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<br />Page 6 of 17 <br /> <br />(parties not similarly situated because properties were "situated differently" within the same area); Kottschade, 537 <br /> <br /> <br />N.W.2d at 307 (properties not similarly situated because different physical settings warrant dissimilar dedication <br /> <br />requirements); Castle Design & Dev. Co. v. City of Lake Elmo, 396 N.W.2d 578,582 (Minn. Ct. App. 1986) (differences <br /> <br />in lot sizes and types of variances requested justify differential treatment). See also Koscielski v. City of Minneapolis, <br /> <br />435 F.3d 898, 901 n.2 (8th Cir. 2006) (gun retailers at gun shop not similarly situated to gun retailers at gun show in <br />same city). <br />Applicants are not similarly situated if the zoning applications or decisions are made at materially different times. <br /> <br />Compare Kottschade, 537 N.W.2d at 306 (1983 application not similarly situated in time to 1980, 1984, and 1986 <br /> <br /> <br />applications); and In re Variance Request of Johnson, 404 N.W.2d 301 (Minn. Ct. App. 1987), overruled on other <br /> <br />grounds by Myron v. City of Plymouth, 562 N.W.2d 21 (Minn. Ct. App. 1997). (August 1986 application not similarly <br /> <br />situated in time to applications in May 1985, 1984, and 1983); with Northwestern College v. City of Arden Hills, 281 <br /> <br />N.W.2d 865, 869 (Minn. 1979) (parties similarly situated where decisions on applications were made at the "same <br /> <br /> <br />time"); and Hay v. Township of Grow, 206 N.W.2d 19,24 (Minn. 1973) (parties similarly situated where "almost <br /> <br />simultaneous filing" of applications occurred); <br /> <br /> <br />None of the projects with which Plaintiff compares itself is similarly situated to Plaintiff's proposal for purposes <br /> <br /> <br />of equal protection analysis. The evidence presented at trial shows that they were subject to different zoning <br /> <br />requirements and criteria and/or involve different settings, circumstances, and time periods: <br /> <br />317 Grove1and <br /> <br />This application was for a seven-story, eighty-one foot tall building (approximately one-third the size <br />of Plaintiffs original proposal) and required a single setback variance of only two feet (from <br />seventeen feet to fifteen feet). The requested variance involved only one side of the building, that <br />adjacent to Interstate 94, therefore no neighbors were impacted. <br /> <br />The Edgewater <br /> <br />This application was for a six-story, eighty-two foot tall, twenty-eight-unit building located <br />approximately two miles south in the East Calhoun neighborhood. There was a pre-existing structure <br />on the project site which was built to the property line and the proposed structure actually increased <br />setbacks for most of building. <br /> <br />Clifton Place <br /> <br />This application was for a four-story, forty-four-unit building which was to be located within the <br />required setbacks. Variances were required only for a stairway and patios. The project height <br />complied with OR3 limitations. The application was submitted more than one year before Plaintiff's <br />application. <br /> <br />Fifth Avenue Gateway <br /> <br />This application involved a project located in the Eliot Park, rather than Loring Hill, neighborhood. <br />The proposed project is immediately adjacent to the downtown zoning district and the property <br />abutted Interstate 35W. The property is not within the Shoreland Overlay district. <br /> <br />http://www.minnlawyer.comluserfiles/pdf/Order..1020(Final).htrn <br /> <br />9/17/2009 <br />