The bizarre 2040 plan ruling that could jeopardize all comprehensive planning

January 20, 2023 6:00 am

The 2040 Minneapolis Comprehensive Plan sought to support greater urban density. Photo by Will Jacott/Minnesota Reformer.

In late 2018, a coalition of groups under the banner of “Smart Growth Minneapolis” filed a lawsuit attempting to block passage of the Minneapolis 2040 Comprehensive Plan. The plan sought to support greater urban density, most famously by allowing triplexes in all residential zones citywide, and the plaintiffs argued that the 2040 plan should be thrown out because that added growth would cause environmental damage.

Against all odds, their lawsuit has survived in the court system for four years since, suffering a string of defeats before being revived by the Minnesota Supreme Court. After the plaintiffs scored a win in their second trip to district court, they recently received a more mixed reception on their second tour of the Minnesota Court of Appeals, whose decision came down earlier this month.

The heart of the legal matter is this: The plaintiffs have argued that the 2040 plan must be evaluated on the basis of a “full and immediate build-out.” In other words, the environmental impacts of the plan should be measured under the assumption that at the moment the plan passed, all of its policies and their impacts were realized to their fullest extent. Two lower courts rejected that reasoning, however the Minnesota Supreme Court accepted it and sent the case back for another round of litigation under this new standard.

But as the latest legal wrangling has made clear, this is an impossible and illogical task. There are at least four major reasons why:

First, the Minneapolis 2040 Comprehensive Plan is, as the name implies, comprehensive. The land use rules opposed by the plaintiffs and fixated upon by the courts are just one part of a cohesive whole. Assessing the impacts of zoning changes without simultaneously assessing the policies (on topics ranging from transportation to environmental design) that are intended to complement the zoning changes is to look only at one side of the ledger.

Second, the effects of air pollution, water pollution and greenhouse gas emissions do not confine themselves to political boundaries. So too do the impacts of housing built in one city instead of another. If Minneapolis absorbs a greater percentage of the region’s growth, that means less farmland in Carver County will be plowed under for new subdivisions and that there will be lower per-capita environmental impacts regionwide. This is why groups like the Sierra Club — who filed a brief before the Court of Appeals in favor of the city — believe that contrary to the claims of the plaintiffs, the 2040 plan is in fact beneficial for the environment. A “full build-out” in Minneapolis would have effects on the build-out of towns across the metro region; effects which the court is not equipped to assess.

Third, the zoning changes in the 2040 plan provide flexibility for different types of buildings, not mandates to build any of them. For example, triplexes are now allowed throughout the city, but so are single family homes. According to rules adopted in 2021 by the City Council, both types of buildings are restricted to the same limitations in size. Therefore, one is as much a “full build-out” of the property as the other. How is a court supposed to differentiate?

Some of the growth that would be presumed by the “full build-out” standard is plainly absurd. Landmarks like City Hall and Orchestra Hall sit on land that the 2040 plan designates as “Transit 50,” which has no height limit. Assuming a “full build-out” should mean assuming that the City of Minneapolis intended for these buildings to be demolished and each replaced by a Burj Khalifa. How can a court sustain that fiction?

Fourth, a “full build-out” of the 2040 plan’s land use rules has yet to occur in the three years that the plan has been in place. In fact, it will never occur in the plan’s lifetime and was never intended to occur. The purpose of a comprehensive plan is to provide guidelines that shape future growth, should it materialize. The plan itself does not cause that growth. As a matter of fact, the amount of building in Minneapolis has declined since the 2040 plan’s passage. That the ups and downs of the city’s homebuilding are clearly a byproduct of external factors — like the pandemic and interest rates — only proves the point that growth is independent of Minneapolis’ planning rules.

Closing a mistakenly opened door

I am not a lawyer, but I am a planner. I can see that in addition to being unworkable, the new standard promulgated by the plaintiffs and the Minnesota Supreme Court jeopardizes the comprehensive plans of every other municipality in the state and would make the entire act of comprehensive planning for growth impossible. The same defects alleged to exist in Minneapolis’ plan are also present in the plans of its neighbors. If the court’s decision is left uncorrected it could spur more years of litigation that will spread throughout the metro.

Unfortunately, this legal mess doesn’t seem likely to be resolved soon. At the end of 2022, the Court of Appeals agreed that under the hypothetical “full build-out” standard discussed above, the 2040 plan violated state environmental law. But the court also ruled that when the lower court ordered a return to the city’s prior comprehensive plan, it did not adequately assess the “full build-out” environmental impacts of that plan. If that prior plan is also found to violate state law and be more environmentally harmful than the 2040 plan (which I believe would be an accurate conclusion to draw) — what then? Should the District Court continue assessing and ranking Minneapolis comprehensive plans going back decades until it finds one that would somehow pass this inexplicable standard?

The city of Minneapolis says that it will appeal this decision back to the Minnesota Supreme Court. This appeal will give that body a chance to correct its earlier error and close the door that it mistakenly opened. I hope it takes that opportunity.

Alternatively, the Minnesota Legislature could render the issue moot by explicitly exempting comprehensive plans from the Minnesota Environmental Rights Act (MERA), just as they are under other state environmental legislation. Given that the precedent set by this lawsuit imperils the ability to comprehensively plan not just for Minneapolis, but also cities and towns from Moorhead to Stillwater, legislators should have strong incentive to do so.

Otherwise, without action, this endless legal saga will continue to bounce around the courts like a plinko chip, never reaching a defensible conclusion, because it is sustained only by a legal fiction that cannot be squared with common sense or reality.

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Alex Schieferdecker

Alex Schieferdecker is an urban planner specializing in design and transportation in Minneapolis. He's also a soccer obsessive, cookie enthusiast and cold weather apologist.