2009-10-06 Packet - Laserfiche WebLink

Home Browse Search

Page 17 of 17 given that I am on the zoning Committee I am not supposed to be actively involved in these kinds of issues or I might cross the line and fortit (sic) my right to vote on the issue if an when it comes in front of us. So first, please do not be spreading the word that I have made up my mind and am working to oppose the variance on this project. If the developer hears this they will rightfUlly question that they didn '( get a fair hearing with me and that [ made up my mind prior to the public hearing. I'd also appreciate if you would not encourage people to contact me about this at this time." (lJ Plaintiff considered several height options between twelve and twenty-plus stories before settling on twenty-one. [2] While the Court holds that Plaintiff failed to establish an equal protection violation with regard to the City's treatment of an applicant's showing of hardship, the Court does not frnd this to be a threshold issue which would absolve the City of its due process mandates. While Plaintiffs equal protection claim fails, it is clear that the City does not always scrutinize an applicant's showing of hardship. While this does not rise to the level of an equal protection violation, it does suggest that the process may be less than fair and lends further support to Plaintiff s claim of a violation of procedural due process. [3] Defendant's contention that Plaintiffs claim fails due to the existence of a post deprivation remedy in the form of District Court review was considered and is now rejected. In support of its argument, Defendant primarily relies upon two cases: Winnick v. Chisago County Ed. ofComm'rs, 389 N.W.2d 546 (Minn. Ct. App. 1986) and Hudson v. Palmer, 468 U.S. 517 (1984). These cases are not proper analogues; pertaining to either systems where pre-deprivation process is unworkable (Hudson) or situations where the procedural process was ultimately fair (Winnick). See also Licari v. Ferruzzi, 22 F.3d 344 (Ist Cir. 1994); Henry Company Homes, Inc. v. Curb, 548 F. Supp.2d 1281 (N.D. Fla. 2008). [4] Courts have taken the position that the participation in the deliberation by a member who should have been disqualified vitiates the entire proceeding, even though the votes of other members would have supported the end result. See e.g., Baker 1'. Marley, 8 N.Y.2d 365 (1960) (the resolutions and other actions of the board declared void, even though the vote of the Mayor was not necessary since a majority existed without his vote). [5] Attached. [6] Johnson's testimony regarding the weight given to the opinion of a council member in whose ward a project was proposed was echoed by other testifYing council members as well as CPED Deputy Director Lutz. http://www.minnlawyer.com/userfiles/pdtlOrder..1020(Final).htm 9/17/2009