Judge Guthmann's Findings 4/10/2021

Documents from the  1/29/21 hearing

City's case, hearing document

NLSP Hearing notes. Not a Court Document

NLSP response to City's Attempt to Dismiss

Click on the pdf button below to open our response to the court. It is 16 pages long. This response has been accepted by the Court and will serve as the basis of our argument at the hearing on January 29th (see notice on this page).

If you haven't read the City's original response to Neighbor's writ it might be a good idea to just do so before you begin. It's 50 pages long so you might just sample the document. Link on HOME page, top left box.

NLSP Writ Explained

As many of you are aware, several Saint Paul residents affiliated with Neighbors For A Livable Saint Paul filed a Writ of Mandamus action under Minn. Stat. § 586.01 in Ramsey County District Court. The purpose of this action is to compel the City to follow their own law by applying the plain meaning of "open space" in the Zoning Code and Ford Site Master Plan. The City and Ryan are trying to count private apartment balconies and private decks within the limits of the building as "open space", conflating the clearly codified distinction between lot coverage by buildings and lot coverage for open space, and inflating the scale of this already out-of-scale project.


The City responded by filing a motion to dismiss arguing that the residents' claim is a land use dispute that is to be adjudicated under Minn. Stat. § 462.361. The City also argued that the court has no jurisdiction and the residents have no standing because the residents did not appeal within 10 days of the Zoning Administrator's failure to execute their

legal duty to apply the Code and the Master Plan in accordance with its plain meaning.


Actually, the Writ of Mandamus action is often applied in the context of land use issues; especially to compel governments to perform a clear legal duty. Interestingly, in their motion to dismiss the action, the City actually cited (for a different reason) case law which clearly stands for the notion that a § 586.01. Writ of Mandamus is a perfect remedy for the residents' claim.


Also, the City's insinuation that the residents had a duty to appeal within 10 days of the Zoning Administrators failure to follow their own law is really difficult to take seriously and there are several very strong counter arguments to be made. What were the petitioners supposed to appeal? A back-room decision, to which the general public was not privy, and where the intention was to knowingly circumvent the plain meaning of the Code and the Master Plan?


Our team of lawyers, both paid and volunteer, is exploring all available arguments and is working diligently to prepare a response asking the court to deny the City's motion to dismiss. We anticipate that response will be filed in mid January. There is a hearing scheduled for late January on the City's motion to dismiss.


We will continue to keep you posted on this matter.


NLSP remains committed to promoting responsible community development that enhances the existing neighborhood and the City overall. we need your financial support to ensure that we have the resources to help fund this effort, the pending petition, and future legal action. Please consider making a contribution to support NLSP's Legal Action Fund by clicking HERE.  

Updates after 4/15/2021 

  In his opinion, Judge John H. Guthmann agreed that it may be possible to conclude that the City of Saint Paul failed to perform an official duty imposed by law for enforcing the Ford Site Zoning and Public Realm Master Plan.   This is a key conclusion that the City has consistently denied.   Nevertheless, the judge ruled that we (Neighbors of a Livable St. Paul) will not be allowed to prove our case at trial because of chiefly procedural issues.  This is concerning for multiple reasons.


    First, the City appears to be using bureaucratic maneuvers to prevent anyone from challenging them as they change the rules to inflate and alter the scope of Ford site development, outside of the original codified plan.   On the one hand they publicly acknowledge the open space definition is unclear and should be amended.  Then on the other hand, they never address it, continue to count private rooftop balconies as open space and argue that we (citizens) should have appealed to them within 10 days of their decision to not follow their own rules.   This can only be viewed as a pattern of bad faith behavior and is hardly consistent with sound public policy and good governance.


Second, Minnesota case law states, and we think fairness dictates, that resident taxpayers have an interest in making sure that the laws of their City are upheld which should be sufficient to confer proper standing in a case like this.

    Finally, the City's municipal government holds power in trust for the benefit of its citizens.   However, the City is knowingly violating their own laws that they themselves enacted and then deliberately use an appeals process to obfuscate.   Although the building at issue is already half-built (at 2170 Ford Parkway), we are contemplating the best course of action going forward, including a possible appeal, to ensure that our municipal leaders are acting in the best interest of its citizens.   In our view, the St. Paul variance request process is just a big rubberstamp by the City, supporting whatever developers want. 


Key Data Points / Highlights:

  • Martin H.R. Norder, Esq., was paid for and appeared on behalf of petitioners – Mr. Norder may be open for a statement, but we will leave this up to their decision to do so.

  • Our original Writ of Mandamus was filed on October 28, 2020.

  • A Writ of Mandamus is one of the few mechanisms that citizens can use to impel local governments to follow their own rules.  

  • On November 2, 2020, the court issued an Alternative Writ of Mandamus ordering the respondent to comply with the request for relief or show cause.   In lieu of an answer, respondents filed a motion to dismiss under Rule 12 of the Minnesota Rules of Civil Procedure.

  • A hearing on the motion to dismiss was held on January 29, 2021 – Judge Guthmann had 90days to give his opinion.   We received his opinion on April 8th   

  • The focus of our Petition was on Ryan’s first a mixed-use building located at (behind Lunds) as this kicked off a stream of variance requests by Ryan.

  • Our core issue:  Ryan requested to allow private rooftop and balcony gardens to count toward the open space coverage requirement.  

  • To build our case, we made careful reference to the St. Paul City-adopted Ford Site Zoning and Public Realm Master Plan (“Ford Master Plan” – especially in Chapter 4) and the Ford Site Open Space Guidelines Report (“Open Space Guidelines”).   These documents layout how the development must have a certain percentage of “open space coverage” that is distinct from the percentage of the parcel that is occupied by the building. 

  • In both the hearing and in writing, Judge Guthmann agreed that based on the details produced, that the City of Saint Paul failed to perform an official duty imposed by law.   In several instances, the Judge indicates that if this case were allowed to proceed to trial, depending on the evidence produced, it may be possible to conclude that the city violated the law.  This is a key finding that the City has consistently denied.   The point is that the judge recognized that the City probably bent its own rules, but we (the citizen petitioners) would have to prove it at trial.  However, he is fundamentally not allowing us to proceed to trial based on our lack of standing to bring a case like this. 

  • The open space coverage requirement applicable to the Project is found on page 101 of Chapter 6 in the Ford Master Plan.    The lot in question was limited to a maximum of 70% building coverage and a minimum of 25% “lot coverage for open space.”

  • According to plans for the Project, the new building at 2170 Ford Parkway includes 22,000 square feet of rooftop and balcony garden space.  

  • Ryan also presented approximately 7,300 SF (6.3%) of space around the building exterior at ground level to count toward open space – we don’t disagree with this data point.  

  • With the 22,000 square feet of rooftop space and the 7,300 Sf, this equates to the minimum 25.4% of open space on the site.  Originally, Ryan was only requesting square-footage adjusted per the Masterplan, to limit the rooftop amenity space to count towards only half (or 12.5%) of the total open space calculation. 

  • However a City Planner (Yaya Diatta - 11/17/20 Diatta Decl. 1, 4-6.) decided to give Ryan the towards the site overall open space calculation.   This was based on his individual opinion and interpretation. 

  • Mr Diatta concluded that Variance Request did not actually require a variance and that the planned use (using the rooftop and balconies) fully complied with the definition of “open space coverage” as set forth in Chapter 4, page 47 of the Ford Site Master Plan.   Thus he approved on his own acting that the rooftop space should count 100% towards the 25% minimum “open space coverage” requirement rather than 50% as Ryan assumed in its variance application. 

  • See pp22 – 23 of the Judge's response - Ryan apparently thought the Project as proposed did not satisfy the 25% minimum open space coverage requirement in Chapter 4 of the Ford Master Plan.    As noted in the Statement of Facts, St. Paul Zoning Administrator Yaya Diatta reviewed the Zoning Variance Application and concluded that a variance was unnecessary because, in the exercise of his discretion to interpret the Ford Master Plan, he concluded that the rooftop space should count 100% towards the 25% minimum “open space coverage” requirement rather than 50% that Ryan assumed in its variance application.

  • It is not clear to anyone how Mr. Diatta arrived at his conclusion.  The record contains no detailed computation of what spaces Mr. Diatta used to find 25% open space coverage, nor does it contain an explanation as to why Mr. Diatta concluded that the rooftop space should count 100% rather than 50% as discussed in the Ford Master Plan.   In fact, the Rule 12 record contains no reasoning directly from Mr. Diatta at all.   His decision was communicated by a subordinate.    In the end, it was not possible for the court to determine whether St. Paul’s failure to advance Ryan’s variance request to the Board of Zoning Appeals constituted “an act which the law specifically enjoins as a duty resulting from an office, trust, or station.”

  • So Ryan actually got more than they requested out of the City and this site at 2170 Ford Parkway fundamentally will have very little setback from the street and very little green space.   This in our view is a precursor of what’s to come, now that the City has demonstrated how they are going to support all variance requests; with a benevolent/generous interpretation of the laws   

The Judge wrote that although the case is being dismissed based on a lack of jurisdiction/standing, the court nevertheless will address the claims and defenses in the event of an appeal.