Land Use Law UpdateAPA Minnesota State Planning Conference

St. Cloud, MinnesotaSeptember 29, 2011

Cynthia Kirchoff, Esq., AICPJean Coleman, Attorney/Planner

Why does case law matter?

Case law is different from statutes Courts can:

Make new interpretations of the lawInterpret 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Conditional Use Permits (unpublished decisions)

Due Process (unpublished decision)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 ProcessContinental Property Group, Inc. v. City of

Minneapolis (Court of Appeals unpublished decision)APA filed amicus briefCPG’s CUPs, variances, and site plan deniedCPG sued for equal protection and due process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 EstoppelCity 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 requestCity requested court order requiring Sarpal to relocate

shedSarpal asserted “equitable estoppel” defenseDistrict 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; anda 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 ZoningDeCook 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 Zoning240 acre propertyIn 1989 when purchased only 19 acres were

subject to airport safety zone A2002, zone A extended and permitted land

uses restrictedJury in the trial court found a reduction in

value of $170,0003.5-6% of market value

Takings ClauseMinnesota Constitution – Art. I, Sec. 13

Just compensation required where private property is “taken, destroyed or damaged for public use”

U.S. Constitution – Fifth AmendmentJust compensation required if “taken for public

use”

Airport ZoningThe 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 regulationHeld 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 TakingsIowa Assurance Corporation v. City of

Indianola, Iowa 2011 WL 3568922 (8th Cir. (Iowa) 8/16/11)

8th Circuit federal Court of Appeals caseIowa case with implications for MinnesotaIf 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

Map source: www.fda.gov

U.S. Supreme Court

U.S. Supreme Court

U.S. Federal Court of Appeals8th Circuit includes Minnesota

U.S. Federal Court of Appeals8th Circuit includes Minnesota

Supreme Court of MN

Supreme Court of MN

MN Court of Appeals

MN Court of Appeals

District (Trial) Courts

District (Trial) Courts

Final local land use decision

Final local land use decision

Coun

ty C

UP

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ubdi

visi

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Regulatory TakingsNeighbors complained about storage, noise,

and repair of racing cars Cars were in structure and on parking lot

zoned for commercial useIndianola City Council passed a vehicle

enclosure ordinance requiring a fenceLandowner 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 TakingsDistrict (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 lossBalancing 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 TakingsLandowner appealed the district (trial) court’s

decision eventually to the US Court of Appeals8th Circuit Court of Appeals upheld the dismissal of

the landowners claimSupported the application of the Penn Central

balancing testRejected 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 DifficultiesStatutory amendment followed Krummenacher

v. City of Minnetonka decisionCity and County standard now consistentVariances 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 LitigationReligious 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 atcynthiakirchoff@gmail.com

for more information.

ResourcesMinnesota Courts: http://www.mncourts.gov/Minnesota State Law Library:

http://www.lawlibrary.state.mn.us/League of Minnesota Cities: http://www.lmc.orgAssociation 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/religiousdiscrimination/