Judge denies request to delay Mpls 2040 vote

After a morning hearing, Hennepin County district court Judge Joseph R. Klein took a few hours to decide not to delay a vote on the Minneapolis 2040 comprehensive plan. He denied a request for a temporary restraining order from an anti-2040 group recently formed under the name Smart Growth Minneapolis. The group has been planning a legal action to stop the plan for months.

The City Council’s final vote on the plan will happen tomorrow as scheduled. The lawsuit may still go forward.

One of the city’s arguments was the judge has no less power next week than he has today, regardless of council action on the plan. Minneapolis City Attorney Susan Segal was initially very unhappy when the judge decided not to immediately deny the temporary restraining order. She rose to say any delay was unnecessary because the plan is headed for a months-long review process with the Met Council until it’s finalized.

The city also argued that the lawsuit was “dilatory” (which is a lawyer-talk for delay-tactic). They said this anti-2040 group had time to bring this case earlier, allowing more time for the judge to consider the case.

The attorney for the anti-2040 group, Jack Perry, argued that “we had to wait until this plan was as final as possible.” He cited recent amendments to the plan over the last 10 days. The assistant city attorney downplayed the significance of those adjustments. (I should note virtually all changes to the plan were to water it down in the direction anti-2040 people prefer.)

The legal argument from opponents is that the plan requires an environmental study. One problem, as pointed out by lawyer Matthew Melewski, is that comprehensive plans are specifically exempt from a requirement to perform an environmental study (EIS or AUAR):

“The first statement conspicuously elides that there is a state law that governs whether or not an EIS is required, the Minnesota Environmental Policy Act (“MEPA”). Notably, MEPA  expressly exempts comprehensive plans from the requirement to perform an EIS or AUAR…”

Perry tried to get around that by saying this is about the Minnesota Environmental Rights Act (MERA), not the Minnesota Environmental Policy Act (MEPA). The city’s argument is that this is an attempt to “backdoor” a requirement where none exists.

If this lawsuit were to ultimately go forward, the city is requesting plaintiff’s put up a $150,000 bond, to be forfeited if they lose. This is related to a penalty the city says is due to the Metropolitan Council if plan isn’t submitted on time. Perry disputed that penalty exists, but conceded if it does exist that a bond would be appropriate.

Judge Klein seemed skeptical of Perry’s arguments related to an environmental review done by Seattle, because Washington is not Minnesota. The judge asked questions related to what the immediate harm was to let this go forward, and what the steps would be to challenge Minneapolis 2040 later in the process.

If you like lawyerly animal metaphors:

• Plaintiff’s lawyer argued that even though this plan is just a plan and not a specific project to add more housing, the “baby elephant gets to be a momma elephant.” What is the momma elephant? Perry said 150k new housing units.
• The assistant city attorney (in response to the idea that action must be taken to stop the city council vote because then it’s “game over”): calling a tail a leg doesn’t mean a dog has five legs, because a tail is still not a leg.