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HomeMy WebLinkAbout6.i. City Council Voting Requirements for Adopting of Amending Zoning Ordinances, 08-35-TAAGENDA ITEM: 08 -35 -TA City Council Voting Requirements for Adopting or Amending Zoning Ordinances AGENDA SECTION: PREPARED BY: Jason Lindahl, AICP Planner AGENDA NO. 6 .j. ATTACHMENTS: Draft 08 -26 -08 PC Excerpt Minutes, Text Amendment Ordinance, City Attorney's Memo Dated 6 -30 -08 APPROVED BY: D A) RECOMMENDED ACTION: Motion to approve the attached draft ordinance text amendment regarding City Council voting requirements for adopting or amending the zoning ordinance. 4 ROSEMOUNT CITY COUNCIL EXECUTIVE SUMMARY City Council Meeting Date: September 16, 2008 SUMMARY This text amendment application was initiated by staff to conform to changes made by the Minnesota State Legislature regarding local government's adoption or amendment of their zoning ordinance Attached for your review and approval is a draft ordinance text amendment to address these changes. This ordinance would change the City Council voting requirements for adopting or amending the zoning ordinance to be consistent with state statute. Staff recommends approval of this item. PLANNING COMMISSION ACTION The Planning Commission held a public hearing to review this item during their meeting on August 26, 2008. Minutes from that meeting are attached for your reference. Staff presented this item and explained that this text amendment was initiated by staff to conform with changes made by the state legislature. There were no comments from the either the public during the hearing or the members of the Commission. The Commission voted unanimously to recommend the City Council approve this request. BACKGROUND In 2001, the Minnesota State Legislature amended State Statute 462.357, Subdivision 2 to reduce the necessary voting for adoption or amendment of most municipal zoning ordinances. Prior to 2001, this statute authorized adoption or amendment of zoning ordinances only by a two- thirds vote of all members of the governing body. The result of the change is that local governments shall now adopt or amend their zoning ordinance by a simple majority vote of all members of the governing body. However, the adoption or amendment of any portion of the zoning ordinance which changes all or part of the existing classification of a zoning district from residential to either commercial or industrial still requires a two thirds majority vote of all members of the governing body. ISSUE ANALYSIS This issue has been reviewed by the both Community Development Department and the City Attorney. A memo detailing the City Attorney's review and findings is attached for your reference. As a result, staff recommends the City amend its code to conform to state statute. Rosemount's standards for adopting or amending its zoning ordinance are found in Section 11 -10 -11 of the City Code (Amendments). The existing text in Subsection B.5 (Council Action) is consistent with the State's requirements prior to the 2001 change and reads "amendments to this title require a two- thirds (2/3) vote of the Council." The City Attorney 'suggests two options for addressing this issue. First, the City could amend its Code to specify the voting requirements applicable to rezoning from residential to commercial or industrial and the voting requirements for other zoning code amendments to make the City Code consistent with State law. Alternatively, the City could delete the voting requirements (Section 11- 10- 11.B.5) from the Zoning Code and allow state law to prevail. The advantage to the second option is that it would avoid any future code changes by the City should the State make further changes in the future. CONCLUSION RECOMMENDATION Staff recommends the City Council approve this item. While the City Attorney recommends either inserting the detailed language found in state law into the City Code or deleting the reference altogether, the Community Development Department suggests a hybrid of these alternatives. Staff recommends amending the City Code to acknowledge that any adoption or amendment of the Zoning Ordinance will be processed in accordance with state law. In addition, staff recommends providing a reference to Minnesota State Statute 462.357, Subdivision 2. This language will acknowledge that the City is operating in accordance with state law and provide users of the City Code with a reference to where the requirements are found in state statute. Most importantly, it allows the City to change this reference without going back through the formal text amendment process should the State make changes to this requirement in the future. It should also be noted that this hybrid recommendation is acceptable to the City Attorney. 2 EXCERPT FROM MINUTES PLANNING COMMISSION REGULAR MEETING AUGUST 26, 2008 PUBLIC HEARING 5.c. Text Amendment of Section 11- 10 -11: Voting Requirement of Code Amendments (08- 35 -TA). Planner Lindahl reviewed the staff report. This text amendment application was initiated by staff to conform to changes made by the Minnesota State Legislature regarding local government's adoption or amendment of their zoning ordinance. Should the Planning Commission recommend approval of this item, it would go before the City Council at the meeting on September 16, 2008. The public hearing was opened at 8:55p.m. There were no public comments. MOTION by Schwartz to close the public hearing. Second by Schultz. Ayes: 5. Nays: None. Motion approved. Public hearing was closed at 8:56p.m. MOTION by Howell to recommend the City Council approve the attached draft ordinance text amendment regarding City Council voting requirements for adopting or amending the zoning ordinance. Second by Palda. Ayes: 5. Nays: None. Motion approved. As follow -up, Mr. Lindahl stated this item will go before the City Council for approval at their regular meeting on September 16, 2008. City of Rosemount Ordinance No. B- AN ORDINANCE AMENDING THE CITY OF ROSEMOUNT ZONING ORDINANCE B RELATING TO ADOPTION OR AMENDMENT OF THE ZONING ORDINANCE THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA, ORDAINS that Ordinance B, adopted September 19, 1989, entitled "City of Rosemount Zoning Ordinance," is hereby amended as follows: Section 1. Rosemount Zoning Ordinance B, Section 11- 10- 11.B.5. amended as follows: Council Action: Adoption of or amendments to this title tcquirc a two thirds (2/3) vote of the eauneik shall comply with the requirements of state law. (Minnesota State Statute 462.357, Subdivision 2). Section 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after its passage and publication according to law. ENACTED AND ORDAINED into an Ordinance this 16 day of September, 2008. ATTEST: Amy Domeier, City Clerk CITY OF ROSEMOUNT William H. Droste, Mayor Published in the Rosemount Town Pages this day of 2008. Kennedy C H A R T E R June 30, 2008 E D Jason Lindahl City of Rosemount 2875 145 St. W. Rosemount, MN 55068 Re: Code Amendment: Voting Requirement Dear Jason: Rosemount City Code, Section 11 -10 -11 requires a two- third's vote of the Council to adopt a zoning code amendment. At one time, a two- third's voting requirement was consistent with State law. However, in 2001, the Legislature amended Minnesota Statutes, Section 462.357, Subd 2 to change the voting requirements. The relevant part of that section now provides the governing body may adopt and amend a zoning ordinance by a majority vote of all of its members. The adoption or amendment of any portion of a zoning ordinance which changes all or part of the existing classification of a zoning district from residential to either commercial or industrial requires a two- thirds majority vote of all members of the governing body." In an opinion issued in 2002, the Attorney General opined that a City was not authorized to require a higher voting requirement for rezoning than the State law provided. A copy of the Attorney General's opinion is attached. The City could amend its Code to specify the voting requirements applicable to rezonings from residential to commercial or industrial and the voting requirements for other zoning code amendments to make them consistent with State law. As an alternative, the City could simply delete the voting requirements (paragraph 11 -10 -11 B5) from the Zoning Code and allow the state law provisions to prevail. This would also avoid the necessity of code changes in the future if the State Statutes are amended again. Let me know if you have any questions. Very truly yours, Charles L. LeFevere CLL:jks Enclosure 335870v1 CLL RS215 -4 Offices in Minneapolis Saint Paul St. Cloud 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9300 telephone (612) 337 -9310 fax http: /www.kennedy- graven.com Affirmative Action, Equal Opportunity Employer CHARLES L. LEFEVERE Attorney at Law Direct Dial (612) 337 -9215 Email: clefevere@keamedy- graven.com 59a -32 Page 1 of 3 MUNICIPALITIES: ZONING: AMENDMENT: With certain exceptions, municipal zoning ordinances may be adopted or amended by majority vote of governing body notwithstanding charter provision, or ordinance requiring greater majority. Minn. Stat. 462.351, 462.357. Mr. Brian D. Neugebauer Moorhead City Attorney Ohnstad Twichell, P.C. 901 13th Avenue East P.O. Box 458 West Fargo, ND 58078 -0458 Dear Mr. Neugebauer: FACTS 59a -32 (Cr. Ref. 441h; 477b -34) Thank you for your letter concerning the number of city council votes required to adopt or amend zoning ordinances. In 2001, the legislature amended Minn. Stat. 462.357, subd. 2 to reduce the necessary voting majority for adoption or amendment of most municipal zoning ordinances from two- thirds to a simple majority of all members of the governing body. The City of Moorhead, a home -rule charter city, has enacted a zoning ordinance that requires a two thirds council vote on all zoning issues in accordance with the previous state law. You ask whether a home -rule charter city may adopt a more restrictive voting requirement than that required by state statute for adoption or amendment of zoning ordinances. We answer your question in the negative. OPINION First, it is well established that local units of government have no inherent powers, but can only take those actions expressly authorized by statute or home -rule charter or implied as necessary to carry out the powers expressly conferred. See, e.g., Borgelt v. City of Minneapolis, 271 Minn. 249, 135 N.W.2d 438 (1965); Alexander v. City of Minneapolis; 267 Minn. 155, 125 N.W.2d 583 (1963); City of Birchwood Village v. Simes, 576 N.W.2d 458 (Minn. Ct. App. 1998). Authority for municipalities to enact land use controls, including zoning ordinances, is expressly provided by Minn. Stat. 462.351, et seq. See, e.g., Alexander. Prior to 2001, Minn. Stat. 4562.357, subd. 2 (2000) authorized adoption or amendment of zoning ordinances only by a two- thirds vote of all members of the governing body. According to the facts provided, the Moorhead zoning ordinance is consistent with that requirement. It appears that two thirds voting requirement in the ordinance was based solely upon the provisions of section 462.357, subd. 2 (2000). As you have noted, however, the legislature, by the Act of May 29, 2001, ch. 207 13, 2001 Minn. Laws 849, 854, amended that subdivision as follows: Subd. 2. GENERAL REQUIREMENTS. (a) At any time after the adoption of a http:// www. ag .state.mn.us/Resources/opinions /012502 htm 5/28/2008 59a -32 Page 2 of 3 land use plan for the municipality, the planning agency, for the purpose of carrying out the policies and goals of the land use plan, may prepare a proposed zoning ordinance and submit it to the governing body with its recommendations for adoption. (b) Subject to the requirements of subdivisions 3, 4 and 5, the governing body may adopt and amend a zoning ordinance by a majority vote of all its members. The adoption or amendment of any portion of a zoning ordinance which changes all or part of the existing classification of a zoning district from residential to either commercial or industrial requires a two- thirds majority vote of all its-members of the governing body. (c) The land use plan must provide guidelines for the timing and sequence of the adoption of official controls to ensure planned, orderly, and staged development and redevelopment consistent with the land use plan. (Underlined material added by amendment.) Therefore, after the effective date of the 2001 amendment, there appears no remaining statutory authority for imposition of a two- thirds voting requirement for municipal zoning enactments other than those changing residential classification to commercial or industrial. Rather, a majority of the members of each city council is statutorily authorized to adopt or amend zoning ordinances Second, the fact that the statutory language is permissive in nature does not authorize the city to impose conditions or restrictions at variance with those expressly provided by statute. Cf., RES Investment Co. v. County of Dakota, 494 N.W.2d 64 (Minn. Ct. App. 1992) (County board did not have authority to impose limits on their own statutory jurisdiction to consider tax abatement applications). Nor may a council, by ordinance, impair or divest its successors' legislative power. See, e.g., Minneapolis Street Railway Co. v. City of Minneapolis, 229 Minn. 502, 40 N.W.2d 353 (1949) (Municipal corporation cannot, by contract, surrender or curtail police power); Hanna v. Rathje, 171 N.W.2d 876 (Ia. 1969) (City zoning ordinance could not impair successors' authority to amend); 4, McQuillin, Municipal Corporations 13.03.15 (3rd Ed. Finally, it is our opinion that the statutory provision for enacting or amending zoning ordinances by a majority vote supercedes any contrary provision that might be found in a city's charter. Pursuant to u the Constitution, the legislature has granted city residents substantial authority to adopt home -rule charters, to empower and direct the governance of their cities and to provide for city legislation on matters of municipal concern. See Minn. Stat. 410.07 (2000) State ex rel Town of Lowell v. City of Crookston, 252 Minn. 526, 91 N.W.2d 81 (1958). That grant of power does not, however, impair the ultimate power of the legislature to pre-empt local authority on matters it considers to be of statewide concern. Id., Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn Ct. App. 1995). As to matters of zoning, the legislature has made clear its intent that the provision of sections 462.351 et seq. should be followed, rather than any conflicting local enactments. Minn. Stat. 462.351 specifically states: It is the purpose of sections 462.351 to 462.364 to provide municipalities, in a single body of law, with the necessary powers and a uniform procedure for adequately conducting and implementing municipal planning Furthermore, section 462.352 defines the term municipality for purposes of sections 462.351 to 462.364 to mean, "any city, including a city operating under a home rule charter For the foregoing reasons, it is our opinion that Minn. Stat. 471.357, subd. 2 (Supp. 2001), authorizing adoption or amendment of certain zoning ordinances by a majority of all members of the http: /www.ag.state.mn.us /Resources /opinions/012502.htm 5/28/2008 59a -32 Page 3 of 3 governing body, prevails over inconsistent municipal ordinances or charter provisions. This reasoning is consistent with that reached in Op. Atty. Gen. 59A -32, October 13, 1955, which determined that the statutory requirement for a two- thirds vote to amend a zoning ordinance prevailed over inconsistent provisions in a city charter and ordinance. [11 Minn. Const. art. XH, 4. Respectfully submitted, MIKE HATCH Attorney General KENNETH E. RA5CHKE, JR. Assistant Attorney General http: /www.ag. state. mn. us /Resources /opinions /012502.htm 5/28/2008 11- 10 -11: AMENDMENTS: A.Purpose: The purpose of this section is to allow for additions or revisions to the provisions of this title and changes in zoning district boundaries. B.Procedures: 1. Initiation: An amendment to this title may be initiated by the council, commission or by petition of an affected landowner. 2. Application: Applications provided by the city shall be completed in writing prior to any consideration of an amendment of this title. Zoning amendment fees are established by resolution of the council. Applications shall not be formally accepted until all supportive or supplementary information has been furnished by the applicant. Applications for an amendment to the text of this title shall be submitted by an affected property owner on forms provided by the city and shall include the proposed text for the ordinance amendment in proper ordinance form. Applications to amend the text of this title must be received by the council, which will then forward the petition to the commission for public hearing and recommendation. 3. Commission Recommendation: An amendment not initiated by the commission shall be referred to the commission for study and report and may not be acted upon by the council until it has received the recommendation of the commission on the proposed amendment or until sixty (60) days have elapsed from the date of reference of the amendment without a report by the commission. 4. Public Hearing: No amendment to this title shall be considered until a public hearing has been held by the commission. A notice of the time, place and purpose of the hearing shall be published in the city's official newspaper, at least ten (10) days prior to the hearing. Amendments affecting changes in zoning districts shall require mailed notice to each property owner within three hundred fifty feet (350') of the affected property owner. However, zoning changes in the agriculture, agriculture preserves and rural residential districts shall require mailed notice to each property owner within one -fourth (1/4) mile of the affected property. The city shall use its available records to determine the names and addresses of property owners. Failure to give notice to individual property owners or defects in the notice shall not invalidate the proceedings, provided a bona fide attempt was made to comply with these provisions. 5. Council Action: Amendments to this title require a two- thirds (2/3) vote of the council. 6. Reapplication: No application for the same or substantially the same amendment shall be made within six (6) months of the date of denial. 7. Generally: Notice requirement and procedures set forth in this section in excess of those required by state law are directory. Failure to comply with such procedures will not invalidate the proceedings. (Ord. B, 9 -19 -1989)