Yes, the City Should Win - If They Really Try
- admin0129213
- 1 day ago
- 5 min read
This post is part of a 3 part series, see the other two posts here:
As we discussed in our first post (Watten Ponds Developer Sues - What Happens Next?), the Watten Ponds developer has started a legal action against the City's decision to require an Environmental Assessment Worksheet (EAW) for the Watten Ponds development. We talk about what that means in the prior post. This post addresses, who will win?
The clear answer is, the City should win, if they try hard.
The City’s Built-In Advantage
From a legal standpoint, the City starts with a significant advantage in this kind of case – think of it like running the 100 yard dash with the City having a 25 yard headstart. It doesn’t mean the City WILL win, but it does mean that the City OUGHT TO win.
Courts reviewing certiorari petitions prefer not to substitute their judgment for that of local officials. And the standard for overturing a city factual decision is very high - whether the decision was “arbitrary and capricious”. A decision is “arbitrary and capricious” if it lacks a rational basis, ignores important facts, applies the rules inconsistently, or fails to explain the reasoning. If there is a reasonable, supported explanation – even one the appeals court disagrees with or would have decided differently - courts should uphold the City’s decision.
In practical terms, that means:
The developer carries the burden
Close calls go in favor of the city
A well-documented record is often enough to sustain the decision
If the City has done its job—built a clear record, applied the ordinance correctly, and explained its reasoning—it is in a strong position to prevail. (See our previous post if you're not clear what "the record" is).
Where Things Can Go Wrong
The City’s advantage is real and powerful, but it is not absolute (the City starts at the 25 yard line, not the 99.9 yard line). Cities do lose certiorari appeals, but when they do, it’s often for avoidable reasons - someone messed up.
1. “Sandbagging” By City Staff.
The City’s case is only as strong as the arguments and facts it presents to the Court of Appeals. And by “it”, we mean City Staff. The opinion of many is that City Staff, and especially the Planning Department, has been highly biased in favor of the developer. If the City approaches the court case the same way it approached the development review, then it is possible they could try to “throw” the case - lose on purpose - to help the developer.
This requires City staff to undermine or not fully support arguments that back up the actions of the Council. In essence, the City would be at war with itself.
But that's not so far-fetched. The Planning Department recommended that the Council reject the EAW. But the Council didn't listen to the Planning Department - the Council voted 4-1 to require the EAW (with the Mayor opposed),- over the objection of the Planning Department. As a result, a decision that favors the developer also favors the Planning Department and reinforces the need for the Council to follow the advice of the Planning Department. The developer winning is a big “we told you so” for the Planning Department and mayor.
This is important because, as we noted earlier, there is a major disagreement on the Council on how absolutely the Council should uncritically accept what they’re told by staff and follow staff’s recommendations. The mayor, for example, seems to believe that the word of staff is essentially Gospel, while other Council members believe that the Council must make independent decisions that consider staff input but only as a helpful source of information. This is a major shift in the dynamics at City Hall from the past, with a Council that increasingly acts independently and much more in line with interests of residents.
As this Council has more regularly stood on its own, the power of Staff has diminished. This case is a way for Staff to reassert their prominence. A loss for the City is a win for the Planning Department, City Staff and the mayor as the only Council member who voted against the EAW - obviously creating a worrying conflict of interest.
2. An Incomplete or Inconsistent Record.
If the record is thin, contradictory, or poorly organized, it becomes much harder to defend the decision. Courts rely heavily on the written record. Gaps or inconsistencies can undermine even a substantively reasonable outcome.
We know that the Planning Department failed to fully develop the record regarding the wetlands, and even incorrectly stated twice that a wetland did not flow into another or into the lake when the City’s own maps or human eyes show the opposite. The Planning Department’s single-minded effort to support this developer by convincing the Council to reject the EAW has created a much weaker record than should have been the case - staff simply did not attempt to create a record of arguments favoring the EAW. If the Planning Department had attempted to create a neutral, unbiased set of information for the Council, the Council’s decision would be much harder for the Court of Appeals to reject.
Now the gathering of the record to present to the Court of Appeals lies in the hands of the Planning Department and its newly appointed City Attorney who is working directly with the Planning Department.
The fox is perhaps in charge of security for the henhouse.
3. A Weaker Legal Team or Strategy
Robert Frost said “A jury consists of twelve persons chosen to decide who has the better lawyer.” It’s not quite the same here, but appellate litigation is specialized. A misstep in framing the issues, failing to address the correct standard of review, or overlooking key precedent can shift momentum. Even with deference on its side, the city still has to make a coherent and disciplined legal argument. Is the city’s attorney up to the challenge, squaring off against a high-priced, downtown Minneapolis law firm?
4. Misapplication of the Ordinance
This is the one area where the City and developer are on equal footing. If the city applied the law wrong, ignored required criteria, or treated similar cases inconsistently, those errors can outweigh the usual deference. The City’s attorney was very clear on the reading of the law. A loss would be quite surprising.
If the City Loses: The Accountability Question
If a city loses a certiorari appeal—especially in a case where it has a strong legal and factual advantage like this — it raises legitimate questions.
Was the record properly developed by the Planning Department?
Were all relevant arguments raised at the right time?
Was the legal strategy sound and appropriately resourced?
Even when you start with a 25 yard advantage, losing is not, by itself, proof of failure. But losing due to preventable issues—like an incomplete record or one-sided staff recommendations - points to serious process problems that need to be addressed.
If the City were to lose, a serious period of internal self-reflection would be both appropriate and necessary to determine whether City staff is fully supporting the Council, as the elected representatives of the residents, or is acting based on their own desires.
Bottom Line
A writ of certiorari is a serious development, but it does not mean the developer is likely to win. The city enters the process with meaningful structural advantages, particularly the court’s deference to local decision-making.
However, those advantages depend on one thing above all: a strong, well-documented, and legally sound record and case.
If that foundation is in place, the City should win.