You may have heard the news that Judge Joseph Klein, in a Hennepin County District Court ruling, suspended the decadal “Minneapolis 2040” comprehensive plan following a litigation challenge. The lawsuit has been moving through the court system for years, and challenges the Minneapolis comprehensive plan under the Minnesota Environmental Rights Act (MERA). Led by a group called Smart Growth Minneapolis, and including the Minneapolis Audubon chapter and another birding group named Minnesota Citizens for the Protection of Migratory Birds, they have managed to win an initial ruling that suspends the comprehensive plan for now.
The decision is alarming because it discards years of work by a team of Minneapolis city planners and staff, makes irrelevant hundreds of public meetings attended by thousands of Minneapolis citizens (including one notable public hearing at City Hall that lasted five hours), and puts in limbo billions of dollars of development across the city. It also eliminates the largest single action taken by a Minnesota city on the linked crises around climate change and the housing shortage. For someone who wants cities to lead on these difficult issues, it’s hard to overstate my disappointment.
But all is not lost for Minneapolis 2040. This ruling could either be a depressing turning point that sets climate action and housing equity back a generation or a minor hiccup. As a non-attorney, I’ve been trying to wrap my head about the issues listed in the 28-page ruling. Here are four quick observations.
City attorneys were right, but still screwed up
The lawsuit uses the MERA to challenge the comprehensive plan, an environmental protection law that first passed in 1971, intended to protect “air, water, land, and other natural resources located within the state from pollution, impairment, or destruction.” In this case, it’s the first time in a half-century that a city comprehensive plan has been litigated under MERA.
In arguing against the lawsuit, the Minneapolis City Attorney’s office rested its case on rejecting the “assumption of immediate and full build out,” a line of reasoning that, at least if you use any measure of common sense, is obvious. To assume that every parcel of land in the city would immediately be with a new building at its peak density is absurd. A parallel cited in a MERA challenge of a freeway expansion called State by Schaller, would have one think about a new highway as having every lane in bumper-to-bumper traffic 24/7, with only the most polluting kinds of vehicles in a logjam on the road.
For that case, the courts claimed that MERA did not apply and relied instead on far lower MnDOT traffic counts that called on decades of data. But in this case, Judge Klein rejected Minneapolis’ arguments along similar lines, ruling instead that a “full and immediate build-out” is the right lens to think about MERA arguments.
To a layperson, that seems weird and counterintuitive, but the real tragedy is that the Minneapolis City Attorney’s office did not contest anything else about the case. They did not respond to the litigant’s arguments or expert witness on a point-by-point basis, leaving the rest of the decision a one-sided affair.
Density is a red herring
A lot of Klein’s decision focuses on the residential density in Minneapolis that could potentially come from rezoning associated with the 2040 Plan. The word density appears 12 times in the decision, and never in a flattering light. But as a result of the lack of arguments against the five MERA standards, the litigant arguments became “undisputed facts.”
In other words, the following claims were not contested in the ruling:
“It has not been disputed that the 2040 Plan represents a significant change from any previous plan, in terms of land use. It is undisputed that before the 2040 Plan there was no express intent to achieve increased population density for the Minneapolis area. Before the 2040 Plan there was no abolition of new single-family dwellings in Minneapolis. Before the 2040 Plan was approved there was no land use plan which authorized the increase of nearly 150,000 new residential units.”
To me, few of these claims seem true. Most comprehensive plans in Minnesota history expressly intend to achieve greater population; Minneapolis 2040 does not abolish single-family dwellings; and, to pick just one example, the city’s 1917 plan explicitly called for a population goal of 1,000,000 residents.
But as a result of the asymmetrical arguments, the crux of Klein’s decision hinges on the idea, unchallenged by Minneapolis attorneys, density inherently impacts natural resources, especially “air, water, soil, animals, and quietude.”
From an urbanist perspective, the linking of density and pollution is backwards. If you look around the world, density doesn’t have an inherent connection with the environmental destruction. To take but one example, Tokyo is one of the quietest cities I’ve ever walked around in, and has density an order of magnitude higher than Minneapolis. When it comes to particulate pollution, greenhouse gas pollution, or habitat impacts, any city in Finland fares better than the Twin Cities on all fronts precisely because of their greater density.
While dense informal communities across the Global South can be very polluted, it’s almost always because of a lack of infrastructure and social services. Meanwhile, sparsely populated cities and towns can be some of the most polluted and damaging, and nothing is worse for soil and water runoff than a surface parking lot full of leaky cars. Destiny itself doesn’t cause environmental problems; they hinge on many other social factors.
Every comprehensive plan could be challenged using MERA, which is bad
Another big problem caused by the Klein ruling is that nearly all comprehensive plans change zoning to allow for more housing. In fact, adding housing is pretty much required by the regional Met Council, and occasional holdouts like Lake Elmo are the exception that proves the rule. Other cities comprehensive plans are different only in scale, not in kind, from Minneapolis 2040.
[image_credit]City of Minneapolis[/image_credit][image_caption]The Minneapolis 2030 comprehensive plan, temporarily back in effect, also calls for increased population in large swaths of the city.[/image_caption]
Missing the burning forest for the backyard tree
The most ironic thing about this case is that the lawsuit was brought by supposed environmental groups (note that “Smart Growth Minneapolis” has no affiliation with Smart Growth America, a long-time urban advocacy group aimed at increasing density in cities like Minneapolis). As an urban birder, it’s heartbreaking to see migratory birds used as a fig leaf to prevent climate action.
The case is critical because, in the absence of state and Federal action on the linked climate and housing crises, U.S. cities must lead. A recent study in California showed that building more “infill housing” in walkable cities represents the single most effective way to reduce carbon pollution, making the Minneapolis 2040 plan represents a major step forward for stopping climate change in the U.S.
In the end, slapping migratory birds onto the title of this case makes this outcome Orwellian. Climate change is transforming the Arctic faster than any other place on earth, in part because of ever-increasing carbon pollution from Americans and reliant on damaging fossil fuels.
Where does anyone think those birds are migrating to each spring? If this ruling holds, and cities like Minneapolis cannot act, it’s likely to their extinction.
“Extinction”? Come on. It’s terminating verbiage like this that makes what initially appears to be reasonable editorializing become unreasonable.
I don’t know how many links to science articles I should put here about mass extinction, but this will have to do for starters: https://www.usatoday.com/story/news/nation/2020/02/14/climate-change-study-plant-animal-extinction/4760646002/
Bill, for various reasons other than any relevant in this context, Tokyo and Helsinki are not good points of comparison.
Counterpoint: how about Turku and Nagasaki? Same principle would apply.
Bill, I think you need to point to a city in the US if you want support you claims here. Obviously Helsinki isn’t the product of the MPLS 2040 plan or anything like it.
America running all it’s environmental decisions through the court system is going to lead to humans being extinct too.
Yeah… environmental laws are threat to the environment, look at the damage they’ve caused since the rivers stopped burning.
We need comprehensive urban plans that call for retaining and increasing the tree coverage in the Twin Cities at the same time urban density is increased. Studies have shown that the average temperature decreases by several degrees in areas where there are a lot of mature trees. Wildlife benefits, the climate benefits, people benefit. Minneapolis 2040 is all about residential density and doesn’t really give a damn about the environment, except in its magical thinking. When we achieve greater density, traffic will magically decrease! Since mass transit is so poor (and poorly funded) and the state is so cold half the year, that isn’t likely to happen. What will Minneapolis 2040 do to reduce pollution? That has never been addressed.
I agree, that comprehensive plans need to address tree coverage. Conveniently, Minneapolis 2040 addresses tree canopy explicitly in policy 14, titled, “Tree Canopy and Urban Forest: Improve the tree canopy and urban forest.”
Of the steps the plan states Minneapolis will take, the first one reads, “Develop and implement strategies and quantifiable goals to increase the tree canopy including exploring an expansion of funding and incentives to plant and promote species diversity while retaining and protecting existing trees.”
https://minneapolis2040.com/policies/tree-canopy-and-urban-forest/
The nice thing about trees is they grow back. Even if we assume Minneapolis 2040 necessarily removes a significant amount of tree coverage (which it does not), trees can and will be replaced in every possible instance, because of their obvious popularity and utility.
People who decry greater urban density for fear of “losing” trees are either disingenuous in not understanding the basic, biological fact of tree growth, or they are too wrapped up in their own egotistical enjoyment of the mature trees they know, that they cannot imagine that trees planted today will be the mature trees known by generations to come, nor the potential benefits of any connected urban development.
And they also ignore the fact that in all environments where humans dwell (urban, suburban, rural), mature trees are often felled when they get too large, whenever they pose a hazard to adjacent dwellings and infrastructure if they were to fall uncontrolled in a storm, or even in the instance that their root system is causing a sidewalk or road pavement to buckle.
I understand lamenting their loss. I would be sad if the oak behind my apartment were felled and miss its beauty. But this isn’t the Superior Forest, it’s W 14th Street. And its loss may serve a greater benefit AND be replaced to preserve tree coverage.
I have a great deal of respect for Mr. Lindeke and occasionally have linked to or quoted his work in some of my commentary. Nevertheless I have to disagree with him on this one. My own critique of Mpls 2040 is posted at https://www.dropbox.com/s/23rfe0ftxgvae41/2021%2008%2001%20Mpls%202040%20critique.pdf?dl=0. One of my major objections is the short shrift it gives to wealth building through home ownership.
The council that passed 2040 has now been replaced by a distinctly different membership, and the process of democracy moves forward. Construction of rental housing is already hampered by the enabling referendum on rent control, a proposition that I supported, but there are many opportunities in the city for rental adaptation or new construction without disrupting long established residential neighborhoods.
I agree that environmental vs affordable housing concerns is an issue that needs more discernment. But the court decision may serve as a useful reminder that planning experts need to hear the voices of their community constituents, and not just the echoes of their university professors.
The plan passed 12-1 and mayor Frey, who was reelected, remains a supporter. Of the new council members, only 2 are fierce skeptics. It still seems that there is a clear majority on the council supporting the 2040 plan, including several of the new council members. The voices of constituents were heard during the debate, and they were heard in the last election. There is large support for the plan among actual people. And, indeed, there were changes made to the initial plans to respond to concerns. The initial plan was 4plexes, and that was reduced to 3plexes. Transit corridors were also scaled back further from the downtown core. We even changed the intensity of development in places like Loring Park to accommodate density concerns.
A judge has just reminded the council that regardless of their majority, they can’t ignore the law. Whatever changes they made to 2040 are not sufficient. MERV is not negotiable.
What is the purpose of housing? To shelter people form the elements and give them a place to call home or for middle-class people (and speculators) to build wealth?
A single-family house is not the only way to build wealth, and the current speculative atmosphere actually hinders beginners from stepping onto the property ladder. Condos and cooperatives also count as property purchases and can appreciate in value. Not everyone wants a yard and a detached garage.
Incidentally, I live in Linden Hills in one of the more affordable apartment buildings, and my neighborhood was full of yard signs after the 2040 plan was announced. “Don’t bulldoze our neighborhood,” the signs said, as if all the 100-year-old houses were going to be demolished without the owners’ permission and replaced by Pruitt-Igoe–style high rise projects. Any structures other than single-family houses would have a disastrous effect, the reasoning went.
Yet just today I took a two-mile walk through the neighborhood, and while I knew that there was already plenty of housing that wasn’t single-family, I was surprised to see how many buildings that *appeared* to be single-family houses had two house numbers, two mail boxes, and two doorbells. There were two or three on each block. I’m not even including the fourplexes and apartment buildings that already exist around here.
What are the NIMBYs really afraid of? That the”wrong” kind of people will move in? Except for one small row of townhouses that is inhabited by Somali families, all the new developments are way out of the price range of anyone who isn’t upper middle class.
This reflexive anti-NIMBYism is disappointing. First, this court decision has nothing to do with NYMBYism, it’s ruling on the failure to follow environmental regulations and perform environmental analysis. Are you really stepping up as a champion of ignoring environmental regulations? Do you really think environmental analysis is a threat to your neighborhood?
As for 2040, you realize that it would/will take more than two or three years to see even the beginning of the impact of this policy on your neighborhood right? Just because you haven’t seen much yet doesn’t mean you’ll NEVER see it right?
Minneapolis 2040 seems like a landlord power grab under the guise of improving the city. Within a block of my home four older single family homes have been razed this year and been replaced by tri-plexes, these are owned by a conglomerate of landlords who control dozens of properties in the neighborhood, neglect them and use 2040 as an avenue to build larger homes that maximize the number of renters. There is very little left for individuals to build their own wealth or live in and invest in a neighborhood. Minneapolis needs rental properties that are affordable, but it also needs ways for individuals and families to own homes, build wealth and hold a stake in the city, not just rent from a landlord with 80 properties who lives in Lakeville.
Homeownership is overrated, and its ability to build wealth is overstated to make it seem more universal and guaranteed than it is in reality.
Yet for all the push by the Met Council, sprawl continues. Go figure and what does that say?
That there are just way too many people now–while other species are dwindling thereby creating great imbalance in Nature–because resources around the globe are being polluted and used up at a rapid pace…making future sustainability of the planet and for the next generations iffy at best?? Such population growth & concentration makes all resource management exponentially more challenging. To the point where concensus takes a long time to achieve due to so many different opinions & variables. And once it is finally achieved, the decision makers are rotated out or voted out or due of old age so new ones are brought in and they inevitably decide to make changes cuz so much time has gone by and so much has changed…. It does appear to be why not much gets accomplished anymore and on the rare occasions it does the final result must appease do many different folks that it’s just a weak aggragate of what was once imagined. Finally most folks tend to operate by focusing on what’s right in front of them. The day to day stuff. Long range thinkers & planners are rare but exceedingly important! These are the people who need to be sought out and put in place for planning ahead 20, 40, 100 and more years. It’s an entirely different skills set.
“too many people” is borderline eugenicist drivel. It is possible to live sustainably with current and projected population levels (models level off at 11B). Unfortunately for some egos, living sustainably with those levels means greater urban/upward/denser development, so as not to spoil currently undeveloped lands on the outskirts of metropolitan areas
David Schultze provided a link to the actual decision, and I encourage everyone to go read that:
https://www.documentcloud.org/documents/22061355-order_msj-smart-growth-v-minneapolis-27-cv-18-19587?responsive=1&title=1
I have to say having read the decision myself (bearing in mind I’m no lawyer either), Mr. Lindeke’s analysis here isn’t very credible for a variety of reasons.
The suggestion that MPLS lawyers failed to make the case is demonstrably wrong. Their problem was that they had no case to make. Basically the MPLS defense of 2040 rested on 3 spurious claims. 1) The claim that MERV compliance wasn’t required. 2) The creation and implementation of 2040 wasn’t an act of “conduct”. 3) The plaintiffs case should be summarily dismissed. The lost all three.
It’s important to note that these claims were struck down by the MN Supreme Court in previous rulings, not Judge Klein. Klein ruled on the enforcement of 2040, and that ruling is based on established law.
The fact is that neither the city of MPLS nor any other 2040 proponent conducted any serious environmental review or study of the possible effects of increasing density according to this plan. The plaintiff in this case DID conduct such research and found that detrimental environment effects were possible or likely. When given a chance to rebut the plaintiffs finding the city simply failed to produce any credible evidence. It’s important to note that this wasn’t simply a failure by the legal team, the fact is that densely populated cities are NOT inherently cleaner or more environmentally friendly or efficient than less densely populated areas. Some cities are cleaner and quieter than others, but that fact simply demonstrates the inability to predict the outcomes outlined in 2040. The entire 2040 plan is predicated on increasing population and density, I don’t know why Lindeke or anyone would think they can build an entire plan around density and then claim that density is irrelevant? i.e. a “red herring”. At any rate, the judge didn’t buy it or do I.
The cities excuse for not performing any serious environmental review was that they claimed MERV wasn’t applicable to a “plan” like 2040 because such plans aren’t a act of “conduct”. Basically they argued that the plan is an administrative exercise, not an “action” per se, (the “plan” after all is a bunch pages of paper) therefore exempt from MERV requirements. If that arguments sounds specious it because it IS specious and that’s exactly what the MN Supreme Court determined. You can read the details of that finding in the link, Klein has gone taken great care to explain it. Basically the courts have long since established that we don’t have to wait until damage is done to find out if damage will be done. Having already lost this case at the MN SCOTUS city attorneys couldn’t revisit it in front of Klein. And by the way… are you really going to stand behind THAT city argument? The “plan” is just a piece of paper?
Finally the judge dismissed the cities motion for summary judgement on very sound legal grounds. The plaintiffs clearly established probable environmental effects and damage that could result from 2040 implementation and the city simply had no evidence to refute that claim. This wasn’t bad city lawyering, you can’t present evidence you don’t have and you can’t wordsmith your way out of established law and legal precedent.
Let’s take a moment to address a few other points that Lindeke makes here.
1) There was indeed a long process, and hours and hours of meetings etc. involved in the creation and passage of 2040. The problem is that none of that is a credible substitute for scientific research, credible evidence, and legal requirements. Next time you want to put this much work into something like this, do it right.
2) This is a legal finding in a court of law, not a debate game. You can’t spend years promoting a plan as a unique never-before attempted plan to engineer responsible growth and density, and then claim it’s all been done before and point to a quote from the 1920’s. That might score you a point in a debate game but don’t expect a competent judge or lawyer to be swayed. When the judge finds that several aspects of 2040 have never been part of MPLS city plan before… he’s finding correctly.
3) Lindeke seems to dispute the claim that 2040 promotes “full build out”. Basically I think (and he can correct me if I’m wrong) Lindeke seems to want to argue about the effects of infill and how much bull build-out 2040 actually allows. This is a complex discussion in within the decision but I think Klein’s conclusion ends up being that 2040 can’t actually manage the degree of infill and full build-out if problems arise, it’s not so much about the amount of infill and/or build out, but the management of it.
Basically as I’ve noted elsewhere, we have planners accustomed to making and executing plans with little or no credible evidentiary requirements, they just believe whatever they think, and that’s 2040 in nutshell. Sure, you don’t need evidence to get participation or popular support. And you certainly don’t need evidence to get votes on a city council, but sometime you need it to meet legal requirements… and make good plans.
The sudden alarm over the impact of environmental laws like MERV actually strikes me as kind of bizarre. This looks like an industry complaint about over-regulation more than a legitimate concern among “planners”. Obviously the application of environmental law to applicable projects is nothing new, so what if MERV applies to other projects, that’s the point right? Why would a planner want to proceed without competent environmental review anyways? Are we planning or lobbying for developers here?
Meanwhile the idea that striking down 2040 will kill growth or development is obviously specious. 2040 was a response to housing shortages and growth underway for decades after all, it couldn’t possibly be a necessary requirement for new growth and development. And I would remind everyone that MPLS saw it’s greatest and most substantial population and housing boom in the 1920’s and 30’s without the any comprehensive plan anywhere near the scale of 2040 AND the vast majority of RECENT development was initiated long before 2040 went into effect.
Finally, let’s not pretend 2040 passed or went into effect without controversy or opposition. Correct me if I’m wrong but the plan wasn’t wildly popular nor endorsed by all. So let’s not pretend the judge pulled a big rug out from EVERYONE here, obviously some will more affected than others by this decision, some more or less negatively than others.
The author writes: “City attorneys were right, but still screwed up.” “Screwed up” is right and the district court decision explains how and why the city attorneys were not right: by failing to depose the Plaintiff’s expert as to qualifications and expertise and by failing to carry the City’s burden of proof under MERA by presenting evidence or testimony on the “no prudent or feasible alternatives” or showing that the “actions” are governed by other environmental permits, processes or standards. The court’s decision explained out that the City’s expert did not address or rebut the points raised by the Plaintiff’s expert which supported the prima facie case under MERA and the injunction. Rather than (or maybe even in addition to) appealing, the City would be wise to reopen the 2040 Comprehensive Plan and address the problem of adverse environmental impacts, explaining why there are no other feasible or prudent alternatives to protecting the environment or how the adverse environmental impacts can be addressed through other environmental permitting processes.
Just clarify, this decision finds that proponents of 2040, the city of MPLS, nor Henn County, made any serious attempt to perform a credible analysis of the possible environmental impact of the plan. 2040 proponents and planners didn’t simply fail to perform that analysis, they actually decided and argued that the analysis itself was unnecessary.
So now when they pretend to know all about trees and canopies and blah blah blah you have to bear in mind that they have zero evidence or analysis to support those claims. When they had a chance to perform an analysis and present any data they might have to support those claims they showed up in court with exactly bubkis. They didn’t even try to respond to credible analysis the plaintiffs presented. So you can point to a paragraph in 2040 that talks about the trees if you want but we know that there’s no credible support for whatever those claims and observations may be, circling back garbage can only yield more garbage.
Meanwhile, the comment that: “trees grow back” is a perfect example of the kind scientific ignorance and massively misinformed mentality behind some of the 2040 predictions and claims. Urban chauvinism is no credible response to climate change.
If you want to talk about climate change you simply must have the necessary environmental data and research to do so. 2040 claimed that wasn’t necessary and proceeded with a plethora of it’s own assumptions based on the revealed wisdom of “urbanists”. Yeah, they got the votes… at the time… but that doesn’t make it a great or even a good plan.