CR 94-88 Interim Ordiance-Subdivision Ordinance
---.
, , "\ y 0
.. ~
1- '"
April 27, 1994 0 P K \ ~ Council Report 94-88
INTERIM ORDINANCE- SUBDIVISION ORDINANCE
ProDosed Action.
Staff recommends the following motion: Move to approve Resolution 94-45 approving for
first reading Ordinance 94-739 which places a moratorium on the Subdivision Ordinance
Section 500.
At the April Zoning and Planning meeting, Mr. Hutchison moved and Mr. Gullickson
seconded a motion to approve Resolution RZ94-5 recommending approval of Ordinance
94-739 which will place a moratorium on Section 500 of the City Code.
Overview.
At the April 5, 1994, City Council meeting, the City Council directed staff to have the Zoning
and Planning Commission consider placing a moratorium on subdivisions within the City. The
purpose of this moratorium is to provide staff time to study the subdivision ordinance for
possible changes.
There have been no amendments to the subdivision ordinance since at least 1977, The City
. Attorney has identified several sections in this ordinance that are unclear or outdated and
therefore should be revised. If the City Council approves the moratorium, the staff will
undertake a process of reviewing other subdivision ordinances and propose amendments to
the Hopkins subdivision ordinance.
Staff reviewed the proposed moratorium with the Commission at the public hearing. The
Commission asked several questions regarding the variance procedure during the moratorium.
There was no one from the audience to speak on this issue.
Primarv Issues to Consider.
o What is the time period recommended for the moratorium?
o What are the staff concerns as relates to the subdivision ordinance?
o Why is the staff recommending a moratorium?
o What is the impact of the moratorium?
Supportine: Documents.
o Analysis of Issues
o Resolution 94-45
o Ordinance 94-739
o Memo from Jerre Miller
. ullono J 'r-\
Nanc . Anderson, AICP
Planner
----
CR94-88
. Page 2
Primary Issues to Consider.
0 What is the time period recommended for the moratorium?
Staff is recommending that a moratorium of a year, or upon the enactment of an amendment
to the subdivision ordinance, Depending on the number of amendments to the ordinance, the
process can take several months, The moratorium can be extended an additional 18 months.
Staff feels that it should take less than one year to revise the ordinance.
0 What are the staff concerns as relates to the subdivision ordinance?
The staff concurs with the attached City Attorney's opinion on problems with the subdivision
ordinance, The subdivision ordinance has not been updated since as least 1977 and there are
some sections that should be updated and clarified. Also a section on waiver of plats should
be added to the ordinance.
0 Why is the staff recommending a moratorium?
The staff is recommending a moratorium to allow sufficient time to review and make
recommendations for possible changes to the subdivision ordinance.
. 0 What is the impact of the moratorium?
Based upon the language in the proposed ordinance, during the time there is a moratorium on
subdivisions, there can be no approvals of subdivisions or wavier of plats without approval of
a variance. The use of a variance process is similar to what the City of Woodbury used when
they placed a moratorium on subdivisions, rezorungs, and site plan reviews. Under this
section a variance could be granted if it was determined that the proposed plat met the spirit
and intent of the proposed ordinance.
Alternatives
I. Recommend approval of the moratorium on subdivisions. By approving the moratorium
on subdivisions, there can be no subdivisions approved for one year without a variance, or
until there is an amendment to the subdivision ordinance.
2. Recommend denial of the moratorium on subdivisions. By recommending denial of the
moratorium, the subdivision ordinance will remain the same and subdivisions can be
approved. However, the staff could still undertake the process of revising the subdivision
ordinance.
. 3. Continue for further information. If the City Council indicates that further information is
needed, the item should be continued.
- ' ! cJ-'-~
'- . L..'(i.-~
iJ
.
C I T Y 0 F H 0 P K 1 N S
MEMO
Date: April 22, 1994
To: Steve Mielke
From: Jerre Miller
Re: Proposed Subdivision Moratorium
I have prepared some additional information and comments for you in
this memo to assist recommending adoption of the proposed
subdivision moratorium and, more importantly, its application to
the proposed subdivision by Mr. Hayes who has appeared before the
City for a variance request and concept review.
. Imposition of a moratorium is recognized in Minnesota Statute
462.355. Moratoriums are adopted by ordinance and broadly used
even though the precise reading of the statute contains language
limiting its application as set forth:
Subd. 4. Interim Ordinance. If a municipality is
conducting studies or has authorized a study to be
conducted or has held or has scheduled a hearing for the
purpose of considering adoption or amendment of a
comprehensive plan or official controls as defined in
Section 462.352, Subd. 15, or if new territory for which
plans or controls have not been adopted is annexed to a
municipality, the governing body of the municipality may
adopt an interim ordinance applicable to all or part of
its jurisdiction for the purpose of protecting the
planning process and the health, safety and welfare of
its citizens.
The last sentence of the statute refers to subdivisions as follows:
No interim ordinance may halt, delay or impede a
subdivision which has been given preliminary approval
prior to the effective date of the interim ordinance.
. In the event the moratorium proposal was objected to by Mr. Hayes,
for example, I am sure he will emphasize the City's recommendation
for the moratorium arose during his yearlong quest to subdivide his
c:'file'hopki=s'sm-memo 1
1010 First Street South, Hopkins, Minnesota 55343 612/935-8474
An Equal Opportunity Employer
-- ..-- --
. existing lot into two parcels and the resulting neighborhood
opposition to it.
Furthermore, if the subdivision ordinance is redrafted in a manner
consistent with neighborhood objection such as lot design
similarity, the applicant could argue that such a change was
fashioned to apply directly to the proposed lot division. For
example, the proposal submitted by Hayes meets the technical
requirements of the minimum square footage in a lot but the
configuration is different than any other lot in the addition and
was evidently drawn for the sole purpose of meeting the minimum
square footage requirements in that residential zoning area of
40,000 square feet.
I believe it is reasonable to assert that someone who would object
to the moratorium must have proceeded to some degree in the
development of property in order to successfully claim damages.
For instance, it has been held that a landowner does not have a
vested right to develop property in accordance with the law as it
existed prior to a change in land use regulation if the landowner
has not progressed sufficiently with construction. This case is
Wermanqer v. Cormorant Township Board, (8th Cir. 1983) , 716 F. 2d.
1211 wherein a summary judgment against the landowner was affirmed
where the landowner challenged the validity of an ordinance that
. increased minimum lot size. The Court found the landowner had not
taken any physical steps in the implementation of plans to develop
the property.
In spite of my observation concerning the language in the
moratorium statute, a recent case reflected that municipalities
have broad authority to enact moratoriums with respect to any use,
development or subdivision within its borders but the authority is
not unlimited. The particular case is Medical Service v. City of
Savaqe, (1992) 487 N.W.2d 263. In that case, the Court found that
Savage had adopted an interim moratorium which was arbitrary and
invalid. The issue involved a request for a building permit for a
waste processing facility.
The dates in that case are interesting. On February 28, 1991,
Plaintiff made application for a Special Use Permit and on March
14, 1991, the City terminated the application on the basis of a
city attorney opinion that such a use did not fit within any
section of the zoning ordinance. Although the City had learned of
the Plaintiff's plans to build a facility in 1989, it was not until
June 13, 1991 that the City rejected a proposed amendment to the
ordinance that would have made the waste facility a conditional
use. On June 24, the Plaintiff started its action and on August
13, 1991, the City enacted a moratorium. The Court observed the
Plaintiff's proposal was the only pending project affected by the
. moratorium which was enacted after the Plaintiff started its
action. The Court concluded this was arbitrary. It is not
difficult to contemplate an analogous argument in the Hayes matter
=:~file~hopki~s~am-m~m= 2
. . .
. that a City may not arbitrarily enact a moratorium ordinance to
delay or prevent a single project.
I trust this information will be~f/some assistance.
/
..../111
~ I /
,,---.~JAM C/
v </
,
c.
.
.
c:~f~~~~hopk~~s~sm-memo 3
. POPHAM HArK
----. ,--"- -"-""".- ~"_.'. -< '~_._'._c>.~._r~___'~.".~ ._r. . .0".
5CHNOBRICH Be KAUf"MAN, LTD.
u.s. OFFICES; su LTE 3300 It.lT!=:RN'II..:'fION....L OF~ICi;:S
O~NVER. COLOFlAOO 222 SOUTH NINTH STREET LEIPZIG. GEF:I~"NY
TEL 303-e93~ 1.200 MtNNEAPOL1S, MINNESO-rA 55402 T'El. OllAq-~41-491a42g
MI""'I, FLORID.... 'fEL 612.-333-4600 STUTTCAF;iT, GER1<o1ANY
TEL 30:5-.5.30~oosa FAX 612. 334-86S6 TEi"l. 0' 149-711-22-363
WASHIHG:TON, D,C.
TEL 202-962.-8700 BRUCE D. "'Al.KERSON. ESQ.
DIRECT DIAL (612) 334-2695
May 11, 1994
Mayor Charles Redepenning
209 Blake Road South
Hopkins, MN 55343
Robert Anderson, Councilmember Frances Hesch, Councilmember
1410 Division Street 246 5th Avenue North
Hopkins, MN 55343 HopkIDs,MN 55343.
. Charles KritzIer, Councilmember Eugene Maxwell, Councilmember
232 11th Avenue North 337 21st Avenue North
Hopkins, MN 55343 Hopkins, MN 55343
Re: Application by Hayes - Moratorium Ordinance
Dear Mayor and City Council:
I. Introduction.
The undersigned represents several residents, including Ellen 2Jld Jerry Lavin, who
own homes adjacent to the proposed subdivision of the land owned by Mr. Gregory Hayes
and Mrs. Susan Hayes. My clients have asked me to provide a summary of the law
applicable to the adoption of a moratorium ordinance by a city, especially as it relates to the
application for a subdivision that has been filed immediately before or prior to the adoption of
the moratorium ordinance.
I have reviewed your draft moratorium ordinance for which you had the first reading
at the last Council meeting. I understand a final reading will take place at the Council
meeting next Tuesday, May 17. 1994. As you know. that ordinance does not provide for any
exemption relating to pending applications. I understand the Council will consider a possible
. exemption just for Mr. and Mrs. Hayes. For the reasons discussed herein, my clients ask that
there be no such exemption.
015122044861 5[11/94
.
Mayor and City Council
May 11, 1994
Page 2
II. Statement of Applicable Law
The City's zoning authority comes from the express or implied grant of authority by
the State Legislature in Minnesota Statutes. Related to moratoriums and the issue before you,
the State Legislature has stated in Minnesota Statutes ~ 462.355 as to moratoriums as follows:
Subd.4. Interim ordinance. If a municipality is conducting
studies or has authorized a study to be conducted or has held or has
scheduled a hearing for the purpose of considering adoption or
amendment of a comprehensive plan or official controls as deftned in
section 462.352, subdivision 15, or if new tenitory for which plans or
controls have not been adopted is annexed to a municipality, the
governing body of the municipality may adopt an interim ordinance
applicable to all or part of its jurisdiction for the purpose of protecting
. the planning process and the health, safety and welfare of its citizens.
The interim ordinance may regulate, restrict or prohibit any use,
development, or subdivision within the jurisdiction or a portion thereof
for a period not to exceed one year from the date it is effective, and
may be extended for such additional periods as the municipality may
deem appropriate, not exceed a total additional period of 18 months.
No interim ordinance may halt. delay. or impede a subdivision which
has been given preliminary approval prior to the effective date of the
interim ordinance. (emphasis added.)
In this case, there has been no preliminary approval of the Hayes' subdivision. The
State Legislature clearly has stated that therefore the moratorium ordinance can apply to a
pendLrlg subdivision application. If this were not the case, then a city would not be able to
modify its zoning or subdivision ordinances in order to promote the hea1th,.safety or welfare
of the city as to pending projects.
Related to the above express authority to adopt a moratorium as you propose, it is
interesting to note that the Legislature saw fit to set forth in the statute those situations in
which someone had a vested right to develop his or her property without regard to
moratoriums or change in city zoning ordinances, comprehensive plans, etc. The Legislature
did this in the 1980s in response to the arguments that at some point during an application
process there should be some vested rights afforded to the landowner who is seeking to
. develop his or her property. Minnesota Statutes ~ 462.358 states as follows:
015.'220448615/11/94
.
Mayor and City Council
May 11, 1994
Page 3
Subd.3c. Effect of subdivision approval. For one year
following preliminary approval and for two years following fmal
approval, unless the subdivider and the municipality agree otherwise, no
amendment to a comprehensive plan or official control shall apply to or
affect the use, development density, lot size, lot layout, or dedication or
platting required or pennitted by the approved application. . . .
It is clear from the above that the Legislature intended only to grant vested rights for
someone who has obtained preliminary plat approval or fmal plat approval. In this case, Mr.
and Mrs. Hayes have accomplished neither of these tasks as of the time of the review and
possible adoption of the moratorium ordinance.
I believe it also would be of assistance to the City Council to review the several cases
in Minnesota relating to moratorium ordinances and related matters, which review shows that
. the Courts clearly agree with the authority of the City to pass a moratorium and to pass the
moratorium which apply also to pending applications.
The Minnesota Courts first addressed the validity of and reasons for a moratorium
ordinance in Almquist v. Town of Marshan, 245 N.W.2d 819 (Minn. 1976). In that case, the
town passed a moratorium ordinance which stopped a pending subdivision application. The
Court upheld the moratorium ordinance as valid even though at that time there was no
express authority in the statutes to allow the adoption of a moratorium or;iinance by the town.
(That express authority now exists as discussed above.) The Court cited with approval the
following language:
" . .. Interim zoning can be considered a salutary device in the process
of plotting a comprehensive zoning plan to be employed to prevent
disruption of the ultimate plan itself. . . . The orderly process of
interim zoning allows the issues to have the benefit of full public
debate, at the same time protecting the affected area from unwise
exploitation prior to agreement and fonnulation of new zoning
restrictions which may be more restrictive." 329 N.E.2d 737.
245 N.W.2d at 827.
In Hiltunen v. City of Minneapolis, C9-89-283, an unpublished opinion (June 23,
. 1989), the Court upheld a refusal by the city to act on a pending penn it even though no
fonnal moratorium ordinance or moratorium resolution was adopted.
015/220448615/1 1/94
.
.
Mayor and City Council
May 11. 1994
Page 4
In Medical Services v. City of Savage, 487 N.W.2d 263 (Minn. App. 1992), the Court
of Appeals held that a moratorium would not apply where
"The city enacted the moratorium only after Medical Services
commenced legal action. The moratorium was enacted after a closed
executive session meeting of the council called to discuss the law suit
Medical Services' proposed facility was the only pending project
affected by the moratorium."
In the above case, the proposed use was a permitted one. In this case, the Hayes'
I application may not meet the requirements of the City's ordinances. Moreover, and most
importantly in the above case, the Court noted:
liThe city has been aware of Medical Services' plan to build an
. infectious waste processing facility since 1989. Had the city council
intended to exclude infectious waste processing plants from the
~nnitted uses in light industrial areas. it could have done so."
(emphasis added.)
Instead, the city waited two years. while the application was being processed. before it
adopted a moratorium and then the city did so only after the city was sued. In the above
case, the Court states the city could have amended its ordinance if it had chosen to do so. In
effect, a city cannot delay action for two years. then after it is sued. adopt a moratorium that
applies by its terms only to one pending application. That is not the case before you
presently.
In the present case. the Zoning and Planning Commission recommended adoption of
the moratorium ordinance before the formal application for the preliminary plat was made by
Mr. and Mrs. Hayes.
In Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. App.
1992), pet. for rev. denied (Minn. Jan. 15. 1993), cert. denied 113 S.Ct. 2929 (1993), the
Court was faced with the following facts:
l. In February 1988, the owner applied for a preliminary plat.
. 2. In March 1988, the city adopted a moratorium ordinance and tabled the
owner's application.
015/220448615111/94
....-
.
.
Mayor and City Council
May 11, 1994
Page 5
3. The moratorium expired in March 1990.
4. In the interim, the city denied two requests from the owner for
variances from the moratorium.
The Court held that the moratorium did not constitute a taking and was valid.
In Golden Valley Lutheran Collage v. City of Golden Valley, unpublished opinion,
CX-93-1852 (January 28, 1994), the Court of Appeals upheld a moratorium against a taking
claim.
m. Conclusion
In this case, there is some question whether or not the City's existing ordinances
. would allow or prohibit the strange and convoluted proposed lot layout proposed by Mr. and
Mrs. Hayes. There are questions also about the use of a private driveway easement to gain
access, the point at which one measures minimum setbacks and lot widths, and whether or not
frontage requirements on a public road are satisfied when the access to that frontage is not
reasonable or possibly not buildable. These are important questions that can affect any plat
or replat of property within the City.
These questions deserve study and resolution as a matter of City-wide concern. The
necessary review of these questions is clearly a situation which the Courts and the Legislature
have found to justify the use of a moratorium in the interim.
If you have any questions concerning the above analysis, please call.
Very truly yours,
~O. [/~
Bruce D. Malkerson
BDM:sam
cc: Mr. Steve Mielke, City Manager
Ms. Nancy Anderson, Zoning Officer
. Jerre Miller, Esq., City Attorney
Ellen Lavin, Esq.
015122044861 5/11194
- --- . -_.-, ~. -~ .
� CITY OF HOPKINS
Hennepin County, Minnesota
ORDINANCE 94-739
AN ORDINANCE ESTABLISHING A MORATORIUM ON SUBDIVISIONS WITHIN THE
CITY OF HOPKINS
WHEREAS, it has been determined that it is necessary for the health, safety, and welfare
of the residents of the City of Hopkins to study and consider amendments to the Subdivision
Ordinance within the City
WHEREAS, Minnesota State Statues 462.355 subd, 4 allows a city to adopt an interim
ordinance when undertaking a study to revise the subdivision ordinance by amendment.
NOW THEREFOR, BE IT ORDAINED by the City of Hopkins, Minnesota,
Effective upon adoption of this ordinance, a moratorium shall be imposed upon the
approval of all subdivisions within the City.
This moratorium shall be for the purpose of allowing the City of Hopkins to study and
consider amendments to the Subdivision Ordinance and shall expire June 7, 1995 or upon the
� enactment of amendments concerning this matter, whichever comes first.
Variances from this Ordinance may be granted by the city council based upon a
deternunation that a proposed subdivision would be in keeping with the spirit and intent of this
Ordinance. The procedures to be followed in applying for a variance from this moratorium sha11
be accordance with section 525.07 of the Hopkins Zoning Ordinance and shall include the
following:
1) The applicant shall file a completed application form, together with required exhibits to
the planning department.
2) The application for a variance shall set forth the special circumstances or conditions
which the applicant alleges to e�st, and shall demonstrate that the proposed
subdivision is compatible with the proposed subdivision ordinance.
3} The variance application sha11 be submitted to the city council for their review and
comment. The city council may refer the application to the zoning and planning
commission for review and recommendation.
4) The city council may, in its discretion, set a public hearing prior to making a final
determination on the requested variance.
�
� 5) The city council may impose such restrictions upon the proposed subdivision as may be
necessary to comply with the purpose and intent of this moratorium.
First Reading: May 3, 1994
Second Reading: May 17, 1994
Date of Publication: May 25, 1994
Date Ordinance Takes Effect June 14, 1994
Charles D. Redepenning, Mayor
ATTEST:
James A. Genellie, City Clerk
�
s
____ _________
� CITY OF HOPKINS
Hennepin County , Minnesota
RESOLUTION NO 94-45
A RESOLUTION ESTABLISHING A MORATORIUM ON SUBDIVISIONS
WHEREAS, the City of Hopkins, has adopted Ordinance No. 500 approving a subdivision
ordinance, and
WHEREAS, the City Council has concerns regarding the ability for the City's existing
code to adequately regulate subdivisions with the City of Hopkins and protect the public health,
safety and welfare;
Wf�REAS, it has been determined necessary, to protect the public health, safety and
welfare, to establish a moratorium to allow the City of Hopkins to study issues pertaining to
subdivisions and possible to the subdivision ordinance in order to better regulate said subdivisions.
NOW THEREFOR, BE IT RESOLVED, that a moratorium on the Subdivision Ordinance
Section 500, within the City of Hopkins is approved. Said moratorium shall extend until June 7,
1995 or upon the enactment of a zoning amendment concerning this matter, whichever comes
� first.
BE IT FURTHER RESOLVED, City Council adopts a interim Ordinance 94-739
conforming in a11 respect to the moratorium adopted by this resolution.
Passed and adopted by the Council of the City of Hopkins, Minnesota at a regular meeting held
the 3rd day of May, 1994.
JAMES A. GENELLIE CHARLES D. REDEPE�NG
City Clerk Mayor
JERRE MII.,LER
City Attorney
�