday I volunteered in the Franken war room, where I helped with balloting. Runners reported the totals from each delegation, and our group collated the results to see how the votes compared with projections from the voter ID's (in other words, how did people actually vote versus how they said they'd vote?). Based on that information, the candidate and his wife and daughter were dispatched to various specific areas where support needed to be shored up, or where there seemed to be an opportunity to pick up more votes on the next ballot (e.g., a delegation that had strongly shifted in favor of Franken might be ripe to have its remaining votes persuaded). Though, as it turns out, it was finished with one ballot. I wasn't doing anything especially important in this process (basically passing along sheets of paper with scribbled results from one person to the right person at a computer for data entry), but it was exciting and educational to be part of the operation of a campaign on a much larger scale than my own for city council.

To Serve (Wings) and Protect (Rooftops), and Raise Money for Worthy Causes

noreply@blogger.com (John Nephew) — Wed, 04 Jun 2008 14:58:00 +0000

Last Thursday, Michelle and I had dinner at Buffalo Wild Wings up by the Maplewood Mall. Besides being an occasion to enjoy a very tasty Caribbean jerk sandwich, we were there to support the "Tip a Cop" program. Maplewood police from rookie officers all the way up to the police chief were busing tables and soliciting donations to support the Special Olympics. This was one of two "Tip a Cop" evenings at Buffalo Wild Wings in May; between the two, our police raised over $1,700.

This coming weekend brings another fundraiser, the "Cop on Top" program with Rainbow Foods. Maplewood is home to one of thirty metro-area Rainbow grocery stores where police officers will be up on the roof to raise money again for the Special Olympics. In our case, Lieutenant Mike Shortreed and Officer Joe Tran will be braving the elements and the altitude for this worthy cause.

If you are able, stop by to support Officer Tran, Lt. Shortreed, and the Special Olympics. If you'll be out of town for the weekend (up at the cabin, maybe?), you can still pledge your support through the Special Olympics website.

Levy Limits

noreply@blogger.com (John Nephew) — Thu, 22 May 2008 17:38:00 +0000

A city council sets many rules for itself, but a lot of what we have to deal with are the laws and regulations imposed by higher levels of government. This is why the League of Minnesota Cities employs lobbyists, to encourage our state legislators to pass laws beneficial to our cities and to oppose ones that make city governance more difficult.

In the recently ended legislative session, one part of the budget compromise is sure to play a big role in our city's planning for the next year: levy limits. Under the agreement worked out between the legislature and the governor, cities and counties will be limited in how much they can increase their revenue from property taxes. The LMC has put together a short document to help cities understand how the levy limits will be applied. The basic limit is a 3.9% increase, adjusted by increases in population and new commercial property construction. There are exceptions for things like levies for bonds approved by taxpayer referendum. (Local Government Aid is also part of the calculations, but Maplewood doesn't currently get any so it doesn't apply to us.)

I don't have a problem with the idea of keeping our city's levy increase under this limit. I'd be aiming for that kind of fiscal restraint in any case. But we do have some unique risks in Maplewood -- for example, with our new insurance terms, which subject us to higher per-incident deductibles and no aggregate deductible for certain types of claims. If we get another wave of litigation like the kind that hit us in early 2007, the result would almost certainly be cuts to city services. We also face other challenges, such as skyrocketing health insurance premiums for city employees. (I hear rumors of a potential 44% increase if we don't change providers or coverage.) The 2009 budget process is going to require tough decisions and honest negotiations, and a willingness of everyone to come together to share the burden, in order to navigate through the present situation while doing our best to maintain a strong city in the long run.

You Take That Back!!

noreply@blogger.com (John Nephew) — Tue, 20 May 2008 16:33:00 +0000

At the April 14th and May 15th meetings, Mayor Longrie devoted council meeting time to complaining about an entry I posted to this blog back in early April, which she thinks is inaccurate. (She also did not appreciate my flying saucer cartoon.)

The specific sentence that the mayor has demanded that I change is this: "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."

With all due respect to the mayor's office, I do not feel it is appropriate for me to censor my personal blog according to her desires. Besides the principle of free speech, which the mayor herself has been known to defend from time to time, I feel that changing this text would be dishonest.

This sentence is part of an e-mail that I sent to a resident who had asked me about the vote on the Beaver Lake final plat. To change the text of the e-mail on my website would misrepresent the actual message that I sent to this individual. Like what I wrote or not, I did write it and send it from my city e-mail account, and censoring it after the fact won't change that.

The sentence describes "...the only reasons I recall..." concerning that vote. This makes the sentence a description of my consciousness at the moment that I wrote it, which the mayor is in no position to dispute. The mayor's recollection obviously differs from mine. On the other hand, several people have told me that they too recall her making such a comment -- which may not have been in the formal setting of a council meeting, and may not have been recorded. Even if we imagine for the sake of argument that my recollection was faulty, or that I and other people misinterpreted some statements that she made, the statement that it was my recollection remains true. Again, I believe it would be dishonest to revise this to make a false statement about what was in my mind at the time I wrote this e-mail.

Let's keep in mind that the mayor's recollection is not perfect, as we've seen in the past. At the April 14th council meeting, for example, she also complained that she had never heard from the LMCIT about a concern with "creating grounds for a plaintiff to argue that stated reasons for a decision were pretextual." I reminded her of the specific letter from the LMCIT, which she had also received, which clearly made that very point. If she did not remember this crucial point among the concerns expressed to us by the LMCIT (albeit one the council perhaps did not want to hear), to me that raises the question of whether her memory is sometimes selective.

A Helpful Suggestion
Here is an alternative way that the mayor could have resolved her problem with this matter. Let us suppose that her ultimate concern is that she would like people not to come away with the impression that she makes decisions on the basis of grudges, personal resentments, and the like. She might simply have responded by saying that her recollection differs from mine, and she would like people to know that, and left it there.

Even better, she could have written a comment responding to the posting itself on my website. Then anyone who visits and reads my posting could also read her disagreement with my recollection of the facts.

This would have had the added benefit of not making it an issue in a council meeting. After all, if her aim is to quell what she feels is an unfair impression created by a portion of one archived article out of the 150 that are now found on my website, it hardly seems productive to start out by calling such attention to it at a council meeting, without so much as e-mailing me privately with her concerns beforehand. I guess I should be grateful to her for repeatedly plugging my blog, though.

As it stands, her promise to keep bringing this up at council meeting after council meeting until she gets her way, may not convey the image she may be intending to defend -- of a person who would never let personal grudges or resentments dictate the way she handles the public's business on the council.

Comp Plan Open House

noreply@blogger.com (John Nephew) — Sun, 18 May 2008 18:42:00 +0000

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.

Auditors and Obsessions

noreply@blogger.com (John Nephew) — Thu, 15 May 2008 04:34:00 +0000

Mayor Longrie placed an item on the May 12 agenda, described as "Discussion and Resolution calling for an Audit by the State Auditor�s Office for the Past Seven Years." Since we didn't get to this before the end of the meeting on Monday, it will be part of the Thursday continuation.

The Mayor has made public statements that give us an idea of what she's planning for this item -- an opinion piece on the topic in the Pioneer Press on April 8th, and then the same text and more in her lengthy opinion column in the city's May newsletter. She claims that she wanted to call in the state auditor when she was first elected mayor, but even when she had a controlling majority of the council she was "scoffed at." She identifies specific areas that she thinks need investigation. For example, she's very concerned that several years ago someone made a joke about naming a street after Councilmember Will Rossbach.

I admit that I've wondered about calling in investigators, after the things I've seen and heard about in the past couple of years. The thing is, it would cost Maplewood a lot of money � the state auditor doesn't go through a city's dirty laundry for free, after all. More importantly, instead of helping Maplewood to heal its divisions and move forward, would we really rather launch into some kind of scab-picking hootenanny, revisiting all the petty grudges and rumors of the past seven years?

I guess I'm not quite ready to sign on with that plan. However, in the interests of frank discussion, I thought I would do my part in preparation for this agenda item. So I quickly threw together some highlights from just the last few months before I joined the council � things that were distressing to me and other residents, and that I think we would want to bring to the auditors' attention, should we decide to take tax dollars away from other priorities in order to pay them instead.

The Copeland-Longrie Contract
The state auditor could investigate the mayor's involvement in the creation of an unauthorized contract promising Mr. Copeland a large sum if he were terminated and if "elected City Council officials" subsequently made any "negative comments" regarding Mr. Copeland's "character and job performance with the City." Given the close association between Mr. Copeland and the mayor herself, this appeared designed to shield her from criticism.

While the FBI declined to pursue criminal charges, and the city's agreement with Mr. Copeland promises not to bring a civil suit against him on this matter, the mayor has no such shield from potential civil action if the state auditors were to deem it appropriate.

Wipers Recycling
Mayor Longrie and former Councilmember Cave frequently touted Wipers Recycling as an example of their success in attracting business to Maplewood, in campaign literature as well as in city publications. In an e-mailed report from the acting city manager on 3/17/08, the council learned that one city employee last year "was in fear for his job for being insubordinate to the City Manager or for not doing his job as a building official as required by MN State Statute." The state auditors could investigate whether there was improper meddling on the part of Cave, Longrie, or former City Manager Copeland to prevent or delay the enforcement of health and safety regulations on this business, either due to friendship with the business owner or in order to prevent any political controversy because of the public association between the business and these members of the city council.

Taxpayer-Funded Campaigning
The State Auditor could be asked about the use of the taxpayer-funded city newsletter for election campaigning. Two days after the primary election, in which Ms. Cave had placed a distant third, she proposed a tax levy freeze, which the council approved 3-2 after very little discussion. Ms. Cave promoted the freeze as a major accomplishment in her campaign literature. Articles in the October and November city newsletters also focused on the levy freeze. In the October issue, an unsigned article that quoted Mr. Copeland extensively spoke glowingly of the freeze, and downplayed the potential impact on city services. In the same issue Ms. Cave touted the freeze she proposed, and highlighted the 3-2 vote on it. In the November issue, Mr. Hjelle campaigned even more explicitly, praising Ms. Cave's freeze, emphasizing the 3-2 vote, attacking Mr. Rossbach, and warning "how important it is to have at least 3 council members who understand the need to 'protect your wallet.'" He concluded with an exhortation for residents to vote in the election just days away.

Removal of City Documents
There have been numerous reports that Mr. Copeland, immediately prior to his suspension, removed or destroyed many documents from his office. Certainly we have found as a council that important records, such as letters received from the LMCIT, were not left behind for his successor. While we have agreed not to bring any civil charges against Mr. Copeland on this matter, the State Auditor might determine whether the destruction of government data and failure to preserve necessary records for a successor is a criminal offense under state law. There could also be an investigation as to whether any other individuals may have participated in these acts, or if any confidential data was given to unauthorized parties.

The Roswell Alien Crash*
Since the Mayor seems fixated on the idea of hunting for suspected conspiracies from years ago, I thought we might as well add this to the list, too.

*Not documented.

Revised Settlement Proposal

noreply@blogger.com (John Nephew) — Sun, 11 May 2008 15:59:00 +0000

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. "

Maplewood Voices Interview

noreply@blogger.com (John Nephew) — Sat, 10 May 2008 16:00:00 +0000

On Thursday evening, Jim Llanas interviewed Will Rossbach and me about current issues on the city council, and the interview is now posted online as part of the Maplewood Voices "Speaking for You" series.

Finding a Path

noreply@blogger.com (John Nephew) — Thu, 08 May 2008 18:09:00 +0000

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.

R-1(R) Zoning Ordinance

noreply@blogger.com (John Nephew) — Mon, 05 May 2008 17:17:00 +0000

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.

Comp Plan Versus Zoning

noreply@blogger.com (John Nephew) — Sun, 04 May 2008 22:29:00 +0000

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.

The Conflict

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?

The Law

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."

The Impact for Our Case

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.

Quasi-Judicial Authority

noreply@blogger.com (John Nephew) — Sun, 04 May 2008 19:19:00 +0000

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.

Good Process

noreply@blogger.com (John Nephew) — Sat, 03 May 2008 10:53:00 +0000

The past week has been very busy, so I'm late in writing this, but I wanted to say that I thought there was a lot to like about last Monday's council meeting (April 28). In particular the wetland ordinance discussion at the end seemed to me to be a good example of the way that, as a council and a community, we should operate.

At issue were changes to the wetland ordinance, which I have discussed previously. The agenda item was the second reading of the proposed changes; if we had approved it, they would have become law as soon as they were published in the official newspaper.

A number of residents came forward with concerns. On the whole, my sense was that the residents supported the intent and general thrust of the changes and placed a high value on water quality and wetland preservation, but they were calling the council's attention to specific issues that concerned them in terms of the impact and possible unintended consequences in their own neighborhoods. They brought the issues forward in a manner that was reasoned, respectful and constructive, and all of us -- the council, the city staff, the chair of the Environmental & Natural Resources Commission -- listened and discussed their points.

In the end, the council decided (with what looked to me like the agreement of city staff and the commission chair) to table the second reading, and refer the ordinance back to the Environmental Commission for another look in light of the concerns that had been raised (and, I hope, with the continued involvement of the residents who brought those concerns to us).

I am hopeful that this is a sign of things to come, in terms of how the council and the city can work together in a positive way.

On Probation

noreply@blogger.com (John Nephew) — Sun, 20 Apr 2008 18:21:00 +0000

The League of Minnesota Cities Insurance Trust board met on April 8th, and one of the topics before them was whether and on what terms to renew insurance coverage of the City of Maplewood. As the Pioneer Press reported on April 9th, the LMCIT did decide to continue our coverage, but with some harsh consequences for past behavior.

Late this week the Council and City received a letter from the LMCIT laying out those consequences in more detail. It states:

The Board approved offering Maplewood continued coverage, subject to a $200,000 per occurrence deductible for any employment liability claims, and any claims made by any City officer, employee, or volunteer against the City or another officer, employee, or volunteer. These claims will not be counted towards the City's aggregate deductible. In addition to the higher deductibles, the City can also expect a sizable increase in insurance premiums as a direct result of its loss experience.

In other words, if we get into future litigation similar to the kind that arose from the December 2006 reorganization plan, we can expect a substantial portion of the expenses and any settlement costs to come directly out of the pockets of Maplewood taxpayers.

Even if we stay out of trouble going forward, it appears that we still run the risk that future claims stemming from past incidents (say, if someone filed a suit this summer that was the result of alleged actions of the city in 2006 or 2007) will be subject to these new deductibles as well. This is because, as I understand it, our LMCIT policy is the "claims made" variety. An article on Claims Made vs. Occurrence notes, "If coverage terms ever become more restrictive on subsequent renewal of a 'claims-made' policy, the new terms apply retroactively to the original retroactive or inception date."

It's clear that Maplewood is on probation going forward. The letter stresses that the LMCIT is "only committing to offer coverage to Maplewood for the coming year. Whether the LMCIT will be willing to renew Maplewood's coverage again in 2009 will depend entirely on what happens over the next year."