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 Conditional Use Permits (unpublished decisions)
 Due Process (unpublished decision)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Minneapolis (Court of Appeals unpublished decision)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