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99-238ORIGINAL RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented Referred To Council File # c � C � G--� Green Sheet # � Committee: Date 2 3 4 5 6 7 8 9 10 11 12 13 14 15 RESOLVED, that the City of Saint Paul supports the current state of the law which allows municipalities to consider and adopt appropriate ordinances to provide for the amortization of uses that are anconsistent with a good quality of life for Saint Paul neighborhoods; and, be it FURTHER RESOLVED, that the City of Saint Paui therefore opposes legislation now under consideration in the legislature, such as Senate File 854 and House File 896, which bills prohibit municipalities from adopung amortization ordinances of any kind, even tku�se for adult uses, and from enforcing any such existing ordinances, including for adult uses; and, be it FINALLY RESOLVED, that in furtherance of this City policy the City staff responsible for making legislative positions known to the legislature move as quickly as possible to advise the legislature of the City's position, and take all necessary steps to oppose SF 854 and HF 846. Requested by Department of: By: Adoption Certified by Council SeCretaxy BY � �� .a--�� Approved by Mayor: Date Form Approved by Cit Attomey B �. rt�t, 3-ip- Approved by Mayor for Submission to Council By: By. �'7�_ ��-'� �� C � L \J Adopted by Council: Date "( \�„_,_� \Q, �q�� -rT� T T �� z� �-/d-�lg 0 � TOTAL # OF SIGNATURE PAGES GREEN SHEET n,o 63980 � �.R,�H.�� u a„�� _ ❑ �.n� ❑ �� _ ❑�,�� ❑�.�,,,�.� ❑ �,�,�„�,�.� ❑ (CLIP ALL LOCATIONS FOR SIGNATURE) �,�,� ��,�-� �� -��s9 ��f�� -�� ,��;� �;�-�.�, aun i Ivn approve �a) a Ke)ecc PIANNING COMMISSION CIB CAMMITTEE CIVIL SERVICE COMMISSION ISSUE, (Who, What, When, Where, Has this persoNfi�m ever vrorked untler a contrect for Nis department� YES NO Has Mis persoNfirm ever 6een a city employee? YES NO Does ihis personfirtn possess a sldl� not namallypossessed by any curteM cHy employee? YES NO Is this person/fi�m a targMetl ventloR VES NO 6,`v�i i.$'',a?n �'��L�C::�. . �� SOURCE (IXPWN) COST/REVENUE BUDGETED (CIRCLE ON� ACTNITY NUMBER �i��:r•7 t -4 ° - JAY BENANAV Councilmember CITY OF SAINT PAUL OFFICE OF THE CITY COIJNCIL 310 CTI'Y HALL IS VYEST KELLOGv BOULEVARD Sr1INT PAUL, MN 55102-1615 PHONE: (651) 266-8640 FAX: (651) 266-8574 MEMORANDUM DATE: TO: FROM: SUBJECT: Mazch 10, 1999 Council President Dan Bostrom Councilmembers Councilmember Jay Benanav SF 854 and HF 896 �=Z�� a�� fi�� 9 � ��9 p t �, } � ;� �' �; w �s�� fiL�.�a;tL� E:�S=i��.� I will be bringing in a resolution under suspension this aftemoon asking the Ciry to take a posirion against Senate File 854 which prohibits cities from amortizing. Attached for your reference is an opinion by Peter Warner which explains the issue. Attachment S 46 Printetl on Recycletl Paper �� sw�xr PAUL � AAAII Interdepartmental Memorandum CITY OF SAINT PAUL DATE:March 5, 1999 TO: Council Member 3ay Benanav FROM: Peter W. Wamer Assistant City Attomey RE: H.F. No. 896/S.F. No. 854: Bill eliminating the ternunation of lawful land uses by amortization Here aze some general bullet points that you might use in testifying against the above proposed legislation. I understand that you will be testifying on S.F. No. 854 Background: The ultimate purpose of zoning ordinances is to confine certain elasses of uses and structures to certain azeas. We do not live in a static world. No one can deny that community and neighborhood chazacter develop and change. Land uses that once were appropriate in a certain azea may no longer be appropriate in the same area today. Inappropriate land use actually stunts the long term growth of the community. It is well recognized that effective land use planning is necessary to promote and protect the interesu of the entire community. The state recognizes this fact and has delegated to city, township and county governments the authority to regulate land use within the of those communities. This delegation recognized the right of local government to undertake zoning and ��t-�3� land use regulations. It recognized that land use regulation is, like local school regulation, best accomplished at the local level where there is a greater ability to understand and balance the rights of individuals against the needs of the greater public. This delegation dces not give local zoning regulators cart blanche to create land use regulations without considerafion of uses that pre-exist a zoning ordinance. Zoning regulations that aze unrelated to promoting the public health, welfaze and safety and do not further legitimate government interests are likely to be struck down as unconstitutional. Zoning regulations which deny a property owner all reasonable use of their property must be found to be a"taking" of private properiy requiring compensation under both the Minnesota and United States Constitutions. These rules are so well settled in Minnesota that a general rule with respect to non-conforniing uses can be stated this way: If prior to the adoption of an original zoning ordinance - or a subsequent amendment or revision to a zoning ordinance - property was used for a then lawful purpose which the ordinance now prohibits and renders non-conforming, the property owner acquires a vested right to continue the non-conforming use. Amortization of non-conforming uses: The purpose of non-confornung uses ordinances is to eventually eliminate the non-confornung use. Pre-existing uses, presuming they were lawfully permitted at the time the new zoning regulations were adopted, can be treated in three basic ways. The pre-existing use may be pertnitted to remain as a law non-conforming use. This treatment is based on the assumption that a non-conforming use may continue so long as it is not enlarged, modified, expanded or resumed after being discontinued for a certain length of time. It is based upon the theory that non-conforming uses will gradually be eliminated through the affects of wear and teaz, obsolescence or from destruction by fire, the elements, or natural disaster. However, some non-confornung uses, for example junkyards, automobile wrecking yards and billboazds, are the non-conforming uses which are the least wlnerable to destrucrion by fue, flood or other natural disaster, or weaz and tear or even simple obsolescence or abandonment. These uses aze an obstacle to a principled and planned development framework. Not only do these uses have greater visual or audible impact on neighboring uses, they also involve compazatively little investment over time in fixed improvements. This leaves �� z�� local governments with two fairly limited options with which to deal with non-conforming uses. Those options are: elimination through the exercise of eminent domain; or amortization over a prescribed period of time sufficient enough to allow the property owner an opportuniry to recapture his or her investment in the non-confomung use. Principle probiem with S. F. No. 854 The principle problem with Senate File 854 and its companion, House File 896, is that the ]egislation wili eliminate amortization as a zoning tool. Amortization gives local governments the flexibility to deal with community and neighborhaod change. Passage of the proposed legislation would leave local government with only the power of eminent domain or, in very raze carcumstances, common law nuisance theory to eliminate non-confornung uses. The proposed legislation forces local government to exercise the most expensive way directing local growth. It is likely that for some communities, the elimination of a non-confornung use through eminent domain will be so expensive that the community, in essence, is left with no option at ali. This thwarts a communities power to regulate land use in the best interest of the general public and it frustrates the power that the legislature specifically entrusted to the community acting through its local unit of government. So rigid a limitation on local zoning control means, in essence, that there is no local zoning control at all. Amortization as a zoning tool is used very sparingly. Its use in Saint Paul has, to the best of my knowledge, been limited only to the amortization of so called adult uses. Presently, the City is considering whether or not to amortize outdoor advertising signs. That decision has not yet been made. Passage of this bill could very well eliminate that local policy choice. Passage of this bill will also eliminate the City's ability to address the unquestioned blighting influence caused by adult uses on neighborhoods. Amortization is not a "taking": Finally, amortization is not a taking of private property by the government. There is no permanent or physical occupation of land when a non-confornung use has been amortized out of e�cistence. The government is not depriving the land of al] economically beneficial use. The government is not imposing an exaction on the owner of the land. The government is not depriving the property owner of some reasonable investment back expectation. Finally, the government is not failing to advance a legitimate govemmental interest. Do not be misled into believing that �t� Z� amortization is the same as a taking. At the end of the amortizarion period, the property owner is still left with the property. The only thing that has been eliminated is the non-conforming use. If a local unit of government has a compeliing interest in eliminating the non-conforming use and if the local unit of govemment has ailowed a reasonable period of rime for the properiy owner to recoup its investment expectation, there is no taking. If a particulaz industry is concemed about a local government amortizing the industry's use of land for a particular purpose, it would be better to consider the industry's request by legislation which is specific to the industry rather than sweeping away from local communities the ability to address land use problems using a well settied and reasoned legal right. Non-conforming uses frustrate the purpose of comprehensive planning: The Minnesota Supreme Court said in the 1968 case of Nagle Outdoor Adveftising Company v. Village of Minnetonka ja billboazd amortization case] "The continued presence of pre-existing nonconfornung commercial uses within these residen6al districts may reasonably be found to vitiate the effectiveness of the entire comprehensive municipal plan" Eliminating amortization destroys local controi over local problems: The legislature has given city councils, town boazd and county commissioners broad discretion to act in their legislative capacity to deternune what best serves the general welfaze of their communities. The proposed bills will absolutely prohibit local governments from deternuning at a local level what is in the best interests of the public's health, welfaze and safety. .� Ol/27/99 [REVISOR ] RJS/SA 99-1465 �� Z�� Senatots I,angseth, Vickecman, Day, Pappas and Lotuey in�oduced- S. F. No. 854 Refecred to ffie Committce on Local and Metropolitan Csovemment 1 A bill for an act 2 reiatiag to land uset precluding the terminat3on of 3 lawPul land uses by amortization; amending Minnesota 4 Statutes 1998, sections 394.21, by adding a 5 subdinision; and 462.357, by adding a subdinision. 6 BE IT ENACTED BY THE LEGISLATDRE OF T8E STATE OF MINNESOTA: 7 Section 1. Minnesota Statutes 1998, sectfon 394.21, is 8 amended by adding a snbdioision to zead: 9 Subd. la. [AMORTIZATZON YROBISZTED.] A county, reaazdless 10 of populntion, under this chaotez os under a speoial or local il law, must not enact, amend, or enforce an ordinance providina 12 for the eliminatioa or termination of a use bv amortization 13 which u§e was lawful at the time of its inception 14 Sec. 2. Minnesota Statutes 1998, section 462.357, is 15 amended by addinq a subdivision to read: 16 Subd. lC. [AMORTZZATION PROBIBZTED.J A muniCiDalitv must 17 not enact, amend, or enfozce an oxdinance providino fos the 18 elimiaation oz termination of a use bv amortization which use 19 was lawfnl aY-the time of its ince�tion 20 Sec. 3. [EFFECTIVE DATE.� 21 Sections 1 and 2 are effective ihe dav a£ter their finai 22 enactment. _ 1 ORIGINAL RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented Referred To Council File # c � C � G--� Green Sheet # � Committee: Date 2 3 4 5 6 7 8 9 10 11 12 13 14 15 RESOLVED, that the City of Saint Paul supports the current state of the law which allows municipalities to consider and adopt appropriate ordinances to provide for the amortization of uses that are anconsistent with a good quality of life for Saint Paul neighborhoods; and, be it FURTHER RESOLVED, that the City of Saint Paui therefore opposes legislation now under consideration in the legislature, such as Senate File 854 and House File 896, which bills prohibit municipalities from adopung amortization ordinances of any kind, even tku�se for adult uses, and from enforcing any such existing ordinances, including for adult uses; and, be it FINALLY RESOLVED, that in furtherance of this City policy the City staff responsible for making legislative positions known to the legislature move as quickly as possible to advise the legislature of the City's position, and take all necessary steps to oppose SF 854 and HF 846. Requested by Department of: By: Adoption Certified by Council SeCretaxy BY � �� .a--�� Approved by Mayor: Date Form Approved by Cit Attomey B �. rt�t, 3-ip- Approved by Mayor for Submission to Council By: By. �'7�_ ��-'� �� C � L \J Adopted by Council: Date "( \�„_,_� \Q, �q�� -rT� T T �� z� �-/d-�lg 0 � TOTAL # OF SIGNATURE PAGES GREEN SHEET n,o 63980 � �.R,�H.�� u a„�� _ ❑ �.n� ❑ �� _ ❑�,�� ❑�.�,,,�.� ❑ �,�,�„�,�.� ❑ (CLIP ALL LOCATIONS FOR SIGNATURE) �,�,� ��,�-� �� -��s9 ��f�� -�� ,��;� �;�-�.�, aun i Ivn approve �a) a Ke)ecc PIANNING COMMISSION CIB CAMMITTEE CIVIL SERVICE COMMISSION ISSUE, (Who, What, When, Where, Has this persoNfi�m ever vrorked untler a contrect for Nis department� YES NO Has Mis persoNfirm ever 6een a city employee? YES NO Does ihis personfirtn possess a sldl� not namallypossessed by any curteM cHy employee? YES NO Is this person/fi�m a targMetl ventloR VES NO 6,`v�i i.$'',a?n �'��L�C::�. . �� SOURCE (IXPWN) COST/REVENUE BUDGETED (CIRCLE ON� ACTNITY NUMBER �i��:r•7 t -4 ° - JAY BENANAV Councilmember CITY OF SAINT PAUL OFFICE OF THE CITY COIJNCIL 310 CTI'Y HALL IS VYEST KELLOGv BOULEVARD Sr1INT PAUL, MN 55102-1615 PHONE: (651) 266-8640 FAX: (651) 266-8574 MEMORANDUM DATE: TO: FROM: SUBJECT: Mazch 10, 1999 Council President Dan Bostrom Councilmembers Councilmember Jay Benanav SF 854 and HF 896 �=Z�� a�� fi�� 9 � ��9 p t �, } � ;� �' �; w �s�� fiL�.�a;tL� E:�S=i��.� I will be bringing in a resolution under suspension this aftemoon asking the Ciry to take a posirion against Senate File 854 which prohibits cities from amortizing. Attached for your reference is an opinion by Peter Warner which explains the issue. Attachment S 46 Printetl on Recycletl Paper �� sw�xr PAUL � AAAII Interdepartmental Memorandum CITY OF SAINT PAUL DATE:March 5, 1999 TO: Council Member 3ay Benanav FROM: Peter W. Wamer Assistant City Attomey RE: H.F. No. 896/S.F. No. 854: Bill eliminating the ternunation of lawful land uses by amortization Here aze some general bullet points that you might use in testifying against the above proposed legislation. I understand that you will be testifying on S.F. No. 854 Background: The ultimate purpose of zoning ordinances is to confine certain elasses of uses and structures to certain azeas. We do not live in a static world. No one can deny that community and neighborhood chazacter develop and change. Land uses that once were appropriate in a certain azea may no longer be appropriate in the same area today. Inappropriate land use actually stunts the long term growth of the community. It is well recognized that effective land use planning is necessary to promote and protect the interesu of the entire community. The state recognizes this fact and has delegated to city, township and county governments the authority to regulate land use within the of those communities. This delegation recognized the right of local government to undertake zoning and ��t-�3� land use regulations. It recognized that land use regulation is, like local school regulation, best accomplished at the local level where there is a greater ability to understand and balance the rights of individuals against the needs of the greater public. This delegation dces not give local zoning regulators cart blanche to create land use regulations without considerafion of uses that pre-exist a zoning ordinance. Zoning regulations that aze unrelated to promoting the public health, welfaze and safety and do not further legitimate government interests are likely to be struck down as unconstitutional. Zoning regulations which deny a property owner all reasonable use of their property must be found to be a"taking" of private properiy requiring compensation under both the Minnesota and United States Constitutions. These rules are so well settled in Minnesota that a general rule with respect to non-conforniing uses can be stated this way: If prior to the adoption of an original zoning ordinance - or a subsequent amendment or revision to a zoning ordinance - property was used for a then lawful purpose which the ordinance now prohibits and renders non-conforming, the property owner acquires a vested right to continue the non-conforming use. Amortization of non-conforming uses: The purpose of non-confornung uses ordinances is to eventually eliminate the non-confornung use. Pre-existing uses, presuming they were lawfully permitted at the time the new zoning regulations were adopted, can be treated in three basic ways. The pre-existing use may be pertnitted to remain as a law non-conforming use. This treatment is based on the assumption that a non-conforming use may continue so long as it is not enlarged, modified, expanded or resumed after being discontinued for a certain length of time. It is based upon the theory that non-conforming uses will gradually be eliminated through the affects of wear and teaz, obsolescence or from destruction by fire, the elements, or natural disaster. However, some non-confornung uses, for example junkyards, automobile wrecking yards and billboazds, are the non-conforming uses which are the least wlnerable to destrucrion by fue, flood or other natural disaster, or weaz and tear or even simple obsolescence or abandonment. These uses aze an obstacle to a principled and planned development framework. Not only do these uses have greater visual or audible impact on neighboring uses, they also involve compazatively little investment over time in fixed improvements. This leaves �� z�� local governments with two fairly limited options with which to deal with non-conforming uses. Those options are: elimination through the exercise of eminent domain; or amortization over a prescribed period of time sufficient enough to allow the property owner an opportuniry to recapture his or her investment in the non-confomung use. Principle probiem with S. F. No. 854 The principle problem with Senate File 854 and its companion, House File 896, is that the ]egislation wili eliminate amortization as a zoning tool. Amortization gives local governments the flexibility to deal with community and neighborhaod change. Passage of the proposed legislation would leave local government with only the power of eminent domain or, in very raze carcumstances, common law nuisance theory to eliminate non-confornung uses. The proposed legislation forces local government to exercise the most expensive way directing local growth. It is likely that for some communities, the elimination of a non-confornung use through eminent domain will be so expensive that the community, in essence, is left with no option at ali. This thwarts a communities power to regulate land use in the best interest of the general public and it frustrates the power that the legislature specifically entrusted to the community acting through its local unit of government. So rigid a limitation on local zoning control means, in essence, that there is no local zoning control at all. Amortization as a zoning tool is used very sparingly. Its use in Saint Paul has, to the best of my knowledge, been limited only to the amortization of so called adult uses. Presently, the City is considering whether or not to amortize outdoor advertising signs. That decision has not yet been made. Passage of this bill could very well eliminate that local policy choice. Passage of this bill will also eliminate the City's ability to address the unquestioned blighting influence caused by adult uses on neighborhoods. Amortization is not a "taking": Finally, amortization is not a taking of private property by the government. There is no permanent or physical occupation of land when a non-confornung use has been amortized out of e�cistence. The government is not depriving the land of al] economically beneficial use. The government is not imposing an exaction on the owner of the land. The government is not depriving the property owner of some reasonable investment back expectation. Finally, the government is not failing to advance a legitimate govemmental interest. Do not be misled into believing that �t� Z� amortization is the same as a taking. At the end of the amortizarion period, the property owner is still left with the property. The only thing that has been eliminated is the non-conforming use. If a local unit of government has a compeliing interest in eliminating the non-conforming use and if the local unit of govemment has ailowed a reasonable period of rime for the properiy owner to recoup its investment expectation, there is no taking. If a particulaz industry is concemed about a local government amortizing the industry's use of land for a particular purpose, it would be better to consider the industry's request by legislation which is specific to the industry rather than sweeping away from local communities the ability to address land use problems using a well settied and reasoned legal right. Non-conforming uses frustrate the purpose of comprehensive planning: The Minnesota Supreme Court said in the 1968 case of Nagle Outdoor Adveftising Company v. Village of Minnetonka ja billboazd amortization case] "The continued presence of pre-existing nonconfornung commercial uses within these residen6al districts may reasonably be found to vitiate the effectiveness of the entire comprehensive municipal plan" Eliminating amortization destroys local controi over local problems: The legislature has given city councils, town boazd and county commissioners broad discretion to act in their legislative capacity to deternune what best serves the general welfaze of their communities. The proposed bills will absolutely prohibit local governments from deternuning at a local level what is in the best interests of the public's health, welfaze and safety. .� Ol/27/99 [REVISOR ] RJS/SA 99-1465 �� Z�� Senatots I,angseth, Vickecman, Day, Pappas and Lotuey in�oduced- S. F. No. 854 Refecred to ffie Committce on Local and Metropolitan Csovemment 1 A bill for an act 2 reiatiag to land uset precluding the terminat3on of 3 lawPul land uses by amortization; amending Minnesota 4 Statutes 1998, sections 394.21, by adding a 5 subdinision; and 462.357, by adding a subdinision. 6 BE IT ENACTED BY THE LEGISLATDRE OF T8E STATE OF MINNESOTA: 7 Section 1. Minnesota Statutes 1998, sectfon 394.21, is 8 amended by adding a snbdioision to zead: 9 Subd. la. [AMORTIZATZON YROBISZTED.] A county, reaazdless 10 of populntion, under this chaotez os under a speoial or local il law, must not enact, amend, or enforce an ordinance providina 12 for the eliminatioa or termination of a use bv amortization 13 which u§e was lawful at the time of its inception 14 Sec. 2. Minnesota Statutes 1998, section 462.357, is 15 amended by addinq a subdivision to read: 16 Subd. lC. [AMORTZZATION PROBIBZTED.J A muniCiDalitv must 17 not enact, amend, or enfozce an oxdinance providino fos the 18 elimiaation oz termination of a use bv amortization which use 19 was lawfnl aY-the time of its ince�tion 20 Sec. 3. [EFFECTIVE DATE.� 21 Sections 1 and 2 are effective ihe dav a£ter their finai 22 enactment. _ 1 ORIGINAL RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented Referred To Council File # c � C � G--� Green Sheet # � Committee: Date 2 3 4 5 6 7 8 9 10 11 12 13 14 15 RESOLVED, that the City of Saint Paul supports the current state of the law which allows municipalities to consider and adopt appropriate ordinances to provide for the amortization of uses that are anconsistent with a good quality of life for Saint Paul neighborhoods; and, be it FURTHER RESOLVED, that the City of Saint Paui therefore opposes legislation now under consideration in the legislature, such as Senate File 854 and House File 896, which bills prohibit municipalities from adopung amortization ordinances of any kind, even tku�se for adult uses, and from enforcing any such existing ordinances, including for adult uses; and, be it FINALLY RESOLVED, that in furtherance of this City policy the City staff responsible for making legislative positions known to the legislature move as quickly as possible to advise the legislature of the City's position, and take all necessary steps to oppose SF 854 and HF 846. Requested by Department of: By: Adoption Certified by Council SeCretaxy BY � �� .a--�� Approved by Mayor: Date Form Approved by Cit Attomey B �. rt�t, 3-ip- Approved by Mayor for Submission to Council By: By. �'7�_ ��-'� �� C � L \J Adopted by Council: Date "( \�„_,_� \Q, �q�� -rT� T T �� z� �-/d-�lg 0 � TOTAL # OF SIGNATURE PAGES GREEN SHEET n,o 63980 � �.R,�H.�� u a„�� _ ❑ �.n� ❑ �� _ ❑�,�� ❑�.�,,,�.� ❑ �,�,�„�,�.� ❑ (CLIP ALL LOCATIONS FOR SIGNATURE) �,�,� ��,�-� �� -��s9 ��f�� -�� ,��;� �;�-�.�, aun i Ivn approve �a) a Ke)ecc PIANNING COMMISSION CIB CAMMITTEE CIVIL SERVICE COMMISSION ISSUE, (Who, What, When, Where, Has this persoNfi�m ever vrorked untler a contrect for Nis department� YES NO Has Mis persoNfirm ever 6een a city employee? YES NO Does ihis personfirtn possess a sldl� not namallypossessed by any curteM cHy employee? YES NO Is this person/fi�m a targMetl ventloR VES NO 6,`v�i i.$'',a?n �'��L�C::�. . �� SOURCE (IXPWN) COST/REVENUE BUDGETED (CIRCLE ON� ACTNITY NUMBER �i��:r•7 t -4 ° - JAY BENANAV Councilmember CITY OF SAINT PAUL OFFICE OF THE CITY COIJNCIL 310 CTI'Y HALL IS VYEST KELLOGv BOULEVARD Sr1INT PAUL, MN 55102-1615 PHONE: (651) 266-8640 FAX: (651) 266-8574 MEMORANDUM DATE: TO: FROM: SUBJECT: Mazch 10, 1999 Council President Dan Bostrom Councilmembers Councilmember Jay Benanav SF 854 and HF 896 �=Z�� a�� fi�� 9 � ��9 p t �, } � ;� �' �; w �s�� fiL�.�a;tL� E:�S=i��.� I will be bringing in a resolution under suspension this aftemoon asking the Ciry to take a posirion against Senate File 854 which prohibits cities from amortizing. Attached for your reference is an opinion by Peter Warner which explains the issue. Attachment S 46 Printetl on Recycletl Paper �� sw�xr PAUL � AAAII Interdepartmental Memorandum CITY OF SAINT PAUL DATE:March 5, 1999 TO: Council Member 3ay Benanav FROM: Peter W. Wamer Assistant City Attomey RE: H.F. No. 896/S.F. No. 854: Bill eliminating the ternunation of lawful land uses by amortization Here aze some general bullet points that you might use in testifying against the above proposed legislation. I understand that you will be testifying on S.F. No. 854 Background: The ultimate purpose of zoning ordinances is to confine certain elasses of uses and structures to certain azeas. We do not live in a static world. No one can deny that community and neighborhood chazacter develop and change. Land uses that once were appropriate in a certain azea may no longer be appropriate in the same area today. Inappropriate land use actually stunts the long term growth of the community. It is well recognized that effective land use planning is necessary to promote and protect the interesu of the entire community. The state recognizes this fact and has delegated to city, township and county governments the authority to regulate land use within the of those communities. This delegation recognized the right of local government to undertake zoning and ��t-�3� land use regulations. It recognized that land use regulation is, like local school regulation, best accomplished at the local level where there is a greater ability to understand and balance the rights of individuals against the needs of the greater public. This delegation dces not give local zoning regulators cart blanche to create land use regulations without considerafion of uses that pre-exist a zoning ordinance. Zoning regulations that aze unrelated to promoting the public health, welfaze and safety and do not further legitimate government interests are likely to be struck down as unconstitutional. Zoning regulations which deny a property owner all reasonable use of their property must be found to be a"taking" of private properiy requiring compensation under both the Minnesota and United States Constitutions. These rules are so well settled in Minnesota that a general rule with respect to non-conforniing uses can be stated this way: If prior to the adoption of an original zoning ordinance - or a subsequent amendment or revision to a zoning ordinance - property was used for a then lawful purpose which the ordinance now prohibits and renders non-conforming, the property owner acquires a vested right to continue the non-conforming use. Amortization of non-conforming uses: The purpose of non-confornung uses ordinances is to eventually eliminate the non-confornung use. Pre-existing uses, presuming they were lawfully permitted at the time the new zoning regulations were adopted, can be treated in three basic ways. The pre-existing use may be pertnitted to remain as a law non-conforming use. This treatment is based on the assumption that a non-conforming use may continue so long as it is not enlarged, modified, expanded or resumed after being discontinued for a certain length of time. It is based upon the theory that non-conforming uses will gradually be eliminated through the affects of wear and teaz, obsolescence or from destruction by fire, the elements, or natural disaster. However, some non-confornung uses, for example junkyards, automobile wrecking yards and billboazds, are the non-conforming uses which are the least wlnerable to destrucrion by fue, flood or other natural disaster, or weaz and tear or even simple obsolescence or abandonment. These uses aze an obstacle to a principled and planned development framework. Not only do these uses have greater visual or audible impact on neighboring uses, they also involve compazatively little investment over time in fixed improvements. This leaves �� z�� local governments with two fairly limited options with which to deal with non-conforming uses. Those options are: elimination through the exercise of eminent domain; or amortization over a prescribed period of time sufficient enough to allow the property owner an opportuniry to recapture his or her investment in the non-confomung use. Principle probiem with S. F. No. 854 The principle problem with Senate File 854 and its companion, House File 896, is that the ]egislation wili eliminate amortization as a zoning tool. Amortization gives local governments the flexibility to deal with community and neighborhaod change. Passage of the proposed legislation would leave local government with only the power of eminent domain or, in very raze carcumstances, common law nuisance theory to eliminate non-confornung uses. The proposed legislation forces local government to exercise the most expensive way directing local growth. It is likely that for some communities, the elimination of a non-confornung use through eminent domain will be so expensive that the community, in essence, is left with no option at ali. This thwarts a communities power to regulate land use in the best interest of the general public and it frustrates the power that the legislature specifically entrusted to the community acting through its local unit of government. So rigid a limitation on local zoning control means, in essence, that there is no local zoning control at all. Amortization as a zoning tool is used very sparingly. Its use in Saint Paul has, to the best of my knowledge, been limited only to the amortization of so called adult uses. Presently, the City is considering whether or not to amortize outdoor advertising signs. That decision has not yet been made. Passage of this bill could very well eliminate that local policy choice. Passage of this bill will also eliminate the City's ability to address the unquestioned blighting influence caused by adult uses on neighborhoods. Amortization is not a "taking": Finally, amortization is not a taking of private property by the government. There is no permanent or physical occupation of land when a non-confornung use has been amortized out of e�cistence. The government is not depriving the land of al] economically beneficial use. The government is not imposing an exaction on the owner of the land. The government is not depriving the property owner of some reasonable investment back expectation. Finally, the government is not failing to advance a legitimate govemmental interest. Do not be misled into believing that �t� Z� amortization is the same as a taking. At the end of the amortizarion period, the property owner is still left with the property. The only thing that has been eliminated is the non-conforming use. If a local unit of government has a compeliing interest in eliminating the non-conforming use and if the local unit of govemment has ailowed a reasonable period of rime for the properiy owner to recoup its investment expectation, there is no taking. If a particulaz industry is concemed about a local government amortizing the industry's use of land for a particular purpose, it would be better to consider the industry's request by legislation which is specific to the industry rather than sweeping away from local communities the ability to address land use problems using a well settied and reasoned legal right. Non-conforming uses frustrate the purpose of comprehensive planning: The Minnesota Supreme Court said in the 1968 case of Nagle Outdoor Adveftising Company v. Village of Minnetonka ja billboazd amortization case] "The continued presence of pre-existing nonconfornung commercial uses within these residen6al districts may reasonably be found to vitiate the effectiveness of the entire comprehensive municipal plan" Eliminating amortization destroys local controi over local problems: The legislature has given city councils, town boazd and county commissioners broad discretion to act in their legislative capacity to deternune what best serves the general welfaze of their communities. The proposed bills will absolutely prohibit local governments from deternuning at a local level what is in the best interests of the public's health, welfaze and safety. .� Ol/27/99 [REVISOR ] RJS/SA 99-1465 �� Z�� Senatots I,angseth, Vickecman, Day, Pappas and Lotuey in�oduced- S. F. No. 854 Refecred to ffie Committce on Local and Metropolitan Csovemment 1 A bill for an act 2 reiatiag to land uset precluding the terminat3on of 3 lawPul land uses by amortization; amending Minnesota 4 Statutes 1998, sections 394.21, by adding a 5 subdinision; and 462.357, by adding a subdinision. 6 BE IT ENACTED BY THE LEGISLATDRE OF T8E STATE OF MINNESOTA: 7 Section 1. Minnesota Statutes 1998, sectfon 394.21, is 8 amended by adding a snbdioision to zead: 9 Subd. la. [AMORTIZATZON YROBISZTED.] A county, reaazdless 10 of populntion, under this chaotez os under a speoial or local il law, must not enact, amend, or enforce an ordinance providina 12 for the eliminatioa or termination of a use bv amortization 13 which u§e was lawful at the time of its inception 14 Sec. 2. Minnesota Statutes 1998, section 462.357, is 15 amended by addinq a subdivision to read: 16 Subd. lC. [AMORTZZATION PROBIBZTED.J A muniCiDalitv must 17 not enact, amend, or enfozce an oxdinance providino fos the 18 elimiaation oz termination of a use bv amortization which use 19 was lawfnl aY-the time of its ince�tion 20 Sec. 3. [EFFECTIVE DATE.� 21 Sections 1 and 2 are effective ihe dav a£ter their finai 22 enactment. _ 1