Land Use Law Update1045
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Transcript Land Use Law Update1045
APA Minnesota State Planning Conference
St. Cloud, Minnesota
September 29, 2011
Cynthia Kirchoff, Esq., AICP
Jean Coleman, Attorney/Planner
Why does case law matter?
Case law is different from statutes
Courts can:
Make new interpretations of the law
Interpret or clarify statutory language:
E.g., variance statute in Krummenacher v. Minnetonka
Declare statutes unconstitutional
What did appellate courts review?
Conditional Use Permits (unpublished decisions)
Due Process (unpublished decision)
Regulatory Takings (published decisions)
Conditional Use Permits
Eagle Nests Townhome Ass’n v. Aitkin County
Planning Commission
Kraemer Mining & Materials v. City Sauk Rapids
Kotten v. Brown County Bd. of Commissioners
No Property Interest, No Due Process
Continental Property Group, Inc. v. City of
Minneapolis (Court of Appeals unpublished decision)
APA filed amicus brief
CPG’s CUPs, variances, and site plan denied
CPG sued for equal protection and due process
violations; district court found due process violation
Court of Appeals found CPG did not have a property
interest so had no right to due process
Court found under MS 462.361 that hearing unfair so
remanded to Council for new hearing and decision
Simple Mistake, No Estoppel
City of North Oaks v. Sarpal (Minn. 2011)
City employee gave Sarpal proposed survey not as-built
survey
Sarpal built shed in trail easement and 30 foot side yard
setback
City denied Sarpal’s variance request
City requested court order requiring Sarpal to relocate shed
Sarpal asserted “equitable estoppel” defense
District court concluded City equitably estopped from
enforcing its zoning ordinance against Sarpal because it
provided the survey on which Sapral had relied in applying
for permit; Court of Appeals affirmed
Under doctrine of equitable estoppel, party must prove
the government engaged in wrongful conduct;
the person reasonably relied on the government's
conduct;
the person incurred a unique expenditure; and
a balancing of the equities favors estoppel
Court reiterated that simple mistake is not wrongful
conduct to satisfy first element
Court concluded City’s actions did not constitute
anything other than simple mistake
Airport Zoning
DeCook v. Rochester International Airport Joint Zoning
Board, 796 N.W.2d 299 (Minn. 011)
Disagreement about whether state or federal takings
clause should be applied
Disagreement about what test to apply to determine if
the regulation resulted in a taking
Airport Zoning
240 acre property
In 1989 when purchased only 19 acres were subject to
airport safety zone A
2002, zone A extended and permitted land uses
restricted
Jury in the trial court found a reduction in value of
$170,000
3.5-6% of market value
Takings Clause
Minnesota Constitution – Art. I, Sec. 13
Just compensation required where private property is
“taken, destroyed or damaged for public use”
U.S. Constitution – Fifth Amendment
Just compensation required if “taken for public use”
Airport Zoning
The MN Supreme Court held that the controlling law
was that of McShane v. City of Faribault, 292 N.W.2d
253 (Minn. 1980)
Because it arose from an airport safety zone ordinance
The “broader” MN constitutional takings clause was
governing – covers “damage” caused by regulation
Held that when a land use regulation benefited “a
specific governmental purpose” then compensation is
owed if the there is a “substantial and measurable
decline in market value”
3.5-6% decline in value was substantial
What does this mean to me?
Being interpreted as a narrowly applying to airport
zoning only
Landowners may be emboldened
Don’t change your perspective on regulatory takings
based on this decision
Regulatory Takings
Iowa Assurance Corporation v. City of Indianola, Iowa
2011 WL 3568922 (8th Cir. (Iowa) 8/16/11)
8th Circuit federal Court of Appeals case
Iowa case with implications for Minnesota
If Minnesota case with similar facts appealed to U.S.
Court of Appeals this case would be cited as precedent
Interlude:
The journey of a local land use
case through the courts
U.S. Supreme Court
U.S. Federal Court
of Appeals
Supreme Court of MN
8th Circuit includes Minnesota
Map source: www.fda.gov
County CUP or Subdivision
MN Court of Appeals
District (Trial) Courts
Final local land use
decision
Regulatory Takings
Neighbors complained about storage, noise, and repair
of racing cars
Cars were in structure and on parking lot zoned for
commercial use
Indianola City Council passed a vehicle enclosure
ordinance requiring a fence
Landowner challenged ordinance
uncompensated regulatory taking violating the Fifth
Amendment of the US Constitution
required cost of fence to continue existing use
decreased the overall property value
Regulatory Takings
District (trial) court dismissed the takings claim using
the regulatory takings test from Penn Central
Transportation Co. v. City of New York, 438 U.S. 104
(1978)
Applied when loss is less than total loss
Balancing test – Balance the interest of the government
in regulating an activity against the private loss caused
by the regulation
If there is a legitimate governmental interest it is
balanced against the economic impact of the regulation
and the owner's reasonable investment-backed
expectations
Regulatory Takings
Landowner appealed the district (trial) court’s decision
eventually to the US Court of Appeals
8th Circuit Court of Appeals upheld the dismissal of the
landowners claim
Supported the application of the Penn Central balancing test
Rejected the assertion that requiring a fence was a permanent
physical invasion of private property (Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982))
Rejected the assertion that the action was an exaction (Nollan
v. California Coastal Commission, 483 U.S. 825 (1987))
What does this mean to me?
The law of regulatory takings is not as clear cut as
some would like it to be
It is difficult for a landowner to make a successful
claim that a regulation requires just compensation
Practical Difficulties
Statutory amendment followed Krummenacher v. City of
Minnetonka decision
City and County standard now consistent
Variances shall only be permitted when they are:
in harmony with general purposes and intent of the
ordinance and
when the variances are consistent with the comprehensive
plan.
Variances may be granted when the applicant establishes
that there are practical difficulties in complying with the
zoning ordinance
Practical difficulties means:
that the property owner proposes to use the property in a reasonable
manner not permitted by the zoning ordinance; and
the plight of the landowner is due to circumstances unique to the
property not created by the landowner; and
the variance will not alter the essential character of the locality.
Economic considerations alone do not constitute practical difficulties.
Conditions must be directly related to and roughly proportionate
to impact created by variance.
Trends in Land Use Litigation
Religious Land Use and Institutionalized Persons Act
Petition to U.S. Supreme Court – City of San Leandro v.
International Church of Foursquare Gospel (9th Circuit
Court of Appeals)
U.S. Dept. of Justice filed brief in Unitarian Universalist
Church of Minnetonka v. City of Wayzata to uphold the
constitutionality of RLUIPA but not the merits of
church’s case
QUESTIONS?
Interested in the Law and Planning Committee?
Contact Cynthia Kirchoff at
[email protected]
for more information.
Resources
Minnesota Courts: http://www.mncourts.gov/
Minnesota State Law Library:
http://www.lawlibrary.state.mn.us/
League of Minnesota Cities: http://www.lmc.org
Association of Minnesota Counties:
http://www.mncounties.org/
Law of the Land: http://lawoftheland.wordpress.com/
US DOJ – Religious Discrimination/Freedom:
http://www.justice.gov/crt/spec_topics/religiousdiscrimin
ation/