Posted on by John Edwards

2040 Plan, Five Years Later: Pretend environmentalists say they’re not against density, this is about ethics in city planning.

It was more than five years ago that the nationally-heralded 2040 plan, with a vision of a dense pedestrianized city, was passed by a 12-1 vote of the City Council. But before that vote even happened, the city was taken to court by Smart Growth Minneapolis. This is an organization formed for the sole purpose of suing the city to stop modest upzoning (legalizing triplexes) in residential areas that had been restricted to single-family housing only.

SGM was founded by John Goetz of the personal injury law firm Schwebel Goetz & Sieben and borrows its name from a prominent national organization called Smart Growth America. But these two organizations hold views that are diametrically opposed – Smart Growth America disavows any connection to its Minneapolis namesake, says the lawsuit is “sad” and that the 2040 Plan is actually the definition of “Smart Growth.” Despite SGM having no environmental agenda apart from the one lawsuit, they have had success getting themselves labeled as an “environmental” group in news stories.

Local Control vs. Judicial Control

In the years after it was enacted, the 2040 plan received widespread national praise. It blew up pretty big. Weirdly, I was even invited on the PBS NewsHour to talk about my role as an advocate.

Stories have recently noted how Minneapolis has done much better than others at controlling housing costs, with that success attributed to the plan. 2040 has been influential, with cities far and wide (and as nearby and boring as St. Paul) adopting similar zoning reforms. Politically, the values of the 2040 plan are a settled issue. It’s more of a consensus vision of city planning than when it was adopted.

Prior to the current case, it had always been understood that no part of a municipal comprehensive plan was subject to environmental review. But several rulings against the City of Minneapolis in the 2040 case have created a new understanding of the law. So despite the democratic process in Minneapolis producing a clear consensus on a controversial topic, the legislature is being asked to decide a question of local control vs judicial control.

The change being considered by the legislature would amend an environmental law (MERA) in order to explicitly exempt municipal comprehensive plans from legal challenge on the basis of increased housing density. As the climate scientists say: dense pedestrianized cities are good, sprawl is bad.

“Nobody is against density”

In committee hearings at the state capitol in recent weeks, SGM lead attorney Jack Perry has argued against clarifying the law. Understandable, as it would end his lawsuit.

Perry specializes in representing big polluters like Northern Metals, in addition to lobbying and lawyering on behalf of the notoriously dirty and stinky swine farm industry. He argues there is little risk of this new interpretation of state law being abused, because only rich people could manage the expense: “It’s beyond the affordability of virtually anybody.” As an example, he says his 2040 case has racked up over a million dollars in legal expenses.

No need for alarm. Only the wealthy will be able to go to court to twist zoning codes in their favor – same as ever.

On the other side of the legislative fight are a dozen established environmental groups like the Sierra Club North Star Chapter. Each of them have real environmental agendas apart from this issue. None of them were created as a disposable single-use vehicle for a lawsuit. Their positions are in line with the climate consensus: car-dependent sprawl is the real problem here.

But here’s something counterintuitive, and a sign of how thoroughly the 2040 Plan has won the public debate. SGM lawyer Perry told a senate committee, “There is no one in our group – nobody – that is against density.” This echoes what SGM executive director Rebecca Arons wrote late last year in the Star Tribune: “we have never expressed opposition to the Minneapolis 2040 plan or its goals.”

If you take them at their word, they’re not taking a position on the substance. They are making a process argument. They aren’t against density. They don’t oppose the 2040 plan. They’re just fighting for good government – standing on the principle that comprehensive plans should be subject to environmental review.

“Like measuring an elephant with a microscope”

But it’s not just the environmental organizations asking for a fix – the planning profession as a whole is asking the legislature to clarify the law. The Minnesota chapter of the American Planning Association says this isn’t good government. The new legal precedent threatens the way local governments do citywide long range planning.

APA MN President PeggySue Imihy Bean has written that comprehensive plans are too speculative, too big picture, too visionary, too non-specific for this process. They can’t be assessed with the same tools of environmental review meant to be applied to specific, well-defined projects. What the district court judge wants is like “asking a biologist to measure an elephant with a microscope.” Comprehensive plans are already a kind of environmental review. It’s incorporated into the document, as required by the Metropolitan Council.

Not only is the court’s new interpretation of MERA a raw deal for the environment, it’s bad government. It invites confusion and incentivizes cities to adopt long range plans that avoid pissing off even a small number of their wealthiest constituents. Tell your legislators it’s time to clarify the law.

Want to hear more about why the legislature needs to clarify the law and save every city in the region from bad-faith lawsuits demanding that comprehensive plans be subject to a process that was never meant to be used that way? Try this week’s episode of the Wedge LIVE podcast, featuring APA MN President PeggySue Imihy Bean and Alex Schieferdecker. Listen wherever you get your podcasts.