Originally posted on Streets.MN.Almost everyone who testifies before the Minneapolis City Planning Commission (and really, similar bodies all over) ends up giving testimony that’s ineffective. This goes for people on both sides of the YIMBY/NIMBY divide, but it applies especially to people in the latter camp, who make up the majority of testifiers.
Go to any planning commission meeting and you’re likely to see a series of neighbors come up to the lectern and speak passionately about what they’d like to see the City Planning Commission do (usually deny the project). Then, at least in Minneapolis, the commissioners typically ask a couple questions and then almost always approve the project—often by unanimous vote.
And look, as someone who is firmly in favor of a lot more building, I think this status quo is mostly fine. Minneapolis is permitting enough housing units to generally stay abreast of population growth, and rents are largely staying flat as a result. The commissioners understand the basics of supply and demand. The commissioners understand the environmental benefits of greater density. City plans are almost uniformly supportive. It’s been a rough decade for the city’s unrepentant housing opposition.
A lot of neighborhood opposition couldn’t stop the Sons of Norway from redeveloping their own property for housing.
But while I find solace in the policy, I’m troubled by the process. On December 3rd, the Minneapolis City Planning Commission held its final meeting of the year and quite likely its longest and most contentious. Several projects took a significant amount of testimony before being approved. One proposal to downzone two blocks of Northeast Minneapolis was advanced without a recommendation (I testified against it). After the meeting, I saw a Change.org petition and a thread on Nextdoor of people rallying in opposition to one of the developments and also in favor of the downzoning effort.
Sitting through this one meeting underlined the reasons for my general discomfort. I want people to be involved in their city and their neighborhoods. As a primary matter, it’s a bummer that so many people are motivated to this degree of civic participation in order to oppose something that would help out many of their neighbors. But as a secondary matter, it pains me that (even if I disagree with them) many people come to this kind of civic participation in good faith, spend part of their evenings away from their families and friends, and then essentially get mugged by an arm of government that they expected would be more responsive.
I find myself wishing that our system of land development more frequently produced positive sum outcomes for all parties. Instead it creates confrontations that lead to one side walking away feeling confused and frustrated. I’d like people to believe that land development can work for everyone, instead of believing that it’s a rigged game for the few. I see conspiratorial posts about commissioners being bought, or YIMBY testifiers being paid shills, and I think that beyond debates about rents and greenhouse gases, the broader issue is that a lot of people simply don’t really understand what’s going on. From that misunderstanding, grievances are left to flourish.
I’m under no illusions that one blog post will solve this issue. But I also feel some kind of obligation to try to put the word out.
Three things To Know About The Land Development Approval Process (In Minneapolis, but Also ElsEwhere):
The Planning Commission is “quasi-judicial”
The first thing to know about the Planning Commissions is that it is a “quasi-judicial” body. In simple terms, what that means is that its members are (1) not acting as judges but (2) are obliged to reach conclusions as if they were.Many people approach the Planning Commission as if it is a political body. They stand at the lectern and make political arguments. For example, they may allege that the developer is a rotten person who was rude to neighbors during the public outreach process. Or they may suggest that the project architect has no taste and has designed an eyesore. Or they may insist that the people testifying in favor of the project are all members of the Proud Boys. Regardless of the form they take or the truth behind them, political arguments are not going to be effective because they do not provide a basis on which a quasi-judicial body can render a decision.
To illustrate this point, consider how in March 2022, the Minneapolis Planning Commission denied approval for a proposed building that a majority of members believed was not a stylistic fit with the neighborhood. But in so doing, they could not provide a suitable legal basis for their actions. Mindful of being hit with a sure-loser lawsuit, the Minneapolis City Council swiftly reversed the decision and the City Attorney’s office booked some time before the Planning Commission at its next meeting to remind it of its constraints under the law.
Legal arguments carry more weight. A development is supposed to comply with zoning rules unless the applicant can demonstrate some reason why it is impractical to do so. Sometimes these exceptions are fairly cut and dry. Sometimes they are already explicitly anticipated by zoning rules that allow for an applicant to provide an additional benefit in exchange for a break. But sometimes they are highly contestable.
The opinions of city planning staff are influential in these matters. City staff are also bound to follow the law and provide recommendations for approval or disapproval along the same contours as the commissioners. That does not mean that a clear right-or-wrong interpretation exists for every issue, but rather that testifiers can’t be effective unless they know what the relevant issues for a given development are.
On some occasions, a person testifying will go too far in the opposite direction and approach the Planning Commission as if it is a court of law. But the commissioners are not judges. They are not equipped to parse legalese and they know it. The best arguments before the Planning Commission are those that reflect the nature of the body and make legally-relevant points in ordinary language. In a quasi-judicial setting, make quasi-legal arguments. In planning and zoning matters, political considerations can provide scaffolding for a decision, but ultimately they cannot substitute for legal reasoning.
This is largely because…
The applicant has property rights
When someone buys a property, they have fairly broad rights to do what they want with that property. They can use the site for axe throwing practice, paint an provocative mural of Lenin, or assemble piles of $100 bills and periodically shred them. They can also purchase the site with the intention of developing a new building on it. Some of these activities may be limited in various ways by zoning law or financial realities. But they are not limited by vibes. If neighbors disagree with how someone is using their property, a healthy starting assumption is that they probably can’t do much to stop it.Often people testifying at the Planning Commission will invoke their long tenure in the neighborhood. This may be relevant as personal biography, but it does not provide additional legal heft to a person’s opinion. Someone who has lived adjacent to a property for 50 years does not have a greater say in how the property is used than someone who purchased it 5 minutes earlier. This make strike you as unfair, but it is the law.
People testifying at the Planning Commission also frequently speak about ambient effects that a proposed building will have in their area. It may do something like block a beloved view, cut down a venerable tree, or close a valued parking lot. However sympathetic these concerns may be, they do not override the rights of the property owner to generally use their property as they see fit. As such, in the context of testimony for the Planning Commission, this type of testimony can provide color to an argument but should not form its basis.
And that brings me too…
The commissioners have probably heard your argument already
This is a really key asymmetry to understand: almost all of the ordinary citizens who appear before the Planning Commission are there for the first time. In contrast, the members themselves attend every meeting, while prolific applicants and their various consultants will attend multiple meetings over several years.This means that ordinary members of the public lack to context to know how repetitive certain arguments are and consequently how ineffective they become. Every planning commissioner has heard repeatedly from a broad assortment of unrelated testifiers:
How quaint the neighborhood is, irrespective of its quaintness.
How the neighborhood has a unique character that is under dire threat from a single project, irrespective of its character.
How the developer failed to adequately engage with the public, irrespective of how much the developer reached out.
How scarce parking is on the block, irrespective of what Google Streetview or a staff analysis might show.
How a given development just isn’t the right use for the area, irrespective of the use.
How a given development just is slightly too tall for the area, irrespective of how tall it is.
How a given development doesn’t have the right unit mix, irrespective of that unit mix.
How a given development doesn’t have enough affordability, or has too much affordability, with the only constant being that the proposed affordability is not correct.
Most of all, they have heard these arguments prefaced with some variant of the line, “we’re not against all development, but…”
Just about everyone who engages in this type of special pleading really does believe that they are special. Moreover, they honestly believe that they have made an argument tailored specifically for the situation as it pertains to them. But what they don’t know is that independently, many other people before them have thought the same thing and presented the Planning Commission with the same rhetoric.
For people who make these arguments, the lack of reaction or sympathy from the planning commissioners may seem inexplicable. But for the commissioners who have heard the same phrasing used and misused in so many different contexts, it loses its effect quickly and it becomes impossible to effectively gauge the degree to which the testimony is true, as opposed to all of the other times that similar arguments have been made.
If you’re going to testify before the Planning Commission, one of the best things you could do is to watch the discussion of some items in a previous meeting. They are all posted on YouTube. Watch the presentation of city staff. Listen to the testimony of the public. Then attend to the discussion among the commissioners. Note the differences between what concerns the latter two groups. Did the public testimony unsuccessfully anticipate and address the topics that the commissioners found fresh and relevant?
The Power Of Knowing the Process And Having Realistic Expectations From The Start
One of my unlikely hopes, which I alluded to at the start of this post, is that if people were better informed about how the land development system functions and how its bodies do its work, then they might not end up opposing so many projects in the first place. It’s tough to kill a project outright.
Neighborhood opposition helped get the Nye’s development scaled down from a tower, but it was never going to actually save the Nye’s building itself. Instead, the new design was probably enough of a win for everyone that people could come away satisfied.
Developers are professionals who can read a zoning code and they can hire other professionals who are even more proficient. Rarely will a developer propose something that is significantly out of line with a city’s laws and precedents. Typically they will have already adjusted their plans based on initial feedback from city staff well before going for formal approvals.
Developers are also humans. They are used to people being angry with them but it’s not something they tend to seek out and enjoy. The vast majority of developers would love to go for their city approvals with a letter of neighborhood support and not with a line of neighbors behind the lectern in opposition.
If more people understood this, they might be less likely to take positions of maximalist opposition in a quasi-judicial forum at the last possible moment. Far more effective would be to take a position of qualified support in a political forum as early as possible.
Here’s my best advice if a development project is proposed in your area: figure out what you want out of it.
Does your neighborhood lack a certain type of business?
Does your neighborhood lack a certain type of amenity?
Is the proposed project site deficient in some way that the development could make right?
Do you feel that the neighborhood should encourage affordable housing?
Do you feel that the neighborhood needs an influx of market rate housing to encourage more commercial activity nearby?
You get the point. When you know what you want you can then approach the developer, as a neighborhood, and say “we’d love to support your project but we think it would be better if…”
There are limits to this approach! Sometimes, what the neighborhood wants may not be practicable. Or it might be unethical. In some cities, there are neighborhood organizations that have perfected the art of the shakedown, funneling contributions from developers into unrelated organizations or initiatives.
But in terms of the project itself, neighborhood feedback can often be valuable and make a better project—if it is realistic and offered in good faith. This can bring about the kind of positive sum interactions that make all stakeholders feel better about the process, and make City Planning Commission attendees feel less frustrated when hearing a lot of ineffective and fruitless testimony.