Posted by: Patricia Salkin | July 29, 2021

MN Supreme Court Concluded the City Violated Procedural Requirements When it Passed a Zoning Ordinance and Reversed

This post was authored by Olena Botshteyn, Esq.

The owners have lakeshore property in the city of Waconia. In June 2017, the owners began the construction of a permanent (year-round) dock on the property, and a month later the City passed a temporary Ordinance 705, prohibiting permanent docks on private properties for one year. The City then unsuccessfully attempted to stop the construction through the court proceedings. In October 2017, the City passed Ordinance 707 which repealed the previous ordinance and amended the City Code to prohibit permanent docks in public waters from lakeshore lots. The purpose of the Ordinance was to “control and regulate Docks for riparian properties that have shoreline within the city to [e]nsure safety for person and property.” The City then filed an amended complaint, claiming that the owners acted in violation of the new Ordinance. The owners filed a counterclaim, stating that the Ordinance was passed in violation of the procedural requirements, as the City did not give proper notice and did not hold a public hearing before passing it. The district court granted summary judgment in favor of the City, having concluded that the Ordinance was not a zoning ordinance, and therefore a notice and hearing were not required. The Court also granted the City’s request for injunction on May 2, 2019, and on May 28 the court’s order was entered as the judgment.

On July 16, 2019, the owners appealed the judgment, and the City moved to dismiss, stating that the owners were required to appeal within 60 days of the court’s order, and that the appeal was not timely. The court of appeals denied the City’s motion, concluding that the owners were entitled to appeal within 60 days from the final judgment, and not the order granting injunction. On the merits, however, the court of appeals affirmed the district court, having concluded that the Ordinance is not a zoning ordinance because it applies “generally” and does not “regulate activities within specific zones.” The owners appealed.

The two major issues on appeal before the Supreme Court were whether the owners’ appeal was timely and whether the Ordinance was subject to the procedural requirements for adopting a zoning ordinance.

On the first issue, the court concluded that the appeal was timely. The rule prescribes that an appeal may be taken within 60 days of a final judgment. An appeal may also be taken within 60 days from an injunction. The court had to decide whether the owners could appeal from either the order granting injunctive relief or from the entry of judgment, and came to a conclusion that nothing in the rule suggests that an appeal may be taken only in one category, when “the particular outcome before the district court involves a potentially appealable order and a potentially appealable judgment.” The court went on to explain that “interlocutory orders and judgments are permissive rather than mandatory,” and thus waiting for a final judgment to appeal shall not forfeit the right to appeal.

On the second issue, the court concluded that the Ordinance is a zoning ordinance and the City violated the notice and hearing requirement. The court also established that when the City passed the ordinance it particularly exercised its zoning powers, rather than its authority to regulate docks pursuant to state law, which would relieve the City from the notice and hearing requirement.

The court first determined the test to identify that the Ordinance is a zoning ordinance. A municipality’s zoning power generally includes regulating subjects that promote public health, and which, as relevant here, include location, type of foundation, and uses of structures. The first step in the court’s analysis was identifying whether the Ordinance governs these subjects. The second step was to determine whether an ordinance serves a zoning purpose, which involved analyzing whether the ordinance operates like a typical zoning regulation.

The court then applied the test to the Ordinance. The court came to a conclusion that the Ordinance regulates the location of docks because it prohibits permanent docks from “riparian properties that have shoreline within the city” and expressly exempts commercial docks and marinas. The Ordinance further differentiates between a “permanent” and a “seasonal” dock, and thus it regulates the type of foundation of a structure. It also regulates the uses of structures, as the Ordinance permits the use of permanent docks for commercial purposes and does not permit such use for private/noncommercial uses. The court also concluded that the Ordinance serves a zoning purpose, as it “embodies a clear judgment about the appropriate use and development of land within the city.”

Having concluded that the Ordinance was a zoning regulation, the court turned to evaluating whether the City had to follow the procedural requirements for its adoption, and concluded that it did. “Requiring a city to follow the procedural steps… when adopting… a zoning regulation, ensures that a municipality respects the property rights of individuals when that municipality seeks to restrict the use and development of private property.” The court thus held that because the City failed to comply with the procedural requirements, the Ordinance is void, and the injunction against the owners is void as well.

City of Waconia v Dock, 2021 WL 2447267 (MN 6/16/2021)

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