HF 389

2nd Engrossment - 87th Legislature (2011 - 2012) Posted on 03/29/2012 04:35pm

A bill for an act
relating to local government; providing for interim zoning; providing for
municipal development land dedication and fees; amending Minnesota Statutes
2010, sections 394.25, subdivision 7; 394.34; 462.355, subdivision 4; 462.358,
subdivisions 2a, 2c, by adding subdivisions; repealing Minnesota Statutes 2010,
section 462.358, subdivision 2b.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2010, section 394.25, subdivision 7, is amended to read:

Subd. 7.

Specific controls; other subjects.

(a) Specific controls pertaining to other
subjects incorporated in the comprehensive plan or establishing standards and procedures
to be employed in land development including, but not limited to, subdividing of land and
the approval of land plats and the preservation and dedication of streets and land for other
public purposes and the general design of physical improvement.

(b) A county must approve a preliminary plat that meets the applicable standards
and criteria contained in the county's zoning and subdivision regulations unless the
county adopts written findings based on a record from the public proceedings why the
application shall not be approved.

(c) The controls may require that a portion of any proposed subdivision be dedicated
to the public or preserved for public use as parks, recreational facilities, playgrounds,
trails, wetlands, or open space. The requirement must be imposed by ordinance.

(d) If a county adopts the ordinance required by paragraph (c), the county must
adopt a capital improvement program and adopt a parks and open space plan or have a
parks, trails, and open space component in its comprehensive plan subject to the terms and
conditions in this paragraph and in paragraphs (e) through (p).

(e) The county may choose to accept a per lot cash fee as set by ordinance from the
applicant for some or all of the new lots created in the subdivision.

(f) In establishing the portion to be dedicated or preserved or the per lot cash fee, the
controls must consider the open space, park, recreational, or common areas and facilities
that the applicant proposes to reserve for the subdivision.

(g) The county must reasonably determine that it will need to acquire that portion of
land for the purposes stated in this subdivision as a result of approval of the subdivision.

(h) The fees or dedication must be fair, reasonable, and proportionate to the need
created.

(i) Any cash payments received must be placed by the county in a special fund to be
used only for the purposes for which the money was obtained.

(j) Any cash payments received must be used only for the acquisition and
development or improvement of parks, recreational facilities, playgrounds, trails,
wetlands, or open space. Cash payments must not be used for ongoing operation,
maintenance, or redevelopment of parks, recreational facilities, playgrounds, trails,
wetlands, or open space.

(k) The county must not deny the approval of a subdivision based on an inadequate
supply of parks, open spaces, trails, or recreational areas within the county.

(l) The county must not condition the approval of any proposed subdivision or
development on an agreement to waive the right to challenge the validity of a fee or
dedication.

(m) The county must use at least 75 percent of the funds collected under this
subdivision according to the plan required in paragraph (d) in the township or city where
the collection of funds occurs. However, the township board or city council may agree to
allow the county to use these funds outside of the township or city in a manner consistent
with the county parks, trails, and open space capital improvement plan or the county parks
and open space component in its comprehensive plan. The remainder of the funds may be
used by the county only for parks and trails connectivity and accessibility purposes. The
county must annually report to cities and townships on where funds were collected and
where funds were expended in the past year.

(n) Previously subdivided property from which a park dedication has been received,
being resubdivided with the same number of lots, is exempt from park dedication
requirements. If, as a result of resubdividing the property, the number of lots is increased,
then the park dedication or per lot cash fee must apply only to the net increase of lots.

(o) A county must not require a dedication of a portion of a proposed subdivision or
a payment in lieu of dedication in a town or city that has adopted a requirement to dedicate
or a payment in place of dedication as a provision of the town or city's subdivision
regulations under section 462.358, deleted text begin subdivision 2b deleted text end new text begin subdivisions 2d and 2e new text end , or chapter 366.

(p) A county may negotiate an agreement with a town or city to share the revenue
generated by dedicating a portion of a proposed subdivision or a payment in place of
dedication.

Sec. 2.

Minnesota Statutes 2010, section 394.34, is amended to read:

394.34 INTERIM ZONING.

new text begin (a) new text end If a county is conducting or in good faith intends to conduct studies within a
reasonable time, or has held or is holding a hearing for the purpose of considering a
comprehensive plan or official controls or an amendment, extension, or addition to either,
or in the event new territory for which no zoning may have been adopted, may be annexed
to a municipality, the board new text begin , new text end in order to protect the public health, safety, and general
welfare new text begin , new text end may adopt as an emergency measure new text begin , after public notice and hearing, new text end a temporary
interim zoning map or temporary interim zoning ordinance deleted text begin , deleted text end new text begin . new text end The purpose of deleted text begin which shall
be deleted text end new text begin the ordinance or map is new text end to classify and regulate uses and related matters as constitutes
the emergency. deleted text begin Such deleted text end new text begin The new text end interim deleted text begin resolution shall be deleted text end new text begin ordinance or map is new text end limited to one
year from the date it becomes effective and to one year to renewal thereafter.

new text begin (b) Before adopting an interim zoning ordinance or map, the county board must hold
a public hearing. Notice of the public hearing must be published in the county's official
newspaper at least ten days before the hearing.
new text end

Sec. 3.

Minnesota Statutes 2010, section 462.355, subdivision 4, is amended to read:

Subd. 4.

Interim ordinance.

(a) If a municipality is conducting studies or has
authorized a study to be conducted or has held or has scheduled a hearing for the purpose
of considering adoption or amendment of a comprehensive plan or official controls
as defined in section 462.352, subdivision 15, or if new territory for which plans or
controls have not been adopted is annexed to a municipality, the governing body of the
municipality may adopt an interim ordinance applicable to all or part of its jurisdiction for
the purpose of protecting the planning process and the health, safety and welfare of its
citizens. The interim ordinance may regulate, restrict, or prohibit any use, development,
or subdivision within the jurisdiction or a portion thereof for a period not to exceed one
year from the date it is effective.

deleted text begin (b) If a proposed interim ordinance purports to regulate, restrict, or prohibit activities
relating to livestock production deleted text end new text begin (b) For purposes of notice and public hearing required
by this section new text end , a public hearing must be held following a ten-day notice given by
publication in a newspaper of general circulation in the municipality before the interim
ordinance takes effect.

(c) The period of an interim ordinance applicable to an area that is affected by
a city's master plan for a municipal airport may be extended for such additional periods
as the municipality may deem appropriate, not exceeding a total additional period of 18
months. In all other cases, no interim ordinance may halt, delay, or impede a subdivision
that has been given preliminary approval, nor may any interim ordinance extend the
time deadline for agency action set forth in section 15.99 with respect to any application
filed prior to the effective date of the interim ordinance. The governing body of the
municipality may extend the interim ordinance after a public hearing and written findings
have been adopted based upon one or more of the conditions in clause (1), (2), or (3).
The public hearing must be held at least 15 days but not more than 30 days before the
expiration of the interim ordinance, and notice of the hearing must be published at least
ten days before the hearing. The interim ordinance may be extended for the following
conditions and durations, but, except as provided in clause (3), an interim ordinance may
not be extended more than an additional 18 months:

(1) up to an additional 120 days following the receipt of the final approval or review
by a federal, state, or metropolitan agency when the approval is required by law and the
review or approval has not been completed and received by the municipality at least 30
days before the expiration of the interim ordinance;

(2) up to an additional 120 days following the completion of any other process
required by a state statute, federal law, or court order, when the process is not completed at
least 30 days before the expiration of the interim ordinance; or

(3) up to an additional one year if the municipality has not adopted a comprehensive
plan under this section at the time the interim ordinance is enacted.

Sec. 4.

Minnesota Statutes 2010, section 462.358, subdivision 2a, is amended to read:

Subd. 2a.

Terms of regulations.

new text begin (a) new text end The standards and requirements in the
regulations may address without limitation: the size, location, grading, and improvement
of lots, structures, public areas, streets, roads, trails, walkways, curbs and gutters,
water supply, storm drainage, lighting, sewers, electricity, gas, and other utilities; the
planning and design of sites; access to solar energy; and the protection and conservation
of flood plains, shore lands, soils, water, vegetation, energy, air quality, and geologic
and ecologic features. The regulations shall require that subdivisions be consistent with
the municipality's official map if one exists and its zoning ordinance, and may require
consistency with other official controls and the comprehensive plan. The regulations may
prohibit certain classes or kinds of subdivisions in areas where prohibition is consistent
with the comprehensive plan and the purposes of this section, particularly the preservation
of agricultural lands. The regulations may prohibit, restrict or control development for
the purpose of protecting and assuring access to direct sunlight for solar energy systems.
The regulations may prohibit the issuance of permits or approvals for any tracts, lots, or
parcels for which required subdivision approval has not been obtained.

new text begin (b) new text end The regulations may permit the municipality to condition its approval on
the construction and installation of sewers, streets, electric, gas, drainage, and water
facilities, and similar utilities and improvements or, in lieu thereof, on the receipt by the
municipality of a cash deposit, certified check, irrevocable letter of credit, bond, or other
financial security in an amount and with surety and conditions sufficient to assure the
municipality that the utilities and improvements will be constructed or installed according
to the specifications of the municipality. Sections 471.345 and 574.26 do not apply to
improvements made by a subdivider or a subdivider's contractor.

new text begin (c) new text end A municipality may require that an applicant establish an escrow account or
other financial security for the purpose of reimbursing the municipality for direct costs
relating to professional services provided during the review, approval and inspection of
the project. A municipality may only charge the applicant a rate equal to the value of the
service to the municipality. Services provided by municipal staff or contract professionals
must be billed at an established rate.

new text begin (d) new text end When the applicant vouches, by certified letter to the municipality, that the
conditions required by the municipality for approval under this subdivision have been
satisfied, the municipality has 30 days to release and return to the applicant any and all
financial securities tied to the requirements. If the municipality fails to release and return
the letters of credit within the 30-day period, any interest accrued will be paid to the
applicant. If the municipality determines that the conditions required for approval under
this subdivision have not been satisfied, the municipality must send written notice within
seven business days upon receipt of the certified letter indicating to the applicant which
specific conditions have not been met. The municipality shall require a maintenance
or performance bond from any subcontractor that has not yet completed all remaining
requirements of the municipality.

new text begin (e) new text end The regulations may permit the municipality to condition its approval on
compliance with other requirements reasonably related to the provisions of the regulations
and to execute development contracts embodying the terms and conditions of approval.
new text begin The municipality may not require land dedications or fees in the development contract that
are not authorized by statute or mutually agreed upon by all parties to the development
contract. In addition, the amount of financial security for work authorized under the
development contract must have a rough proportionality to the work to be completed by
either the municipality or the applicant. Unless otherwise agreed, at least three days before
approval, the municipality must provide a copy of the complete development contract,
including all exhibits, to the applicant. new text end The municipality may enforce such agreements
and conditions by appropriate legal and equitable remedies.

Sec. 5.

Minnesota Statutes 2010, section 462.358, subdivision 2c, is amended to read:

Subd. 2c.

Nexus.

(a) There must be an essential nexus between deleted text begin the deleted text end new text begin any new text end fees
or dedication deleted text begin imposed deleted text end new text begin authorized new text end under deleted text begin subdivision 2b deleted text end new text begin this section new text end and the municipal
purpose sought to be achieved by the fee or dedication. The fee or dedication must bear a
rough proportionality to the need created by the proposed subdivision or development.

(b) If a municipality is given written notice of a dispute over a proposed fee deleted text begin in lieu of
dedication deleted text end before the municipality's final decision on an application, a municipality must
not condition the approval of any proposed subdivision or development on an agreement
to waive the right to challenge the validity of a fee deleted text begin in lieu of dedication deleted text end .

(c) An application may proceed as if the fee had been paid, pending a decision on the
appeal of a dispute over a proposed fee deleted text begin in lieu of dedication deleted text end , if (1) the person aggrieved by
the fee puts the municipality on written notice of a dispute over a proposed fee deleted text begin in lieu of
dedication deleted text end , (2) prior to the municipality's final decision on the application, the fee deleted text begin in lieu
of dedication deleted text end is deposited in escrow, and (3) the person aggrieved by the fee appeals under
section 462.361, within 60 days of the approval of the application. If such an appeal is not
filed by the deadline, or if the person aggrieved by the fee does not prevail on the appeal,
then the funds paid into escrow must be transferred to the municipality.

Sec. 6.

Minnesota Statutes 2010, section 462.358, is amended by adding a subdivision
to read:

new text begin Subd. 2d. new text end

new text begin Dedication. new text end

new text begin The regulations may require that a reasonable portion of
the buildable land, as defined by municipal ordinance, of any proposed subdivision be
dedicated to the public or preserved for public use as streets; roads; sewers; electric, gas,
and water facilities; storm water drainage and hold areas or ponds; and similar utilities and
improvements. The requirement must be imposed by ordinance or under the procedures
established in section 462.353, subdivision 4a.
new text end

Sec. 7.

Minnesota Statutes 2010, section 462.358, is amended by adding a subdivision
to read:

new text begin Subd. 2e. new text end

new text begin Park dedication and fees. new text end

new text begin (a) For purposes of this subdivision, "fair
market value" means the value negotiated between the municipality and the applicant,
or the market value of the property as determined by the municipality based on an
independent appraisal for land in the same or similar land use category.
new text end

new text begin (b) The municipality may, by ordinance, require that a reasonable portion of the
buildable land, as defined in the ordinance, of any proposed subdivision be dedicated to
the public or preserved for public use as parks, recreational facilities as defined in section
471.191, playgrounds, trails, wetlands, or open space.
new text end

new text begin (c) If a municipality adopts the ordinance as required by paragraph (b), the
municipality must adopt a capital improvement budget and have a parks and open space
plan or have a parks, trails, and open space component in its comprehensive plan subject
to the terms and conditions in this paragraph and paragraphs (d) to (i).
new text end

new text begin (d) The municipality may choose to accept a cash fee as set by ordinance from the
applicant for some or all of the new lots created in the subdivision, based on the average
fair market value of the unplatted land for which park fees have not already been paid.
new text end

new text begin (e) For purposes of redevelopment on developed land, the municipality may choose
to accept a cash fee based on fair market value of the land. However, if the land proposed
to be redeveloped has already contributed park dedication or a cash fee, the municipality
may only charge a cash fee as to new value arising from the redevelopment. Previously
subdivided property from which a park dedication has been received, being resubdivided
with the same number of lots, is exempt from park dedication requirements. If, as a result
of subdividing the property, the number of lots is increased, then the park dedication or
in-lieu fee must apply only to the net increase in lots.
new text end

new text begin (f) In establishing the portion to be dedicated as parks, trails, or open space or the
cash fee, the regulations shall give due consideration to the open space, recreational, or
common areas and facilities that the applicant proposes to reserve for the subdivision.
The municipality must provide evidence that it will need to acquire that portion of land
or the in-lieu fee for the purposes of parks, trails, or open space as a result of approval
of the subdivision.
new text end

new text begin (g) If a municipality chooses to accept a cash fee in lieu of dedicated land, the
municipality may collect the fee at any time after the applicant has submitted building
permits for development of the approved subdivision and before completion of
development. Cash payments received must be placed by the municipality in a special
fund to be used only for the purposes for which the money was obtained.
new text end

new text begin (h) Cash payments received must be used only for the acquisition and development
or improvement of parks, recreational facilities, playgrounds, trails, wetlands, or open
space based on the approved park systems plan. Cash payments must not be used for
ongoing operation or maintenance of parks, recreational facilities, playgrounds, trails,
wetlands, or open space.
new text end

new text begin (i) The municipality must not deny the approval of a subdivision based solely on
an inadequate supply of parks, open spaces, trails, or recreational facilities within the
municipality.
new text end

Sec. 8. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2010, section 462.358, subdivision 2b, new text end new text begin is repealed.
new text end