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A smoldering controversy over a crematory in Jordan is raising questions from opponents about whether the city is engaging in illegal tactics to allow the facility to operate.

The accusation is that the city is using "spot" zoning, defined as creating an island by singling out a parcel for special privileges not consistent with surrounding uses. The practice is illegal in Minnesota.

The city amended its zoning code this summer to keep the crematory from closing down after a Scott County judge ruled that its use permit was illegal.

Last year a divided Jordan City Council granted a permit to the Ballard-Sunder Funeral Home for a crematory. Opponents, worried about what they said would be toxic emissions from a facility located right downtown, filed suit in Scott County, alleging that the crematory was not permitted under the area's existing zoning regulations.

A judge agreed, ruling the permit was illegal because it was considered a new business and thus not in compliance with zoning laws. However, the judge did suggest that the city could change the definition of what a funeral home and crematory are, thus making a crematory a permissible accessory use.

The city did that last month, despite the opposition of a number of residents. A final reading on the change will happen later this month.

Court action likely

"It is spot zoning," said Michelle Bisek, one of those opposed to the crematory and the owner of a daycare center across the street. "There are no other funeral homes in the city limits and haven't been for years. They are making changes to accommodate one business."

But officials said the city is within its rights.

"The judge indicated that the zoning ordinance could be amended to define crematories as an accessory use within a funeral home," City Administrator Ed Schukle Jr. said. "That is what the City Council is currently doing."

Although the matter likely will end up in court, attorneys familiar with land use law said proving spot zoning and getting judges to overturn a government decision is difficult.

"It is a high standard," said Paul Zisla, a lawyer and a former New Brighton planning commissioner. "The courts give a great deal of discretion to the municipalities."

According to court decisions on spot zoning, judges look at whether the municipality has a reasonable or rational reason for the zoning change. Also, judges seem unwilling to substitute their own judgment for that of city planners when it comes to zoning.

That was evident in a 1986 case in which Mounds View prevailed in the Court of Appeals after a zoning dispute case was brought by a business owner.

Initially, the lower court ruled that the city must re-zone a property. But it was overturned on appeal.

"We will not substitute our judgment for [Mounds View's]," Chief Judge Peter Popovich wrote.

Bill Griffith, a law professor at the University of St. Thomas specializing in land use, said zoning changes that benefit one applicant do not necessarily indicate spot zoning.

Ultimately, Griffith said, the courts will look for the "fairness" of the zoning changes to determine whether something is considered spot zoning.

"Every day in every city, there are specific zoning decisions made that are intended to benefit ... [an] applicant," Griffith said.

Paul Merwin, a senior land use attorney at the League of Minnesota Cities representing Jordan, is confident that the city will prevail if the matter ends up in district court.

"Spot zoning is one of those things that is frequently alleged but is seldom actually happening," Merwin said. "In Jordan ... the zoning change does not apply only to a single parcel. There is not even a change of a use classification of any properties. The fact that there is only one business that is currently seeking to take advantage of this definitional change is not relevant."

That opinion is at odds with those of opponents of the crematory, including City Council Member Thomas Boncher, who voted against the zoning change,

"Common sense tells us that the zoning change amendment applies to that funeral home alone," Boncher said. "And in spite of what people like to think about our courts, common sense does have legal standing."

Heron Marquez • 952-746-3281