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<br />In September 2004, Plaintiff appealed the Planning Commission's decision to the City Council. On September
<br />15,2004, the Planning Commission's decision was reviewed by the Council's Zoning and Planning Committee. The
<br />Zoning and Planning Committee was made up of five City Council Members: Goodman, Schiff, Niziolek, Ostrow, and
<br />Dean Zimmerman. The Committee took testimony from CPED staff and representatives of Plaintiff before ultimately
<br />recommending the denial of Plaintiff's application by a unanimous five to zero vote.
<br />On September 24, 2004, by a unanimous thirteen to zero vote, the full City Council adopted the findings and
<br />recommendation of the Zoning and Planning Committee and upheld the decision of the Planning Commission to deny
<br />the requested conditional use permits, variances, and site plan review. Notwithstanding the votes of the Planning
<br />Commission, Zoning and Planning Committee, and the City Council, in late September 2004, Plaintiff exercised its
<br />option to purchase the property.
<br />On November 23, 2004, Plaintiff submitted an application for a second proposed project on the property. This
<br />project consisted of a seven-story, seventy-seven foot, seventy-four-unit building. The proposed project required a
<br />conditional use permit for height and for the number of residential units as well as a site plan review, but required no
<br />variances. On January 23, 2005, CPED staff issued a report recommending that the Planning Commission approve the
<br />application. However, on February 23, 2005, Plaintiff withdrew its application, citing infeasibility due to higher than
<br />anticipated constructions costs.
<br />On March 27,2007, Plaintiff filed the instant lawsuit alleging violations of both due process and equal protection
<br />and seeking declaratory and injunctive relief, an award of damages, and attorney's fees under 42 D.S.C. ~ 1983.
<br />On August 1, 2008, the Court heard Defendant's motion for summary judgment. Defendant's motion was
<br />granted as to Plaintiff's equal protection claim, but denied as to Plaintiff's due process claim. The order also allowed
<br />Plaintiff to proceed to trial under Minn. Stat. ~462.361 in order to supplement the record of the City Council proceedings
<br />and to challenge the reasonableness ofthe City's decision and the fairness ofthe process afforded.
<br />On November 6, 2008 Defendant sought to have the case removed to Federal Court arguing that the summary
<br />judgment decision modified Plaintiff's original complaint and therefore, removal was appropriate under the doctrine of
<br />revival. The Federal Court disagreed, however, and granted Plaintiff's motion to remand to this Court on February 12,
<br />2009.
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<br />On April 27, 2009, the Court heard Defendant's request for leave to file a motion for reconsideration. Defendant
<br />argued that Plaintiff, in its application, failed to make a showing of hardship that would warrant the grant of a variance.
<br />On May 21, 2009, the Court issued an order finding that Plaintiff did not make a showing of hardship in its application,
<br />but allowing Plaintiff to argue, at trial, that there was an equal protection violation with regard to the treatment of its
<br />application compared to other applications. Namely, that the City routinely ignored the hardship requirement.
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<br />http://www.minnlawyer.com/userfiles/pdflOrder%20(Final).htm
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