Back to the Sep-Oct 2021 issue

Land Use Ordinances Require Ongoing Review

By Jed Burkett

Among the more expansive and long-lasting powers of municipal governance is regulating the use of private property through zoning and subdivision ordinances. Cities engage with community to create comprehensive plans, setting forth a shared vision for the future. And land use regulations are a tool to implement those plans.

Like any tool, land use ordinances need to be maintained over time, as they can become out of date and inconsistent with developing trends and law. If an ordinance is not clear or not working well, then it may need to be sharpened by amending the ordinance. Cities should periodically review their ordinances to ensure they are consistent with current plans, uses, protections, and law.

Like any tool, land use ordinances need to be maintained over time, as they can become out of date and inconsistent with developing trends and law.A comprehensive plan is a document that sets forth a vision and goals for the city’s future. State law encourages all cities to prepare and implement a comprehensive municipal plan. In addition, cities within the seven-county metro area are required to adopt comprehensive plans.

After adopting a new comprehensive plan, cities will typically need to amend their land use ordinances to implement the latest plan. Many cities may need to amend their zoning ordinances related to housing and density, for example, or transportation and parking, particularly when a new and different vision has emerged.

Administration of zoning ordinance is an ongoing process

Zoning ordinance maintenance is a daunting task. Zoning is a method of establishing a land use pattern by regulating the way land is used by landowners. A zoning ordinance typically attempts to list all allowed uses in a zoning district, and if a use is not listed then it is generally prohibited. These lists tend to reflect activity at the time they were written, so they often become out of date as new uses emerge.

For example, when the coffee shop craze took off about 30 years ago, many cities had to change their zoning ordinances. Coffee was allowed at cafes and restaurants, but a beverage-only business had not been contemplated. Amending ordinances to keep up with new uses can be an ongoing process.

Another hazard of zoning ordinance administration is that some land uses have protections in federal or state law from adverse or discriminatory zoning decisions. Some uses have federal constitutional rights — adult entertainment businesses, religious institutions, and signs. Others have statutory protections — group homes, manufactured homes, and telecommunications facilities. Cities need to be careful when dealing with these protected uses. Cities should work closely with the city attorney to evaluate related ordinance provisions.

Ensure ordinances comply with Municipal Planning Act

The legal foundation for city land use ordinances in Minnesota is the Municipal Planning Act, which the Legislature amends from time to time. City leaders should make sure their land use ordinances are consistent with the act and with other state and federal laws. A few areas that have been changed over the years and that should be evaluated for consistency are time limits, voting thresholds, and land use fees.

Time limits. In 1995, Minnesota adopted the so-called 60-day rule of Minn. Stat. Sec. 15.99, which says a city must approve or deny a written request related to zoning within 60 days or it is deemed approved. Timelines should either not be included in land use ordinances or should conform with the 60-day rule.

Voting thresholds. While state law used to require a supermajority (twothirds) vote of the council to adopt or amend a zoning ordinance, it now requires only a simple majority of the council to adopt or amend a zoning ordinance with one exception — changing from residential to either commercial or industrial. Cities should remove any outdated supermajority requirements from their land use ordinance provisions.

Land use fees. Cities should make sure their land use fee provisions and practices meet current state standards. Under current law, a city may prescribe fees sufficient to defray the costs incurred in reviewing, investigating, and administering a land use application. The fees must be fair, reasonable, proportionate, and have a nexus to the actual cost of the service. Cities that collect land use fees must adopt management and accounting procedures to ensure fees are maintained and used only for the purpose for which they are collected.

There are other ways in which a city land use ordinance may fall out of harmony with state law. Cities should work closely with their city attorney to review land use ordinances for consistency with current law or practice. Learn more from the LMC information memo at www. lmc.org/landuseupdates.

Jed Burkett is loss control/land use attorney with the League of Minnesota Cities. Contact: jburkett@lmc.org or (651) 281-1247.