3 • �J/ Item # 1
City of
Elk -�-�
River
MEMORANDUM
TO: Planning Commissio
FROM: Michele McPherson, Director of Planning
DATE: April 7, 2001
SUBJECT: Outline for Training with City Attorney
Attached please find the outline that the city attorney will follow during his training
session at the Planning Commission workshop of April 7, 2001. The city attorney will
arrive at approximately 9 a.m. to begin his training session.
Please be prepared with questions for the attorney to answer.
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S:\PLANNING\MICHMC\PLREPRTS\4-7Cityattorney.doc
CITY OF ELK RIVER
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CITY COUNCIL/PLANNING COMMISSION
Work Session
February 22,2000
Legal Framework for Planning and Zoning Issues
Peter Beck, City Attorney
MAJOR LAWS
A. Federal Laws
1. U.S. Constitution
a. Takings
b. Due Process
c. Equal Protection
2. U.S. Code
a. 42 U.S.C. §1983 —liability for violation of Constitutional
rights
b. 42 U.S.C. § 1988—attorneys' fees
• B. Minnesota Laws
1. Minnesota Constitution
2. Minnesota Statutes Chapter 412
a. General municipal powers
3. Minnesota Statutes Chapter 462
a. Planning, zoning and subdivision authority
4. Minnesota Statutes Chapter 469
a. Economic development authority, housing and
redevelopment authority,tax increment financing, etc.
C. Local Ordinances
1. Zoning Ordinance
2. Subdivision Ordinance
II. BASIC LEGAL PRINCIPALS
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IIIA. The city is a creature of state law.
1. No reference to municipal government in federal constitution.
B. The city has only those powers specifically conferred upon it by the state.
1. If a specific power is not granted by state law, it does not exist.
For example: amortization. State has determined that cities do not
have the power to amortize out uses.
2. The city cannot regulate in areas pre-empted by the state or federal
governments. For example: Telecommunications facilities.
Federal government has put limits on local regulations.
C. The city's exercise of its statutory powers must be consistent with the state
and federal constitutions and statutes.
1. Takings
a. A zoning ordinance which results in no reasonable use of
land is a taking.
b. However, "reasonable use" is not the highest, best or most
profitable use.
2. Due Process
IIIa. The city must provide a fair hearing, including notice and
the opportunity to be heard.
b. Decisions must be based upon the record before the city.
c. Decisions should be supported by contemporaneous
findings or reasons for the decision.
d. Decisions should be made by the elected representatives,
not by the public. Neighborhood opposition alone is not a
sufficient basis to deny a zoning request.
3. Equal Protection
a. Zoning regulations must be uniform for each class or kind
of use throughout each zoning district.
b. Similarly situated properties must be treated alike.
4. 60 Day Rule
a. A limitation imposed by state law.
b. Applies to zoning actions only.
c. Extensions and exceptions.
D. The city's discretion in the exercise of its powers depends on the nature of
the power being exercised.
III 1. Police power
a. The power to protect the public health, safety and general
welfare.
b. A broad power, as to which the City has broad discretion,
within constitutional limits.
c. The city acts under its police power in the administration
and enforcement of zoning and subdivision ordinances.
2. Legislative power
a. The power to adopt ordinances.
b. The city has broad discretion in the exercise of its
legislative power, subject to:
1. Constitutional limitations
2. Statutory authority
c. The approval of comprehensive plans and the adoption and
amendment of zoning ordinances are legislative acts.
3. Administrative/quasi-judicial powers
a. The power to make specific decisions in applying the terms
of adopted ordinances.
b. The amount of discretion in exercising quasi-judicial
powers varies, depending on the ordinance being enforced.
• Examples:
Building code/building permit issues; little discretion.
Conditional use permits; more discretion.
Variances; more discretion.
E. The city must keep an adequate record of its proceedings.
1. Judicial review is on the local record if the record is clear,
complete and the municipal proceeding was fair.
2. The record should include all evidence and findings in support of
the City's decision.
III. SPECIFIC PLANNING AND ZONING ISSUES
A. Planning—Minnesota Statutes Section 462.353-356
1. Authority to plan; establish a planning commission; establish a
board of adjustments and appeals.
a. The adoption of a comprehensive plan requires a two-thirds
vote of City Council following Planning Commission
review.
• 2. Authority to adopt a moratorium to protect the planning process.
• a. "If a municipality is conducting studies or has authorized a
study to be conducted or has held or has scheduled a
hearing for the purpose of considering adoption or
amendment of a comprehensive plan or official control ..."
b. cannot be adopted simply to stop a specific project.
3. The adoption of a comprehensive plan is a legislative act as to
which the Council has broad discretion.
a. However, this discretion is limited to the specific statutory
authority granted, and subject to constitutional limits.
B. Zoning—Minnesota Statutes Section 462.357
1. Authority to adopt, enforce and amend zoning ordinances
a. Zoning ordinances must be adopted and amended by a two-
thirds vote of the City Council, following Planning
Commission review.
2. Required to have a zoning ordinance text and a zoning map.
3. Zoning regulations are required to be uniform within each zoning
district.
4. The adoption and amendment of a Zoning Ordinance are
legislative acts, as to which the Council has broad discretion.
a. Zoning decisions will be upheld by the courts if there is a
• "rational basis" for the decision.
b. However, this discretion is limited to the specific statutory
authority granted, and subject to constitutional limits.
i. zoning decisions cannot be arbitrary, capricious or
unreasonable.
C. Rezoning—Minnesota Statutes Section 462.357
1. Authority to rezone property.
a. Requires two-thirds vote of the City Council following
Planning Commission review.
2. Rezoning property is amending the zoning map and therefore a
legislative decision as to which the Council has broad discretion.
a. However, this discretion is limited to the specific statutory
authority granted, and subject to constitutional limits.
D. Conditional Use Permits—Minnesota Statutes Section 462.3595
1. Conditional uses are uses which are permitted, subject to specific
conditions designed to ensure that performance standards are met.
IIa. The standards must be identified in the zoning ordinance.
• 2. The Council acts in a quasi-judicial capacity when acting on
conditional use permits and therefore has limited discretion to
deny.
a. There is generally a right to the use if the conditions set
forth in the ordinance are met.
3. Planning Commission reviews conditional use permit requests and
makes recommendation to City Council.
E. Interim Uses—Minnesota Statutes Section 462.3597
1. Allows the temporary use of property until a particular date or
event.
a. So-called"temporary conditional use.
2. Use must otherwise conform with the zoning ordinance.
3. Under consideration for inclusion in Elk River's Zoning
Ordinance.
F. Variances—Minnesota Statutes Section 462.357, Subd. 6(2)
• 1. City may allow a variance from strict requirements of zoning
ordinance.
a. Statute requires "undue hardship"
i. property cannot be put to a reasonable use.
ii. unique circumstances not created by the landowner.
iii. will not alter essential character of the locality.
iv. economic considerations alone do not constitute
undue hardship.
2. "Use"variances are prohibited
a. May not permit as a variance a use that is not allowed in
the zone.
3. The Council acts in a legislative capacity when deciding on
variances because the terms of the legislation (ordinance) are being
varied.
a. There is very seldom a"right"to a variance.
4. Requests for variances are heard by the Board of Adjustments
(Planning Commission) and may be appealed to the City Council.
G. Appeals—Minnesota Statutes §462.357, Subd. (6)(1)
110
III
1. Property owners may appeal from a decision or interpretation of
the Zoning Administrator.
a. Appeal is heard first by Board of Adjustments (Planning
Commission).
2. Zoning Ordinance must be interpreted in favor of property owner
when ambiguous.
H. Subdivision Approvals—Minnesota Statutes Section 462.358
1. Subdivision ordinance is a separate ordinance from the zoning
ordinance.
2. Platting is generally required to subdivide, with certain statutory
and ordinance exceptions.
3. Subdivision statute provides authority for requiring dedication of
land for parks, roads, etc.
4. City has 120 days to act on a preliminary plat.
5. Preliminary plat approval is valid for one year.
6. Final plat approval is valid for two years.
7. Variance standard is "unusual hardship."
8. Council acts in a quasi-judicial capacity when reviewing plats.
a. City must generally approve a subdivision or plat which
fully complies with the requirements of the zoning and
• subdivision ordinances.
9. Planning Commission conducts initial review of subdivisions.
I. Process
The process for applications is the same whether the applicant is a
homeowner, a contractor working on behalf of a business, a property
owner or a developer.
1. Application submitted.
2. Staff review and preliminary comments returned to applicant.
3. Public hearing notices published twice in local newspaper.
4. Notices mailed to adjacent property owners within 350' of the
subject property.
5. Planning Commission Public Hearing.
6. City Council Public Hearing.
J. Enforcement
1. Enforcement of zoning ordinance requirements.
2. Enforcement of conditions of specific approvals.
a. CUPs
b. Landscape requirements
III 3. Enforcement tools.
• a. revocation of approvals.
i. conditional use permits
b. Criminal action.
i. citation
ii. complaints
c. Civil action.
d. Hazardous buildings.
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