Minnesota Cities Magazine
More from Sep-Oct 2018 issue

From the Bench: Residents Seek to Reverse City’s Organized Trash Collection Decision

PRE-EMPTION LAW
Solid waste collection

In 2014, the City of Bloomington began following the detailed process outlined in Section 115A.94 of the Minnesota Waste Management Act (WMA) for moving from an open system of waste collection to organized collection. In an open system of waste collection, residents are free to contract with any licensed collector. With organized collection, the city authorizes a specified collector, or a member of an organization of collectors, to collect from a defined geographic service area or areas some or all the solid waste generated. After complying with Section 115A.94, the City Council in December 2015 executed a five-year contract for organized collection with Bloomington Haulers, LLC, an organization of seven different waste collectors that were assigned defined geographic service areas. The City Council also approved an ordinance adopting organized collection.

After the city’s execution of the contract and adoption of the ordinance, resident voters sought to invalidate the city’s decision to adopt organized collection through a charter-amendment petition. They sought to amend the charter to require voter approval for the adoption of organized collection. The City Council rejected the petition, and the resident voters appealed. The district court affirmed the City Council’s decision, holding that Section 115A.94 establishes the “exclusive process” that cities must follow to implement organized collection of solid waste and, therefore, pre-empts the proposed charter amendment that seeks to add a voter-approval requirement that does not exist in Section 115A.94. The Minnesota Court of Appeals affirmed the district court’s decision, ruling that Section 115A.94 “occupies the field of legislation regard¬ing the process that a city must follow to establish a system of organized collection of solid waste” and, therefore, pre-empts a proposed charter amendment seeking to require advanced voter approval of a city’s decision to establish organized collection. The Minnesota Supreme Court reversed the Court of Appeals’ decision and ruled that the WMA does not pre-empt, by field occupation, the process for organizing the collection of solid waste, but, instead, establishes the minimum procedural requirements for adopting organized collection. The Supreme Court also remanded the case, so the Court of Appeals could address the city’s additional legal arguments regarding why the charter-amendment petition was not legally valid. Jennissen v. City of Bloomington, N.W.2d (Minn. 2018).

LAND USE
Annexation

In January 2013, the City of Duluth and Midway Township executed an orderly annexation agreement as authorized under state law. The agreement designated certain land in Midway Township as the orderly annexation area and adopted conditions regarding Duluth’s annexation of land in this area. Midway Township abuts both the cities of Duluth and Proctor. In August 2014, Proctor adopted an ordinance, seeking to annex property within the orderly annexation area belonging to Julia Ann Savalas and George Hovland III, based on the property owners’ petition requesting annexation of their 92-acre property. Duluth objected to Proctor’s proposed annexation by ordinance, claiming the property was not eligible for such an annexation because it is subject to the orderly annexation agreement.

In October 2016, the chief administrative law judge for the Office of Administrative Hearings issued an order that approved Proctor’s annexation by ordinance. Duluth and Midway Township appealed. The district court vacated the order, concluding that, once property is subject to an orderly annexation agreement, it cannot subsequently be annexed by ordinance. The Minnesota Court of Appeals reversed the district court’s decision and held that a nonparty to an orderly annexation agreement may annex real property within a designated orderly annexation area through an annexation-by-ordinance proceeding if all the statutory requirements for such an annexation are satisfied. In re the Matter of the Annexation of Certain Real Property to the City of Proctor from Midway Twp., 910 N.W.2d 460 (Minn. Ct. App. 2018).

LAND USE
Comprehensive plan

The City of Minneapolis granted a conditional use permit (CUP) and a variance to Alatus, LLC to build the tallest building in Minneapolis outside of the downtown area. A neighborhood group challenged the city’s decision, claiming that the proposed project, in the Marcy-Holmes neighborhood, was inconsistent with the city’s “small area plan” for the neighborhood and that there were no unique circumstances to justify a variance. The neighborhood group argued that the project exceeds the density limitation of 268 dwelling units (du)/acre that is set forth in the city’s “small area plan,” which provides direction for how the neighborhood should evolve. The city adopted the small area plan before it adopted an amendment to its comprehensive plan raising the density limitation to 800 du/acre.

The Minnesota Court of Appeals affirmed the city’s decision and held: (1) in general, a comprehensive plan controls over a small area plan; (2) Marcy-Holmes’ small area plan was adopted into the city’s comprehensive plan, and both plans refer to the comprehensive plan as controlling; and (3) an examination of the density-limitation amendment shows that the city intended the heightened density level to apply to the Marcy-Holmes neighborhood. The Court of Appeals also concluded that the city acted in a reasonable manner when it granted the variance because there were unique circumstances preventing compliance with its zoning ordinance, including the fact that existing structures limit the ability of the proposed project to be built horizontally. State ex rel. Neighbors for East Bank Livability v. City of Minneapolis, N.W.2d (Minn. Ct. App. 2018).

ELECTION LAW
Political apparel

Minnesota statute prohibits people from wearing a “political badge, political button, or other political insignia” at a polling place on primary or election day. To implement this provision in the 2010 election, election managers for Hennepin and Ramsey counties sent an identical memorandum—the “Election Day Policy”—to city clerks in those counties. The Election Day Policy listed examples of the kinds of apparel that fell within the statutory ban. These included: (1) any item including the name of a political party in Minnesota; (2) any item including the name of a candidate at any election; (3) any item in support of or opposition to a ballot question at any election; (4) issue-oriented material designed to influence or impact voting (including specifically “Please I.D. Me” buttons); and (5) material promoting a group with recognizable political views (such as the tea party, MoveOn.org, etc.). The policy directed election judges to ask individuals to conceal or remove prohibited political apparel while inside the polling place. If the voter refused, the policy required election judges to permit the voter to vote, but to record the violator’s name for referral to “appropriate authorities.”

On election day in 2010, Andrew Cilek, executive director of Minnesota Voters Alliance, wore a “Please I.D. Me” button and a tea party T-shirt to his polling place in Hennepin County. An election worker told Cilek that he could not vote unless he covered or removed the T-shirt and button. Cilek refused and left. Cilek later returned, and this time election officials allowed him to vote and recorded his name and address. After the election, several organizations and individuals, including Cilek, sued the Minnesota Secretary of State and other government officials, arguing that the statutory ban on political apparel violates their First Amendment free-speech rights. The federal district court dismissed the case. The 8th U.S. Circuit Court of Appeals ultimately affirmed the dismissal of both the plaintiffs’ facial and as-applied challenges to the statute. The plaintiffs appealed the dismissal of their facial challenge.

The U.S. Supreme Court reversed the 8th Circuit’s decision and held that the state statute, on its face, was unconstitutionally broad, in violation of the First Amendment Free Speech Clause. The Supreme Court noted that the interior of a polling place is a nonpublic forum on election or primary day and may be subject to content-based restrictions on speech, so long as they are “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” But the Supreme Court concluded that the unmoored use of the term “political” in the Minnesota law, combined with the haphazard interpretation the state has provided in official guidance, causes Minnesota’s restriction to fail this test. The Supreme Court noted that Minnesota’s prohibition on political apparel serves a permissible governmental objective, but that if a state wishes to set its polling places apart as areas free of partisan discord, it must “employ a more discernable approach than the one offered by Minnesota here.” The Supreme Court reasoned that a state must be able to articulate some sensible, objective basis for distinguishing what may come in from what must stay out. Minnesota Voters Alliance v. Mansky, 585 U.S. (2018).

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

Read the Sept-Oct 2018 issue of Minnesota Cities magazine

* By posting you are agreeing to the LMC Comment Policy.