Many of us are familiar with the scenario of presenting a development application before a public body, such as a city council, that appears to be going well until the wheels come off for some unexpected reason. This happens most frequently when one or more residents who have “only just heard” about the project being considered show up to voice objections, raise questions and make allegations, some of which are untrue. What’s a project proponent to do? Well, if you are well-prepared and fortunate to have a strong recommendation of support from staff, maybe nothing. But, then again, when you are dealing with a public body in a public process, even that may not be enough.

If there is one thing politicians strive to avoid it is controversy and they will avoid it whenever possible. In any case, what matters most is being more prepared than anyone else. If you are perceived as the expert in the room, as evidenced by strong preparation, you may get a measure of deference that helps you successfully complete the process. But if there is any doubt, especially in a chamber full of irate residents, you and your client are likely the least important people in the room.

Part of being prepared requires understanding the development interest for which one is advocating and why the site in question is necessary for future operations. Local zoning regulations bear directly on this question, so you need to be confident about how those regulations help or potentially hurt your cause. It is imperative to evaluate the “risk factors” associated with an application on the front end to avoid, if possible, being surprised deeper into the process, such as at a pivotal public hearing. This means laying out the proposed project in the context of the applicable regulations, such as land use controls, design standards, environmental restrictions, etc., to ensure that any perceived risk exposure has a ready response. One must also understand the nature of the request: Does your application raise a legislative policy question, such as a zoning change, or something that is quasi-judicial, such as a permit?

The former circumstance vests the public body with broad policy discretion provided that it acts fairly and reasonably to apply established standards designed to protect the public. In the latter circumstance, such as a conditional use permit, the rules are tighter and the public body can be held more strictly accountable both to its regulations and the state of the record supporting the application. Your “risk factor” analysis helps you anticipate where you have the greatest exposure so that your record has been properly created to address all applicable standards as well as likely questions. Are you better off doing the traffic study now or waiting to see whether it will be a source of concern down the road? Admittedly, judgments need to be made depending on the facts as you know them.

In the modern age of the internet, it is possible to research all manner of things that may actually be helpful in preparing a development application and the supportive record. However, that same tool is available to everyone else, too, and thus you are always exposed to the prospect of a citizen who has conducted “research” and now purports to understand your project and your business and has an opinion about one or both. Understanding whether your industry is confronting public adversity elsewhere is a key factor in your preparation. If so, what is being used successfully to respond to that adversity? If you or your client has made mistakes, what has been done to remedy them, with assurance that they won’t happen again? For companies that are heavily regulated, such as in the mining sector, this is a constant source of concern. Any negative headline, whether true or not, may well be used to counter your project. Remember, your personal credibility, along with that of your client is being tested in the process; being prepared means knowing where the shots will come from.

Putting a narrative together tied to the applicable regulatory standards, even as a cheat sheet, is an important tool for helping one respond to questions that were not previously the subject of discussion. Not being able to respond confidently in the heat of the hearing to predictable or even random questions may lead directly to a motion to table the pending application, allowing the public body to avoid the potential political conflict that is brewing. Being able to confidently march the public body through the application requirements and the supporting record often leads to the logical conclusion that your application can and should be approved in spite of the opposition.

If your best effort is not working, you may need to make a decision about whether to request that your application be tabled to address specific questions. If you are dealing with a legislative policy question, this approach may be advisable given the breadth of discretion vested in the public body. If however, their discretion is more limited and you have a strong record, you may need to call their bluff and force the members of the body to express their opinions. Once you understand what you are up against, then you can make an informed decision about how to proceed. You might be successful; but then again, you might not. And if not, that’s why saloons exist.

Stretching from the Cathedral of St. Paul to the Mississippi River, St. Paul’s Summit Avenue is one of the premier stretches of Victorian homes in the United States. Throughout the last four decades, the neighborhood has been the target of investment and restoration that has solidified Summit Avenue as an iconic part of Minnesota’s Capitol City. However, just blocks south of Summit Avenue, in a neighborhood colloquially known as “Tangletown,” residents continue to struggle with how to balance investment and preservation.

With meandering side-streets that deviate farther from the traditional grid than even the most infamous of St. Paul avenues, Tangletown exists as something of a micro-community within the Mac-Groveland neighborhood. In recent years, the broader neighborhood has repeatedly expressed concern with a series of “tear downs” which made way for the construction of larger homes. In response to neighborhood pressure, the St. Paul City Council adopted new residential design standards in 2015. A large number of the new requirements only applied to Planning Districts 14 and 15 (largely the Mac-Groveland and Highland Park neighborhoods). The new design standards regulate building heights at the side-yard setback, sidewall articulation, and maximum lot coverage.

However, in recent months, the residents of Tangletown have again expressed concern that existing zoning and design standards are insufficient and that the St. Paul Board of Zoning Appeals grants too many variances. As a result, last month St. Paul City Councilmember Chris Tolbert introduced and the council passed, a resolution asking the St. Paul Planning Commission to study the creation of a new overlay or conservation district just for the Tangletown area. While there is no timeline for the St. Paul Planning Commission study, the ongoing burdens placed on the city’s Planning and Economic Development Department by the Ford Plant redevelopment mean any recommendation is unlikely to reach the Planning Commission before mid-2018 at the earliest.

While consideration of specialized residential design standards is not unique to St. Paul and historic or preservation districts are a common tool used by municipalities to protect the identity of a neighborhood, a Tangletown-specific overlay district raises a number of interesting issues. First of all, Minnesota statutes section 462.357 – which provides municipalities their statutory authority to promulgate zoning restrictions – ties said authority to “the purpose of promoting the public health, safety, morals, and general welfare.” Open questions remain as to how design standards for a neighborhood, only marginally distinguishable from its surrounding area, would promote the public health, safety, morals, and general welfare.

Additionally, the statute requires that “regulations shall be uniform for each class or kind of buildings, structures, or land and for each class or kind of use throughout such district.” While the 2015 standards encompassed all of Planning Districts 14 and 15, a Tangletown-overlay likely would cover a much smaller area. Going forward, the St. Paul Planning Commission and City Council will have to weigh the value of responding to the neighborhood’s desire with the possibility of creating a cumbersome patchwork of building regulations.

 

Image credit: Google

On July 28, the St. Paul Planning Commission voted unanimously to recommend a redevelopment plan for the 135-acre Ford Motor Company property in the Highland Park Neighborhood of St. Paul. Nearly a decade in the making, the plan would provide the zoning and land use guidance necessary for any master developer seeking to redevelop the site. Originally constructed in 1912, the Ford property became available for redevelopment when the Twin Cities Assembly Plant closed in 2011.

The proposed redevelopment plan would divide the Ford property into six districts and allow for increased height and density in each district moving east away from the Minnesota River. For example, along the western end of the property, residential development (including townhomes and multi-family buildings) would be limited by a maximum height of 48 feet. Along the eastern end of the property, near existing commercial development, the plan allows for buildings between four and 10 stories tall.

Planning Commissioner Kris Fredson successfully amended the plan to allow for a slight increase in density along the river in an attempt to decrease the pressure for high-density development in other parts of the site. Earlier versions of the plan called for “mansion-style development” overlooking the river which would have reflected similar single-family residential communities north of the property along Mississippi River Boulevard.

While the plan was approved unanimously, it is far from noncontroversial. The Planning Commission received approximately 400 written comments and nearly 50 people testified at a public hearing in early July. The majority of consternation surrounding the plan – including the concerns of new community organizations like Neighbors for a Livable St. Paul – focuses on the proposed density and the number of new residents expected. City planners expect somewhere between 2,400 and 4,000 new residential units and as many as 7,000 new residents in the area in the next 10-15 years.

Critics of the plan have repeatedly expressed concern over increased traffic and congestion. That being said, other segments of the community – including members of the community group Sustain Ward Three – see the increased density as essential to maximizing the taxable value of the property while also creating the kind of pedestrian and bicycle-friendly community new residents are seeking.

The St. Paul City Council is expected to hold a public hearing this fall prior to taking up and potentially voting to approve the redevelopment plan. A formal decision on zoning and land use is likely the last obstacle to the Ford Motor Company’s sale of the property to a master developer. With an estimated $1.3 billion in potential investment in the site pending, the development plan will likely loom large on the City Council’s fall agenda. Controversy over the proposed redevelopment plan could also be a factor in St. Paul’s mayoral election this November as at least five candidates vie to replace Mayor Chris Coleman, who is stepping down to run for governor after 12 years in office.

 

Photo credit: city of Saint Paul

Ownership of real property is a protected constitutional right. Yet when a local government enacts a development moratorium depriving a landowner of the use of their land for potentially a year or more, the response from public officials is often deafening silence. To make matters worse, cities, counties and townships can enact development moratoria with no advance public notice or opportunity for affected parties to raise objections at a public hearing. It is not unusual for landowners or business owners to read about a new moratorium in the local newspaper or by receiving a phone call advising that their land use application is on hold or been rejected outright due to enactment of a new moratorium.

The U.S. Supreme Court and state courts have upheld the constitutionality of development moratoria for a limited duration and for a specific purpose. In California a moratorium up to three years in length was found lawful; counties in Minnesota can enact moratoria that last more than two years. As long as the stated purpose of the moratorium is to allow for a study of applicable land use regulations, and is not being used for a punitive purpose, it is not subject to legal challenge. Cities and counties have learned how to carefully navigate the standard to avoid the allegation they are acting for an unauthorized, i.e. punitive, purpose.

So what happens while the moratorium is in effect? Ostensibly, the local government is required to use the “breathing space” created by the moratorium to study its land use regulations to determine if they are appropriate for a given location or type of use. Too often, however, the moratorium is simply a way to block a project through the passage of time, causing the development opportunity to be lost through an expired contract, financing or change in the market. To make matters worse, local governments have unlimited discretion to amend their comprehensive plans and/or zoning ordinances to entirely block a proposed project by rendering it non-compliant.

You might be thinking that the affected landowner or business owner has some constitutional protections to ensure just compensation for the loss of use of their land; you would be wrong. Unless there is direct evidence that a moratorium was enacted to specifically block a project (very hard to demonstrate), local governments have virtually unchecked discretion to impose moratoria with no legal exposure. It doesn’t matter that you just acquired property at a premium to construct a new convenience retail use; the use of a moratorium to change the zoning code to preclude or limit the use is not a compensable action.

There have been numerous attempts over the years to amend Minnesota’s interim ordinance statute to build in some procedural protections for property owners and others. These efforts are met with fierce opposition by local government representatives who don’t want to be told how to govern their communities. Environmental protection organizations also strongly oppose changes because moratoria are a politically expedient means of preventing land from being developed. And, of course, NIMBYs love moratoria as a way to prevent change from occurring in their back yard. Suffice to say that when state legislators hear from these groups at the “local” level, even the most ardent “property rights” conservative runs for cover; no legislator wants to get crosswise with their local elected officials. The homebuilding industry in Minnesota did recently secure a modest change to the interim ordinance statute by requiring 10-day prior notice and a public hearing before a city enacts a moratorium relating to housing; the thought of extending the elemental due process change to counties or townships was a political virtual non-starter.

To add the final piece of salt to the wound, notwithstanding that a moratorium halts the use of affected property, the obligation to pay property taxes based on an assessment of highest and best use remains intact. So, not only does the local government win by enacting a moratorium, it wins twice by collecting property taxes on the same property. Go figure.

The old adage about “all politics being local” is especially true with regard to development moratoria; some cities have a philosophical aversion to using them or at least take pains to protect any project that is being actively considered at that time. Unfortunately, not enough communities show this type of consideration.

As new housing options and a variety of transit oriented developments pop up throughout the Twin Cities, many communities are struggling to balance their desire for walkable neighborhoods and easy access to amenities with the increased density and population growth that usually comes as part of such development. A primary example of that back-and-forth struggle can be seen along Snelling Avenue in Saint Paul.

Snelling Avenue has long been a major arterial street in the Capitol city. Stretching from Rosedale Mall to the north, past the State Fairgrounds, Hamline University, and Macalester College, before ending in West 7th Street on the south, Snelling Avenue provides access to Interstate 94 and the Minneapolis/St. Paul International Airport as well as the University Avenue and Grand Avenue commercial districts. However, with the opening of Metro Transit’s Bus Rapid Transit (BRT) A-Line, there has been significant conversation about whether the city should allow larger scale developments along the Snelling Avenue corridor.

In April 2017, the St. Paul Planning Commission released the Snelling Avenue South Zoning Study and began a public dialogue regarding potential rezoning of a number of properties along Snelling Avenue between Interstate 94 and Ford Parkway. Nearly two years in the making, the Zoning Study attracted significant attention and the input of individual residents as well as the Highland Park, Macalester/Groveland, and Union Park District Councils.

The Planning Commission held a public hearing on May 19, 2017 to solicit comments, and the combined Comprehensive and Neighborhood Planning Committees reviewed those comments at a meeting on June 13, 2017 before forwarding a revised rezoning proposal to the full Planning Commission on June 30.

The proposal would rezone a number of residential, commercial, and industrial properties to “Traditional neighborhoods” (TN) in an attempt to promote more dense mixed-use development along the transit corridor. The St. Paul City Code describes TN districts as being “intended to foster the development and growth of compact, pedestrian-oriented urban villages.” The TN districts are also “intended to encourage a compatible mix of commercial and residential uses within buildings, sites and blocks; new development in proximity to major transit streets and corridors; and additional choices in housing.”

However, those “pedestrian-oriented urban villages” are not without their detractors. Many of the comments received by the Planning Commission expressed concern as to the impact increased building height and density would have on nearby single family homes. Reduced parking access, increased vehicle traffic, shade and privacy concerns, and pedestrian safety were all cited as potential negative side-effects of the rezoning plan.

One of the major points of contention centers on building height, with particular concern from neighborhood groups focused on buildings of five or more stories. In response to those concerns, the Planning Commission has scaled back portions of the proposal, including the rezoning of properties near the intersection of Snelling and St. Clair Avenues. The city council is expected to take up the rezoning proposal sometime in August.

What happens if you are a commercial property owner located in the metropolitan area and you haven’t had a bite on your vacant land for months, maybe even years. Along comes a multifamily buyer who offers you a good price for your property. You might consider multifamily the highest and best use of your property since no one has made an offer based on the commercial designation of your property.

Can you simply change the land use designation on your property? Sure, if the city or other local jurisdiction agrees and forwards your request to the Met Council. This process usually takes around 120 days from the time an application is filed with the City – the application is then reviewed by the Planning Commission and City Council and forwarded to the Met Council for final review and action.

For the next couple of years, this process is a bit more complicated as cities and other local units of government work on updating their comp plans and particularly, the land use element of the plan. Within the land use plan is the specific designation of each parcel of land in the community for uses such as single family, multifamily, commercial, industrial, institutional, parks and open space. Every ten years, cities, counties, and townships within the seven-county metropolitan region must update their comprehensive plan document. In the current cycle of comp plan updates, the next deadline to submit for review by the Met Council is December 31, 2018.

To facilitate this process, the Met Council will stop reviewing individual applications to change the land use designation for specific sites beginning June 30, 2018, until the communities plan is reviewed and completed. This embargo, in effect, creates an incentive for early review and completion of comp plan updates, particularly in growing communities.

For our hypothetical multifamily development, there are two potential paths to approval of a land use change. First, the property owner could make application for an amendment of the land use plan prior to the embargo period. If the application is heard and approved before that date, then the change can go into effect prior to other amendments or the update of the entire comp plan document.

On the other hand, if the city is unwilling to make the individual change, then the property owner could plan to attend the public hearing on the comp plan update and persuade the City Council to make the change as part of its 10-year update. This will require a great deal more patience because the Met Council is in the process of reviewing plans for almost 200 local units of government.

If you would like to know the land use designation of your property or need more information about the comprehensive planning process in the Minneapolis-St. Paul Metropolitan area, please feel free to contact Bill Griffith at 952-896-3290 or wgriffith@larkinhoffman.com.