Minneapolis commissions environmental review in final stretch of 2040 Plan lawsuit

Minneapolis officials have hired an expert to do an environmental analysis of the city's 2040 Comprehensive Plan, following a legal victory by activists who charged that the city failed to study the plan's environmental impact before adopting it.

Smart Growth Minneapolis and Minnesota Citizens for the Protection of Migratory Birds claimed the 2040 Plan, designed to eliminate single-family zoning in favor of developing more housing, would pollute the air and public waters while reducing permeable land and wildlife habitat. Challenging individual projects wouldn't address the cumulative effects of the plan, the groups argued.

City attorneys argued Minneapolis should have to conduct environmental reviews only on individual projects under the Minnesota Environmental Rights Act (MERA), and not on the 2040 Plan, which lays out the potential build out under citywide development goals.

The Minnesota Supreme Court decided in 2021 that a city's comprehensive plan can be challenged under MERA. Last month it declined to review the city's appeal, and the Court of Appeals last week sent the case back to Hennepin District Judge Joseph Klein.

What remains to be decided in District Court is the fate of the 2040 plan, considered one of the most progressive in the country when it abolished single-family zoning in favor of increasing multi-family housing.

"Our legal team is providing and will continue to provide a full-on defense of the [2040] Comprehensive Plan and our ability to institute it," said Mayor Jacob Frey. "It's of critical importance to the city. … We're producing record amounts of affordable housing. Last year it was 919 units, which is the most we've ever been able to produce before."

The environmental groups are now asking the judge to again block the 2040 Plan. In the meantime, the city has brought on an expert to analyze the potential environmental impacts of the maximum development allowed under the plan — though it cannot yet say when the analysis will be finished, according to a letter from Assistant City Attorney Kristin Sarff last week.

The City Attorney's office declined to say who will do the review, when the expert was hired, what type of review was commissioned or how much it costs.

The plaintiffs, said their lawyer Jack Perry, have "been maligned as being elitist and racist and foolish in their legal theory, and with the passage of time and the rulings from the courts, all three of those allegations have been proven wrong. According to the Minnesota Supreme Court, they are protecting the environment in the only way possible."

Smart Growth contends that the city's newly initiated environmental assessment should not be used as a last-minute effort to comply with MERA and quash the lawsuit, because the city has already passed on many chances to produce a study.

When the suit was initially filed at the end of 2018, the Audubon Chapter of Minneapolis was a third plaintiff along with Smart Growth and Citizens for the Protection of Migratory Birds. But Audubon retreated from the case in March, citing a change in the organization's leadership and priorities.

Klein last summer ordered the city to cease implementation of the 2040 Plan and revert back to its 2030 Plan. According to his order, he would have allowed the city to challenge the environmental groups' testimony in a hearing, but the city didn't follow through and failed to mount a defense. Klein's order was put on hold pending appeal.

In December, the Court of Appeals upheld Klein's finding that the environmental groups had sufficiently argued the 2040 Plan would cause environmental harm and could sue under MERA. At the same time, it sided with the city to reverse Klein's injunction, saying the judge hadn't adequately explained why the 2030 Plan would be less harmful to the environment than the 2040 Plan. The appeals court sent the case back to Klein for further proceedings.

The next hearing in the case is scheduled for June 7.

Frey and city staffers lobbied the Legislature this spring to change state law by exempting municipal comprehensive plans from environmental review, and were joined by city officials from St. Paul and Hopkins.

Their bill, Frey wrote in a March letter to the Senate State and Local Government and Veterans Committee, would "ensure that local governments can continue to conduct this valuable planning process without the potential for requirements that would be onerous, inappropriate, and impractical."

"There is material danger to Minnesota communities' ability to self-regulate if the decision in Minneapolis 2040 is upheld," said PeggySue Imihy, president of the Minnesota chapter of the American Planning Association. "If local governments lose the ability to increase density and urban centers, the result would include further disperseddevelopment patterns that would have far more negative environmental impacts than the full build out of any comprehensive plan."

But civil rights attorney and activist Nekima Levy Armstrong, co-counsel for the environmental groups suing Minneapolis, urged lawmakers not to dilute MERA's power over local governments.

"We know that people of color will be disproportionately impacted when governmental bodies are allowed to not comply with environmental laws," she wrote in her testimony to the Senate committee.

The Minnesota Center for Environmental Advocacy (MCEA) also opposed the bill, despite supporting the 2040 Plan in general for its stated goals of producing climate resilience and reducing greenhouse gas emissions by planning for denser communities around public transit.

"Minneapolis should produce the evidence requested rather than seek an exemption from a bedrock state environmental law," said Kevin Reuther, MCEA's chief legal officer.