Minnesota Appeals Court rules against impact fees for road construction

by Eric Christianson

Harstad v. City of Woodbury
(Minnesota Court of Appeals, September 18, 2017)

The City of Woodbury, Minnesota is a growing suburb of Saint Paul. To reduce the public burden of road construction to new subdivisions, the city passed an ordinance in 2016 which provides that the city may not approve a proposed subdivision if it is deemed “premature.” The city may deem a subdivision “premature” if streets “to serve the proposed subdivision” are not “available,” which is defined as streets “existing or readily extended and funded” as “consistent with the phasing in the comprehensive plan.”

However the city provides that a new development without existing road infrastructure may be deemed mature if the developer is willing to “pays its own way” and “all associated costs” for “public infrastructure” will “be the sole responsibility of the developing property owner.” To determine these associated costs, the city has allocated undeveloped land into three phases, each of which has an estimated associated cost per acre associated for “increased traffic and trips that are generated” by expected development in that area. This fee is referred to as a “major roadway assessment” or MRA and is used as the starting point for a negotiated agreement with developers.

Martin Harstad, of Harstad Hills Inc., submitted an application to to develop 77 acres of phase – two land into a 183 – home residential community called “Bailey Park on July 23, 2015. The city informed Harstad about certain deficiencies in the application. Harstad remedied the majority of them and was then informed by the city that the remaining deficiencies where relatively unimportant. This is significant because once the city receives a complete application under Minnesota law, if it does not deny that application with cause, it is automatically approved. After receiving the cost estimate from the city for the major roadway assessment, Harstad challenged the ability of the city to collect this fee in court. He also made a takings claim, arguing that the city had deprived him of use of his property without compensation. Finally he claimed that his application had already been approved as the statutory period that the city had to deny the claim had elapsed.

The district court found for the city on the latter two claims. The permit was not entirely complete, therefor the statutory period had never begun. The court also found that Harstads takings claims were immature as the permit had never been fully submitted nor had the fee been collected. The court did however find that the city had no power to collect fees to pay for road infrastructure.

The City of Woodbury appealed this decision to the Minnesota Court of Appeals.

The Minnesota Court of Appeals focused its analysis on the question of the power of Woodbury to collect a “major roadway assessment.” The City of Woodbury is a statutory city; thus, it “has no inherent powers beyond those expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred.”

The city argues it has express authority to impose the MRA under the plain language of Minn. Stat. § 462.358, subd. 2a . Section 462.358, subdivision 1a, provides that “a municipality may by ordinance” regulate the subdivision of land to , among other things, facilitate “adequate provision for transportation.” Minn. Stat. § 462.35 8, subd. 1a . Subdivision 2a states , in relevant part:

The standards and requirements in the regulations [authorized by subdivision 1a] may address without limitation : the size, location, grading, and improvement of lots, structures, public areas, streets, [and] roads . . . . The regulations may prohibit the issuance of permits or approvals for any tracts, lots, or parcels for which required subdivision approval has not been obtained.

The regulations may permit the municipality to condition its approval on the construction and installation of sewers, streets , electric, gas, drainage, and water facilities, and similar utilities and improvements or, in lieu thereof, on the receipt by the municipality of a cash deposit.

The city maintains that subdivision 2a’s “open-ended language” unambiguously authorizes it to condition subdivision approval on a developer’s agreement to pay an MRA that funds necessary road improvements “without limitation on location.”

The Court disagrees. This section only authorizes city planning not the collection of a fee to cover road construction costs. The Court pointed out the legislature has explicitly authorized municipalities to assess water and sewer connection charges against developers to fund public water and sewer improvements made necessary by development. The legislature has never made similar provisions for roadways.

The court agreed with the district court finding that although the city had communicated with Harstad that the remaining deficiencies in his application were minimal, the fact that they were never corrected meant that the statutory period in which the city had to approve or deny the application never began.

Finally the court affirmed the district courts denial of Harstad’s taking claim. The permit has not yet been denied nor has the major roadway assessment been collected, so no taking could have occurred.

The City of Woodbury has appealed to the Minnesota Supreme Court which accepted to hear the case. A date for oral argument has not been set.

South Dakota Supreme Court defers to local interpretation of zoning ordinance

by Eric Christianson

Croell Redi-Mix v. Pennington County Board of Commissioners
(South Dakota Supreme Court, December 13, 2017)

Croell Redi-Mix owns and operates a quarry located in Pennington County, South Dakota. The quarry has been in operation since the 1970s and was acquired by Croell in 2015. Croell intended to expand the operation. After the quarry was opened, but before it was acquired by Croell, Pennington County adopted zoning ordinances. The quarry falls into the “A-1 General Agricultural District” which allows “temporary quarries” ,by right, and mining operations, provided that a construction permit is obtained.

In late 2015, working in consultation with staff from the Pennington County Planning Department, Croell submitted an application for a construction permit to expand its operations. On February 8, 2016 staff issued a recommendation that the permit be granted subject to 11 conditions. The Pennington County Planning Commission reviewed the report and approved the application subject to the recommended conditions that same day.

On February 10, 2016, the Pennington County Board of Commissioners received a letter signed by 37 area residents requesting an appeal of the approval of the permit. The Board of Commissioners held a special meeting on March 2 to consider the appeal. Opponents expressed concerns about the quarry’s expansion including: dust, traffic, availability of groundwater, runoff, and depreciation of property values. At a second hearing the board voted 4-1 to reverse the approval of the permit.

Croell appealed to the circuit court which reversed the Board of Commissioners decision finding:

  1. The residents who sent the letter did not have standing to appeal.
  2. The Commissioners misinterpreted their own ordinance in their decision.
  3. The Commissioners’ decision to deny the permit was arbitrary.

The Board of Commissioners appealed to the South Dakota Supreme Court which granted certiorari.

The Supreme Court reconsidered the three findings of the circuit court.

Standing to Sue Pennington County’s Zoning Ordinance states:

“Any action taken by the Planning Director in administering or enforcing Section 507(A) may be reviewed by the Pennington County Board of Commissioners upon the request of any person affected by such action.” [PCZO § 507(A)(7)(f)]

Croell argues, and the circuit court agreed that this right to appeal only extends to considerations of erosion and storm water control. The Supreme Court reads this passage differently, interpreting the word ‘administer,’ ‘affected,’ and ‘any’ above quite broadly:

PCZO § 507(A) is titled “Erosion and Storm Water Control,” the right to appeal under §507(A)(7)(f) extends to anyone “affected” by “any action taken by the Planning Director in administering . . . Section 507(A)[.]” (Emphasis added.) Noticeably absent from §507(A)(7)(f) is any language limiting the right to appeal to matters involving erosion and storm – water control. Thus, §507(A)(7)(f) provides a right to appeal any action taken by the Planning Director under §507(A). In this case, the action challenged is the Director’s issuance of a construction permit — i.e., the Director’s administering of §507(A)(3).

Because the individuals appealing would be affected by the zoning administrators decision, they have standing to appeal.

Statutory Interpretation Croell argues that the use of its property as a quarry is a permitted use in an A-1 General Agricultural district given that the statute permits temporary quarries and requires only a building permit for the “extraction of sand, gravel, or minerals.”

The County claims that Croell would need to obtain a seperate mining permit as required in the plain language of the ordinance which states, “no extraction of any mineral or substance […] shall be conducted without a Mining Permit.” Here the court identifies a question of statutory interpretation and supports the Commissioners’ interpretation. Further the Court cites the US Supreme Court’s opinion from Chevron v. Nat. Res. Def. Council (1984), which established the principle of “Chevron deference.” Chevron established the principle that courts will defer to the interpretation of those administering a statute as long as that interpretation is “based on a permissible construction of the statute.” In this case the South Dakota Supreme Court found that the Pennington Board of Commissioners interpretation was permissible.

Arbitrariness Because the Supreme Court found that the Board of Commissioners was able to consider more than erosion and storm water control in its decision making, the argument for arbitrariness is moot. The Board’s decision was based on evidence in the scope of its review.

The Supreme Court found that the circuit court erred in reversing the Commissioners’ decision.

Courts Defer to Staff and Board of Adjustment Interpretation of Code

by Eric Christianson

Doss and Huffer vs. Ames Zoning Board of Adjustment
Iowa Court of Appeals, February 22, 2017

The City of Ames received a complaint that Angela Doss and Duane Huffer were building a fence in violation of the city’s zoning ordinance. The fence was 6 feet high and located in their backyard abutting other residential properties. The city determined that the fence was indeed in violation of the following section of code and notified the homeowners in a letter.

The maximum height of fences in any setback abutting a street right-of-way is four (4) feet, except that up to six (6) feet of fence is allowed in any side or rear setback if:

(a) The lot does not abut the front yard of any other residential property along the same side of the street;
(b) The fence is at least (5) feet from the property line abutting a street right-of-way.

-Ames City Ordinance § 29.408(2).

The homeowners appealed staff’s decision to the Ames zoning board of adjustment. The board unanimously denied the homeowners’ appeal. The homeowners appealed to district court alleging:

  1. the Board misinterpreted the ordinance because it was not clear on its face whether the semicolon between (a) and (b) meant “and” (conjunctive) rather than “or” (disjunctive);
  2. the city enforced the ordinance inconsistently, only in response to complaints;
  3. the city’s delay before sending the December letter precluded enforcement on procedural grounds and laches;
  4. the city’s interpretation of the ordinance creates a notice issue in violation of due process; and
  5. the city’s fence ordinance conflicts with Iowa’s partition-fence law.

The district court ruled that the partition-fence issue was not preserved for its review and resolved the four other issues in favor of the board of adjustment.

The homeowners appealed to the Iowa Court of Appeals. The court cited an earlier decision that, “the court may not substitute its decision for that of the board.” The decision of the board of adjustment is given a strong presumption of validity. In all other issues as well, the court affirmed the holding of the district court.

Feeding Operation with 2,400 Hogs a Permitted Use

By Eric Christianson

Hoffman v. Van Wyk

South Dakota Supreme Court, August 9, 2017

In Douglas County, South Dakota, Nicholas and Donnelle Hoffman learned that their neighbor, Douglas Leubke, received a permit to build a hog confinement unit from the Douglas County Zoning Administrator. The unit is designed to house up to 2,400 hogs. The permit was made public at a County Commission meeting on September 10, 2015 without any prior public hearings. When the Hoffmans approached the administrator about the issuance of the permit, the administrator explained that the building would house less than 1,000 animal units and therefore did not constitute an animal feeding operation as defined by the ordinance. Under the ordinance, 2,400 hogs is equal to 960 animal units. For that reason, the building is a permitted use not requiring a public hearing.

On March 14, 2016, the Hoffmans applied to the circuit Court for a writ of mandamus to compel the administrator and commission to revoke the permit and put a halt to construction. On June 3, 2016 the Court held a trial and held that the facility was neither a “farm,” “ranch,” nor “orchard” and therefore did not fall under any of the permitted uses of the land. Despite this fact, the Court stated that a writ of mandamus could not be used to undo an act that had already been completed. Both the Hoffmans and the zoning administrator appealed.

The Supreme Court of South Dakota found the circuit Court had erred in holding that the facility was neither a “farm,” “ranch,” nor “orchard.” The ordinance defines farms, ranches and orchards as:

An area of twenty five (25) acres or more which is used for growing usual farm products, vegetables, fruits, trees, and grain, and for the raising thereon of the usual farm poultry and farm animals such as horses, cattle, hogs, and sheep, and including the necessary accessories used for raising, treating, and storing animal products raised on the premises; but excluding an Animal Feeding Operation.

The Hoffmans allege that Leubke does not use the additional land around the facility for growing grain or farm products in addition to feeding hogs; however Leubke does own the full 160-acre quarter section and grows crops on that land.

The Hoffmans also argue that the manure slurry storage pit under the confinement unit violates setbacks established for animal waste facilities. According to the code, such a facility, “shall be no closer than two (2) miles from… the Corsica Lake Recreation Area, and one half (1/2) mile from any… residential dwelling” The facility is less than two miles from the Corsica Lake Recreation Area and less than a half mile from the Hoffman’s residence. The Court interpreted this ordinance to apply only to Animal Feeding Operations not the permitted farm use in this case.

Finally the Hoffmans argued that the hand drawn plan submitted by Leubke to the administrator was insufficiently detailed to allow the administrator to issue the permit. The drawing was not detailed nor drawn to scale. The Court does appear to agree that the administrator had no discretion to approve a permit without all the required information, but finds that this is “ultimately beside the point.”

The Court finds that, “it is clear that the facility was a permitted use under the ordinance as part of a farm or ranch.”

“Providing” fire services means creating and operating a fire district, not making a fire call

by Hannah Dankbar

Town of Hoard v Clark County
Wisconsin Court of Appeals, November 12, 2015

The Town of Hoard is located in Clark County. The County operates a medical center within the town. The issue in this case is whether an ordinance that imposes an annual charge on property owners to cover the cost of fire protection is legal (Town of Hoard Ordinance No. 091113). In 2014 Hoard charged Clark County $3,327.68 for fire protection of the medical center. The County did not pay the charge. Hoard sued the County for not paying and was granted summary judgment. The County appealed.

Under the 2013 ordinance Hoard uses a formula to determine the annual charge for fire protection. The charge is based on the property’s use and square footage to calculate the “domestic user equivalent” (DUE). The medical center was assigned 1.5 DUE units per 1,000 square feet. Hoard divides its annual contribution to the fire district that they share with other communities by the number of DUE units to determine a dollar amount per DUE unit. This dollar amount determines the charge for each property owner.

Hoard argued that Wis. Stat. §60.55(2)(b) allows them to set “a fee on property owners in the Town for the cost of fire protection, as set according to a written schedule that was adopted by the town board.” The pre-1988 version of the statute allowed a town to charge for the cost of “fire calls made to the property”, but the new statute broadened the ability of a town to charge for fire protection to all properties who are protected.

The County argued: (1) the charge to the County under the ordinance is a tax, not a fee, which the County is exempt from under state law, or alternatively (2) if the charge is a fee, the ordinance is not valid under state law because the statute only allows fees for fire protection services that are actually provided. Because the medical center did not receive any services (i.e., no fire calls) they should not have to pay the fee.

There is a distinct difference between a fee and a tax. A tax is to gather revenue for the government. A fee is to cover the expense of providing a service, regulation or supervision. In this case, the charge is to cover the expense of providing fire protection, so it is a fee.

Regarding the second argument, the Court determined that “providing” fire protection services includes joining with other municipalities to create and operate the fire district.  The court determined that the medical center was “provided” fire protection from the Town.

The judgment of the lower court was affirmed.

Application to heritage preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minnesota zoning law

by Kaitlin Heinen

500, LLC v. City of Minneapolis
(Minnesota Supreme Court, September 25, 2013)

500, LLC owns a building at 500 N 3rd St. in Minneapolis and would like to develop the building into an office. 500 submitted a site plan application to the City in September 2008, which the Minneapolis City Council approved. Before reviewing the application, however, the Minneapolis Heritage Preservation Commission nominated the property for designation as a local historical landmark, which placed the property “under ‘interim protection,’ which prohibits ‘destruction or inappropriate alteration [of a nominated property] during the designation process’ in the absence of a ‘certificate of appropriateness.'” (Minneapolis, Minn., Code of Ordinances §§ 599.240, 599.320) So 500 submitted an application for a certificate of appropriateness on May 6, 2009, but the City Council denied the application on July 31, 2009. Ten months later, the City Council approved a resolution designating the property as a local historical landmark, which became final and effective in June 2010.

In October 2010, 500 filed this action against the City, alleging that the City Council “violated…§ 15.99, subd. 2(a), because it failed to approve or deny the application for a certificate of appropriateness within 60 days.” Such failure results in automatic approval at the end of the 60-day period. So 500 requested “judgment that its ‘application for [a] certificate of appropriateness [was] approved and granted by operation of law.'” The district court held that Minn. Stat. § 15.99, subd. 2(a) did not apply because “decisions regarding historic preservation are not brought into or linked in logical or natural association with actual zoning decisions.” The court of appeals affirmed on the grounds that “[b]ecause an application for a certificate of appropriateness was a request to ‘make alterations to the property,’ not to conduct a specific use of the land, the court concluded that an ‘application for a certificate of appropriateness is not a request relating to zoning.'”

The question before the court is whether an application to a heritage-preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minn. Stat. § 15.99, subd. 2(a). If so, the City had only 60 days to “approve or deny” the application submitted by 500, otherwise automatic approval occurs by operation of law. The court must first determine whether the statute is ambiguous. Minn. Stat. § 15.99 subd. 2(a) does not define “relating to” or “zoning,” so the court must apply their plain and ordinary meanings. “Relating to” means “to bring into…association with,” and the court defines “zoning” as “the regulation of ‘building development and uses of property.'” These definitions together indicate that the statute is unambiguous because it “refers to a written request that has a[n] association…to the regulation of building development of the uses of property.” Within this meaning, the 60-day time limit in § 15.99 subd. 2(a) applies.

The City argued that the statute only referred to “those requests…explicitly authorized by an applicable zoning ordinance or statute.” The court disagreed because the City’s interpretation fails to apply the plain and ordinary meaning of “relating to.” Though considered “broad” by the United States Supreme Court, the City’s interpretation of “relating to” conflicts with the court’s requirement “to give meaning to every word and phrase in a statute.” Additionally, the City’s interpretation adds words of limitation. The association mentioned in the statute is to zoning itself, not zoning specifically authorized by zoning ordinances or statutes. Thus the court held that the City’s interpretation of § 15.99 subd. 2(a) is unreasonable.

For 500’s application for a certificate of appropriateness to qualify “as a written request relating to zoning,” the application must have an association with the regulation of building development and the uses of property. The court concluded there to be such an association. First, the heritage-preservation proceedings are associated with zoning because they are similar to hearings on conditional use permits. A certificate of appropriateness affects specific property rights, without which approval of by the Commission or City Council 500 cannot develop the building into an office. This requirement is typical of a zoning restriction. Second, the historic-preservation-enabling laws recognize an association between heritage preservation and zoning. The Minnesota Historic District Act allows municipalities to establish commissions with “the power to provide special zoning conditions for…historic districts” and to “amend zoning ordinances to encompass…historic districts in zoning legislation.” (Minn. Stat. §138.74) These commissions can also approve “use variances to a zoning ordinance.” (Minn. Stat. § 471.193 subd. 3(6)) These laws point towards a definitive association between historic preservation and zoning.

Finally, the City’s heritage-preservation ordinances identify an association an application for a certificate of appropriateness and zoning. “Before issuing a certificate of appropriateness, the Commission must find that any proposed alteration is ‘consistent with the applicable policies of the comprehensive plan.'” “Zoning ordinances implement the policies and goals of the comprehensive plan.” The president of the planning commission even opposed 500’s application because the proposed development was inconsistent with the City’s comprehensive plan, which further supports that an application for a certificate of appropriateness is “a written request relating to zoning.” Having established this, the City failed to approve or deny 500’s application within 60 days, so the court reversed and remanded the case to order the granting of the certificate of appropriateness.

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