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The POWER 30: Brian S. McCool

The saga of Sartell illustrates the potential intensity of land use disputes. The unresolved case has made three appearances at the appellate courts, including a Supreme Court case in 2020.

In that case, AIM Development v. City of Sartell, the court said the owner of a facility for nonhazardous, nontoxic industrial waste that accepted waste from a single source may accept waste from additional sources without expanding its nonconforming-use rights. The question was whether a landfill that was created to accept waste from a paper factory could accept nonhazardous, nontoxic waste from another source after the paper factory was demolished. The Supreme Court said yes.

The attorney for the property owner, Brian McCool of Fredrikson & Byron, said the type of waste that went into the landfill was consistent with earlier use, and it didn’t matter than the source was different. The question was how closely the court was going to “zoom in” to define the use. But it zoomed out in a direction of flexibility in determining use. “It’s good news for nonconforming uses. There’s a lot of value that can be lost if you lose a right to a nonconforming use,” McCool said.

In contrast, the dissent wanted to “zoom in,” he said. Written by Justice Natalie Hudson and joined by Justice Margaret Chutich, it said “AIM Development may not, however, substitute a commercial landfill for the paper mill and captive landfill because that action would not continue the nonconforming use that existed at the time of the adverse zoning change in 1989.” In fact, the dissent continued, it is a “fundamental change in the nature of the existing nonconforming land use.”

The Court of Appeals in 2019 had said the landowner seeking to continue a prior permitted nonconforming use of property is bound by the uses allowed under the terms of the land-use permit in effect at the time of the property transfer to the landowner. In 2020 the Court of Appeals attended to previously unaddressed issues and remanded.

In the rest of his practice, McCool likes to work with project development from the sight of the first blade of grass on the property to the finish. It’s true right now that material prices, including lumber, are increasing but the parties are working on it. The Twin Cities market works well because there are strong relationships with contractors.

At the same time, subcontractors are in demand so they may be able to negotiate premium fees. Some price pressure is coming from that source, he said.

But the best contractors and subcontractors work together and not in court, McCool said. Some projects may begin to use the “next tier” of experience and leadership and that may lead to more litigation, he said. Smaller projects may not get the best workers, experience and leadership, he said. Fights happen when people are working outside their ability, he said.

“When everybody is making money, they don’t stop to fight,” McCool added.

 

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