Power plays


Officials face challenges holding some organizations accountable for violating city rules.

The old adage that you can’t beat City Hall apparently doesn’t apply to some government organizations.

The Minnesota Department of Transportation (MnDOT) and the Minneapolis Park and Recreation Board are two recent examples of organizations that have blatantly disregarded city regulations and so far have faced little in the way of reprimands.

Ever since Crosstown reconstruction began this spring, the city has denied MnDOT contractors the noise permits needed to work on the project at night, yet residents continue to hear the drone of construction machinery into the wee hours of the morning. The city also issued a stop work order for construction of the Park Board’s Parade Stadium, yet work on the project marched forward despite concerns from neighbors.

City officials aren’t happy with the lack of compliance and said they expect other government organizations to follow the same rules as everyone else. But the city’s Department of Regulatory Services, which distributes permits and oversees enforcement of city regulations, doesn’t have a policy specifically outlining how to deal with governmental entities that break the rules. Instead, it handles those issues on a case-by-case basis, said Assistant City Coordinator Rocco Forte.

“What we try to do is negotiate compromises that we can all live with and, unfortunately, that doesn’t always happen,” Forte said.

Despite the recent handful of instances in which other government organizations have willfully disobeyed city rules, Forte said it isn’t something that happens often. Yet when it does, it can create a difficult situation for a city department that spends the vast majority of its time working with residents and businesses.

“I think you run into trouble when you have a regulatory system that’s designed for individuals. If you’re issuing a fine every day on an individual residential property, that’s a big deal [to the individual],” said Ben Hecker, aide to Council Member Betsy Hodges (13th Ward). “But if you’re issuing a $1,000 fine every day to MnDOT, that’s taxpayer money that they can budget into that. It’s pretty tricky at that level.”

City Council President Barb Johnson (4th Ward) said the city’s options for dealing with other government organizations are also limited by delicate political

“Aside from injunctions and that sort of thing, it’s a hard situation. We know we have to work with these folks all the time, so there’s a point where you try to make a point and hope you get cooperation,” Johnson said. “And most of the time, that works.”

The case of Crosstown

The case of the reconstruction project has become particularly thorny, Forte said. When Crosstown reconstruction began this spring, MnDOT contractors needed to apply for day and nighttime noise permits. They received approval for daytime work, but didn’t get permission to reconstruct the highway overnight. Despite a lack of permits, work continued anyway.

“Those [issues] are so [immersed] in county and state ordinances that we actually have to get the city attorneys involved whenever we get into disputes with the construction issues so we can identify which jurisdiction everything belongs in and legally what pressure we can put on to [make them] follow our policies,” Forte said.

The Department of Regulatory Services is currently negotiating with MnDOT and is also talking with city attorneys about its options.

Burt Osborne, the city’s director of operations, said there’s no point for MnDOT to keep applying for permits because they’re going to continue to work overnight anyway.

“I don’t like to issue permits against people who I can’t enforce them against,” he explained. “If I can’t affect the behavior of MnDOT, I don’t intend to engage in any sort of farcical permitting

Osborne isn’t comfortable issuing a blanket permit for MnDOT to work 24 hours a day, which is what contractors are requesting.

“The folks living right around that reconstruction project, I believe, are suffering,” he said. “They haven’t been able to get a good night’s sleep in their homes for, in some cases, months.”

According to Steve Barrett, MnDOT resident engineer, if workers have to wait for the permits to be approved, the project could fall behind schedule.

“The contractor, we feel, made the appropriate efforts and got the permits applied for,” he said. “Just because they weren’t awarded doesn’t mean they didn’t do everything they could to get them.”

Council Member Scott Benson (11th Ward) said some of the problem with the Crosstown situation is that MnDOT has ceded much of its power to the contractor hired to work on the project. The contractor doesn’t feel compelled to respond to residents’ concerns, Benson said, and that is where problems are created.

“Nobody really represents the residents in that process,” he said.

According to Benson, the city is willing to work with MnDOT and the contractor on the issue of noise permits as long as they have a plan that will at least give neighbors an idea of when the work will be going on. So far, that hasn’t gone anywhere.

Osborne plans to consult with the city attorney on what steps they can take to enforce the permits.

“The city of Minneapolis can’t tell the federal government what to do and, in many cases, can’t tell the state what to do either,” he said. “As a local official, I find that frustrating.”

Problems with Parade

The city also doesn’t seem to be able to always tell local government organizations what to do, either. On April 25, the city’s zoning inspector issued a stop-work order against the Park Board’s construction of Parade Stadium. Park Board staff was in the process of revamping the athletic field located west of the Walker Art Center Sculpture Garden, which included laying down artificial turf and installing high-efficiency lighting.

In a letter to the project manager, Zoning Administrator Stephen Poor determined that the project required conditional-use permits due to the height of the lights.

Park Board Superintendent Jon Gurban called the stop-work order “a very regrettable piece of action by some uninformed bureaucrats.”

“We have done much more work elsewhere in the city and never had a conditional-use permit,” he explained. “This was not any effort to circumvent anything.”

The city eventually granted the Park Board a conditional-use permit on July 16, but the lights had already been up since May, according to Planning Director Barbara Sporlein. Two conditions of the permit were that it must be recorded with Hennepin County and that the lights can’t be used past 10:15 p.m.

“If they do additional improvements, they should consult with the city to see if there’s other additional land use approvals needed,” Sporlein said.

What can the city do?

The city has several options it can take to enforce its regulations. The first is to issue a fine, which for continuing violations can reach a maximum of $2,000 per day. The second is to criminally prosecute the ordinance violation. Ordinance violations are always prosecuted as a misdemeanor, according to Assistant City Attorney Erik Nilsson, and are taken to Hennepin County District Court. If a situation is severe enough, a criminal charge could be added to an administrative fine.

“Those are the two major, sort of day-to-day enforcement options,” Nilsson said.

The city could also opt to get a court-ordered injunction to force the individual or organization to stop the offending behavior.

The City Attorney’s Office takes action against ordinance violations after the proper city department monitors and documents the violation, Nilsson said. The department — whether it be Regulatory Services, the Fire Department or Zoning inspectors — have to issue an order to the property owner to correct the violation and give them a certain amount of time to comply, he said. If they refuse, the city can then look at enforcement options.

While legal action might be one way for the city to enforce its rules, Nilsson acknowledged that it’s costly and often time-consuming for the city attorney’s office. That’s likely why it isn’t a common action taken, he said.

“Who wants to read about one governmental entity suing another and fighting? You would hope that would be something they could work out,” Nilsson said.

Council Member Betsy Hodges (13th Ward), who chairs the city’s Intergovernmental Relations Committee, is working to ensure that’s exactly what happens. She’s in discussions with the Minneapolis Park Board, School Board and Library Board to create systematized relationships among the entities so “the communication is better and we have places to go to work out issues like that.”

Hodges acknowledges that a lot of the issues could be handled better — or might not arise — if the various entities had improved relationships with one another.

“Good communication from the get-go can help prevent some of these troubles,” Hodges said. “Once the troubles happen, it really is an issue first handled by Regulatory Services. And then, if that doesn’t suffice, that’s when people often turn to find systemic solutions.”

Yet she also said the city should not treat other governmental entities any differently than it does residents who are not following city regulations.

“Basically, what you’re asking someone to do is follow the rulebook,” Hodges said, adding that if the city doesn’t have the tools to enforce its rules, those policies and procedures should be reexamined.

Taking on the MAC

Though it may seem like the city is helpless in the face of willfully disobedient governmental organizations, officials stood their ground against the Metropolitan Airports Commission (MAC), a state entity that deals with airport noise.

When the airport expanded in the mid-1990s, the commission promised noise mitigation products to thousands of residents who live under noisy fight paths. Years later, the MAC decided to cut almost half of the homeowners out of the deal, claiming their new airplanes create less noise. As a result, the cities of Minneapolis, Eagan and Richfield filed a joint lawsuit against the commission, demanding complete noise mitigation packages for everyone. The parties expect to reach a settlement agreement this month.

Hodges said taking legal action is something the city is willing to do if other recourses aren’t

“Of course, that is not the way we want to proceed. If we have better options, we take them,” Hodges said. “Part of what I’m trying to do is create the conditions for better options.”

Reach Mary O’Regan at moregan@mnpubs.com and Kari VanDerVeen at kvanderveen@mnpubs.com