1A, Clear Channel Litigation - Laserfiche WebLink

Home Browse Search

Robert H. Lynn April ]5,2008 Page ]7 time last week is stamped with the date May 18, 2007. Based on this recently produced document, Plaintiff may argue that the City's denial of the application in a letter dated June 18, 2007 was untimely under Section ]220.03, and should be deemed approved. There are several reasons why the argument that the City failed to review or approve the sign permit application within 30 days from receipt of the application should be rejected. First, based on the allegations contained in Plaintiff's own Complaint, the sign permit application was reviewed and acted upon within 30 days. Plaintiff's allegations in its Complaint are deemed admissions, binding on Plaintiff. Accordingly, the dates identified in Plaintiff's Complaint-the May 21 submission date and the June 18 denial date-are binding On Plaintiff and based on those dates, the City acted in a timely manner. Second, the dates identified in the Complaint are consistent with the dates stamped on the City's documents, and there is no evidence that the City somehow changed the date stamped on its documents to cover up for untimely action. In fact, the document in the possession of the City attorney and received from the City the week of May 20 contains the same date as that contained in the City's own documents, confirming that the City did not change the date in June after supposedly missing the deadline. Third, Plaintiff never raised the issue of untimely review and action so it has waived this argument, and its own untimely action in raising this issue for the first time now has hindered the ability of the City to investigate and determine the details of what occurred on May 18 and May 21, 2007. Fourth, automatic approval is the sanction for an untimely review, not untimely postmarking. Even if the application was actually received on May 18, it is indisputable that the City reviewed the application within 30 days because it met with Plaintiff and its representatives within the 30 day period, satisfying the requirements of "review." The City's ordinance provides for automatic approval only upon a failure to "review" an application within 30 days, and the Minnesota Supreme Court has recently demonstrated that courts may not attach the penalty of automatic approval to related portions of such a requirement. Hans Hagen Homes Inc. v. City of Minnetrista, 728 N.W.2d 536, 540-42 (Minn. 2007). Accordingly, the penalty for late review- automatic approval-is not triggered and the application cannot be deemed approved under the terms of the Sign Code. For all these reasons, Plaintiffs anticipated argument in favor of automatic approval should be rejected. Prior Settlement Discussions and the City's Settlement Position Shortly after this lawsuit was filed, counsel for the parties discussed the possibility of settlement. Plaintiff was unwilling to consider restoring the static sign face, removal of any of Plaintiff's four sign faces in the City or reducing the size of any of its four sign faces in exchange for permission to digitize a single sign face. Plaintiff was only willing to offer the City the opportunity to use the LED sign for public service announcements, which is of littJe interest to the City.