In the realm of local land use there are few development proposals that have the tendency to evoke neighborhood resistance than a new group home. The response is particularly vehement when the home is intended to serve those with chemical dependency and especially controversial in a low-density neighborhood. While most people acknowledge a need for residential treatment, “not in my back yard” is a common response when residents perceive a threat to their property values, neighborhood character and safety.

As treatment models have evolved, residential group homes have become the gold standard for treatment and recovery. Group home and residential treatment models have popped up in residential communities across the country as health professionals and families grapple with the opioid epidemic. While the perception is that group home residents are “outsiders” coming into the community to spread crime, the reality is that the addiction is a disability that affects every community and class of society. These are the brothers, sisters, and parents, and friends who already live in our communities. What protections are afforded to those who are simply seeking a safe place to recover and overcome in a familiar community, close to their support network?

The Federal Fair Housing Amendments Act of 1988 (FHAA) was intended to expand the Civil Rights Act of 1968, which prohibits discrimination in housing based on race, color, religion, sex or national origin. The FHAA extended those protections to families and persons with disabilities and makes it illegal to “discriminate in the sale or rental, or to otherwise make ‎unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or ‎renter . . . or any person associated with that buyer or renter.” ‎Discrimination includes “a refusal to make reasonable accommodations in ‎rules, policies, practices, or services, when such accommodations may be necessary to afford ‎such person equal opportunity to use and enjoy a dwelling.” ‎

Individuals living in group homes recovering from alcohol or chemical dependency are classified as having a “handicap” under the FHAA and are protected, as long as they are not currently engaged in the illegal use of or addiction to a controlled substance. As a result, in the context of group home locations, discrimination by local government can include the refusal by a municipality to make reasonable accommodations to spacing requirements, occupancy restrictions, and use restrictions under the ‎local zoning ordinance. ‎

The FHAA does not preempt local zoning control, but it does require reasonable accommodation of zoning rules that otherwise would not permit residents of group homes to live where they want, with the services they need and in an environment is conducive to healing. Reasonable accommodation protects disabled persons’ right to live in the dwelling or home of their choice, not just some property within the community. These protections apply even if the local zoning code does not allow the use, or in some instances, specifically prohibits the use.

Despite the fact that the FHAA is 30 years old this year, many communities still resist new group homes based on the fears of residents. The resulting burden on project proposers to obtain relief under the FHAA is often far heavier than it should be under the law. As the opioid epidemic continues to rage and the group home model continues to gain movement as an effective tool in overcoming chemical dependency, it remains to be seen whether local governments will willingly recognize their responsibilities under the law.

In cities and towns across Minnesota, newly elected mayors and city council members assumed their positions Jan. 1. While each official typically has a list of policy objectives to be pursued during his or her term, an increase of affordable housing to meet growing demand is frequently on the top of the list. This year is no different: The new mayors of St. Paul and Minneapolis have stressed the need for their respective cities to address this problem.

When the average person thinks about “affordable housing” they may think about subsidized housing, such as Section 8 housing. While this is an important category of housing, it represents a very small percentage of the greater market. Instead, the focus should be on “housing affordability,” which connotes a broader market perspective. In this scenario, there is enormous demand that the private housing market could and would serve if the challenge of building an affordable home is addressed. For example, 10 years ago 72 percent of new homes built in the Twin Cities sold for less than $325,000. Today only 38 percent of new homes sold for less than $325,000. Meanwhile, incomes for potential homebuyers, especially at the lower income thresholds, have increased only modestly in that span of time.

Contributing Factors

The cost of land, materials and labor are all significant contributors to the cost of housing and each has increased substantially following the recession. However, of equal or greater importance, is the impact of local government policies that regulate land use in a way that arbitrarily drives up the cost of land and the house constructed on that land. The St. Paul Pioneer Press has documented that an identical home costs $20,000 more to construct in Minnesota as opposed to being constructed in Wisconsin. National data indicate that regulatory costs comprise 25 percent of the cost of new housing. For local government officials who are serious about addressing housing affordability in their community, taking a hard look at the impact their regulations have on housing would be good place to start.

For example, city policies that require new housing to be constructed on over-sized lots or meet minimum dimensional standards directly affect housing affordability. The core cities and first-ring suburbs are full of desirable housing (undersized by today’s standards) on very small lots; these homes and neighborhoods are highly valued and frequently draw above-market offers when put on the market. Why such housing can’t be constructed in all cities in Minnesota is a question for local government leaders to answer.

Another example relates to local government fees. Few would question the need for cities to cover the costs associated with constructing and operating sewer, street and park systems. Housing contractors accept their responsibility to pay their fair share of these costs as part of the permitting process. Unfortunately, cities have determined that developers and contractors of all sorts, but especially housing contractors, are an easy source of revenue to avoid taxing their residents. Consequently, we see local park fees as high as $6,000 per housing unit and street fees of $20,000 per acre depending on the city. These are on top of what the developer or contractor is required to build and pay for within their new development area. Cities pocket millions from these practices and won’t give up on them easily; yet, if they are truly serious about addressing housing affordability for their local work force and for their children, these policies must be examined and be repealed or substantially pared back.

The new year is always a time for optimism about the year ahead. Let’s hope this optimism translates into policy changes that allow more housing to be constructed that is affordable to more Minnesotans.

Cities throughout Minnesota are busy updating their comprehensive plans, a process that typically occurs every 10 years or so. As a reminder, comprehensive plans serve as the visionary roadmap for a city’s intended long-term growth; the implementing tools are the zoning ordinance, subdivision ordinance and similar policies. Of course, cities have the discretion to amend their comp plans any time they choose to, provided they follow proper procedures in doing so, but most elect not to do so because of the burden it imposes on staff.

I imagine one of the hardest tasks confronting a city official when considering a comp plan update relates to a proposed land use change that radically departs from the existing plan, possibly catching affected residents totally unaware or worse. This dilemma occurs especially in growing cities in which large sections of historically agriculture land is being considered for inclusion under an active development designation, such as commercial or residential. It also occurs when cities are seeking to redevelop a blighted area, perhaps by moving from commercial to residential or vice versa.

We’ve all attended the meeting at which a land use change is being debated and residents object to the change on the basis of its impact on their neighborhood and lifestyle. Inevitably the resident will note that when they bought their home they checked the city land use maps to confirm they were buying adjacent to property guided for a low or no-impact development; the proposed change, if adopted, will have an impact. It’s a fair point and yet we all know (well, maybe we don’t know) that owning one’s own property does not guarantee any sort of long-term use of another’s property. Were it any other way we would never see another new development occur anywhere.

Of course, we’d all love to preserve natural vistas, tree stands and marshy meadows that give us personal enjoyment. One way to do this is to buy the desirable property containing such features! Absent that step, possibly the city could be convinced to buy it; not usually viable either. In the end, the city is legally entitled to consider and act on land use changes that support future growth desired by the city (actually the underlying landowner’s consent is not even required – the city can do it unilaterally over the landowner’s objection).

Some cities embrace change and see value in growth and redevelopment. It funds infrastructure, schools, parks and makes for a more vibrant community. Growth begets growth. Others object to growth and prefer to preserve the existing character of their respective cities in order to protect small-town charm, rural character, large-lot development pattern, etc. For this latter group of cities, the worry is not about a land use change that triggers expansive growth, but rather a change that impedes growth that was formerly contemplated by landowners based on an existing plan. Plenty of speculative investment in real estate occurs based on one comp plan, only to see that investment quashed, based on a change in direction. We’ve seen this “growth-no growth” whipsaw play out in several semi-rural cities in our metropolitan region.

As others have noted in this blog, one way to get ahead of the surprise element of a planning change is to participate in a city’s comp plan review process, either as an appointed committee member or as an observer. This, of course, becomes troublesome because it often involves frequent daytime and nighttime meetings that are not easy to attend as a volunteer. Short of that, paying attention to a city website and registering for notices of future meetings or actions is a good fall-back option.

Those of us who advise business clients, including real estate development clients, about state and local regulatory matters are pretty comfortable working under the long-standing division of authority between cities and state or federal regulators. We understand, for example, that local units of government are creatures of the state legislature, with powers limited to the specific grant of authority by the legislature (subject to some additional authority for charter cities). We accept that cities get to establish local zoning and development regulations governing development and construction activities, based on express authority conferred under state or federal law or regulations. There has been a long-standing tension, however, between state and local governments about what a given city is expressly or impliedly authorized to do under a city’s so-called police powers, absent a clear preemption.

In some areas of regulation, like environmental protection, we rely on policies that are established at the state or federal level to ensure some level of uniformity and consistency. In recent years we have seen cities go in a whole new direction by enacting policies pertaining to areas historically reserved to state or even federal agencies. Refer to municipal actions regarding climate change, minimum wage and mandatory employee benefits as recent examples. Why should the real estate development community care about this trend?

Our clients who are considering whether to invest in a particular city, such as Minneapolis or St. Paul, now not only need to be concerned with whether their project complies with local development regulations, but also whether their very business operations are uniquely regulated. They may be very concerned that such cities have taken it upon themselves to regulate aspects of their business in a way they have not experienced before. Many cities are pursuing expanded policies in response to social activism within their community or because of perceived inaction by state or federal officials. However, this trend may cause companies to invest their capital elsewhere to avoid the added burdens and cost of one-off local regulations that can be avoided simply by crossing the boundary line to another jurisdiction.

For example, elected officials in Minneapolis have for several years been pushing to enact a substantially higher minimum wage than what is required under state or federal law, applicable to employers doing business in their city. For those employers who hire affected employees, the associated labor costs will be a new factor for them when deciding whether to site a new coffee shop or fast-casual restaurant in Minneapolis or in an adjacent city without such policies.

Another example relates to climate change and the adoption by cities of sustainability policies. Historically, matters pertaining to environmental protection have centered on state and federal regulation. We understand that cities have authority to regulate stormwater discharge or wetland infiltration, but those policies emanate from state or federal law. Developers and their clients need to consider carefully what a given city may require of them to manage perceived adverse impacts of new or existing development. For some, this is not a concern as their employees or customers are already demanding more aggressive practices in this area. But not very many companies know how to confirm their “carbon footprint” let alone how to manage it or reduce it. For small manufacturers doing business in such cities, it might be the red flag that tells them it’s time to move on.

Given the trend in expanded municipal activism, one has to wonder what are the practical limits to new local government policymaking? If the state environmental regulators have a rule that specifies what is required for environmental review and compliance can a city up the ante and enact its own policies for environmental review, including by establishing more aggressive requirements for environmental impact statements? One clear advantage of having such matters addressed at a higher level is to avoid inconsistent approaches within a state or region that may otherwise lead to confusion and mistakes. We are already seeing this play out as various business organizations have found it necessary to challenge local government actions in court. Thus far the results of such challenges have been mixed. Efforts to preempt local government authority on a broad range of topics have not made much progress – at least not yet.

We have entered a new age of democracy, aided in large measure by the internet, in which one person’s pique can be the basis for forming a coalition and organizing behind a cause, electing local candidates to office and proceeding forthwith to enact new regulations. This is playing out before our eyes in Minneapolis and in other cities in Minnesota and elsewhere. Absent a clear indication of federal or state preemption in any given area, it would appear the tracks are laid down and the train is moving. Unfortunately we don’t yet know the train’s destination or the cost of the ticket.

 

Forgive developer Martin Harstad if he thought he was in Potterville and not Woodbury when the city told him he had to pay nearly $1.4 million in “road assessments” as a condition of approval for his “Bailey Park” residential development. Harstad sued Woodbury to challenge its authority to demand the road assessments and won in both the trial court, and now the Minnesota Court of Appeals in a published decision released September 18.

For now, it’s a wonderful life for Harstad, other developers and for property owners who have been troubled for years over whether Minnesota cities have the power to condition development approvals on the payment of (frequently hefty) fees for future road improvements to accommodate new growth and development. Here, the court of appeals struck down what amounted to an impact fee assessed by Woodbury, but sidestepped the longstanding question of whether impact fees are legal in Minnesota.

As is the case for other developers, Harstad was already paying significant amounts for transportation infrastructure that would be needed within the Bailey Park development. Woodbury attempted to rationalize its road assessment policy by declaring that new development must not only “pay its own way,” but also pay “all associated costs” for “public infrastructure.” This meant, according to the city, that if a proposed development is perceived as contributing to the need for unspecified, offsite road improvements at unspecified locations outside the development, at unspecified points in the future, then road assessments under the city’s formula must be imposed and collected now as a condition of approval for the development.

The court of appeals said that Woodbury can only exercise powers conferred by the state legislature and that Woodbury overstepped its powers here. The court said of the statute on which the city pinned its hopes for upholding the assessment (Minn. Stat. Sec. 462.358, subd. 2a): “In fact, subd. 2a does not authorize collection of any type of assessment. Rather subd. 2a authorizes city planning.”

While Woodbury called its fees “major road assessments,” these types of charges have a variety of names, including “transportation improvement district fees,” “trip charges” and “transportation fees.” The name may vary, but the purpose is the same: cities are seeking to capture revenues for anticipated future upgrades to area roads to accommodate growth from new development. Regardless of a particular city’s label, the commonly-recognized name for this revenue-raising practice is “impact fee.”

Impact fees were defined by the Minnesota Supreme Court in Country Joe, Inc. v. City of Eagan, 560 N.W.2d 681, 685 (Minn. 1997), as fees: (a) in the form of a predetermined money payment; (b) assessed as a condition to the issuance of a permit or plat approval; (c) justified as within local government powers to regulate new growth and development and to provide for adequate infrastructure; (d) levied to fund large-scale, off-site public facilities and services necessary to serve new development; and (e) in an amount proportionate to the need for the public facilities generated by new development. Country Joe did not clearly decide, however, whether impact fees were illegal in Minnesota.

The court in Harstad did not address whether Woodbury’s road assessment was an impact fee, or whether impact fees are legally authorized in Minnesota. [This blogger made the case that such fees are not legally authorized in Minnesota in a March 2009 article in Hennepin Lawyer entitled Road Improvements: When Are Special Assessments Legitimate?

The court of appeals in Harstad also did not address whether Woodbury’s road assessment was an illegal tax. Country Joe held that the City of Eagan’s “Road unit connection charge” was an illegal tax under state law that limits municipal taxing powers. The court of appeals in Harstad did not address the illegal tax issue because it was raised only by amicus parties and not by either of the parties to the litigation. The City of Woodbury has until October 18 to decide whether to petition the Minnesota Supreme Court for review.

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.