Back to the July-August 2023 issue

Conditional Use Permit Approval Complied With Zoning Ordinance

Conditional use permit

Baytown Township granted a conditional use permit (CUP) to Derrick Homes, authorizing it to build 101 homes on a 195-acre parcel. A CUP was required because the proposed development consisted of lots smaller than the minimum lot size allowed under the zoning ordinance, although more than 50% of the parcel would remain as open space. The development was planned with two access roads, one of which was a dead-end cul-de-sac that had been platted as a right-of- way to connect to a future road. Residents of a nearby neighborhood opposed the development, primarily because of traffic concerns. The town board received input from real estate professionals about the development’s potential impact on nearby homes’ property values, and Derrick Homes presented a traffic study analyzing the development’s potential traffic impacts. After holding four public hearings and a public comment period, the town board voted to approve the CUP. Roger Miller and several other residents who live near the proposed development filed a lawsuit, challenging the township’s CUP decision, claiming it was arbitrary, capricious, or unreasonable. The district court granted summary judgment (court-ordered judgment without a trial) in the township’s favor, and the residents appealed. The Minnesota Court of Appeals affirmed the district court’s decision. The court of appeals concluded that the township’s reasons for approving the CUP complied with its zoning ordinance, and that there was substantial evidence in the record to support the township’s findings set out in the resolution approving the CUP.

Miller v. Baytown Township, A22-0672 (Minn. Ct. App. Feb. 26, 2023) (nonprecedential opinion).

Ordinance banning flavored tobacco

“In 2020, the City of Edina passed Ordinance No. 2020-08, which prohibits the sale of flavored tobacco, providing: “No person shall sell, offer for sale, or otherwise distribute any flavored tobacco products.” R.J. Reynolds Tobacco Company (Reynolds) sued the city, claiming the ordinance is not enforceable because the federal Family Smoking Prevention and Tobacco Control Act (TCA) preempts it. Congress passed the TCA in June 2009. One of its primary goals is to authorize “the Food and Drug Administration to set national standards controlling the manufacture of tobacco products.” To achieve national uniformity while still respecting the states’ police power, the TCA has three sections relating to federal preemption: the preservation clause, the preemption clause, and the savings clause. The interpretation of all three clauses was at issue in this litigation. Reynolds claimed that the TCA preempts the ordinance under the preemption clause because the ordinance is an impermissible regulation of tobacco product standards. The federal district court granted the city’s motion to dismiss the lawsuit and ruled that because the ordinance regulates the sales of finished tobacco products, it is saved from preemption under the savings clause. Reynolds appealed the district court’s decision. The U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s decision and ruled that “the Tobacco Control Act does not expressly or impliedly preempt Edina’s prohibitions on selling flavored tobacco.” The court of appeals reasoned that because the TCA is ambiguous and implicates traditional state police powers, it must adopt an interpretation of the savings clause that disfavors federal preemption of the ordinance.

R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170 (8th Cir. 2023).

Minnesota Whistleblower Act

Charles Laliberte sued his former employer, Dollar Tree Inc. (Dollar Tree), claiming that it did not provide him with timely notice of the reason for his termination after he requested it under section 181.933 of the Minnesota Whistleblower Act (MWA). Laliberte argued that Dollar Tree must therefore pay him a civil penalty as provided for under section 181.935(b) of the MWA. The district court granted summary judgment (court-ordered judgment without a trial) in favor of Dollar Tree, concluding that the civil penalty only applies when an employer violates the MWA’s prohibition under section 181.932 against retaliating against an employee who qualifies as a whistleblower. The Minnesota Court of Appeals affirmed the district court’s decision and held that under the plain language of the MWA, the civil penalty identified in section 181.935(b) for failing to timely notify an employee of the reasons for the termination of their employment is available only to an employee who is injured by a violation of section 181.932’s prohibition on retaliation against whistleblowers.

Laliberte v. Dollar Tree, Inc., N.W.2d (Minn. Ct. App. 2023) (precedential opinion).

Environmental impact statement

Huber Engineered Woods proposed building a manufacturing facility west of the City of Cohasset. The facility would occupy about 159 acres of agricultural and undeveloped lands 1 mile east of the Leech Lake Indian Reservation. The facility’s construction would involve permanently filling or excavating 26 of 31 wetlands at the project site, and its production process would emit air pollutants. The city provided notice of an environmental assessment worksheet (EAW), which analyzed the facility’s various types of potential environmental effects. The EAW concluded that the project would not have the potential for significant environmental effects. The City Council ultimately determined that an environmental impact statement (EIS) (a more detailed environmental analysis) was not required, based on its determination that the facility did not exceed any of the mandatory EIS thresholds and did not have the potential for significant environmental effects. The Leech Lake Band of Ojibwe appealed the city’s decision not to require an EIS. The Minnesota Court of Appeals affirmed the city’s decision in part, reversed it in part, and sent the case back to the city for a new EIS decision. The court of appeals concluded that there was substantial evidence to support the city’s determinations that the project would not have the potential for significant environmental effects based on air emissions and timber harvesting. But the court of appeals concluded that there was not substantial evidence to support the city’s determination that there was no potential for significant environmental effects based on wetland removal. The court of appeals reasoned that an EIS is mandatory when a project will eliminate a public waters wetland, and that a project will eliminate a wetland if it will lose either of its two qualifying characteristics: type or acreage.

In re City of Cohasset’s Decision on the Need for an Environmental Impact Statement for the Proposed Frontier Project, 985 N.W.2d 370 (Minn. Ct. App. 2023). Note: LMCIT represented the city.

Post-traumatic stress disorder

From Sept. 25, 2019, to March 30, 2021, former Mower County Deputy Sheriff Ryan Chrz had a diagnosis of post-traumatic stress disorder (PTSD) by a licensed professional and was therefore eligible to receive workers’ compensation benefits from Mower County. PTSD is the only “mental impairment” that is currently covered by the Workers’ Compensation Act as an occupational disease. After March 30, 2021, Chrz no longer had a diagnosis of PTSD by a licensed professional. Chrz argued that he should still be eligible for workers’ compensation benefits because he remained disabled from a mental illness and could not perform his normal duties as a law enforcement officer. According to Chrz, if an employee who was diagnosed with PTSD at one time still experiences disablement, he should be entitled to workers’ compensation benefits even if he no longer has a diagnosis that meets the statutory definition of an “occupational disease” under the Workers’ Compensation Act. The workers’ compensation judge agreed with Chrz and awarded him workers’ compensation benefits continuing forward from April 1, 2021. The Workers’ Compensation Court of Appeal’s (WCCA) reversed the workers’ compensation judge’s decision in part, holding that Chrz was not entitled to workers’ compensation benefits after March 30, 2021. The Minnesota Supreme Court affirmed the WCCA’s decision and ruled that an employee is not entitled to workers’ compensation benefits under Minnesota Statutes, section 176.66, subdivision 1, when the employee formerly had, but no longer has, a diagnosis of PTSD by a licensed professional using the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, as required by Minnesota Statutes, section 176.011, subdivision 15(d). The Supreme Court reasoned that to hold otherwise would allow an employee’s diagnosis of PTSD to remain effectively perpetual.

Chrz v. Mower County, N.W.2d (Minn. 2023).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: or (651) 281-1232.