Is Your Land Use Ordinance Out of Date?

Cities are authorized to adopt land use controls in the form of zoning and subdivision ordinances by a state law known as the “Minnesota Municipal Planning Act.” (MPA). The MPA requires uniformity with state law for many (if not most) aspects of zoning and subdivision. Some (but not many) non-substantive provisions do allow minor variation - but only through a charter provision. There are only 107 charter cities in Minnesota.  As a result, for most Minnesota cities, uniformity is premium and the norm.

Frequent Changes in State Law

The MPA has been in effect since the 1970’s, but has not been without controversy. As a result, the MPA is frequently changed and amended, requiring cities to monitor state law and adapt local zoning and subdivision controls on a frequent basis to be uniform.
Land use controls that are not up to date may create an unwanted (and potentially expensive) liability for cities. In addition, out of date ordinances may render important land use controls unenforceable in a court of law, thus leaving the city with no protections against a problematic development or land use.

Suggestions for Ordinance Review

As recently as the 2009 legislative session important changes were made to the MPA. If you have not reviewed your land use ordinances since then, there is a possibility they are out of date.
The following are some common mistakes in land use ordinances.

Timelines. State law sets timelines for review of both zoning and subdivision applications. Zoning applications must be reviewed under the “60-Day Rule” found at Minn. Stat. 15.99. Preliminary plat applications must be reviewed within 120 days and final plats 60 days pursuant to Minn. Stat. § 462.358 Subd. 3b. City ordinances that contain timelines not consistent with these requirements should be updated.

Non-Conforming Uses. Legal non-conforming uses are uses that do not conform to the current zoning requirements, but were legal at the time they were commenced. As a result, the MPA provides non-conforming uses with certain protections that allow for their continued existence, renovation and rebuilding (but not expansion). The state legislature amended the MPA provisions on non-conforming uses in 2001 and 2004 and as recently as the 2009 legislative session. As a result, cities should compare their existing provisions with the most current version of the law at Minn. Stat. § 462.357 Subd. 1c.

Manufactured Homes and Parks. The MPA provides that no city zoning regulation may prohibit manufactured homes that are built in conformance with the manufactured home building code and otherwise comply with all other zoning ordinances. Cities can apply architectural and aesthetic requirements to manufactured homes only if the same requirements also apply to all other single-family homes in the zoning district. In addition, manufactured home parks are by law a conditional use in any zoning district that allows the construction or placement of a building used or intended to be used by two or more families. Many local ordinances do not reflect these state law requirements and may need to be updated.

Conclusion

Annual review of city land use ordinances is essential to prevent unanticipated liability in ordinance enforcement. This article highlights only a few areas of frequent concern. More information about updating your land use ordinances can be found in the LMCIT article “Land Use Ordinance Mistakes” available at: http://www.lmc.org/media/document/1/landuseordinancemistakes.pdf

City Zoning Ordinances Can Be Improved with Images & Diagrams

When drafting the LMC Zoning Guide a few years ago, I included a section called “suggestions for drafting a readable zoning ordinance.” My number one tip was “use graphics, tables, maps and illustrations wherever possible.”

Describing sight triangles in legal language can be arduous. Explaining in text where to begin measuring a fence can be complex. Often painstakingly detailed and accurate text can leave even the most earnest readers still scratching their heads saying “now wait a minute, I think I got it – but let me read it again.” Images and graphics can improve readability for citizens and officials by a hundred fold.

Why is readability in ordinance language important? Readability – the use of clear concise language – reduces staff time in explaining nuance. Readability also decreases cases of accidental non-compliance. These are the cases of the sympathetic, well-intentioned citizen who “thought they installed grandmother’s access ramp in the right place.” But now it will cost them $10,000.00 to move everything. These types of cases can demand extensive enforcement efforts from city staff and create difficult political situations for city council members. It is much easier on the front end to take the time to craft ordinances that are easy to understand. Images can help.

Sample Images Used in City Ordinances:

Here are some great examples of where a well placed diagram is worth a thousand words:

1. City of Minnetonka, MN Zoning Code, Section 300.02, Definitions:

Building height” - the vertical distance above a reference datum measured to the highest point of the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof. The reference datum shall be selected by either of the following, whichever yields a greater building height:
a) the elevation of the highest adjoining sidewalk or ground surface within a five foot horizontal distance of the exterior wall of the building when such sidewalk or ground surface is not more than 10 feet above lowest grade. (No. 1)
b) an elevation 10 feet higher than the lowest grade when the sidewalk or ground surface described in item 1 above is more than 10 feet above lowest grade. (No. 2) (Figure 3)

2. City of Minnetonka, MN Zoning Code, Section 300.02, Definitions:

“Cul-de-sac” - a street with a single means of ingress/egress and having a turnaround at the end. A turnaround may be in the form of a circular “bubble” of pavement or an internal “looped” street. (Figure 4)

3. City of Cary, North Carolina Zoning Code:

9.1.5 Computations


(A) Area Computation of Individual Signs


The area of a sign face (which is also the sign area of a wall sign or other sign with only one face) shall be computed by means of the smallest rectangle that will encompass the extreme limits of the writing, representation, emblem or other display, together with any material or color forming an integral part of the background of the display or used to differentiate the sign from the backdrop or structure against which it is placed, but not including any supporting framework, base, bracing or decorative fence or wall when such fence or wall otherwise meets the regulations of this chapter and is clearly incidental to the display itself. For a single wall on a single-occupant building, all pieces of information or other graphic representations on that wall shall be measured as though part of one (1) sign, encompassed within one (1) rectangle, which may not exceed ten (10) percent of the total wall area to which the sign is affixed. For a single wall on a multi-occupant building, the area of signs shall be computed using these principles, and each individual sign shall not exceed ten (10) percent of the total wall area to which the sign(s) is affixed.

Common Concerns Related to Adding Images

Two main concerns arise when dealing with images in ordinance text. First, it is important to note that images and graphics shouldn’t replace or conflict with carefully drafted text.

When incorporating maps and images into an ordinance, it is advisable to specify in a separate ordinance provision that the text takes precedent in the event of conflict. For example, “illustrations and ‘principles of interpretation’ included in the code shall be used in interpreting the relevant provisions, but where the text conflicts with an illustration or 'stated principle,' the text shall control.” (See City of Cary, North Carolina Code Appendix A, Chapter 9 § 1.4 (http://tinyurl.com/22w9y3l).

Secondly, cities who are eager to use images may encounter resistance from a surprising source – their codifiers. This past April, when I attended the Government Training Services Land Use lecture “So You Want to ReWrite Your Zoning Ordinance,” this was a concern voiced by both the presenters and audience members.  Some codifiers may be using software that doesn’t have the capacity to incorporate images. This can be an unfortunate surprise for a city, if this ocurs after it has drafted an ordinance or hired a codifier.

As a result, when hiring a codifier, cities should directly ask their vendor if they have the ability to incorporate images into codebooks. Even if the city isn’t interested in doing this now, it may wish to at some point in the future. In addition, it may be helpful to ask the codifier to provide samples of codebooks it has recently finished that incorporate images. Not all codifiers approach this task in the same way.  Cities may find that they have pointed preferences for how images should be include.  For example - should an image be directly in the text?  only available in an appendix?  linked electronically?

Conclusion

A simple picture can go a long way in making complex ordinance provisions understandable. Images simplify the regulatory process for all people involved – city staff, council and residents. Some cities are doing innovative things with images in their ordinances. I would particularly recommend reviewing the sign code provisions for the City of Cary, North Carolina, as an example of great innovation. Cary uses LMC’s codification partner, American Legal Publishing. The ordinance is available on the American Legal website at this link: http://tinyurl.com/22w9y3l.

Smoke Readers & Zoning Ordinances

Welcome to Our Series on Regulating Smoke


One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational activities or industrial activities. Whatever the source, smoke is a frequent topic of city regulation.

This article is the final segment in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on zoning ordinance standards regulating smoke and ambient air standards.

Smoke in Zoning Ordinances

Cities commonly regulate smoke as part of their zoning ordinance. Frequently, these rules are found in a “performance standards” section that regulates all types of nuisance conduct that may result from uses, such as noise and vibrations.

In reviewing these ordinances, I find that cities generally follow three methods of smoke regulation, including the Ringlemann chart, adoption of current Minnesota Pollution Control Agency (MPCA) standards and use of something called “State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1 15.” For this blog entry we will discuss each method in detail.

Minnesota Pollution Control Standards:

Many cities simply adopt MPCA standards as their performance standards for zoning uses. Typical language is as follows:

SMOKE AND PARTICULATE MATTER. The ambient air quality standards of the Minnesota    Pollution Control Agency shall apply to the release of airborne materials.

Generally, MPCA standards are found in the Minnesota Rules ch. 7009 (available at this link: https://www.revisor.mn.gov/rules/?id=7009). The MPCA standards appear to be based on federal standards. According to the MPCA, cities may adopt more stringent local standards for smoke.

The Ringlemann Chart:

Ringlemann was a French scientist born in 1861. His practice of measuring smoke by using cards of various colors from white to black is still used today. More his smoke chart can be found on the CDC website at: http://www.cdc.gov/niosh/mining/pubs/pubreference/outputid330.htm.

Ordinance provisions using the Ringlemann chart typically look like this:

Smoke: Measurement of smoke shall be at the point of emission. The Ringlemann Smoke Chart published by the United States Bureau of Mines shall be used for the measurement of smoke. The following table indicates for the various zoning districts the acceptable level of smoke emissions. These provisions, applicable to visible gray smoke, shall also apply to visible smoke of a different color but with an equivalent apparent opacity.
Zoning District Maximum Level of Emission Exception
R-1, R-1x, R-2, R-3, R-4, and Developing Residential Areas Ringlemann No. 0 None
B-1, B-4, CDC, M-3, MRD Ringlemann No. 1 Smoke of a Shade Equal to No. 2 on the Chart may be Emitted for a Total of Eight Minutes during any one hour period.

Cities using the Ringlemann chart are using a legal and legitimate standard for measuring smoke. However, cities using the chart may run into practical difficulties related to enforcement should they have a true smoke problem use on their hands.

The problem with the Ringlemann chart is that it is speaking a different language from the current MPCA standards. Smoke at Ringlemann No. 1 does not automatically equate to a similar smoke measurement under MPCA standards. As a result, it may be difficult for a city to understand (without expensive professional evaluation) how their standards relate to mandatory state standards.

In addition, cities needing to take a Ringlemann measurement may have difficulty finding a suitable “expert” trained in measuring smoke this way. Smoke measurements these days are typically obtained by certified “smoke readers.” Smoke readers are generally trained to measure smoke using MPCA and federal measurement standards. This is because most smoke reading programs are designed to help people become “in-house” smoke readers for private industries that may be facing federal penalties for emissions violations.

Minnesota Regulation APC 1-15

A substantial number of cities also have this language adopting Minnesota Regulation APC 1-15 as their standard for smoke regulation:

The emission of smoke by any use shall be in compliance with and regulated by the State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1-15, as amended.

This language is potentially problematic because it is outdated. These standards have not been current since the mid-80’s and have been superseded by the current Minnesota Rules. If faced with an enforcement issue, the city may have difficulty obtaining a copy of these standards and reading them in concordance with current standards. In addition, certified smoke readers might not be familiar with these standards.

Conclusion

This concludes our 4-part series on smoke regulation. Far from being an ephemeral topic – smoke is a frequent and lasting concern to Minnesota cities. Ordinances on smoke touch many areas of resident lives – from business endeavors to private recreational uses. Recent changes in technology – related to both methods of heating (such as the new popularity of outdoor wood boilers) and methods of measuring smoke may prompt cities to review their ordinances. In addition, recent law changes related to tobacco products regulation may require ordinance redrafting.