2001 Correspondence - Laserfiche WebLink

Home

SEPTEMBER 1978 zoning. Participation by such an interested member may be cause for invalidation of the action. See gear. eraily, Ops. Atty. Gen. 477B -34, June 19, 1967 and 396g -16, Oct. 15, 1957 (copies enclosed); Rathkopf, The Law of Planning and Zoning, § 22.03; 4 McQuillin, Muni- cipal Corporations, §§ 13.35, 13.35a. As the court noted in Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 15, 153 N.W.2d 209, .. (1967): The purpose behind the creation of a rule which would disqualify public officials from participating in proceedings in a decision- making capacity when they have a direct interest in its outcome is to in- sure that their decision will not be an arbitrary re- flection of their own selfish interests. There is no settled general rule as to whether such an interest will disqualify an official. Each case must be decided on the basis of the particular facts present. Among the relevant factors that should be considered in making this determination are: (1) The nature of the decision being made; (2) the nature of the pe- cuniary interest; (3) the number of officials making the decision who are interested;. (4) the need, if any, to have interested persons who make the decision; and (5) the other means available, if any, such as the opportunity for review, that serve to insure that the officials will not act arbitrarily to further their selfish interests. (Footnote omitted.) These standards would, in our view, preclude the participation by a member in consideration of a zoning ordinance of narrow applicability affecting property of the member, such as appears to be the situation des- cribed in the facts presented. QUESTION TWO Is the council precluded from acting upo., proposed rezoning where a council member has been employed as an architect or planner for the persons seeking the rezoning? OPINION In our view, the response to Question One applies whether the interest of the council member in the council's action stems from property ownership or from an employment relationship with interested part- ies. Thus, the interest in council action, while not dir- ectly proscribed by the terms of section 471.87, would, in many circumstances preclude participation by the interested member in the action of the council. Where the council member in his private capacity has been involved in preparation of the specific pro- posal upon which council action is contemplated, the considerations set forth in Lenz v. Coon Creek Water- shed District, supra. would dictate that such a mem- ber would be disqualified from acting in his official capacity upon the proposal. WARREN SPANNAUS, Attorney General Kenneth E. Raschke, Jr., Asst. Atty. Gen. 33 ROADS: SNOW REMOVAL: PRIVATE STREETS: Minn. Stat. § §.412.221, subd. 6 (1976), and 412.221, suba. 32 (1976), authorize a city to remove snow from private streets open to public use should it be determined that the public interest is served by the snow removal. William R. Soth, Esq. September 13, 1973 c/o Messrs. Dorsey, Windhorst, Hannaford, 377a -11 Whitney & Halladay Counsel for the City of Deephaven 2300 First National Bank Building Minneapolis, Minnesota 55402 In your letter to Attorney General Warren Span - naus you present substantially the following FACTS The City of Deephaven is a statutory city governed by the provisions of Chapter 412 of the Minnesota Sta- tutes. Snow is removed from public streets pursuant to section 412.221, subd. 6 (1976). In addition, snow is re- moved from several streets under contract with the owners of the streets, usually homeowner's associa- tions. The private streets from which snow is removed by the city are used by the public in much the same manner as publicly dedicated streets. You then ask substantially the following QUESTION Does the City of Deephaven have the power, under the provisions of Minn. Stat. § 412.221, subd. 32 (1976), to remove snow from private streets open to public use within the city limits of Deephaven if the city is paid for the cost of removal? OPINION Subject to the qualifications set forth below, we answer your question in the affirmative. A city has no inherent powers but possesses only those powers which are granted to it by statute or which may be implied directly therefrom. Mangold Mid- west Co. v. Village of Richfield, 274 Minn. 347 Minn. 347, 143 N.W.2d 813, 820 (1966); Minnetonka Electric Co. v. Village of Golden Valley, 273 Minn. 301, 141 N.W.2d 138 (1966). In Op. Atty. Gen. 377a -11, Nov. 19, 1951, this office ruled in that regard that a city, absent a statutory or charter provision had no authority to use city snow removal equipment to plow private driveways and charge the owners. In our view, however, that opinion does not stand for the proposition that a city has abso- lutely no power with respect to snow removal on any road which is in private ownership. That opinion stress- ed that the driveway snow removal was viewed as a wholly private benefit to the property owner. In addition to specifically enumerated powers,* more general authority is delegated to statutory cities in Minn. Stat. § 412.221, sub. 32, as follows: With respect to streets, Minn. Stat. § 412.211, subd. 6 provides: The council shall have power to lay out, open, change, widen or extend streets, alleys, parks, squares, and other public ways and grounds and to grade, pave, re- pair, control, and maintain the same; to establish and maintain drains, canals, and sewers; to alter, widen or straighten water courses; to lay, repair, or otherwise improve or discontinue sidewalks, paths and crosswalks. It shall have ;power by ordinance to regulate the use of streets and other public grounds, to prevent encum- brances or obstructions, and to require the owners or