How It Happens, and What to Do About It

Oct 12

6 min read

How developer bias captured Shorewood City Hall — and what it costs the people who live here.

Part Five of five in Anatomy of a Captured City. Start here for the short version. The evidence is in parts two, three and four.

Three files, three different rulebooks, the same direction every time. The tree policy: eleven powers, no record that one was considered. The environmental review: ordered in February for four parcels, read down to one by September, with no vote in between. The appellate brief: of the three exemptions that could have ended the case, two conceded or left unargued.

So how does that happen to a department full of decent people?

Not because anybody decided it should.

Why a department ends up 0 for 11

Nobody chooses to be captured. It happens to conscientious people in well-run cities, and the people it happens to usually can't see it, because nothing about the day looks wrong. Here is what's pushing:

The developer is there from the start. He begins working with the Planning Department months before anyone else knows a project exists, with a budget and consultants on retainer. By the time the public sees anything, it's a finished proposal — the hearing isn't even calendared until the Planning Director decides the plat is final enough to review. So a resident raising a concern at that point isn't arguing that the concern matters. He is arguing that the Department got it wrong, months ago, in a way that now requires reopening a finished project. That is a very heavy lift.

The developer's information is valued, residents' information is disregarded. The Planning Department relies heavily on developers themselves to provide technical data and analysis, giving the developer the power to frame issues in their own favor. Because the developer hires consultants, who are "experts" - but experts with an agenda. Provide the data that's needed go get the project approved. And the Planning Department doesn't question or even check the work. Ask for the records like we did, you'll see what we're talking about.

And there's nobody on the other side. The cost of a bad decision is spread across everyone in town, so no single resident has enough at stake to hire a lawyer and an arborist. The developer is in the room constantly. The Planning Director supports his position with a PowerPoint and unlimited speaking time. You get five minutes, once — and under the Council's own rules, no one on the dais has a workable way to ask you a follow-up question.

They aren't adversaries. They're colleagues. This developer has been through the Department before and will be again. Early on, the Planning Director told residents he liked the developer and thought he was a good person. We have no reason to doubt it — but notice what it describes. The consultant who prepared the tree plan is himself a former city planner, which isn't improper; it's how the field works. The man who writes the plan and the man who reviews it trained the same way and will be at the same conference next year.

You can see it in the email. After a Planning Commission meeting, the developer's consultant thanked the Planning Director for doing a good job, and apologized for not getting it done last night. The developer himself thanked him for a great job and for his help. Read those again and ask who the City's reviewer was working for that night.

None of this takes money. A developer who works the same city over and over builds it up with time, familiarity, and the ordinary good will between people who keep doing business together — in a way no resident ever will.

Mistakes only hurt in one direction. Ask a developer for too much and staff hear about it that afternoon — a call, an appeal, an attorney's letter, even a lawsuit. Ask for too little and nobody says a word; the cost shows up in years, spread across people who'll never know what caused it. One kind of mistake hurts. The other is invisible. Which would you learn to avoid?

And bad news doesn't write itself down. A memo saying we considered requiring an independent forester and decided not to is a memo somebody can argue with. A memo that was never written is not. Nothing obliges anyone to write the first kind, so the file fills with what's mandatory and empties of what's discretionary. Nobody is shredding anything. It's what happens when writing something down can only create problems for you, and not writing it down never does.

But staff are the experts

They are. The question is experts in what.

Go through the email on this project and you find two City people: the Planning Director and the City Engineer. On the tree plan itself, just the Planning Director. Both of those jobs are about getting projects built, and both men are good at that. Who on staff looks out for the environment, or for residents?

Expertise assumes somebody able and willing to make an unbiased call. Where bias drives the decision instead, expertise stops being the thing that decides and becomes the thing that justifies. Expertise doesn't survive capture. It gets used by it.

Shouldn't somebody be in charge here?

Nobody voted for the Planning Director, and that's fine. You don't want technical work done by whoever is most popular.

But the design only works if somebody who does answer to residents is checking it. Staff can't be voted out. The City Council can. Professionals do the analysis, elected officials review it, residents decide who those officials are.

Right now the second half isn't happening — and not because the Council is asleep. The Planning Department decides what to show the Council. It could tell the Council what it reviewed and what it decided. It chooses not to. When you're 0 for 11, that decision makes a lot of sense for them. It doesn't make sense for the Council.

You cannot review what you have never seen.

What we're asking for

Two things, both boring on purpose.

Bring it to the Council. If a project takes down more than ten significant trees, the City Council approves the tree plan — and the plan arrives with a written statement from the Zoning Administrator going straight down the list. Here is each power the Policy gives the City, here is whether we used it, here is why or why not. Did you send it to an independent forester? Require fencing beyond the dripline? Prohibit cutting a stand? Find any specimen trees? If the answer is no, say no, in writing, where the Council and the public can see it.

That disclosure is the heart of it. These choices are being made right now, every time, and nobody outside the department knows a choice was made at all. No new rules. No tree quotas. Just a decision this size made in front of people you can vote out, with the options visible.

Keep a contact log. Date, who, how, which property, one line on the subject. Not what was said — just that it happened — in the Council packet. Meetings between staff and developers are normal and necessary; a city that refused to meet with applicants would be useless. The problem isn't that they happen. It's that the only way to see them is a records request and a willingness to argue about the Data Practices Act.

Bottom line

Neither of these asks anyone to admit a thing. That's the whole point. The useful part of having a name for this problem is that you can fix it without putting anybody on trial.

Wayzata's residents looked at their piece of the Big Woods and decided it was worth a bond referendum. Shorewood's residents have never been asked. Nobody at City Hall has even been required to write down whether tree 11036 is worth keeping.

We live here. The records described above are public data, obtained under the Minnesota Government Data Practices Act.

Anatomy of a Captured City

Public watchdog or developer lapdog? Capture and Why You Pay — The name for what happens when a regulator starts seeing things the way the people it regulates do.
The Amazing Shrinking Environmental Review — An environmental review ordered in February covered one lot by September. Nobody voted. A chronology from the City's own records.
Eleven Tools, Not One Used - a Tree Preservation Policy that Doesn't Preserve Trees — The City's tree policy gave it eleven powers over how these woods come down. There is no record it used one of them.
One and a Half Percent, a Story of a Flood Foretold — The stormwater report left only a 1.5% margin on the largest storm, uphill of homes that have already flooded, without the City's file showing that the assumptions were checked.
Letting the Clock Run Out — The City is defending its own decision on appeal. Read what its brief leaves out.
How It Happens, and What to Do About It — Why this happens to normal people, and the two small things we're asking the City Council to do.