Letting the Clock Run Out
How developer bias captured Shorewood City Hall — and what it costs the people who live here.
Part Four of five in Anatomy of a Captured City. What capture is is the short version; this is the evidence from the City's own appellate brief. A companion to Yes, the City Should Win (If They Really Try).
We've written about a Planning Department that had eleven ways to protect the old trees on this project and used none of them. Same idea here, different document: the City's own brief defending its decision in court.
The City Council voted to require an environmental assessment worksheet for the development of the four properties this developer owns. The developer sued to stop the review. You might ask why anyone would sue, when suing costs more and takes longer than filling out an environmental questionnaire. It's a good question.
But he did sue, and the City's lawyers had to answer. Before the City filed its response, we emailed our arguments to the City Attorney, because we were worried the City wouldn't put up its best effort. City staff never wanted this environmental review, and the Council overruled them to order it. We asked whether staff would defend the Council's decision or keep pushing for the outcome staff wanted all along.
We held off on asking the court to let us into the case, because we wanted the City to make these arguments itself. When the brief came back without them, we asked to intervene. The court said no. So we are making them here.
We read the brief against the record. It has the same problem as the tree file: what's there is good, and what isn't there is what kills you.
The scoreboard
The state rule on residential development, Minn. R. 4410.4600, subp. 12, begins: The following projects are exempt. Then it lists three alternatives, A, B and C. A project matching any one of them is exempt, which means the City has to close all three doors. The City argues that a project must satisfy every exemption that applies to it. Either way, the question is where it argued.
1. It conceded the first exemption
Exemption A covers a sewered residential development of fewer than 20 units in a city of Shorewood's class. If it applies, the project is exempt, the review is over, and the trees come down. The property sits in Shorewood's lakeshore district. The rule's drafting history says the shoreland exclusion covered every class of city, but the brief never makes that point. Instead it argues that A and B must both be satisfied and concedes that the developer satisfies A. If the court rejects the cumulative reading, A has been conceded and the case ends there.
The brief's own cumulative reading is weaker, and its reading of exemption C would leave exemption B's ten-unit threshold with nothing to do. The argument researched and not used has no such problem.
2. It left the stronger argument on the table
Exemption C covers a single residence, or a multiple residence of four dwelling units or fewer. The City answers it in a footnote, arguing that multiple residence is singular and this project is two separate houses. That is a legitimate argument. But the state rules also count land under single control together, and the developer owns four connected parcels. Counted together this is five houses, over C's limit. The brief never mentions the counting rules, phased or connected actions, or the watershed district. Forty-six pages, no mention of any of it.
3. It told the court it never decided the question that would have closed the third door
Exemption B applies to fewer than ten residential units in shoreland only if land within 300 feet of the lake's ordinary high water level or an adjacent wetland is preserved as common open space. Houses are going on this ground, so the City had two ways to close the door.
Staff reported 319.81 feet using an imprecise parcel-map measurement to the wrong reference point. We measured from the property line to the ordinary high water level and got about 294 feet — inside the line. Yet the brief says the City never drew or stated a specific conclusion on the lake distance.
The Council found the project within 300 feet of the Crescent Wetland — 297.94 feet, from a measurement residents provided before the meeting. The brief called it unverified instead of defending the Council's reasonable measurement. It did real work on the meaning of adjacent, but winning that point accomplishes nothing if the wetland is inside 300 feet and the lake issue was surrendered.
Why it reads like a strong brief
Read it cold and it looks like a real fight. It is well written and well organized, and the adjacency section is genuinely strong. But the two exemptions that could have been closed outright got a concession and a footnote. The polished pages went to a question that closes nothing on its own.
Add it up
Any one of these could be an honest judgment call. Three, all breaking the same way, on a list of three, is a pattern: concede the first exemption while holding the research that would have defeated it; answer the second in a footnote and skip the argument that needed no interpretation; then tell the court you never decided the question that would have closed the third. That is the same shape we found in the tree file.
Why residents couldn't fix it
The court gave two reasons for keeping us out. We were late, and that was fair. We waited because we wanted the City to make these arguments. The second reason was that the City adequately represents the public interest. The trouble is that the City is both the Council, which made this decision, and staff, which didn't want it made. On this record, the filing appears to defend the latter. And that is capture.
What can still be done
Briefing is closed. But the case isn't over. A Council member can ask the City Attorney in open session: are any of these arguments still available, and if they aren't, why weren't they made? The Council is the client here, and residents are entitled to hear the answer.
Bottom line
The City should still win. Courts give it the benefit of the doubt, and the developer carries the burden of proof. But two of the three doors could have been closed outright. Neither one was. The brief and the record described here are public filings. We live in Shorewood; we sought leave to intervene in this appeal and were denied.
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.
Related posts
Read this with the related posts:
Series overview · What Capture Is, and Why You Pay · The Amazing Shrinking Environmental Review · Eleven Tools, Not One Used - a Tree Preservation Policy that Doesn't Preserve Trees · One and a Half Percent, a Story of a Flood Foretold · How It Happens, and What to Do About It · A Eulogy for Arthur · If Somebody Tells You Agency Capture Isn't a Real Thing
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