minnesota’s planning and zoning enabling laws: analysis ...90040865-d256-42f0-9d0d... ·...

Minnesota’s Planning and Zoning enabling laws:

analysis and oPtions for reforM

American Planning Association - Minnesota

APRIL 2015

Minnesota’s Planning and Zoning Enabling Laws

Prepared by Suzanne S. Rhees, AICP, for the Legislative Committee

Legislative Committee Oversight: Andrew Mack, AICP, Co-Chair Paul Mogush, AICP, Co-Chair Matt Brown, AICP (Co-Chair, 2013-2014) Bob Patton, AICP (Co-Chair, 2009 – 2012)

Tom Jensen, Legislative Education Coordinator Jean Coleman, Esq.

Jon Sevald, AICP

CONTENTS Introduction ................................................................................................................................................ 1

Why Examine Minnesota's Planning and Zoning Laws? .............................................................................. 1

Guiding Principles ........................................................................................................................................ 2

Historical Perspective................................................................................................................................... 3

Comparing the Statutes ............................................................................................................................... 6

Which Differences Make a Difference? .....................................................................................................10

Related Statutes .........................................................................................................................................10

Findings ......................................................................................................................................................13

Conclusions and Next Steps .......................................................................................................................14

References .................................................................................................................................................16

Appendix A: Member Survey Results .........................................................................................................17

Appendix B: Listening Session Summaries .................................................................................................18

Appendix C: Examples of Planning Statute Reform in Other States ..........................................................22

Iowa’s Smart Planning Principles and Incentives .............................................................................22

Wisconsin – Smart Growth Goals, Consistency and Support ...........................................................23

Michigan – Two Unified Statutes Replace Six Separate Ones ..........................................................24

Appendix D: Comparative Table of Planning Statutes ...............................................................................26

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INTRODUCTION This paper has been developed by the Minnesota chapter of the American Planning Association (APA-MN) in order to discuss the issues and problems we have identified with Minnesota’s planning and zoning statutes and to examine possible approaches to planning enabling law reform.

In 2012, the Legislative and Law Committee of APA-MN (the Committee) began a multi-year process of analysis, consultation and outreach on the issues and problems that surround the state’s planning and zoning statutes. This effort was supported, in part, by a grant from APA’s Chapter Presidents’ Council to undertake a two-phased project encompassing background research and statewide outreach. The Committee reached out to chapter members through conference sessions, an on-line survey, and a series of listening sessions around the state. The Committee also held discussions with the Minnesota Association of County Planning & Zoning Administrators (MACPZA). Both organizations concluded on the need for additional research on the disparities between the parallel county and municipal planning enabling laws and opportunities for realignment and modernization.

This paper, presented in draft form in 2013 and subsequently revised, is the product of this effort. The paper focuses primarily on the twin local planning statutes that apply to counties (M.S. chapter 394) and cities/townships (chapter 462), but includes discussion of many related state statutes that also affect local planning and zoning. The Metropolitan Land Planning Act (Chapter 473), which establishes a distinct and separate system of regional system plans, municipal comprehensive planning, and consistent regulations for the Twin Cities Metropolitan Area, is not the primary focus of this study.

WHY EXAMINE MINNESOTA'S PLANNING AND ZONING LAWS? Our planning and zoning laws play an important role in determining the livability, functionality, and health of our built and natural environment, and the degree to which Minnesota's citizens are engaged in public decisions affecting that environment. Minnesota’s planning laws date from the 1950s and 1960s (and are based on models dating from the 1920s), when most development occurred in cities, and when townships and unincorporated parts of counties were largely agricultural, rural or undeveloped. Since the 1950s:

• Our population has expanded from three million to over five million. Development has spread far from the core cities, and year-round housing is common in areas that were previously natural or used for agriculture, forestry, or recreation.

• The number of governmental units has increased and the relationships among them have become more complex.

• We understand a great deal more about impacts of human activity upon the natural environment, and as a result, environmental regulations have increased.

• The body of law surrounding planning and land use regulation has grown steadily more complex as state planning-related legislation has expanded and contracted over time.

• Public expectations for meaningful involvement in public decisions have risen dramatically. • Demands on public infrastructure have increased, and public investments have not kept pace.

Many observers, including professional and citizen planners, land use attorneys, and elected officials, believe that the planning and zoning statutes are outdated, confusing, and poorly suited to address today’s land use issues. Where laws are not performing adequately:

• Inefficient land use patterns can result in unintended consequences, which in turn can drive up the costs of services, infrastructure, and transportation improvements.

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• Expensive and divisive conflicts between jurisdictions and individuals can occur. • Poorly planned or uncontrolled development can have an adverse effect on natural and cultural

resources. • Trust in government declines when the public feels disenfranchised by decisions about

development.

In response to a 2013 survey by the APA-MN Legislative and Law Committee (drawing responses from about 10% of the membership), about 40% of respondents indicated that their work has been hindered by an outdated state statute or rule. Over 80% of respondents are somewhat or very interested in reform of Minnesota’s planning and zoning enabling laws.

The Committee conducted five listening sessions in Greater Minnesota during 2014 to review the preliminary findings of this paper and to ask participants about their concerns with statutes, rules and other aspects of planning law. While the comments varied widely from one region to another, several themes emerged:

• Planners continue to be frustrated by many inconsistencies and gaps, not only between the planning and zoning statutes themselves, but between these and other state statutes, dealing with topics as diverse as airport zoning, platting, environmental review, annexation, and eminent domain.

• The lack of funding and assistance for land use planning is noticeable, especially in comparison to the increasing interest in and support for watershed-based planning.

• Environmental issues are of particular concern in many parts of the state, including issues such as inconsistent or nonexistent shoreland regulations, poorly coordinated well and septic system management, and groundwater scarcity.

• Lack of coordination among jurisdictions in several regions results in county auditors recording plats that are inconsistent with city platting and subdivision requirements.

• There is a strong desire among the membership for improved education and training of citizen planners and elected officials. Planners are keenly aware of the differing capabilities of local governments to do effective planning, but struggle to achieve some degree of consistency across jurisdictional boundaries.

GUIDING PRINCIPLES APA-MN believes that our planning and zoning laws should meet three fundamental principles:

1. COORDINATION, COOPERATION, CONSISTENCY AND EFFICIENCY

In an era of increasing constraints on local government revenues and expenditures, there is an increasing need for greater efficiencies and the elimination of redundancies in how local government services are delivered. Cooperation across city, county, township and watershed boundaries can help to eliminate these redundancies and focus more effectively on protection of key resources and appropriate development.

2. WISE PUBLIC INVESTMENTS, COMMUNITY VITALITY AND NATURAL RESOURCE SUSTAINABILITY

To be able to effectively plan and develop places to live, work, and play, and to sustain the environment that sustains Minnesotans, our local governments need an effective set of tools.

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3. ACCOUNTABILITY, TRANSPARENCY AND OPENNESS IN GOVERNMENT

Meaningful citizen involvement depends on a system of land use regulation that is understandable, fair, and consistent from one jurisdiction to another.

In light of these principles and the problems noted above, APA-MN believes efforts must begin to reform our planning enabling laws. Our long-term goal is to develop a synthesized planning and zoning statute reflecting contemporary best practices, in order to better guide future development and land use decision-making in Minnesota.

HISTORICAL PERSPECTIVE The first “zoning” law in the state was adopted in 1915, predating the Standard Zoning Enabling Act. The law allowed cities of the first class to create exclusive residential districts through the use of eminent domain. The intent of the law was to protect single-family homes from the encroachment of incompatible uses. As described by the Forest Resources Council, the tool authorized by this law is known as “zoning by special assessment backed eminent domain.” Property owners in those districts who wanted to use their property for another use, such as a commercial use or an apartment building, had their right to develop for such uses taken by the city through eminent domain, and were paid just compensation for their lost development rights. The money to pay the just compensation award was collected by a special assessment levied against the residences that benefited from being in an exclusive residential district. Surprisingly, the law enabling this special type of zoning is still part of the city planning statute, although it no longer seems to serve any purpose (Minn. Stat. § 462.12).

Minnesota, like other states, adopted legislation based on the model planning and zoning enabling acts promulgated by the U.S. Department of Commerce in the 1920s. In 1929, most cities and villages were authorized to adopt zoning ordinances. Such municipalities were enabled to “regulate the location, size, use and height of buildings, the arrangement of buildings on lots, and the density of population within such city or village; may make different regulations for different districts thereof; and may acquire or prepare and adopt a comprehensive plan for the future physical development and improvement of such city or village, in accordance with the regulations made as aforesaid…” The role of planning here seems to be viewed as subordinate to that of zoning, but the substance is generally consistent with that of the standard zoning enabling act.

County and township zoning were both authorized by the legislature in 1939. Counties that contained a state or federal forest or state conservation area were empowered to regulate land and building use “for the purpose of promoting health, safety, morals, public convenience, general prosperity and public welfare.” (Laws 1939, c. 340). Interestingly, the law required zoning to be in accordance with a comprehensive plan, although no planning enabling legislation had yet been adopted. Towns located within counties with populations of over 450,000 and certain assessed valuation were empowered to poll voters on whether zoning should be adopted; a 70% vote in favor was required.

In 1959, county planning and zoning authority was expanded with the passage of the County Planning Act, which provides the current framework for county planning and zoning. The Municipal Planning Act, the basic planning and zoning enabling law followed by cities today, was passed by the legislature in 1965. Townships were authorized to use the Municipal Planning Act in 1982. The Metropolitan Land Planning Act of 1976 transformed the structure of planning for counties and local governments in the seven-county metropolitan area. However, in spite of a series of studies and attempts to pass legislation, the basic enabling laws for local governments in Greater Minnesota remain largely unchanged since their adoption.

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A 1981 Growth Management Study prepared by the Minnesota Planning Agency concluded “. . . it is often lack of coordination and cooperation among these levels [of local governments] that underlies growth management problems.” In the mid-1980s, the Governor’s Advisory Council on State and Local Relations began to address some of the issues identified in the 1981 study. Following two years of research, the Council prepared a unified land planning act that was first introduced during the 1988 Legislative Session (SF 1759). The bill was intended to provide a uniform and up-to-date enabling law for cities, townships, and counties. The bill was in response to several court decisions that overturned local land use decisions, the increasing complexity of planning issues, and the interaction between cities, townships, and counties.

The bill was intended to “provide local governments, in a single body of law, with the necessary powers and a uniform procedure to adequately conduct and implement local government planning.” In addition to consolidating the basic planning and zoning powers of all local governments, the bill expanded on the purposes of zoning to include historic preservation, protection of groundwater, and additional environmental protections. Another noteworthy feature of the bill was the requirement for consistency of the comprehensive plan and official controls – such controls “shall be consistent with and implement the purposes, objectives, and policies of the comprehensive plan. Official controls must not allow land use and development that will prevent the planned land use as designated within specific areas in the comprehensive plan.”

The bill was revised several times to address concerns raised by numerous stakeholders and reintroduced multiple times during the late 1980s and into the 1990s but was never adopted.

The issue of consistency between the comprehensive or land use plan and zoning / official controls has changed over time for municipalities. Prior to 1985, § 462.357, Subd. 2 simply stated that a planning agency could prepare, and a governing body could adopt and amend, a zoning ordinance by a two-thirds vote. In 1986, a sentence was added stating that “If the comprehensive municipal plan is in conflict with the zoning ordinance, the zoning ordinance supersedes the plan.” In 1997 this statement was replaced with the language that remains in effect today: “The plan must provide guidelines for the timing and sequence of the adoption of official controls to ensure planned, orderly, and staged development and redevelopment consistent with the plan.”

Beginning in the 1990s, the concept of sustainability attracted the interest of many state agencies. Under Governor Arne Carlson, the Minnesota Sustainable Development Initiative, coordinated by the Environmental Quality Board and Minnesota Planning, continued to focus on planning law reform, producing a series of publications focused on planning. A bill introduced in 1994 proposed a system similar to that of Oregon, with state goals developed and coordinated by a state agency, mandated local comprehensive planning, and state review of local comprehensive plans, but did not pass.

The Community Based Planning Act (CBPA) of 1997 grew out of the advocacy efforts of the nonprofit 1,000 Friends of Minnesota rather than a state agency. The Act attempted to create a statewide framework for planning; provided a planning grant program and state technical assistance for local governments to plan cooperatively under the law; established 11 community-based planning goals, and provided for state review of local plans for consistency with the goals.

The CBPA added to but did not replace the existing planning enabling laws. The law, however, did not have widespread political support and key sections were repealed in 1999, including the 11 goals, the funding, and the process for state review of community-based plans (Laws 1999, c. 250, art. 1, §115(g)). Other sections of the Act still remain in Minnesota Statutes (Minn. Stat. §462.3535 and 394.232), but

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constitute optional guidance for the “community-based comprehensive plan,” as distinct from the “ordinary” comprehensive plan (although the community-based plan is not defined).

Interestingly, at the listening sessions we held in the southwest and central regions, planners in those jurisdictions that benefited from planning grants under the CBPA in the early 2000s – the tri-county Saint Cloud region and Nobles County – report great and lasting benefits from the regional policies and the spirit of coordination that resulted from those plans.

Various minor amendments have been made to the planning and zoning enabling laws over the past decade. For example, in 2008, the Minnesota Legislature passed the President Theodore Roosevelt Memorial Bill to Preserve Agricultural, Forest, Wildlife, and Open Space Land (Minn. Stat. §394.21 and 462.357 Subd. 1h). This law requires that certain cities, townships, and counties “consider adopting comprehensive plans and ordinances that include “goals and objectives for the preservation of agricultural, forest, wildlife, and open space land, and minimizing development in sensitive shoreland areas.” When first introduced, the bill included some mandatory planning components, but these were deleted and the adopted law only requires “consideration” of these issues.

The zoning requirements for municipalities in Chapter 462 have been revised numerous times to limit municipalities’ ability to restrict certain uses, such as manufactured homes and manufactured home parks, state-licensed day care facilities and state-licensed residential facilities (“group homes”) in residential settings. These restrictions appear to have been intended to prevent actions by municipalities to exclude such uses from residential neighborhoods. The county statute includes the same restriction on manufactured home parks. (§394.25, Subd. 3a).

Other minor revisions since 2000 have tended to limit local governments’ authority to zone:

2001: Chapter 174-H.F. 1507 removed municipalities’ ability to amortize nonconforming uses, such as outdoor advertising, gravel operations, batch plants, etc., with the exception of adult uses. 2009: Chapter 149-H.F. 519 established standards for development of nonconforming lots in shoreland areas, requiring lots meeting certain size requirements to be sold as individual lots rather than combined to create conforming lots.

Additional changes to the enabling laws in 2006 related to municipalities’ ability to require a subdivision applicant to dedicate a reasonable portion of land within the development to the public to address infrastructure needs created by the development (Minn. Stat. § 394.25 Subd. 7, § 462.358 Subd. 2b, 2c). The new standards for municipalities require a “rational nexus” between the fee and the public purpose served.

Since 2012, several bills have been introduced that would prohibit interim ordinances from delaying consideration of pending applications, and limit a municipality’s ability to limit vacation rentals by classifying them as interim uses; these did not pass.

In 2014, legislation was introduced that would have prohibited county auditors from recording lot splits without certification by the county planning official that the parcel met county zoning standards (those provisions already apply to municipalities under § 271.162, which the bill would amend). This bill (H.F. 3032/S.F. 264) was supported by the Association of Minnesota Counties (AMC) and the Minnesota Association of County Planning and Zoning Administrators (MACPZA), but did not pass (see discussion below under “Related Statutes”).

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Other land use-related environmental legislation in 2014 established requirements for evaluating silica sand mining applications in the unique geology of Southeast Minnesota and directed the Environmental Quality Board to develop model standards and criteria for local governments to use in evaluating silica sand mining and processing applications (Laws 2014 c. 114, §§ 66 and 91).

COMPARING THE STATUTES When we compare the provisions of Chapter 394, applicable to counties, and Chapter 462, applicable to cities and townships, substantial similarities are evident, yet the differing language and structure of the two statutes makes them difficult to compare. Some of the major elements of the statutes are as follows:

Authority to plan; elements of the plan. Counties (except Hennepin and Ramsey counties) and municipalities are authorized to prepare comprehensive plans, although the rationale for each is different. Objectives for municipal planning include guiding future development of land and reducing public and private expenditures. Objectives for county planning include the more general “promoting the health, safety, morals, and general welfare of the community.” (§394.21, §462.351-353)

While comprehensive planning is encouraged in both statutes, the enabling laws provide only the most general guidance as to what a comprehensive plan should include. According to the Forest Research Council:

“Minnesota’s planning enabling laws include a very minimal definition of a “comprehensive plan.” As a result, some [county plans surveyed by the FRC] are very minimal and should in no way be considered “comprehensive.” Other plans are a brief series of policy statements included in the county zoning ordinance, and some are a compilation of township plans. More legislative guidance about what constitutes a “comprehensive plan” would help improve plan quality.

A related issue is that the relationship between planning and implementing tools, like zoning, is not as strong as it could be. Minnesota courts recognize plans as a factor in deciding land use cases, but there is confusion about the strength of this relationship. Other states give local governments more clarity about the relationship between planning and zoning.”

Comprehensive plan as basis for official controls. For counties, a comprehensive plan adopted by ordinance “must be the basis for official controls” adopted under this chapter (394.23). The requirement for cities (§462.357 Subd. 2(c)) is more ambiguous: “The land use plan must provide guidelines for the timing and sequence of the adoption of official controls to ensure planned, orderly, and staged development and redevelopment consistent with the land use plan.” (The same language appears in 394.24, Subd. 1.)

Case law indicates that when there are inconsistencies between plan and ordinance, the court looks toward the zoning ordinance as the primary determinant of land use. In a 2003 court case, the Minnesota Court of Appeals supported the assertion that under Chapter 394, a court will consider both zoning and comprehensive plans as evidence when weighing the issues in a lawsuit that challenges the correct application of zoning provisions to an application. In this case, the Chisago County rejected a proposed subdivision on the basis that it was inconsistent with the goals of the comprehensive plan, although it met the requirements of the zoning ordinance. The court held that zoning is an expression of

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the comprehensive plan policy and that zoning (and other official controls) forms the primary basis for decisions on applications. The court therefore ruled in favor of the subdivision applicant. 1

In a very recent decision on this topic, RDNT, LLC, v. City of Bloomington,2 the Supreme Court affirmed the City’s denial of a proposed expansion of an assisted living and memory care complex, largely based on the projected traffic impacts of the expansion. However, Justice G. Barry Anderson, in a concurring opinion, addressed the issue of whether a conditional use permit should be denied based on inconsistency with the comprehensive plan. He states, “the Legislature has never made clear the legal effect of comprehensive plans and has equivocated on the issue on several occasions.” (This issue is discussed above under “Historical Perspective.) Anderson also states that “the generality of the comprehensive plan belies the notion that it is legally controlling when making specific land-use decisions,” and asserts that the plan can only be implemented by adopting zoning ordinances and other regulations that conform to it.

Consideration of open space and sensitive natural areas. Cities and counties where less than 80% of pre-settlement wetlands exist must “consider adopting goals and objectives for the preservation of agricultural, forest, wildlife, and open space land and the minimization of development in sensitive shoreland areas.” This provision, enacted in 2008, essentially requires only some evidence in the record that these issues were “considered” in the planning process. (§394.231, §462.357 Subd. 1h)

Community-based planning. A number of provisions remain as remnants of the Community-Based Planning Act, enacted in 1997 and partially repealed in 2001. Many of them pertain to the development of the “community-based plan,” a term that is not defined in either statute, but was intended as a plan based on community input and coordination with neighboring jurisdictions. The lack of funding that was originally dedicated to such plans means that there are no incentives for this type of plan. Some provisions in these sections, however, provide useful guidance for comprehensive plans, for example the delineation of urban growth areas and staging for orderly annexations and boundary adjustments. The sections enabling joint planning also remain valuable. (§394.232, Subd. 4 and §462.3535, Subd. 3)

Compliance with comprehensive plan for property disposition. Once a municipal comprehensive plan has been “recommended” by the planning agency, any disposition of publicly owned property must be evaluated for compliance with the plan – this applies only to municipalities (§462.356).

Official controls. The municipal standards emphasize placement and use of buildings and structures, while county standards emphasize the use of land and the conservation or management of natural features and processes. In practice, zoning authorities are essentially the same. Chapter 462 combines many topics in this section, including appeals, variances, and nonconformities, where Chapter 394 (§394.25, §462.357) breaks “official controls” topics out into more sections.

Extraterritorial jurisdiction. A city may extend zoning regulations to unincorporated territory within two miles of its boundary, unless county or township zoning is in place – as it is in most parts of the state (§462.357, Subd. 1). A city may extend subdivision regulations within this two mile radius as well, unless township regulations are in place. (§462.358, Subd. 1a). Few, if any, current examples of this ETJ practice currently exist in Minnesota, to our knowledge. The threat of this provision in statute, however, has resulted in jurisdictions adopting their own regulations as a ‘pre-emptive’ strike to thwart ETJ by a neighboring jurisdiction; even if they lack sufficient resources or expertise to administer such

1 PTL, LLC, Realtor, v. Chisago County Board of Commissioners, Court of Appeals of Minnesota, 56 N.W.2d 567 (2003) 2 RDNT, LLC, v. City of Bloomington, Minnesota Supreme Court, A13-03, March 1, 2015

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regulations. For example, in Sherburne County, Baldwin, Big Lake and Livonia townships all adopted zoning and subdivision ordinances identical to the County’s via township/county joint powers agreements specifically to prevent any neighboring city from extending extraterritorial authority.

Manufactured homes and parks. Consistent language: local governments may not alter density, setbacks, etc. of pre-1995 manufactured home parks. Manufactured home parks must be treated as conditional uses in zoning districts that allow two-family / multifamily dwellings. (§394.25, Subd. 3a, 3b; §462.357, Subd. 1a, 1b)

Feedlot controls. Both statutes are consistent – prior to adopting new or amended feedlot zoning controls the commissioner of agriculture and the MPCA must be notified, and may comment. Local economic effects may be analyzed upon request of the governing body. Reciprocal setbacks are required (feedlot from existing residence; new residence from feedlot). (§394.25, Subd. 1g; §462.357, Subd. 3c). This is one area where consistency between adjacent units of government would be desirable, since annexations can result in significant inconsistencies in feedlot controls.

Specific controls (subdivision). Counties may regulate subdivision of land, dedication of streets and parks. Requirements for coordination with cities and towns regarding dedication and payments are included. At least 75% of fees in lieu of dedication must be used in the township or city where collection of funds occurs, unless local government agrees to waive requirement. Municipal standards for subdivisions are in a separate section and are much more detailed, including requirements for “rational nexus” between the fee and the public purpose to be achieved. (§394.25, Subd. 7; §462.358)

Expiration of subdivision approval. Municipal approval of a subdivision expires in one year following preliminary approval and in two years following final approval (§462.358, Subd. 3c). There is no such provision in Chapter 394. While counties may include an expiration provision in their own ordinances, they could be challenged based on the lack of specificity in the state statute, which could be interpreted to mean that formerly approved but unbuilt plats never expire. This is a potential problem for counties, especially in the wake of the recent recession, which produced many “zombie subdivisions.”

Joint planning board and shared services. Municipalities may contract with counties to provide planning and zoning services, including creation of a joint planning board (§394.32). City, township or county may request the county auditor to create a joint planning board to exercise planning and zoning control within the two-mile extraterritorial area (§462.3585).

County regulations (official controls) prevail over town, unless town regulations are more restrictive (§394.33). There are no similar provisions for cities to be consistent with minimum county regulations, except with regard to implementation of septic management rules, which apply statewide. (This disparity was identified in several of the listening sessions concerning the non-uniform administration of shoreland management practices.)

Interim zoning. Counties may adopt temporary interim zoning ordinance during study period or plan adoption period, for up to one year, plus one year’s renewal (§394.34). Municipalities have the same authority, with additional specifics regarding public hearings and notification requirements, plus additional options for time extensions (§462.355, Subd. 4).

Conditional use permits. For municipalities, conditional uses may be designated by ordinance and approved by the governing body, provided that the standards and criteria in the ordinance are met; requirements should be both general and specific to each designated conditional use (§462.3595). County requirements are generally the same, with additional detail on potential conditions, such as appearance, lighting, hours of operation and performance characteristics. Restrictive covenants may be used (§394.301).

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Variances. Based on the 2010 legislation, the language for variances is essentially the same, but is located in different sections. County requirements are listed under “Creation and Duties of Board of Adjustment” (§394.27, Subd. 7), while municipal requirements are listed under the general “Official Controls: Zoning Ordinance” section (§462.357, Subd. 6, Appeals and adjustments.) Planners have expressed concern that since the municipal variance standard was changed from “undue hardship” to “practical difficulties,” it has become more difficult for zoning appeals boards to refuse variance applications.

Nonconformities. As with variances, nonconformities are addressed under “Official Controls” in Chapter 462, and under a separate section in Chapter 394. Much of the language is identical, including requirements for existing nonconforming lots in shoreland areas. However, there are a few significant differences. In municipalities, any nonconforming use destroyed by fire or other disaster may be rebuilt if a building permit is applied for within 180 days (§462.357, Subd. 1e). In counties, this replacement provision only applies to residential and seasonal residential properties (§394.36, Subd. 4).

Notice of residential development on agricultural land. This is a notification requirement specific to counties, requiring notice of development of four or more dwellings on an agriculturally-zoned site to each agricultural property owner within 5,000 feet (§394.305).

Official map. The wording of this section is substantially the same between municipalities (§462.359) and counties (§394.361), with a few minor differences. In both cases, adoption of an official map puts property owners on notice as to where streets or other public infrastructure are planned. Local governments are still required to pay for any property acquired for such purposes, but need not pay compensation for buildings or structures erected on the land without a permit or in violation of the conditions of the permit.

Public hearings. Under §462.357, Subd. 3, public hearings are required prior to adoption of a comprehensive plan, zoning ordinance or amendment, certain types of interim ordinances, a subdivision application, a conditional use permit application, and official maps or amendments. Procedure for a public hearing includes notice in the official newspaper and notice to property owners within 350 feet of the affected property at least 10 days prior to hearing.

Under §394.26 public hearings are required prior to the adoption by of a comprehensive plan or amendment or any official control or amendment, conditional use permit, interim use permit, variance, or subdivision proposal. Procedure includes notice to property owners within 500 feet of affected property in incorporated areas. In unincorporated areas, distance varies between 500 feet and one-half mile, depending on the type of proposal. The specifics are complex and could be better understood in a table or chart.

Regional planning. Chapter 462 includes a number of additional sections that follow the section on municipal planning (§462.351 – 365). The “Regional Planning” section (§462.371 – 375) was originally adopted in 1965. Under this section, any two or more counties, cities or towns (which need not be contiguous) may enter into a joint powers agreement to conduct regional planning activities. The statute establishes procedures for creating a regional planning board, preparing a plan, and adoption of the plan by local units of government.

The “Regional Development Act of 1969” section as the title indicates, establishes regional development commissions to provide a means of “pooling the resources of local governments to approach common problems.” Eleven regional development commissions are established in the statute, covering most of Minnesota’s counties (ten RDCs exist today, in addition to the Metropolitan Council). The commissions

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are designed to support local government planning, not replace it, through funding, research, program development, and local planning assistance.

WHICH DIFFERENCES MAKE A DIFFERENCE? The summary above indicates that there are many differences in the structure, organization and language of the two planning statutes. Chapter 462 generally includes more detailed requirements for controls such as subdivision ordinances, and contains many provisions that are not applicable to counties, such as the sections on filing requirements, housing fiscal notes, and regional development commissions. However, Chapter 462 uses less specific language than 394 regarding official controls that may be implemented. The overall organization of Chapter 394 is more transparent, with topics broken out into more discrete sections.

The key question is: which differences are truly significant and which ones are merely confusing? One could argue that the general lack of clarity in both chapters and lack of parallel organization between them don’t matter much except to those who must use both of them on a regular basis. And most of those expert users – city and county attorneys, for example – have mastered the intricacies of the statutes and have little incentive to simplify them.

However, comparing Minnesota’s enabling laws to those of other Midwestern states, as discussed in the case studies in Appendix C, it becomes clear that both chapters have fallen behind contemporary planning practice. Unlike neighboring states, Minnesota lacks either a list of elements that should be included in a comprehensive plan, as in Wisconsin, or a list of principles that should be considered during the planning process, as in Iowa. There are no standards or requirements for training for citizen planners, like those recently adopted in Michigan. Furthermore, Minnesota’s statutes are generally silent on emerging trends such as form-based codes, or even on established concepts such as conservation design, although the purchase and transfer of development rights was added to both chapters in 1997 (Laws 1997 c. 216, s. 135).

RELATED STATUTES As mentioned above under “Primary Issues and Problems,” many other state statutes reference or relate to the planning statutes, but are poorly coordinated with them. The following are among these related statutes – although this is by no means an exclusive list.

WATER LAW While Minnesota has a comprehensive set of water-related and environmental regulations, these are not well-integrated with local land use regulation. This results in frequent conflicts between state regulating agencies and local governments, and a confusing regulatory landscape. Minnesota water law itself is extremely complex as it relates to state agencies, watershed and other resource-based entities, and local governments. However, water law is largely collected in M.S. Chapter 103 and includes a number of common purpose statements, rather than the parallel construction we see in land use law. State-level water laws and rules that affect land use practices include public waters work permits, shoreland and floodplain regulations (adopted and enforced locally), wetlands conservation rules, and Wild and Scenic Rivers legislation. While these regulations will likely remain separate from planning legislation, the relationships between these chapters should be strengthened and clarified

§103F.201-227, Shoreland standards. The Department of Natural Resources (DNR) has established model standards and criteria for the subdivision, use, and development of shoreland (as defined in the statute) in both counties and municipalities. The agency reviews local ordinances and regulations that

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affect shoreland development or use. If local ordinances do not comply with state standards, the DNR may notify a city that it has one year to make changes, after which the DNR may adopt an ordinance for the city. The requirements for counties are similar: the DNR may “adapt the model ordinance to a county if it finds that a county has failed to adopt a shoreland conservation ordinance or that a county has adopted a shoreland conservation ordinance that fails to meet the minimum standards” (§103.215). Towns that chose to adopt their own shoreland zoning must demonstrate to the county board that their standards are at least as restrictive as the county’s.

§103F.101-165 Floodplain Management, requires local governments (including counties, municipalities, watershed districts or lake improvement districts) to adopt floodplain ordinances, which must be reviewed and approved by the DNR and the Federal Emergency Management Agency. Such ordinances are necessary to maintain a local government’s eligibility for the National Flood Insurance Program. There are significant differences between federal rule and state standards for approval of variances and the treatment of nonconformities. (When state law regarding nonconformities was changed in 2006 an exception for floodplain structures was included.)

Chapter 103B. Water Plans / Watershed Plans. The Board of Water and Soil Resources (BWSR) is charged with coordination of water and soil resources planning by counties, soil and water conservation districts, watershed districts, and other local government entities. Most counties have developed water plans, but these are rarely closely coordinated with county land use plans.

One Watershed – One Plan. A bill that became law in 2012, (Chapter 272, Sec. 32) amends 103B.101, Subd. 14, to encourage local water management coordination by the Board of Water and Soil Resources (BWSR): “The board may adopt resolutions, policies, or orders that allow a comprehensive plan, local water management plan, or watershed management plan, developed or amended, approved and adopted, according to chapter 103B, 103C, or 103D to serve as substitutes for one another or be replaced with a comprehensive watershed management plan.” In 2015, several pilot watershed-wide plans are underway. The relationship between county-level planning and zoning and watershed-level planning is under discussion among state water management agencies and local government units, and a variety of approaches are being implemented.

OTHER RELATED STATUTES

Chapter 272, Taxation, General Provisions, includes a provision (§272.162) that restricts county auditors from approving the transfer or division of land unless the transfer or division meets municipal subdivision and planting requirements under §462.352. This provision does not apply to counties – therefore, a county’s planning and zoning office may find that its own ordinances are not considered by the county auditor in recording of plats. An effort was made to address this issue during the 2014 legislative session (H.F. 3032/S.F. 264, discussed above under “Historical Perspective”) but did not pass.

A precedent for this approach is found in special legislation introduced by Olmsted County in 1989 to prevent recording of noncompliant plats (Laws 1989, c. 274-S.F. 1394). According to a county planner who worked on this effort, “to my recollection our staff was finding that the property records office at that time was required to accept any legal document regarding the division of property even if it contravened the requirements of the county zoning and subdivision ordinances (density standards for non-farm parcels in agricultural districts and metes and bounds lot spits). It was determined by the

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County Attorney’s Office that the only way to enforce the provisions of the ordinance given the current recording law at the time was to have special legislation passed that directly addressed the issue.”3

Chapter 360, Airports and Aeronautics, includes requirements for airport zoning (§360.061 – 074) that pertain to both municipalities and counties – if the county owns or controls and airport – as well as towns, airport authorities, and the state of Minnesota. Municipalities with airports within their boundaries must adopt airport zoning regulations for identified hazard areas. If hazard areas cross jurisdictional boundaries, the municipality may request the adjacent jurisdictions to adopt similar regulations or to join in creating a joint airport zoning board. The standards as to how cities, counties and townships work together differ from standard zoning procedures, and these differences often lengthen the process of airport zoning. Unifying the statutes and adjusting the procedures to work in greater concert could improve the efficiency of the process. Chapter 360 and related rules were studied by a MnDOT task force in 2013-14, but no changes to the statute have been proposed to date.

Section 366.10-181, Town authority to plan and zone. Town zoning authority was originally authorized under this section, which required a majority vote of the electorate before a town could adopt planning and zoning. Towns were originally classified as urban or rural under Chapter 368. Urban towns were authorized to exercise the zoning authorities given cities under Chapter 462, while rural towns were given authority under this chapter. In 1982, the legislature amended the definition of municipality in chapter 462 to include all towns, and nearly all towns now use the Chapter 462 authority.

Chapter 414, Municipal Boundary Adjustments, regulates annexation by cities of unincorporated land (usually in townships), detachment, (removal of land from a city) and consolidation of municipalities (in Chapter 414, “municipalities” means “cities”). The chapter includes many provisions that relate to both municipal and county planning statutes. For example, under §414.0325, Subd. 5, a city and town can develop an orderly annexation agreement for all or part of the land area within a township, and establish a joint planning board under a joint powers agreement. This provision is used more widely than a similar provision in §462.3585, under which a county, town or city can request establishment of a joint planning board. Annexation remains a highly controversial topic among cities, counties and townships, and this chapter is frequently revised to address concerns of these interests.

Chapter 505, Plats, Coordinates, Surveys, deals with the technical details of preparing and recording plats. According to the League of Minnesota Cities, “Plats are technical drawings delineating one or more parcels of land drawn to scale depicting the location and boundaries of lots, blocks, outlots, parks, and public way. Plats are prepared and recorded in conformance with Minnesota Statute Chapter 505, and must contain a certification by a land surveyor and be approved by the county surveyor.” Section 505.02, Subd. 2 states that plats may be used to indicate dedication of easements, depict one or more parcels for the purpose of simplifying legal descriptions, or comply with the minor subdivision procedures of a local unit of government.

Chapter 572A deals with mediation and arbitration of disputes. Section 572A.01 states that in the event of a dispute between a county and city regarding a community-based comprehensive land use plan (§462.3535), either party can request mediation from the Bureau of Mediation Services. Since community-based comprehensive planning is no longer practiced under the previous CBPA, this section appears obsolete.

3 John Harford, Olmsted County planner, e-mail to Committee members, August 29, 2014.

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FINDINGS The following issues and trends are drawn from our analysis of the principal planning enabling statutes, Chapters 394 and Chapter 462, along with related statutes,

Outdated Models: Both planning statutes were largely formed in the 1960s, and neither have kept up with contemporary planning practice. For example, they call for uniformity “for each class of land or building” within each zoning district, and do not address contemporary practices such as performance zoning and form-based codes.

Lack of Clarity: The statutes are structured differently, with many minor inconsistencies in wording, definitions and procedures. The cumulative effect of these differences is a pervasive lack of clarity for the non-expert reader.

Problems at the Edges: Fragmentation of land use decision-making results in both redundancy and inefficiency, especially when land use issues cross city, township, county or watershed boundaries. In these areas, related statutes governing annexation and other municipal boundary changes also come into play.

Lack of coordination between neighboring jurisdictions can result in poorly planned municipal utility extensions, land use conflicts between agricultural and residential areas, loss of significant resources, or destructive competition for new employers.

Statutory differences may also impact the ability of cities and counties to engage in cost saving measures such as cooperative service agreements for the joint administration of planning and zoning programs.

The current system tends to foster polarization among cities, townships and counties. There are no incentives for joint planning or zoning, although such efforts are allowed under §462.3585. Annexation (§414) continues to be a controversial and adversarial issue, with recent study commissions producing only limited results.

The Comprehensive Plan – Zoning Relationship: One significant gap in both statutes is between the comprehensive plan and the “official controls” – the zoning and other regulations – intended to implement the plan. The policy of consistency between these official controls and the comprehensive plan is not clearly stated, creating ambiguity and uncertainty. The recent concurring opinion by Supreme Court Justice G. Barry Anderson on RDNT, LLC, v. City of Bloomington raises some cautions about what he views (in this and other cases) as an over-reliance on vague language in comprehensive plans as a criterion for granting or denying a conditional use:

“The difficulties and contradictions associated with the current state, regional, and municipal planning statutes necessitate that the Legislature construct a rational statutory framework that begins with a recognition of the constitutional rights of property owners and then sets out the permissible limits for land-use planning beneficial to the community as a whole.” 4

In response to this critique, we might speculate that explicitly requiring consistency between comprehensive plan and zoning ordinance would essentially solve the problem of over-reliance on the comprehensive plan.

4 ibid., p. C-18.

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The Elements of the Plan: Another significant weakness is the lack of consistent guidance on the scope and contents of a comprehensive plan. This lack of guidance, combined with the scarcity of funding for local planning, results in great variation in the “comprehensiveness” and effectiveness of plans across the state. Some plans are simply collections of policy statements, sometimes illustrated a rudimentary future land use map, while others are extremely “comprehensive.” Plans will of course vary depending on the size and capacity of the local government, but more explicit guidance (ideally coupled with some level of funding) could improve the quality of all plans.

Piecemeal Revisions: Both statutes continue to be modified, often in tandem, with new requirements, in response to court decisions, advocacy by interest groups, and emerging land uses or trends. For example, recent years have seen the passage then repeal of most provisions of the Community-Based Planning legislation, prohibition of amortization of nonconforming uses, including signs, and introduction of legislation that would limit interim ordinances designed to allow assessment of new or problematic land uses. Significant differences in how cities, townships and counties addressed variances were ultimately resolved through a series of court cases and subsequent legislation, a lengthy process that a unified statute could have prevented. These piecemeal updates create new inconsistencies and additional demands on local governments to keep pace with the changes.

Barriers to Meaningful Public Involvement: Planning enabling legislation should encourage and support citizen involvement early in the land use decision-making process. Standard procedures such as public notice and public hearings are undeniably important, but do not encourage meaningful involvement early enough in the development process to foster shared solutions.

Differing Levels of Capacity Produce Inconsistent Results: The ability to administer land use regulations varies widely among local governments. The smallest cities and many townships face particular challenges in this area. While the concept of local control of land use decisions is highly regarded, it can result in decisions driven by friendships and mutual sympathy, rather than fairness. For example, townships frequently gain authority to enforce zoning and building codes, but may be unwilling or not capable of enforcing them adequately, especially in sensitive natural areas such as shorelands. The lack of training in planning and zoning at the small city and township level and the complexity of the regulatory environment contribute to this problem. Most small cities and townships cannot afford planning staff or consultants, leaving land use decisions to a planning commission and city clerk or administrator. With no state funding and very few sources of private funding for professional planning assistance, this situation seems unlikely to change.

Lack of Integration among Related Statutes: Numerous other state statutes and rules relate to land and water use, but few of them are well-integrated with local land use regulation. For example, the regulation of shorelands and floodplain, airport zoning, annexation, platting, and county/watershed planning for water resources all have a relationship to the planning and zoning statutes, but many of these relationships are poorly defined or inconsistent.

CONCLUSIONS AND NEXT STEPS This paper does not present specific recommendations for modernizing the planning enabling statutes. Those recommendations must arise from consultation with the APA-MN membership and with other local government partners and advocates. However, the approaches recommended by the national APA and used by other states can provide guidance in defining a way forward.

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This paper is intended as the start of a process that will involve further consultation with APA-MN chapter members, local government organizations, and other stakeholders. The following issues, among others, must be considered:

• In what respects have the planning statutes fallen behind modern planning practice, and what are the implications for Minnesota communities?

• What are the benefits of an integrated planning and zoning statute, compared to “parallel updates of both the existing planning law chapters?

• Should the standards for what a comprehensive plan includes be updated? • Should the relationship between comprehensive / land use plans and zoning / official controls

be strengthened, or is the current relationship sufficient? • Given constrained state and local budgets, can meaningful incentives be provided to encourage

best practices in planning and zoning? • How should the planning enabling statutes relate to the multiplicity of other statutes, especially

those that pertain to watershed management and water resource protection (primarily Chapter 103)? By extension, how can local planning and zoning authority be better integrated with watershed-wide planning?

• Of the many other provisions in state law that relate to planning and zoning, which ones would require or benefit from updating in connection with planning enabling law reform?

• What are the risks of opening the statutes to a comprehensive update? For example, might the underlying purposes of the statutes be weakened?

• Short of a comprehensive update, which, if any, changes to the statutes – the “low-hanging fruit” – would be the most beneficial in furthering more effective planning and zoning?

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REFERENCES American Planning Association. 1996. Modernizing State Planning Statutes: The Growing Smart Working Papers, Volume One. Planning Advisory Service Report No. 462/463. Chicago: American Planning Association.

American Planning Association. 1998. Modernizing State Planning Statutes: The Growing Smart Working Papers, Volume Two. Planning Advisory Service Report No. 480/481. Chicago: American Planning Association.

American Planning Association. 2002. Growing Smart Legislative Guidebook 3: Model Statutes for Planning and the Management of Change. Stuart Meck, ed. Chicago: APA Planners Press.

Brown, Andrea. 2006. “Michigan Zoning Enabling Act Replaces State’s Three Separate Zoning Statutes. Smart Growth Tactics: A How-to Series for Local Leaders. Issue No. 22, Zoning Enabling Act. http://www.planningmi.org/downloads/issue_22_zoning_enabling_act.pdf , accessed March 4, 2013.

Meck, Stuart. 1996. “Model Planning and Zoning Enabling Legislation: A Short History.” Modernizing State Planning Statutes: The Growing Smart Working Papers, Volume One.” Planning Advisory Service Report No. 462/463. Chicago: American Planning Association. Available at http://www.planning.org/growingsmart/enablingacts.htm

Michigan Association of Planning. 2008. “The Michigan Planning Enabling Act (P.A. 33): What the Changes Mean to Local Officials.” http://www.planningmi.org/downloads/michigan_planning_enabling_act.pdf , accessed March 4, 2013.

Ohm, Brian, J.D. 2010. “2010 Updates to Wisconsin’s Comprehensive Planning Law.” Perspectives on Planning. Department of Urban and Regional Planning, University of Wisconsin – Madison/Extension.

Wisconsin Department of Administration, Intergovernmental Relations (website). “What is a Comprehensive Plan” http://www.doa.state.wi.us/category.asp?linkcatid=743&linkid=128&locid=9 accessed March 4, 2013.

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http://www.planningmi.org/downloads/issue_22_zoning_enabling_act.pdf

http://www.planning.org/growingsmart/enablingacts.htm

http://www.planningmi.org/downloads/michigan_planning_enabling_act.pdf

http://www.doa.state.wi.us/category.asp?linkcatid=743&linkid=128&locid=9


APPENDIX A: MEMBER SURVEY RESULTS The Legislative Committee surveyed APA-MN chapter members in July 2013. Ninety-three responses were received, comprising about 10% of chapter membership. About 40% of respondents responded “yes” to the question “Has your work as a planner been hindered by an unclear, inconsistent, or outdated State Statute or Rule?”

Specific survey responses provide additional insight into the broad range of statutes planners must deal with and the many conflicts and inconsistencies among them.

• Statute requires that in cities of the first class, rezoning requests from residential to commercial require signatures from the owners of 2/3 of the properties within 100 feet of the property to be rezoned. This places a lot of power in the hands of a small number of people and in many cases prevents good development consistent with local planning.

• It is difficult to do vertical mixed use development with separate ownership under the current platting laws (Ch. 515).

• The county role in comprehensive plan work is not aligned with the city and Met Council roles.

• Annexation laws hinder smart growth because they give unequal power to local governments which results in sprawl and competitive disadvantages.

• Difficulties in vacating dedicated park land that has never been used and has no value to the park system.

• The shoreland rules are in dire need of updating, as well as statutes related to lot size in the shoreland districts. The statute should not specify when variances are required, but should leave the question to local ordinances.

• Shoreland rules should be updated in relation to township zoning.

• Statutes relating to legal nonconformities need clarification. (Cities frequently ignore MN Statute §117.184, which requires compensation if a legal nonconforming use is removed as a condition for issuance of a permit; it should be included with the nonconforming use sections of Chapters 394 and 462.)

• The definition of blight for redevelopment purposes is very outdated. We should promote legislative changes that support urban redevelopment much more effectively. (The definition of a “blighted area” in Section 117.025 is one that is in urban use and in which more than 50% of the buildings are structurally substandard.)

• Zoning as it relates to the state statutes governing agricultural societies (fair boards) – unclear statutory language and no court cases to resolve it.

• Laws regarding state aid have hindered non-motorized transportation options. More flexibility is needed.

• Environmental Reviews are too cumbersome for typical suburban development. The threshold for an EAW/AUAR should be higher. Perhaps these are not needed for a community with an adopted comprehensive plan that includes all of the components requested in an EAW.

• Section 15.99 (the 60-day rule) should be modified – it is a little too restrictive.

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The survey included the question “Which of the following statements most closely reflects your position on how APA-MN should proceed with modifying Minnesota’s enabling laws?” Responses reflect both interest and caution: 61% agreed with the statement “gauge interest of other organizations, proceed if broad support exists,” while 17% agreed with the statement “work aggressively to implement change.” Sixteen percent recommended continuing to explore the issue, while only 1% favored no action.

APPENDIX B: LISTENING SESSION SUMMARIES From April 2014 through January 2015, the Legislative Committee and district directors organized listening sessions in each region of the state to explore the findings of this paper and the planning issues of greatest concern to professional and citizen planners in each region. Responses were diverse and varied, although several common themes emerged (see Introduction).

DULUTH, APRIL 2014 • Issues with county recorders registering titles to lots recorded without City knowledge or

approval.

o This includes some lot splits that violate city minimum lot sizes, resulting in unbuildable lots. (Chapter 394 has new minor subdivision procedures, but Chapter 462 does not.)

o Applicants choose Registered Land Survey (RLS) procedures rather than platting as an “end run” around platting process. Common Interest Communities (CICs) also used as an alternative.

• In general, each county establishes its own procedures for registration of titles, resulting in widespread inconsistency.

• Nonconformities: determination of the 50% threshold for damages is difficult to determine. There is some support for greater flexibility in allowing nonconforming uses and lots to continue, to encourage infill development.

• Airport zoning: the statute calls for creation of a joint zoning board, but without a funding mechanism. Duluth’s airport has no taxing authority; the city ends up responsible for costs.

• Should the statutes change to recognize new zoning techniques such as form-based codes, which are not “consistent” within zoning districts?

• Comprehensive planning: school siting considerations should be closely linked to the comprehensive plan. The connections between transportation and land use should be strengthened.

REDWOOD FALLS, JULY 2014 • In general, southwest Minnesota has distinct demographic challenges: the rural population is

shrinking, while the urban population remains fairly stable due to immigration. Rural population decline results in consolidation of school districts and loss of small town businesses.

• New land uses include wind farms, solar farms.

• Employers and employees struggle with a lack of affordable workforce housing.

• Increase in commodity prices and thus in prices of cropland have resulted in “the opposite of annexation” – undeveloped land is actually being detached from cities and reverting to township/county control.

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• Airport zoning is an issue – difficulties in working with the Federal Aviation Administration and MnDOT. In one instance, violations of airport zoning have resulted in a hold on airport improvements.

• School siting practices are an issue – schools are built on cheapest rural land, isolated from cities, causing transportation difficulties.

• Water supplies (scarcity and quality of groundwater) are issues in this region.

• A lack of tools for managing nonconformities in the statutes create obstacles for redevelopment of blighted properties.

• The Community-Based Plan for the City of Worthington (early 2000s) improved coordination with Nobles County in managing urban fringe areas.

ROCHESTER, AUGUST 2014 • In Olmsted County, issues revolve around county-township authorities. Inconsistencies not only

between chapters of statute but within chapters are significant. Many townships have taken over zoning authority by picking and choosing from the County’s code. The County is left to regulate shoreland and floodplain, but township board decisions are inconsistent with these ordinances.

• Township planning commissions also struggle with legal requirements for hearings, notice, deadlines, and a lack of citizen volunteers.

• It is difficult to determine which provisions are “as restrictive” when comparing county and township regulations – i.e., which land use is more restrictive: 4 lots per 40 acres or a 500-animal feedlot.

• Strengthen requirements for orderly annexation and simplify the process. Currently, the patchwork nature of annexations results in inconsistent road classifications, among other problems.

• There is a lack of guidance on comp plan/zoning consistency. For example, Winona’s comp plan (2007) guides areas for mixed use that still fall under 1960s industrial zoning.

• In the Rochester urban area, the Destination Medical Center planning process is perceived as poorly integrated with local and regional plans, especially as regards transportation, labor force, and education systems. The lack of requirements for consistency among plans within the region is the problem.

• School districts should be required to participate in the planning process.

• Outreach to citizens, especially youth – citizenship education – is a pressing need; planning commission members also need training.

• Nonconformities standards can work against rebuilding of historic structures if destroyed.

• Guidance is needed on expansion / intensification of nonconforming uses, especially those that lack structures – sand mines, quarries, etc.

• Note Olmsted County’s special legislation concerning recording of plats (discussed above under “Related Statutes).

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FERGUS FALLS, DECEMBER 2014 • Issues with shoreland zoning in rural versus urbanizing areas.

• Conflicts/confusion between shoreland zoning codes vs. non-shoreland codes – these may be completely separate sections of local regulations.

• Inter-jurisdictional issues related to storm water protection and maximum impervious surface requirements – proper administration in one jurisdiction with the adopted rules vs. no regulation for the adjoining jurisdiction.

• Well and septic issues where no zoning exists – no coordination when public infrastructure capital investments are made.

• Brainerd area planning involved the recent creation of the “Resilient Region 5 Plan” (through a federal grant) – could this process be transferable throughout the state?

• Problems identified through “Resilient Region 5 Plan” affirm that continuing conflicts exist in planning and infrastructure investments among neighboring jurisdictions

• Non-conforming language in 462 & 394 is poorly worded and causes on-going difficulties in effective land use management.

• The new variance language giving preference to “practical difficulties” vs. “hardship” was poorly worded and has caused issues for several areas around Brainerd.

• The antiquated aspects of the 1989 Shoreland Zoning Rules continue to hinder effective management of shoreland area development and redevelopment activities

• Provisions in the statutes which pertain to extra-territorial development controls are not used – the result is ineffective intergovernmental cooperation and coordination among neighboring jurisdictions

• Planning enabling laws do not make specific provisions for employing the use of a “form-based” planning approach vs. a traditional “Euclidian zoning” approach to land use regulation – form-based codes should be specifically enabled and consideration given to basic elements to guide local adoption.

• The various modes of transportation and travel are not well articulated in statute and should be integrated into elements of land use planning enabling laws

• Counties should have a greater role in land use planning at the city and township level – particularly when local resources are incapable of meeting state law requirements and nothing is done about it.

SAINT CLOUD, JANUARY 2015 • Changes in 2009 to the EQB rules: many shoreland residential developments outside Metro

area (in this case, a development over 50 lots) now require an EIS. For cities where shoreland is already guided for residential use, this can seem like overkill, especially for MS4 communities that already meet stormwater requirements. (MN Rules 4410.4300)

• Discrepancies between Wild and Scenic River requirements (for the Mississippi) and shoreland zoning requirements – these standards should be combined. Boundaries based on section lines are antiquated and overly broad.

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• Efforts in 2009-2010 to update shoreland rules – any updates should be carefully focused if they are to be supported by counties.

• In a developed community, park dedication tied to subdivisions, rather than redevelopment or changes in use, is not effective in expanding or improving park system.

• Will the Winona court case (pending) give some guidance on regulating concentration of rental properties associated with campuses?

• The St. Cloud Joint Planning Board (result of Community-Based Plan) will soon dissolve; however, results of the joint planning effort still benefit the region: Organized Annexation agreements covering most of the metro area are in place; relationships are more formalized, cities meet together.

• Negative impacts of concentrations of group residential facilities (6 or fewer units).

• In rural counties, the proliferation of cities and townships with their own ordinances surrounding lakes creates major inconsistencies in shoreland regulation. Compare to septic standards, which require cities to be at least as restrictive as counties.

• Small cities and townships struggle with zoning administration. Education of elected officials is key. Township zoning should be subject to some verification to ensure it’s as restrictive as county.

• Example of Crow Wing County taking over zoning administration for City of Cross Lake. – cost-saving measure, but “commercial” in county and city are quite different. County also taking on septic standards administration for cities when requested.

• County water planning – counties try to involve cities, but not that engaged. How do counties manage plans for multiple watersheds?

• Look at the funding available for watershed plans, and at options for providing incentives for land use planning.

• Physical land development should be separated from environmental regulation and left to local decision-makers.

• More consistency in city and county regulations would be desirable.

• A perceived lack of coordination on how stormwater improvements are managed between upstream and downstream users.

• Need for education for citizen planners.

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APPENDIX C: EXAMPLES OF PLANNING STATUTE REFORM IN OTHER STATES The Growing Smart project initiated by the American Planning Association in 1994 was an effort to draft the next generation of model planning and zoning legislation for the U.S. The seven-year project resulted in publication of a series of guidebooks and articles examining the many dimensions of planning enabling law reform. The final product of the effort is the Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change, 2002 Edition. The working papers have provided a useful background for the chapter’s efforts, and the model statutes in the 2002 guidebook will be helpful in any future efforts to modernize Minnesota’s statutes.

The 2002 Guidebook identified Wisconsin’s Smart Growth legislation, adopted in 1999. Since then, two additional Upper Midwest states, Iowa and Michigan, have made substantial changes to their planning enabling statutes. The role of planners in these efforts, and the results of the reforms in all three states are particularly relevant for Minnesota.

IOWA’S SMART PLANNING PRINCIPLES AND INCENTIVES Under the “Rebuild Iowa” initiative,” a bipartisan effort that followed disastrous flooding in 2008, legislation in 2010 establishing “smart planning” principles and incentives for local government planning. As described in an article in the November 2010 Iowa Planning newsletter by Gary Taylor and Eric Jensen:

In April 2010 Governor Culver signed what has come to be known as the Iowa Smart Planning Law. The law sets forth ten smart planning principles that state agencies and local governments “shall consider and may apply” during “deliberation of all appropriate planning, zoning, development and resource management decisions,” and identifies thirteen elements that local governments “may include” when developing or amending comprehensive plans. The Smart Planning Law for the first time places into state law planning enabling legislation, and provides a roadmap for what a quality local comprehensive plan should contain.

Professional planners in Iowa have long promoted the benefits of comprehensive planning, and planning best practices, to local elected officials, planning commissioners and zoning boards of adjustment. Now these practices are supported in state legislation.

Many of the smart planning principles find their genesis in the Smart Growth movement; however, Iowa’s Smart Planning principles focus less on the urban built environment, and more broadly on contemporary and rural planning issues facing Midwestern and High Plains states like Iowa… The term “Smart Planning” (as opposed to Smart Growth) – and the Smart Planning principles themselves – were specifically chosen in the drafting of the Iowa legislation to stress that planning can be effectively utilized by all Iowa cities, not just large or rapidly growing communities.

The smart planning principles are:

1. Collaboration 2. Efficiency, transparency, and consistency 3. Clean, renewable, and efficient energy 4. Occupational diversity 5. Revitalization 6. Housing diversity 7. Community character

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8. Natural resource and agricultural protection 9. Sustainable design 10. Transportation diversity

Following passage of the law, a Smart Planning Task Force was appointed to “establish a coordinated planning framework to support and incentivize local and regional smart planning.” The Task Force produced a report in November 2010 outlining recommendations for state-level coordination, a regional planning framework, financial incentives and technical assistance for local government, and a watershed planning initiative.

Funding for local planning efforts was provided through the Rebuild Iowa Office, a temporary state agency that has now sunset. Under Iowa’s current administration, the Smart Planning legislation has been targeted for repeal in several bills, but still remains in effect. The APA-Iowa chapter has exerted considerable efforts in developing training materials for local governments.

Iowa’s planning enabling statutes are not unified: separate chapters of the code govern zoning by counties (Chapter 335) and cities (414). However, Intergovernmental cooperation in Iowa is strongly encouraged under state law: Chapter 28E of the Iowa Code permits any governmental agency to undertake any activity jointly with any other agency so long as each agency has the power to undertake that particular activity on its own. These joint and cooperative arrangements have proved to be an efficient and popular way of providing services at a reasonable cost, and are frequently used to coordinate land use planning between cities and counties in urban fringe areas (townships in Iowa have no planning authority).

WISCONSIN – SMART GROWTH GOALS, CONSISTENCY AND SUPPORT Like Minnesota and Iowa, Wisconsin’s planning statutes are divided, with separate chapters for counties, cities and towns, and a complex relationship between town and county land use authorities. However, the state’s “smart growth” legislation has supported significant cooperative planning efforts for more than a decade.

Wisconsin’s Comprehensive Planning Law was enacted in 1999 (see section 66.1001, Wis. Stats.).As described on the Wisconsin Department of Administration, Comprehensive Planning Program’s website:

The Wisconsin Comprehensive Planning Law does not mandate how a local community should grow, but it requires public participation at the local level in deciding a vision for the community’s future. The uniqueness of individual comprehensive plans reflects community-specific and locally driven planning processes.

While a local government may choose to include additional elements, a comprehensive plan must include at least all of the following nine elements as defined by the Comprehensive Planning Law.

1. Issues and Opportunities 2. Housing 3. Transportation 4. Utilities and Community Facilities 5. Agricultural, Natural and Cultural Resources 6. Economic Development 7. Intergovernmental Cooperation 8. Land Use

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9. Implementation

Beginning on January 1, 2010, if a local governmental unit enacts or amends an official mapping, land division, or zoning ordinance, the enactment or amendment ordinance must be consistent with that community’s comprehensive plan.

The Comprehensive Planning Grant Program provided $2 million annually to help local communities develop comprehensive plans. To date, the program has awarded $21 million to 1,171 Wisconsin communities. As of 2010, local government zoning and other development regulations should be consistent with the comprehensive plan. Amendments enacted in 2009 (WI Act 372) provided two-year extensions for communities that had yet to receive planning grants and clarified other parts of the law.

As with Iowa, Wisconsin’s political balance of power has shifted, and planning grants are no longer being awarded, but the law remains in effect. As of 2011, all but three of Wisconsin’s 72 counties and the majority of the state’s cities, villages and towns had adopted or were in the process of developing plans.

According to 1000 Friends of Wisconsin, the 2011-2012 legislative session saw numerous efforts to repeal or weaken state smart growth laws. Efforts to repeal the 1999 Smart Growth Law were unsuccessful. However, 2011 WI Act 144 limits the authority of a city, village, or town to enact a development moratorium on rezoning and land division approvals. Additionally, 2011 WI Act 170 limits the ability of local governments to enforce certain shoreland standards and ordinances which regulate non-conforming structures and lots.

MICHIGAN – TWO UNIFIED STATUTES REPLACE SIX SEPARATE ONES Michigan is one of the few states we are aware of to comprehensively revise its planning statutes to create a single unified statute for zoning and a separate unified statute for planning. Michigan’s process is especially relevant for Minnesota because the Michigan Association of Planning (MAP) played a lead role in advocating for these reforms before and during the legislative process.

The Michigan Zoning Enabling Act (Act 110 of 2006) was first introduced in 2004 by State Representative Kevin Elsenheimer, who was also a zoning attorney and well aware of problems with the three separate zoning acts. An 18-month process involved a working group of stakeholders, including MAP, local government representatives, home builders and realtors, and several state agencies. The charge to the working group was simply to unify the three zoning acts, but several substantive changes were agreed to during the process.

The consolidated zoning enabling act unified previous acts that applied to townships, cities and villages, and counties. Some relevant features of the act include:

• The statement that “A zoning ordinance shall be based upon a plan designed to promote the public health, safety, and general welfare…”

• Reorganization of the three constituent acts into seven logical articles • Consolidation of all public hearing notice requirements into a single section, with consistent

procedures for ordinance adoption and amendment, rezoning, planned unit developments, variances, and other actions

• Consolidation of planning and zoning authority in all jurisdictions to the planning commission (eliminating separate zoning boards and commissions), making it easier to ensure that zoning is based on the master plan

APRIL 2015 24


The unified zoning act was followed quickly by a unified planning enabling act, introduced in 2007 and adopted in 2008. Again, the MAP was involved in the process, as reported in the chapter’s newsletter:

The Association was a champion of the unification of the planning acts, and served as an expert and technical advisor to both legislators and stakeholders during the workgroup meetings that were convened to guide the unification process. Representatives of the MAP Law Committee provided initial draft bill language to the legislators, and attended many meetings as the workgroup negotiated and compromised on final bill language. Representatives from the Michigan Municipal League, Michigan Association of Townships, Michigan Association of Counties, the homebuilders and realtors, and state agency representatives hashed out the details of the bill, and collaboration was a critical element of the success of the process.

A simple rule drove the unification process: No substantive changes unless all stakeholders agreed. But there were several instances where it was clear to the participants that the statute could be vastly improved if certain issues of considerable importance were addressed.

For example, it was agreed that the organization of the act could be improved. As with the Michigan Zoning Enabling Act (P.A. 110 of 2007), the language was rearranged by article, vastly improving the layout and sequencing of the act in an intuitive manner. A definitions section was added as well, clarifying commonly used terms. The reorganization makes it easier to find provisions, and is arranged in an order of progression typically followed during the planning process.

The Michigan Planning Enabling Act, (P.A. 33 of 2008; M.C.L. 125.3801 et seq.) took effect September 1, 2008. Some relevant features of the new statute include:

• A standardized glossary of terms, including “master plan,” “planning jurisdiction,” and “planning commission”

• The title of all plans (except counties without zoning) prepared by a planning commission will be called a “master plan”; references to “comprehensive plan”, “development plan”, “land use plan”, or other names should be replaced with “master plan.”

• All bodies that prepare master plans are called planning commissions. • The responsibilities of the planning commission on planning and zoning matters has been

clarified. • Standard requirements are established for the establishment and duties of planning

commissions. • For a unit of government with an adopted zoning ordinance, the master plan must include a

zoning plan, and an explanation for how the land use categories on the future land use map relate to the districts on the zoning map.

• Following adoption of the master plan, planning commissions must prepare annual capital improvements programs (with the exception of townships without public water or sewer systems)

Following adoption of both acts, MAP sponsored a series of training workshops for local planners and planning commissions, paving the way for updating of local ordinances, a process intended to be completed by 2011. These workshops, “Planning and Zoning Essentials,” continue to be held regularly.

APRIL 2015 25

APPENDIX D: COMPARATIVE TABLE OF PLANNING STATUTES CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS No equivalent 462.12 – 462.17 RESTRICTED RESIDENCE DISTRICTS.

Early form of zoning (1915) gives cities of first class authority to designate restricted residential districts.

Council given power of eminent domain; appraisal procedures; mapping, assessments; power to enact ordinances.

See 2006 changes to eminent domain authority, Chap. 117.

Difficult to see the remaining utility of these provisions.

No equivalent 462.351 MUNICIPAL PLANNING AND DEVELOPMENT; POLICY STATEMENT. “It is the purpose of sections 462.351 to 462.364 to provide municipalities, in a single body of law, with the necessary powers and a uniform procedure for adequately conducting and implementing municipal planning”

Detailed statement of intent outlining advantages of municipal planning.

394.21 AUTHORITY TO CARRY ON COUNTY PLANNING AND ZONING. Subd. 1 Except most populous counties (Hennepin and Ramsey)

Subd. 1a Amortization prohibited

Subd. 3 Nuisance ordinances not prohibited

462.353 AUTHORITY TO PLAN; FUNDS; FEES; APPEAL.

Subd 1. General authority.

A municipality may carry on comprehensive municipal planning activities for guiding the future development and improvement of the municipality and may prepare, adopt and amend a comprehensive municipal plan and implement such plan by ordinance and other official actions in accordance with the provisions of sections 462.351 to 462.364.

Subd. 2. Studies and reports.

Municipality may conduct research analyze data, present findings, etc. DNR must provide natural heritage data if available.

The “health, safety, morals and general welfare” phrase is found in the Standard Zoning Enabling Act, and is often cited as a fundamental reason to plan. The municipal statute uses “public health, safety, and general welfare” in the preceding policy statement (462.351).

Greater level of detail as to municipal authorities, but all such authorities presumably would apply to counties as well.

394.23 COMPREHENSIVE PLAN. The board has the power and authority to prepare and adopt by ordinance, a comprehensive plan. A

County plans “must be the basis for official controls,” municipal plans have no such requirement (although see 462.357 Subd. 2 for

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https://www.revisor.mn.gov/statutes?id=462.351%23stat.462.351




CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS comprehensive plan or plans when adopted by ordinance must be the basis for official controls adopted under the provisions of sections 394.21 to 394.37.

similar provision).

394.22 DEFINITIONS. Include: • Comprehensive plan • Municipality • Official control • Conditional use • Nonconformity • Official map • Variance

462.352 DEFINITIONS. Include: • Municipality • Planning agency • Comprehensive municipal plan • Land use plan • Subdivision regulation • Urban growth area

Differing or inconsistent definitions include: • Municipality • Official map • Official controls • Comprehensive plan (462 lists many

different types of plan, 394 only one) • Variance (394) definition still refers to

“unnecessary hardship”

462.3531 WAIVER OF RIGHTS. Any waiver of rights of appeal under section 429.081 [appeal to district court] is effective only for the amount of assessment estimated or the amount agreed to in the development agreement.

394.231 COMPREHENSIVE PLANS IN GREATER MINNESOTA; OPEN SPACE. Counties outside the metropolitan area and outside a “greater than 80 percent area” shall consider adopting goals and objectives for the preservation of agricultural, forest, wildlife, and open space land, and minimizing development in sensitive shoreland areas. Within three years of updating the comprehensive plan, the county shall consider adopting ordinances as part of the county's official controls that encourage the implementation of the goals and objectives.

“Greater than 80 percent area” refers to areas where 80% or more of pre-settlement wetlands are intact – generally the northernmost counties. See 103G.005, subdivision 10b. This provision is the “President Theodore Roosevelt Memorial Bill to Preserve Agricultural, Forest, Wildlife, and Open Space Land” – the municipal equivalent is again located under 462.357, Official Controls.

394.232 COMMUNITY-BASED PLANNING.

Counties are encouraged to prepare implement a community-based comprehensive plan. A community-based comprehensive plan is a comprehensive plan that is consistent with the goals of community-based

462.3535 COMMUNITY-BASED PLANNING.

Each municipality is encouraged to prepare and implement a community-based comprehensive municipal plan.

Most of these “remnants” of the Community-Based Planning Act seem to serve few if any purposes. “Community-based plans” are not defined in any substantive way, and the lack of funding that was originally dedicated to such plans means that there are no incentives for this

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https://www.revisor.mn.gov/statutes?id=103G.005%23stat.103G.005.10b

CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS planning.

Subd. 2. Notice and participation.

Subd. 3. Coordination.

Subd. 4. Joint planning. Refers to joint powers provisions in s. 471.59,

Subd. 6. Plan update (10 year maximum)

Subd. 8. Planning authority. County’s authority to adopt comprehensive plan and official controls not limited.

Subd. 2. Coordination.

Subd. 3. Joint planning. Same as county provision

Subd. 4. Cities; urban growth areas. Plan must identify any urban growth area identified in a county plan; may establish an urban growth area for the urbanized and urbanizing area. The city plan must establish a staged process for boundary adjustment.

(b) Within the urban growth area, the plan must provide for the staged provision of urban services

Subd. 5. Urban growth area boundary adjustment process.

(a) After an urban growth area is identified in a county or city plan, city must negotiate orderly annexation agreement with town and county for unincorporated areas located within the identified urban growth area.

(b) Orderly annexation agreement is filed with the chief administrative law judge of the state Office of Administrative Hearings. No further proceedings under chapter 414 or 572A needed.

Subd. 6. Review by adjacent municipalities; conflict resolution (prior to incorporation of municipal plan into county’s plan)

Subd. 7. County review.

(a) If a city does not plan for growth beyond its current boundaries, the city must submit community-based comprehensive municipal plan to the county for review and comment.

(b) If a town prepares a community-based comprehensive plan, it must submit the plan to the county for review and comment. Town plan may not be inconsistent with or less restrictive than the county

type of plan. However, the requirements of this section might be valuable for comprehensive plans in general, and for joint planning efforts.

Orderly annexation discussion (Subd. 5) references ch. 414 and 572A.

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS plan.

Subd. 8. County approval. If a city plans for growth beyond its current boundaries, its community-based comprehensive municipal plan and proposed urban growth area must be reviewed and approved by the county before the plan is incorporated into the county’s plan (60-day review period; dispute resolution)

394.235 May make applicant certify that taxes are paid

462.353 AUTHORITY TO PLAN; FUNDS; FEES; APPEAL. Municipality may prepare, adopt and amend comprehensive municipal plan and implement by ordinance, etc.

Subd. 2. Studies and reports

Subd. 3. Appropriation and contracts

Subd. 4. Fees

Subd. 4a. Fee schedule allowed

Subd. 5. Certify taxes paid

Details specific to municipalities regarding how planning activities may be funded.

462.354 ORGANIZATION FOR PLANNING. Subd. 1. May establish a planning agency (planning commission or planning department with advisory commission)

Subd. 2. Board of adjustments and appeals

462.355 ADOPT, AMEND COMPREHENSIVE PLAN, INTERIM ORDINANCE. Planning agency shall prepare the plan

Subd. 2. Procedure to adopt, amend

Subd. 3. Adoption by governing body

Subd. 4 Interim ordinance

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS 394.24 OFFICIAL CONTROLS. Subd. 1. Adopted by ordinance. Official controls to be adopted by ordinance; comprehensive plan must provide guidelines for timing and sequence of adoption of official controls.

Subd. 2. Municipality may request inclusion in “controlled” area

Subd. 3. Official controls do not apply to federal or state-owned or leased land; provisions don’t apply in metro area.

462.356 PROCEDURE TO EFFECT PLAN: GENERALLY. Subdivision 1. Recommendations for plan execution. May include zoning, subdivision ordinance, official map, public improvements, capital improvements, etc.

Subd. 2. Compliance with plan. Following plan “recommendation” by planning agency, disposition of publicly owned property must be evaluated by planning agency for compliance with plan.

462.357 Subd. 2 (c) equivalent to 394.24 Subd. 1: land use plan must provide guidelines for timing and sequence of adoption of official controls… consistent with land use plan.

394.25 FORMS OF CONTROL. Subd. 1. Adopted by ordinance.

Subd. 2. Districts set by zoning ordinances. (Environmental standards, natural resource preservation, referenced.)

Subd. 3. In district zoning – ordinances or maps may be adopted. Provisions shall be uniform for each class of land or building throughout each district.

May not prohibit earth-sheltered construction or manufactured homes built in conformance with sections 327.31 to 327.35

462.357 OFFICIAL CONTROLS: ZONING ORDINANCE. Subdivision 1. Authority for Zoning. “For the purpose of promoting the public health, safety, morals, and general welfare”

City may extend zoning regulations to unincorporated territory within 2 miles of its boundary, unless county or township zoning is in place.

Use of conservation easements; transfer of development rights – same for both statutes.

Municipal standards emphasize placement and use of buildings and structures, while county standards emphasize the use of land and the conservation or management of natural features and processes. County statute references environmental statutes: 86B.205, 103F. Both statutes reference solar access. In practice, zoning authorities are essentially the same.

Subd. 3a. Pre-1995 manufactured home park. Zoning ordinance may not alter existing density, lot-size requirements, or setback requirements of manufactured home park constructed before January 1, 1995, if conforming when constructed.

Subd. 1a. Certain zoning ordinances. Zoning ordinance may not alter existing density, lot-size requirements, or setback requirements of manufactured home park constructed before January 1, 1995, if conforming when constructed.

Subd. 3b. Conditional uses. Manufactured home park is a conditional use in a zoning district that allows two-family or multi-family dwellings.

Subd. 1b. Conditional uses. Manufactured home park is a conditional use in a zoning district that allows two-family or multi-family dwellings.

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS Subd. 3c. Feedlot zoning ordinances. Must notify MPCA and MDA at beginning of process; may submit copies of ordinance to agencies for review. Economic effects may be evaluated.

Reciprocal setbacks required (new feedlots from existing residences; new residences from existing feedlots)

Subd. 1c. Amortization prohibited

Subd. 1d. Nuisance (prevention / abatement ordinances not prohibited)

Subd. 1e. Nonconformities may continue unless discontinued > 1 year or if damaged > 50%; no building permit applied for within 180 days.

• Specific requirements for shoreland lots of record

• Nonconforming uses and structures in floodplain areas may be regulated to maintain flood insurance eligibility, etc.

Coordination between counties and municipalities on feedlot ordinances is lacking; annexations can result in inconsistencies and conflicts.

Subd. 4. Official maps

Subd. 5a. Metro counties; official maps may designate areas reserved for soil and water conservation, etc.

Subd. 7. Specific controls; other subjects: May be established for land development, including subdivisions and preservation and dedication of streets and public land. Includes authorization of park and open space dedication requirements

Subd. 8. Law adopted by reference. State statutes, rules and codes adopted by reference.

Subd. 9. Erosion and sediment controls – may be submitted to SWCD for review

Subd. 10. Amendments may be initiated by board, planning commission, or petition of affected property owners.

Subd. 1g. Feedlot zoning controls. Same as county statute.

Subd. 1h. Comprehensive plans in greater MN; open spaces. Same as County standard, 394.231.

Subd. 2. General requirements. After adoption of a land use plan, planning agency may prepare and governing body may adopt a zoning ordinance. Change from residential to commercial or industrial zoning requires a 2/3 majority. Land use plan “must provide guidelines for the timing and sequence of the adoption of official controls to ensure planned, orderly, and staged development and redevelopment consistent with the land use plan.”

462.357, Subd. 2 – “consistency” requirement is same as 394.24, but weaker than 394.23, which states that a comprehensive plan when adopted by ordinance must be the basis for official controls

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS 394.26 PUBLIC HEARINGS. Subd. 1a. When required – comp plan, amendments, conditional use permit, interim use permit, variance, subdivision proposal, etc.

Subd. 2. Notice – sent to owners within varying distances (500 ft. to ½ mile); local governments within 2 miles

Subd. 3. Who runs hearing (varies)

Subd. 3. Public hearings – for zoning ordinance or amendments. Notification to property owners within 350 feet of property.

Subd. 4. Amendments may be initiated by governing body, planning agency, or petition of affected property owners.

Subd. 5. Amendments, certain cities of the first class – residential to commercial or industrial zoning changes in cities with differing home rule charter; consent of 2/3 of property owners or 40-acre studies required.

394.27 CREATION AND DUTIES OF BOARD OF ADJUSTMENT. Subd. 1. Must create BOA when official controls are adopted

Subd. 2. Procedure, qualifications

Subd. 3. Officers

Subd. 4. Meetings

Subd. 5. Authority – variances, appeals, etc.

Subd. 6. Appeals

Subd. 7. Variances; practical difficulties

Subd. 8. Filing orders

Subd. 9. Appeals to district court

Subd. 6. Appeals and adjustments. Board’s powers include:

• Hear and decide appeals • Hear requests for variances

Subd. 6a. Normal residential surroundings for persons with disabilities

Subd. 7. Permitted single family use – residential facility, housing with services establishment, licensed day care, etc. = permitted single family residential use

Subd. 8. Permitted multifamily use – larger residential and day care facilities = permitted multifamily residential uses; conditional or special use permit may be required

New variance language in 394.27, Subd. 7. and 462.357 Subd. 6 (2). One minor difference: municipalities may permit temporary use of a one-family dwelling as a two-family dwelling as a variance.

Note: 462.357 Subd. 8 includes “county zoning regulation” under multifamily provisions; 394 does not – but county zoning regulations are not authorized by Ch. 462.

394.28 APPROPRIATION FOR PLANNING ACTIVITY. County board shall appropriate funds for planning activities

394.29 MAY EMPLOY DIRECTOR AND STAFF.

Subd. 9. Development goals and objectives – in controls adopted after July 2008, outside metro area, municipality shall consider growth management objectives, including restricting development in environmentally sensitive areas, encouraging compact development, etc.

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS 394.30 COUNTY BOARD’S PLANNING COMMISSION. Subd. 1. Appointed chair; members

Subd. 3. Pay, expenses

Subd. 4. Officers, plan preparation, use permit review

Subd. 5. Additional duties may be assigned

462.358 OFFICIAL CONTROLS: SUBDIVISION REGULATION; DEDICATION. Subd. 1a. Authority to adopt

Subd. 2a. Terms of regulations – subdivisions regulations must be consistent with zoning, “may” require consistency with comprehensive plan

Subd. 2b. Dedication – of land for public use including parks and open space – provisions for fee in lieu and how funds may be used.

Subd. 2c. Nexus – between fees or dedication and the municipal purpose achieved

Subd. 3a. Platting – subdivisions creating 5 or more lots 2.5 acres or less in size must be platted

Subd. 3B. Review procedures

Subd. 3C. Effect of subdivision approval – vested rights for 1 – 2 years following preliminary or final approval

462: detailed subdivision standards; topic is treated briefly in 394.25, Subd. 7

Platting also referred to in Chapter 505

394.301 CONDITIONAL USE PERMITS. Subd. 1. By ordinance – may designate certain development types as conditional

Subd. 2. Issuance, review

Subd. 3. Duration – remains in effect as long as conditions are observed

Subd. 4. Copy filed – with county recorder or register

462.3585 JOINT PLANNING BOARD.

May be established to exercise planning and land use controls in unincorporated 2-mile area around city. City provides staff; county, city and town contribute equal membership. Subdivision regulations may also apply, if already extended.

Conditional uses – see 462.3595, largely similar

394.303 INTERIM USES. Subd. 1. Definition – temporary use of property until a particular date or event

Subd. 2. Authority – to allow interim uses, set conditions, if use conforms to the zoning regulations, termination date can be identified, use will not

462.359 PROCEDURE TO EFFECT PLAN: OFFICIAL MAPS. Subd. 1. Statement of purpose – protect land needed for future streets, aviation or other public facilities

Subd. 2. Adoption of map

Interim uses: New section (2008) of 394

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS impose additional costs if property is taken in future, user agrees to conditions.

Subd. 3. Public hearings required

Subd. 3. Effect

Subd. 4. Appeals

394.305 NOTICE OF RESIDENTIAL DEVELOPMENT ON AGRICULTURAL LAND. If four or more residential units proposed on agriculturally zoned (or used if no plan or zoning), applicant must notify each ag. property owner within 5,000 feet.

462.3595 CONDITIONAL USE PERMITS. Subd. 1. Authority to designate certain land use types, including planned unit developments, as conditional uses, with standards and criteria attached.

Subd. 2. Public hearings

Subd. 3. Duration – as long as conditions are observed

394.305 – no equivalent in municipal statute

394.312 RELATION TO OTHER COUNTY AUTHORITY

All official controls in effect on August 1, 1974, remain in full force and effect until amended or repealed.

462.3597 INTERIM USES

Subd. 1. Definition as temporary use of property

Subd. 2. Authority to allow and set conditions on interim uses

Subd. 3. Public hearings

Utility of 394.312?

394.32 COOPERATION WITH MUNICIPALITIES

Subd. 1. By contract; fees – municipality may contract with county for planning and zoning services

Subd. 2. Joint planning – allowed via contract

Subd. 3. Comprehensive plan; control enforcement – municipality may request a comp. plan from county; plan is not binding until official controls are adopted by either jurisdiction.

462.36 CERTIFIED COPIES FILED WITH COUNTY RECORDER

Copies of all ordinances, maps, resolutions, pertaining to subdivisions, conditional uses or official maps to be filed with county; copies of comprehensive plans to be filed with contiguous municipalities and regional planning agency, if any.

394.32: Contracts with municipalities are problematic for counties since the enabling laws are so different.

394.33 TOWN POWERS

Subd. 1. Not inconsistent – town may plan and zone, but may not be inconsistent with or less restrictive than county standards.

Subd. 2. Like municipality – board of supervisors of any town adopting zoning regulations has the

462.361 JUDICIAL REVIEW

Subd. 1. Review of action by district court

Subd. 2. Exhaustion of remedies – court may direct use of existing procedures, if not exhausted

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS authority granted any municipal governing body. 394.34 INTERIM ZONING

County conducting or intending to conduct studies, hearings, etc., may adopt temporary interim zoning map or ordinance – limited to one year and a second year renewal.

462.3612 HOUSING FISCAL IMPACT NOTES

Subd. 1. Definition of housing fiscal impact – result of official control adopted after 8/2002 affecting location, dimensions, density, etc. of housing in certain municipalities.

Subd. 2. Conditions; contents – municipality may prepare a housing fiscal impact note prior to hearing on adoption or amendment of official control

462.3612 – rationale for this provision?

394.35 RECORDING WITH COUNTY RECORDER Recording of ordinances or other official controls required.

462.362 ENFORCEMENT AND PENALTY Municipality may provide for enforcement of ordinances and penalties for regulation; may enforce in court.

462.362, Enforcement – differs from 394.37

394.36 NONCONFORMITIES Subd. 1. Continuation of nonconformity – discontinuance for > 1 year or destruction by 50% of market value, subsequent use must be conforming (except as provided in Subd. 2 – 4)

Subd. 1a. Substandard structures – continuation in Lower St. Croix National Scenic Riverway

Subd. 1b. Designated floodplain – exception to Subd. 1 to maintain eligibility for national flood insurance

Subd. 2. Regulations – may be imposed to regulate or provide for gradual elimination of nonconformities

Subd. 3. [County] May buy if detrimental to goals and objectives of comprehensive plan

Subd. 4. Certain classes of property – residential and seasonal residential – may be replaced if damaged, discontinued, as long as permit is applied for within 180 days. Special provisions apply to shoreland lots

Subd. 5. Existing nonconforming lots in shoreland

462.363 PRESENT ORDINANCES CONTINUED Valid ordinances in effect remain in effect until repealed.

394.36 largely equivalent to 462.357 Subd. 1e except that for counties, only residential properties may be replaced if permit applied for within 180 days

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CHAPTER 394 CHAPTER 462 RELATED CHAPTERS / COMMENTS areas – specific standards for nonconforming lots of record

394.361 OFFICIAL MAP Subd. 1. Future public uses

Subd. 2. Development; hearings; adoption; filing

Subd. 3. Effect

Subd. 4. Board of adjustment role

462. 364 INCONSISTENT LAWS Inconsistent laws are superseded

Official map: 394.361 similar to 462.359

394.362 VARIANCES; USE PERMITS; ADVERSE EFFECT Applicant for a variance or conditional use permit which, in the opinion of the board of adjustment, may result in adverse effect on the environment, may be requested to demonstrate nature and extent of the effect.

462.365 EXTENSION OF TIME FOR COMPLIANCE Subdivision ordinance in effect prior to Laws 1980 Chapter 566 may elect not to come into compliance until ordinance is amended (1980 law was Metropolitan Agricultural Preserves Act)

394.362 – no equivalent in Chapter 462

394.37 ENFORCEMENT Subd. 1. Conveyance compliance – Board may impose enforcement duties on any officer, department, agency or employee of the county. Conveyances of real estate may be examined to see if they comply with subdivision regulations

Subd. 2. Violations are a misdemeanor.

Subd. 3. Other remedies by county attorney may be taken to correct or prevent violations of regulations.

Subd. 4. Mandamus action – any taxpayer of county may institute mandamus proceedings to compel county official to perform any required duty under this chapter.

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