Minnesota Cities Magazine
More from Jul-Aug 2017 issue

From the Bench: Renewable Energy Company Claims City Ordinance Interferes with Its Business

Field of wind turbinesGOVERNMENTAL IMMUNITY
Statutory discretionary immunity
The City of Orono adopted an ordinance regulating small-wind-energy-conversion systems (SWECS), commonly known as wind turbines, as an accessory use on residential lots at least 10 acres and as a conditional use on lots at least five acres, and subject to conditional use permit approval in certain commercial and industrial zones. The ordinance includes maximum hub height and blade length requirements, a 100-foot setback requirement from all property lines, and requires that SWECS be located no more than 100 feet from owners’ principal residences. The ordinance prohibits any vibration, requires compliance with noise regulations, and includes maintenance and inspection requirements. Go Green Energy sued the city, seeking to recover tort damages based on the city’s alleged tortious interference with Go Green Energy’s future contracts through the adoption of the SWECS ordinance. The district court granted the city’s motion for summary judgment based on statutory discretionary immunity. The Minnesota Court of Appeals affirmed, reasoning that the city’s adoption of the ordinance was a planning-level, discretionary decision that is entitled to statutory discretionary immunity. Go Green Energy, LLC v. City of Orono, No. A16-1125 (Minn. Ct. App. Apr. 10, 2017) (unpublished opinion). Note: The League of Minnesota Cities Insurance Trust (LMCIT) represented the city.

Time restrictions on public comment
After holding a public hearing as required under state law, the Stillwater School Board voted 5-2 to adopt a resolution closing three elementary schools, primarily based on declining enrollment. At the public hearing, the board limited each speaker to three minutes of speaking time and prohibited multiple speakers from combining their speaking time. Forty-four people who had signed up in advance to speak, plus one additional person who had not signed up, spoke at the hearing. The board’s resolution included findings of fact supporting the school closures and identifying reasons for the closure of those specific schools. A resident group sued, claiming the decision violates the public hearing requirements in state law, and that it is not supported by substantial evidence.

The Minnesota Court of Appeals affirmed the decision and held that a school board does not violate public hearing requirements in state law when it imposes reasonable time restrictions on public comment, reasoning that a school board’s decision about how to conduct a public hearing is entitled to judicial deference. The Court of Appeals also held that the decision is supported by substantial evidence, noting that the resolution identifies several reasons for the school closures. 834 VOICE v. Indep. Sch. Dist. No. 834, 893 N.W.2d 649 (Minn. Ct. App. 2017).

Public data requests
Tony Webster sought administrative remedies against Hennepin County for alleged violations of the Minnesota Government Data Practices Act (MGDPA). Webster demanded the county to conduct a computer-aided search of approximately 1,000 employees’ email accounts for a two-and-a-half-year period and produce only those containing 20 separate search terms relating to biometrics and facial recognition. The county argued that this term search demand is not a proper request under the MGDPA, and that even if it is a proper request, it is unduly burdensome. The administrative law judge (ALJ) ruled against the county, finding it had violated the MGDPA in several ways, including by failing to: (1) establish procedures to ensure appropriate and prompt compliance with data requests; (2) keep records containing government data in an arrangement and condition to make them easily accessible for convenient use; and (3) provide access to requested public government data.

The Minnesota Court of Appeals affirmed in part and reversed in part. The Court of Appeals reversed the ALJ’s ruling that the county’s procedures and records arrangement violate the MGDPA, but affirmed the ALJ’s ruling that the county failed to provide access to requested public government data. The Court of Appeals noted the MGDPA does not enable a requestor to dictate how a government entity gathers requested data; instead, under the MGDPA, the government entity determines how and where to search for requested data. Therefore, the Court of Appeals concluded that the county is not required to perform a computer-aided search of its employees’ email accounts if it can locate the requested data on the county’s use of mobile biometric technology without doing so. The Court of Appeals also noted that the MGDPA does not contain an express exception from compliance with broad, complex, or otherwise burdensome data requests, and that although it may reflect sound public policy to extend the law to create such an exception, whether to do so is a policy decision for the Legislature or the Supreme Court and not the Court of Appeals. Webster v. Hennepin County, No. A16-0736 (Minn. Ct. App. Apr. 10, 2017) (unpublished opinion). Note: The League of Minnesota Cities filed an amicus brief in the county’s support. The Minnesota Supreme Court has granted Webster’s petition asking it to review the Court of Appeals’ decision.

Illustration of a busted pipe that is leaking waterGOVERNMENTAL IMMUNITY
Statutory discretionary immunity
Magnolia 8 Properties owns a building on the corner of Main Street and Budd Avenue in the City of Maple Plain. Magnolia sued the city for nuisance, trespass, strict liability, and negligence after its building was damaged by flooding in January 2015 caused by a crack in the city’s water main under Main Street. The city moved for summary judgment, claiming in part that it is entitled to statutory discretionary immunity, which provides a city with immunity from any tort claim “based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” The district court granted the city’s motion for the trespass claim but denied it for the other claims.

The Minnesota Court of Appeals affirmed in part and reversed in part. The Court of Appeals reasoned that Magnolia challenges two separate governmental acts: (1) the city’s decision to adopt a policy to maintain its water infrastructure by promptly responding to leaks and conducting repairs as soon as possible, and (2) the city’s use of heavy machinery on Budd Avenue in 2014, which Magnolia alleges caused the January 2015 water main leak. The Court of Appeals held that the city was entitled to statutory discretionary immunity for its conduct related to its water infrastructure maintenance because it has satisfied its burden of proving that the adoption of the maintenance policy involved discretionary economic considerations. The Court of Appeals also held that the city was not entitled to statutory discretionary immunity for its use of heavy machinery on Budd Avenue because this conduct was operational, and not discretionary, in nature. Finally, the Court of Appeals held, for the first time, that statutory discretionary immunity is absolute and shields a city’s planning-level decisions from all tort claims, including strict liability claims where liability is imposed without requiring a finding of fault. Magnolia 8 Props., LLC v. City of Maple Plain, 893 N.W.2d 658 (Minn. Ct. App. 2017). Note: LMCIT represented the city.

Minnesota Human Rights Act
The Minneapolis Police Department transferred 54-year-old police officer Scott Peterson from its violent offender task force to its licensing unit. After the transfer, Peterson made a complaint to the city’s Human Resources Department under the city’s anti-discrimination Respect in the Workplace Policy. The city investigated the complaint, but concluded that the transfer did not violate the policy. Peterson subsequently sued the city under the Minnesota Human Rights Act (MHRA) for age discrimination, approximately 29 months after the transfer. The district court granted summary judgment in the city’s favor, holding that the claim was time-barred under the MHRA’s one-year statute of limitations. The Minnesota Court of Appeals reversed and held that the city’s policy constitutes a voluntary “dispute resolution process” within the meaning of Minnesota Statutes, section 363A.28, subdivision 3 of the MHRA, sufficient to suspend the running of the one-year statute of limitations while the city investigated the complaint.

The Minnesota Supreme Court affirmed the Court of Appeals’ decision and held that the city and Peterson were “voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination” within the meaning of the MHRA, and that the running of the one-year statute of limitations was suspended for the duration of the process under the city’s policy. The Supreme Court reasoned that the city’s policy provides a formal process with the capacity to resolve Peterson’s claims, and that the written procedures in the policy ensure that the complaint process has an objectively verifiable starting and ending date. Peterson v. City of Minneapolis, 892 N.W.2d 824 (Minn. 2017). Note: The League filed an amicus brief in the city’s support.

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

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