HomeMy WebLinkAbout2009-10-06 Packet
PLANNING AND ZONING COMMISSION
MEETING AGENDA
TUESDAY, OCTOBER 6, 2009
6:30 p.m.
I. CALL TO ORDER
1. RollCall
II. APPEARANCESIPRESENTATlON(S)
III. PUBLIC HEARING (S)
IV. OLD BUSINESS
V. NEW BUSINESS
I. Final Draft - Anoka County 2030 Transportation Plan (CD)
VI. DISCUSSION ITEMS
1. Findings of Fact (Bradley Hoyt vs. City of Minneapolis)
VII. CONSIDERATION OF MINUTES
1. September 1,2009 Meeting Minutes
VIII. ADJOURNMENT
**REMINDERS"
Parks & Recreation Committee Meeting - October 7, 2009, 6:30 p.m. Council Chambers
City Council Meeting - OCTOber 14, 2GG9, 6:30 p.m. Cuullcil Ch,unbc1> -
City Council Meeting - October 28, 2009, 6:30 p.m. Council Chambers
Planning & Zoning Commission Meeting - November 3, 2009, 6:30 p.m. Council Chambers
1
COUNTY OF ANOKA
Public Services Division
HIGHWAY DEPARTMENT
1440 BUNKER LAKE BLVD. NW, ANDOVER, MINNESOTA 55304
(763) 862-4200 FAX (763) 862-4201
M1~UJiJC!1[ill
DATE: September 18,2009
FROM: Kate Garwood, Multimodal Transportation Manager
SUBJECT: FINAL DRAFT - ANOKA COUNTY 2030 TRANSPORTATION PLAN
Enclosed please find an electronic version of the Final Draft of the Anoka County 2030 Transportation
Plan for your review.
Many of you have already contributed to this product during group meetings we held at the kick -off of
the plan, through individual meetings we've had with you and members of your staff, and in the
comprehensive planning documents you have provided to us from your own communities. Thanks for all
ofthat!
We are now asking for your formal review of our plan. And although you certainly are able to utilize the
full six-month time frame allowed for review, we are asking ifit would be possible for you to complete
your review within three months, or by December 18,2009. Your comments maybe sent to me via
email atkate.garwood@co.anoka.mn.us or you may also send them to me at the following address:
Anoka County Highway Department
1440 Bunker Lake Boulevard
Andover, MN 55304
While you are reviewing the plan, please feel free to contact me at any time at the email address, above,
or via phone at 763-862-4230 with questions or concerns you have. And thanks, again, for your
contributions to our plan.
kg
Enclosure: CD Final Draft of Anoka County 2030 Transportation Plan
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CSAH 14/Main St.: 1-35E to CSAH 23/Lake Dr. 2030 Capacity Needs: LOW
TABLE 7.17
CSAH 141Main St.l125" Ave. (I-35E to CSAH 23/Lake Dr.)-Area 3 (East Central Anoka County)
Category Recommendations
1. Implement improvements on existing CSAH 141Main St./125th Ave. (in
Transportation Improvement Plan for 2008).
2. Implement CSAH 141Main SI. northerly bypass alignment
recommended in the CSAH 14 Altematives Analysis report completed
in June 2004.
New:
1. New northerly bypass between 1-35W and 1-35E.
2. New AnokalWashington County north-south route (extension of
CR 8410ller Lake Rd. on eastern border).
Interchanae: Implement county and Uno Lake's planned interchange
upgrade at 1-35E and existing CSAH 141Main SI. (in Transportation
Improvement Plan for 2009).
Grade SeDaratlon: New northerly bypass will include grade separations at
existing CSAH 141Main SI. and 1-35E, assumed to be part of 1-35E
improvements.
Exlstlna CSAH 141Main St.l125"' Ave. Allanment
. Principal arterial between CSAH 231Lake Dr. and 1-35W (no change).
. A minor arterial between 1-35Wand 1-35E (no change).
Northerlv BVDass Alianment
. Principai arterial (new roadway).
Existing CSAH 141Main St./125th Ave.: CSAH (no change).
Northerly bypass: CSAH (new roadway).
Determine jurisdiction for extension of CSAH 8410ller Lake Rd. between
Anoka County and Washington County.
1. Implement planned reconstruction of existing CSAH 141Main St./125lh
Ave. (in Transportation Improvement Plan for 2008).
2. Complete environmentai documentation for northerly bypass
alignment (in Transportation Improvement Plan for 2010).
3. Begin right-of-way acquisition for the northerly bypass alignment (in
Transportation Improvement Plan for 2011 and 2012).
NIA.
Corridor Capacity
Parallel Routes
Intersectlons/lnterchanges
Functional Classification
Jurisdictional Changes
Short.term Recommendations
(2009-2015)
Mid-term Recommendations
(2015-2020)
Long.term Recommendations
(2020-2030)
Transit
Trails
Construct northerly bypass as recommended In the CSAH 14 Alternatives
Anaiysis report completed in June 2004.
1. With Metro Transit, impiement new 200 space park-and-ride facility In
the NW quadrant of CSAH 14/Main SI. and 1-35E per Metro Transit's
Park-and-Ride Facility Plan.
2. Coordinate transit services with Metro Transit and affected
communities and counties.
3. Consider reiocation of small park-and-ride lots along CSAH 14/Main
SI. in Uno Lakes to the northerly bypass alignment, when constructed.
Construct planned Central Anoka Regional County Trail along the existing
CSAH 141Main St.l125th Ave. When constructing northerly bypass, add
another leg to trail.
ANOKA COUNTY 2030 TRANSPORTATION PLAN
OECEMBER 2008
7-23
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Page 1 ofl7
STATE OF MINNESOTA
DISTRICT COURT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT
Bradley A. Hoyt
and Continental Property Group, Inc.,
Plaintiff,
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER
v.
Case File No. 27-CY-07-5826
City of Minneapolis,
Defendant.
The above-entitled matter was tried to the Court on June 8-12, 23 and August 3-4, 2009 with the parties making
closing arguments on August 25, 2009. William R. Skolnick and LuAnn M. Petricka appeared on behalf of Plaintiffs
Bradley A. Hoyt and Continental Property Group, Inc. ("Plaintiff'). Charles N. Nauen and Gregory J. Myers appeared
on behalf of Defendant City of Minneapolis.
In addition to documentary evidence, the Court heard testimony from witnesses, including Plaintiff s architect
Paul Mellblom ("Mellblom") from the Meyer Scherer & Rockcastle firm; Plaintiff Bradley Hoyt ("Hoyt"); Minneapolis
City Council Members Lisa Goodman ("Goodman"), Paul Ostrow ("Ostrow"), Gary Schiff ("Schiff'), Daniel Niziolek
("Niziolek") and Council President Barbara Johnson ("Johnson"); City staff member Douglas Kress ("Kress"),
Community Planning and Economic Development ("CPED") staff member Rebecca Farrar ("Farrar") and CPED
Deputy Director Charles Lutz. Portions of deposition transcript testimony from several other witnesses were also
submitted, including former CPED Director Lee Sheehy, CPED staff members Jack Byers and Hilary Dvorak, Planning
Commission member Michael Krause, neighborhood organizer Scott Mayer ("Mayer"), Citizens for a Loring Hill
Community coordinator Jana Metge ("Metge"), and Joseph Bagnoli, an attorney associated with another project.
Based upon the evidence adduced, the argument of counsel, and all of the files, records, and proceedings herein,
and for the reasons stated on the record, the Court makes the following:
ORDER:
1. Plaintiffs equal protection claim is DISMISSED.
2. Plaintiffs substantive due process claim is DISMISSED.
3. Plaintiffs has established its procedural due process claim. Plaintiff was denied a fair hearing on its appeal by
the Zoning and Planning Committee and, subsequently, by the City Council.
4. The Court shall reconvene on September 29-30,2009 to receive evidence on the issue ofremedies and damages.
5. The attached Memorandum in incorporated herein and made a part hereof.
http://www.minnlawyer.comluserfiles/pdf/Order..1020(Final).htm
9/17/2009
Page 2 of 17
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT
Dated: September 16, 2009
Stephen C. Aldrich
Judge of District Court
http://www.minnlawyer.com/userfiles/pdflOrder..1020(Final).htm
9/17/2009
Page3 of17
MEMORANDUM
I. Background
In the fall of2003, Plaintiff purchased an option on property located at 343, 401, 403, and 409 Oak Grove Street
and 416 Clifton Avenue in the Loring Hill neighborhood of Minneapolis. The property consisted of a surface parking lot
which served nearby office buildings including 430 Oak Grove, another property acquired by Plaintiff. Plaintiff
purchased its option with the intention of developing the property.
The property was, at all relevant times, zoned as part of an Institutional Office Residence District ("OR3"). The
OR3 zoning classification restricts the height of buildings to six stories or eighty-four feet. Furthermore, because the
property is located within one thousand feet of the ordinary high water mark of Loring Pond, it is also subject to the
standards of the Shoreland Overlay District, which imposes a height restriction of two and one-half stories or thirty-five
feet.
Plaintiff engaged the architectural firm of Meyer, Sherer & Rockcastle, Ltd. ("MS&R") in late 2003. Garth
Rockcastle ("Rockcastle") and Paul Mellblom of MS&R were the chief architects in charge of designing Pare Centrale,
as the project came to be known, as well as assisting in the process of applying for needed land use permits and
variances. After conducting initial research of the project site, Plaintiff s architects generated two potential design
concepts; one consisting of a slender mixed-use tower with an eight thousand square feet footprint bordered by two-story
townhouses fronting on the adjacent streets ("the tower"), the other a six-story "slab" building with a nineteen thousand
[1]
square feet footprint built to the property lines ("the slab"). After taking a variety offactors into consideration,
including economic viability, Plaintiff eventually settled on the tower design over the slab option.
Because the contemplated tower project exceeded the height restrictions of the two applicable zoning districts, in
July of 2004, Plaintiff applied for two conditional use permits ("CUPs"): one to increase the maximum permitted height
from two and one-half stories or thirty-five feet to twenty-one stories and two hundred and thirty feet and a second to
allow for a multiple family project containing one hundred and four units. At the same time, Plaintiff applied for two
variances: one to reduce the required corner side yard setback off Clifton Place from forty-eight to sixteen feet for the
proposed building and four feet for the proposed patio area and a second to reduce the rear yard setback off the south
property line from the required forty-five feet to nineteen feet for the proposed building and eight feet for the proposed
patio area. Finally, Plaintiff also requested a major site plan review.
In August of2004, CPED staff reviewed Plaintiffs application and issued a fourteen-page report recommending
that the City of Minneapolis Planning Commission "Planning Commission") deny the application. Later that month,
acting on the recommendation ofCPED, the Planning Commission denied Plaintiffs application by votes of five to two
on the CUPs, five to two on the variances, and six to one on the site plan.
http://www.minnlawyer.com/userfiles/pdfi.Order%20(Final).htrn
9/17/2009
Page 4 of17
In September 2004, Plaintiff appealed the Planning Commission's decision to the City Council. On September
15,2004, the Planning Commission's decision was reviewed by the Council's Zoning and Planning Committee. The
Zoning and Planning Committee was made up of five City Council Members: Goodman, Schiff, Niziolek, Ostrow, and
Dean Zimmerman. The Committee took testimony from CPED staff and representatives of Plaintiff before ultimately
recommending the denial of Plaintiff's application by a unanimous five to zero vote.
On September 24, 2004, by a unanimous thirteen to zero vote, the full City Council adopted the findings and
recommendation of the Zoning and Planning Committee and upheld the decision of the Planning Commission to deny
the requested conditional use permits, variances, and site plan review. Notwithstanding the votes of the Planning
Commission, Zoning and Planning Committee, and the City Council, in late September 2004, Plaintiff exercised its
option to purchase the property.
On November 23, 2004, Plaintiff submitted an application for a second proposed project on the property. This
project consisted of a seven-story, seventy-seven foot, seventy-four-unit building. The proposed project required a
conditional use permit for height and for the number of residential units as well as a site plan review, but required no
variances. On January 23, 2005, CPED staff issued a report recommending that the Planning Commission approve the
application. However, on February 23, 2005, Plaintiff withdrew its application, citing infeasibility due to higher than
anticipated constructions costs.
On March 27,2007, Plaintiff filed the instant lawsuit alleging violations of both due process and equal protection
and seeking declaratory and injunctive relief, an award of damages, and attorney's fees under 42 D.S.C. ~ 1983.
On August 1, 2008, the Court heard Defendant's motion for summary judgment. Defendant's motion was
granted as to Plaintiff's equal protection claim, but denied as to Plaintiff's due process claim. The order also allowed
Plaintiff to proceed to trial under Minn. Stat. ~462.361 in order to supplement the record of the City Council proceedings
and to challenge the reasonableness ofthe City's decision and the fairness ofthe process afforded.
On November 6, 2008 Defendant sought to have the case removed to Federal Court arguing that the summary
judgment decision modified Plaintiff's original complaint and therefore, removal was appropriate under the doctrine of
revival. The Federal Court disagreed, however, and granted Plaintiff's motion to remand to this Court on February 12,
2009.
On April 27, 2009, the Court heard Defendant's request for leave to file a motion for reconsideration. Defendant
argued that Plaintiff, in its application, failed to make a showing of hardship that would warrant the grant of a variance.
On May 21, 2009, the Court issued an order finding that Plaintiff did not make a showing of hardship in its application,
but allowing Plaintiff to argue, at trial, that there was an equal protection violation with regard to the treatment of its
application compared to other applications. Namely, that the City routinely ignored the hardship requirement.
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On July 17,2009, following the close of Plaintiffs case-in-chief, the parties came before the Court on
Defendant's motion for involuntary dismissal of all of Plaintiffs claims. On July 22,2009, the Court denied Defendant's
motion and further ruled that, while Plaintiff did not specifically state a claim for violation of procedural due process in
its original complaint, the complaint was amended under rule 15.02 based upon the evidence presented by both parties at
trial.
Plaintiff has presented three claims which the Court must now rule upon. Plaintiff argues that the City has
violated its equal protection, substantive due process, and procedural due process rights.
II. Equal Protection
Plaintiff's equal protection challenge arises as a response to Defendant's argument that Plaintiff failed to
demonstrate hardship in connection with its application for variances. Defendant argues that Plaintiff failed to make a
showing of hardship in its application which would warrant the grant of a variance. Defendant further argues that the
lack of a hardship showing was a threshold issue as, without it, the City could not have granted a variance even if so
inclined. In response, Plaintiff alleges an equal protection violation, arguing that the City routinely issues variances
without a showing of hardship and had done so with regard to several similarly situated properties near the time of their
application. The Court allowed Plaintiff to pursue this theory at trial.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires that
government treat "all similarly situated people alike." Barstad v. Murray County, 420 F.3d 880, 884 (8th Cir. 2005). The
threshold inquiry in a denied zoning applicant's equal protection claim is whether it is "similarly situated" to successful
zoning applicants. Id.
To establish that it is "similarly situated" to a successful applicant, a plaintiff first must demonstrate that the
applications were subject to the same zoning requirements, standards, and criteria. See Anderson v. Douglas County, 4
F.3d 574, 577 (8th Cir. 1993) (parties not similarly situated because different requirements applied to plaintiffs
application than to other applicants); Billy Graham v. City of Minneapolis, 667 N.W.2d 117, 126-27 (Minn. 2003)
(parties not similarly situated where their applications involved different standards and criteria); Kottschade v. City of
Rochester, 537 N.W.2d 301, 306 (Minn. Ct. App. 1995) (parties not similarly situated because applications implicated
different regulations).
Applicants are not similarly situated if they have different settings, circumstances, and impacts on their
neighborhoods. See Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068, 1072 (8th Cir. 1997) (asphalt plant and
gravel pit not similarly situated to other asphalt plants and gravels pits in same county because each raises different
public concerns); Minnetonka Moorings, Inc. v. City of Shore wood, 367 F. Supp.2d 1251,1256 (D.Minn. 2005) (marina
on Gideon's Bay not similarly situated to marinas on other bays on same lake); Billy Graham, 667 N.W.2d at 127
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(parties not similarly situated because properties were "situated differently" within the same area); Kottschade, 537
N.W.2d at 307 (properties not similarly situated because different physical settings warrant dissimilar dedication
requirements); Castle Design & Dev. Co. v. City of Lake Elmo, 396 N.W.2d 578,582 (Minn. Ct. App. 1986) (differences
in lot sizes and types of variances requested justify differential treatment). See also Koscielski v. City of Minneapolis,
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
same city).
Applicants are not similarly situated if the zoning applications or decisions are made at materially different times.
Compare Kottschade, 537 N.W.2d at 306 (1983 application not similarly situated in time to 1980, 1984, and 1986
applications); and In re Variance Request of Johnson, 404 N.W.2d 301 (Minn. Ct. App. 1987), overruled on other
grounds by Myron v. City of Plymouth, 562 N.W.2d 21 (Minn. Ct. App. 1997). (August 1986 application not similarly
situated in time to applications in May 1985, 1984, and 1983); with Northwestern College v. City of Arden Hills, 281
N.W.2d 865, 869 (Minn. 1979) (parties similarly situated where decisions on applications were made at the "same
time"); and Hay v. Township of Grow, 206 N.W.2d 19,24 (Minn. 1973) (parties similarly situated where "almost
simultaneous filing" of applications occurred);
None of the projects with which Plaintiff compares itself is similarly situated to Plaintiff's proposal for purposes
of equal protection analysis. The evidence presented at trial shows that they were subject to different zoning
requirements and criteria and/or involve different settings, circumstances, and time periods:
317 Grove1and
This application was for a seven-story, eighty-one foot tall building (approximately one-third the size
of Plaintiffs original proposal) and required a single setback variance of only two feet (from
seventeen feet to fifteen feet). The requested variance involved only one side of the building, that
adjacent to Interstate 94, therefore no neighbors were impacted.
The Edgewater
This application was for a six-story, eighty-two foot tall, twenty-eight-unit building located
approximately two miles south in the East Calhoun neighborhood. There was a pre-existing structure
on the project site which was built to the property line and the proposed structure actually increased
setbacks for most of building.
Clifton Place
This application was for a four-story, forty-four-unit building which was to be located within the
required setbacks. Variances were required only for a stairway and patios. The project height
complied with OR3 limitations. The application was submitted more than one year before Plaintiff's
application.
Fifth Avenue Gateway
This application involved a project located in the Eliot Park, rather than Loring Hill, neighborhood.
The proposed project is immediately adjacent to the downtown zoning district and the property
abutted Interstate 35W. The property is not within the Shoreland Overlay district.
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Bridge Place
This application involved a project located approximately two miles from Loring Hill, near the
Mississippi River and in a downtown zoning district with no height limitation. A setback variance
was required only because the project was residential (surrounding commercial buildings are not
subject to the same setback restrictions). This application also was submitted more than one year
before Plaintiff's application.
Even if Plaintiffs property were similarly situated to the aforementioned properties, a plaintiff must further
demonstrate there was no rational basis for differential treatment. Barstad at 884. In examining if there was a rational
basis for different treatment, the courts are "properly deferential as municipalities manage their affairs. A court ought to
invoke its power only when there is no arguable basis for a municipality's decision." Minnetonka Moorings, 367 F.
Supp.2d at 1255.
As discussed below, the evidence shows that Plaintiffs proposed project did not meet the applicable zoning
standards and requirements in several respects and that there was at least one rational basis for denying Plaintiff s
application and, thus, for differential treatment.
Furthermore, a municipality cannot be bound by previously issued variances. See Frank's Nursery Sales v. City
ofRoseville, 295 N.W.2d 604, 607 (Minn. 1980) (stating "a municipality cannot be estopped from correctly enforcing
the ordinance even if the property owner relied to his detriment on prior city action. "). If a zoning authority were so
bound, the entire zoning scheme could be undermined by one erroneously issued variance. In re Johnson, at 301 ("[A]n
applicant for a variance is not entitled to a variance merely because similar variances were granted in the past.
Otherwise, the granting of one variance would likely result in the destruction of the entire zoning scheme.").
It necessarily follows that an equal protection claim does not arise simply because a similar variance was granted
in the past. The applicant seeking the variance must show that he was entitled to the variance; it is not sufficient to assert
that the applicant was entitled merely because a similar variance was previously granted. See Stotts v. Wright County,
478 N.W.2d 802, 806 (Minn. Ct. App. 1991) (refusing to allow evidence of a neighbor's setback variance as a substitute
for lack of evidence on the criteria established in the ordinance). In Campbell, the plaintiffs argued that they were denied
equal protection because the board of adjustment ("BOA") required them, but not other variance applicants, to satisfy all
of the applicable zoning requirements, including the requirement to demonstrate hardship. Campbell v. Wright County
Board of Acjjustment, 2005 WL 2129340 at *2-3 (Minn. Ct. App. Sept. 6, 2005). The court rejected plaintiffs' argument:
Because the BOA previously misapplied the [zoning ordinance] by not requiring [other] applicants to
prove a hardship and the requirements in section 502.3, appellants are asking this court to require the
BOA to continue misapplying the ordinance. But "[a]n applicant for a variance is not entitled to a
variance merely because similar variances were granted in the past. Otherwise the granting of one
variance would likely result in the destruction of the entire zoning scheme."
Id at *3 (quoting In reJohnson, at 301).
Finally, the evidence established that applicants for variances must demonstrate hardship through their
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applications. The evidence further established that CPED staff makes recommendations regarding whether an applicant
has demonstrated hardship based on a review of the application, and the City Council ultimately decides whether an
applicant sufficiently demonstrated hardship based on the application.
Absence of references to hardship in staff reports and City Council decisions granting variances does not
necessarily show that applicants failed to demonstrate hardship in their applications or other materials. To show that
other applicants failed to demonstrate hardship requires an examination of the actual applications. See also Order (May
7, 2009) (requiring Plaintiff to demonstrate "that there was an equal protection violation in the treatment of its
application compared to other applications.") (emphasis added).
Plaintiff failed to offer the applications of any applicant who a1legedly did not demonstrate hardship but who
nevertheless was granted a variance. Because ofthis fundamental failure of proof, Plaintiff failed to establish an
[2]
essential element of its equal protection claim, i.e., that the other applicants are similarly situated.
III. Substantive Due Process
Plaintiff a1leged that the City acted arbitrarily and capriciously in denying Plaintiff's application. Throughout the
trial, Plaintiff made clear its intention to attack the findings contained in the CPED report as adopted by the City
Council's Zoning and Planning Committee as lacking a factual basis. The original aJlegation and the pursuant actions of
the parties and this Court make clear that the words arbitrary and capricious denote two claims: a Minnesota state law
claim cha1lenging the City's findings and a Federal Constitutional Substantive Due Process claim. From the outset, it
must be noted that although the wording is similar, these claims do not carry the same burdens. See Condor Corp. v. City
of Saint Paul, 912 F.2d 215 (8th Cir. 1990).
Under state law, "[r]egardless of whether the zoning matter is legislative (rezoning) or quasi-judicial (variances
and special-use permits), we determine whether the municipality's action in the particular case was reasonable. We
examine the municipality's action to ascertain whether it was arbitrary and capricious." VanLandschoot v. City of
Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). "A zoning decision is arbitrary ifthe applicant meets the
standards specified by a certain zoning ordinance." Condor Corp. 912 F.2d at 221 (citing Zylka v. City of Crystal, 167
N.W.2d 45,49 (Minn. 1969)). Findings that a City's decision was arbitrary and capricious "should be reserved for those
rare instances in which the City's decision has no rational basis. Except in such cases, it is the duty of the judiciary to
exercise restraint and accord appropriate deference to civil authorities in the performance of their duties." White Bear
Docking and Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982).
As for Federal law, "a substantive due process claim in the zoning context exists, if at a1l, only in extraordinary
situations and will not be found in 'run-of-the-mill' zoning disputes." Northpointe Plaza v. City of Rochester, 465
N.W.2d 686, 690 (Minn. 1991) "The test in the Eighth Circuit for determining whether there has been a violation of
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substantive due process in the context of S 1983 zoning actions is twofold: first, whether there has been a
deprivation ofa protectible (sic) property interest and, second, whether the deprivation, ifany, is the result of an abuse of
governmental power sufficient to state a constitutional violation." Id. (citing Littlefield v. City of Afton, 785 F.2d 596,
603-08 (8th Cir. 1986)). "[I]n the zoning context, 'whether government action is arbitrary or capricious within the
meaning of the Constitution turns on whether it is so 'egregious' and 'irrational' that the action exceeds standards of
inadvertence and mere errors oflaw.'''!d. (citing Condor Corp. 912 F.2d at 220 (8th Cir. 1990)).
The Federal threshold is higher than the threshold under Minnesota law. !d. Therefore, it logically follows that if
Plaintiff's claim fails under Minnesota law, it must also fail under Federal law.
To construct its proposed project, Plaintitrhad to apply for both CUPs and variances. The standards for granting
CUPs are found in the Minneapolis Municipal Code.
For CUPs generally:
The city planning commission shall make each of the following findings before granting a conditional use
permit:
(1) The establishment, maintenance or operation of the conditional use will not be detrimental to or
endanger the public health, safety, comfort or general welfare.
(2) The conditional use will not be injurious to the use and enjoyment of other property in the vicinity
and will not impede the normal and orderly development and improvement of surrounding property for
uses permitted in the district.
(3) Adequate utilities, access roads, drainage, necessary facilities or other measures, have been or will be
provided.
(4) Adequate measures have been or will be taken to minimize traffic congestion in the public streets.
(5) The conditional use is consistent with the applicable policies of the comprehensive plan.
(6) The conditional use shall, in all other respects, conform to the applicable regulations of the district in
which it is located.
Minneapolis Code of Ordinances 525.340.
For CUPs increasing height:
The height limitations of principal structures located in the office residence districts, except single and
two-family dwellings, may be increased by conditional use permit. as provided in Chapter 525,
Administration and Enforcement. In addition to the conditional use standards, the city planning
commission shall consider, but not be limited to, the following factors when determining the maximum
height:
(I) Access to light and air of surrounding properties.
(2) Shadowing of residential properties or significant public spaces.
(3) The scale and character of surrounding uses.
(4) Preservation of views of landmark buildings, significant open spaces or water bodies.
Minneapolis Code of Ordinances 547.110.
Findings for CUPs must be factually based. Goodman confirmed this as did Farrar. The following findings,
spelled out in both the CPED Report and the Findings and Recommendation of the Zoning and Planning Committee may
be legally sufficient to survive substantive due process scrutiny. Findings A and B below leave much to be desired,
however.
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A. "Detrimental to or endanger the public health, safety, comfort or general welfare"
The CPED Report found that on the basis of the shadow study submitted by Plaintiff, limitations oflight and air
"could be detrimental to the comfort and general welfare of [the surrounding] properties, especially those located to the
north and northeast of the proposed tower." The Zoning and Planning Committee findings, without providing any basis
for doing so, went even further to say that, "[t]he proposed project would be detrimental to the public comfort and
general welfare because of shadowing of adjacent property."
The problem is that the CPED report and the findings of the Zoning and Planning Committee both cite the effects
upon "surrounding" or "adjacent" property. This section of the ordinance, however, deals in generalities: public health,
public safety, public comfort, and general welfare. Nowhere, in either the CPED Report or the fmdings of the Zoning
and Planning Committee, are such general findings made. The plain meaning ofthe Municipal Code prohibits a limited
analysis of surrounding properties as the sole basis for general welfare finding. Additionally, to allow such limitation
would make moot the need for the second section of the ordinance which specifically requires analysis of the effect, of
granting a CUP, upon surrounding properties. Therefore, the construction adopted in the CPED report and the Zoning
and Planning Committee violates the basic rule of statutory interpretation that "[ e ]very law shall be construed, if
possible, to give effect to all of its provisions." Minn. Stat. ~645.16.
B. "Injurious to the use and enjoyment of property in the vicinity" and "impeding the orderly
development and improvement of surrounding property"
As discussed above, the shadowing arguments made by the City are better made as part of this analysis. CPED
found that "increasing the height ofthe building could be injurious to the use and enjoyment of the surrounding property
and could impede the normal development of the surrounding area."
First, the claims that shadowing impacts would be injurious and impede normal development are without merit.
There is no finding in the record that the temporary daily shadows cast on the surrounding properties would be truly
injurious. That shadows exist is not enough, without more, to justifY this decision. Moreover, even had the shadow
analysis contained concrete findings of injury, the owners of properties (to the north and northeast) which would have
been most significantly impacted by the shadowing were actually in support of the project, and other nearby, affected
properties were owned by the Plaintiff, a fact that was known by the City at the time of their analysis.
Second, while the finding that the tower was not within the scale and character of the neighborhood was
reasonable, the finding that the failure to so conform was injurious to surrounding properties and an impediment to
normal development was without any factual support. Contrary to the assertions of the CPED report or the findings of
the Zoning and Planning' Committee, it does not necessarily follow that a deviation in scale and character in a
neighborhood which is, by the City's own admission, "varied" in scale and character would result in the type of injury or
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impediment claimed.
Finally, the finding that the tower would block some "views of the historic landscape and structures on Loring
Hill and views of and from Loring Hill and Pond" is supported by the facts. Therefore, the decision was reasonable on
this basis.
C. "Scale and character of surrounding uses" and "consistency with the Comprehensive Plan"
The evidence supports the findings of both CPED and the Zoning and Planning Committee that Plaintiff's
proposed project was not in keeping with the spirit of the Downtown 20 I 0 plan. Specifically, the Downtown 20 I 0 plan
states that the City should "[ e ]nsure that new residential development contributes to the sense of neighborhoods through
appropriate site planning and architectural design." In addition to the courtroom evidence received, the Court completed
a site visit consisting of a tour of the Loring Hill neighborhood.
There exists a factual basis for the finding that the proposed twenty-one-story glass-fa9ade slender tower is not
consistent with the scale and character of the neighborhood. The Loring Hill neighborhood consists nearly entirely of
low-rise residential and office buildings within the limits of the OR3 Zoning District. And, while varied, the proposed
Tower is objectively different, in both exterior appearance and height, from its surroundings. While there is certainly
room for argument as to whether the proposed development fits within the scale and character of the neighborhood, this
Court must give deference to those findings which have some factual basis.
As a result of the City having at least one reasonable, factually based ground to deny Plaintiff's application,
Plaintiff's state law claim, that the decision of the City was arbitrary and capricious, is denied. Accordingly, the Federal
Constitutional Substantive Due Process claim is also denied. Additionally, the Court need not further analyze the
legitimacy of the remaining CUP and variance denials as those issues are moot.
[3)
IV. Procedural Due Process
"[T]he right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a
claimant's substantive due process assertions." Carey v. Piphus, 435 U.S. 247, 266 (1978). "[T]he due process
protections granted under the United States and Minnesota Constitutions are identical." Fosse/man v. Comm'r of Human
Services, 612 N.W.2d 456 (Minn. Ct. App. 2000). In the context of zoning decisions, procedural due process requires
'reasonable notice of a hearing and a reasonable opportunity to be heard." Barton Contracting Co. v. City of Afton, 268
N.W.2d 712, 716 (Minn. 1978).
Included within the right to procedural due process is the ability and opportunity to confront and respond to
issues raised that may impact the decision-making process. As stated in the treatise relied upon by the City Attorney for
the City of Minneapolis in its Memorandum on the subject:
The due process right to a "fair hearing" on the issue involved clearly prohibits
any use of secret
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evidence or secret reports that have the effect of denying the
rebuttal evidence and testimony.
Pagel20fl7
person involved a fair opportunity to proffer
Arden H. Rathkopf et aI., Rathkopfs The Law of Zoning and Planning ~ 32.13 (4th ed. 2009).
While Minnesota appellate courts have not specifically addressed what constitutes unfairness with respect to the
manner in which zoning proceedings are handled, the Court is provided with the following guidance:
With respect to adjudicative or quasi-judicial zoning action [...] procedural due process generally
prohibits bias or conflict of interest on the part of zoning officials involved in the decision process [...]
Concern for the impartial exercise of quasi-judicial authority, in appearance as well as fact, requires that
the decision-maker disqualify themselves where bias or conflicts of interest can be shown. [...]
Generally, conflict of interest or bias affecting the appearance of impartiality in zoning
proceedings can be shown by: [...] (2) partiality or prejudice stemming from associational ties, familiar
relationships, friendships, employment or previous business dealings or conduct during the proceeding, or (3)
prejudgment of the issues, which is usually revealed by pre-hearing statements. [...]
To show an invalidating bias in zoning cases, courts generally have required such statements be linked
with advocacy of a position in the particular case in question, as demonstrated by hearing conduct or by the
course of proceedings that makes plainly evident the "closed mind" of the zoning decision maker.
[d. at ~~ 32.14 and 32.18. This language was quoted in the City Attorney's own internal memorandum which was
[4]
forwarded to all Council Members.
As a preliminary matter, Plaintiff is not limited to what the City identified as its "official record" for purposes of
proving its claims. As stated in the Court's October 10, 2008 Summary Judgment Order, Plaintiff demonstrated that the
official record was incomplete and Plaintiff, therefore, was entitled to supplement the record by way of trial.
A number of critical communications that should have been included in the "official record" were not submitted
for inclusion, especially the email communication from Goodman to the other members of the Zoning and Planning
Committee as well as Goodman's email communications in response to her constituents voicing her stated position. The
absence of such critical communications is troubling in a situation where Plaintiff was entitled to a public hearing that
was to be conductcd with full and open disclosures on the record and in a fair and meaningful manner.
[5]
The timeline of events and communications, which Plaintiff established at trial and which the Court now
incorporates in its Findings of Fact, demonstrates that Goodman took a position in opposition and exhibited a closed
mind with regard to Plaintiff's proposed project prior to hearing Plaintiff's appeal at the September 15,2004 Zoning and
Planning Committee meeting and the September 24, 2004 meeting of the full City Council. The timeline of events and
communications further demonstrates that Goodman adopted an advocacy role in opposition to Plaintiff's proposed
project well before she discharged her quasi-judicial duties. She was clearly involved in an effort not only to assist to
organize and mobilize neighborhood opposition to the project, but also to sway the opinions of her fellow council
members. Such actions were improper and impermissible for someone acting in a quasi-judicial capacity. Furthermore,
trial testimony (most notably that of then-Council President Johnson) established that, while aldermanic courtesy is not
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detenninative of zoning decisions, the opinion of the council member in whose ward a project is proposed is given
substantial weight.
Goodman's actions, coupled with the lingering effects ofaldennanic courtesy and the reliance, on the part of
City Council in general, on undisclosed communications and evidence not made a part of the official record vitiated
[6]
Plaintiffs right to a fair hearing and violated its right to procedural due process.
v. Plaintiff's 42 U.S. C. ~ 1983 Claims
A cause of action exists under ~ 1983 if a party was deprived ofa federal right and that the person(s) so depriving
acted under color of state law. See e.g., Minnesota Council of Dog Clubs, et al. v. City of Minneapolis, 540 N.W.2d 903,
905 (Minn. Ct. App. 1996) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980); See also Montell v. Dep't of Social Servs.
436 U.S. 658, 690 (1978) (United States Supreme Court case first extending section 1983 liability to municipalities,
which allows for monetary damages to be awarded)
The applicable federal statute provides in pertinent part:
Every person who, under color of statute, ordinance, regulation, custom, or usages, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit,
inequity, or otherredress....
42 U.S.C. ~ 1983.
Plaintiff has proven a violation of its constitutionally protected procedural due process rights as found herein
based directly upon the City Council and its members acting under the color of state law in deciding Plaintiffs zoning
application and subsequent appeal. The City condoned or otherwise ratified the unlawful conduct of Goodman and
others whose conduct directly injured Plaintiff thereby making it liable for her actions.
Therefore, since the Court [mds a denial of Plaintiffs procedural due process rights exists, equitable remedies
and/or actual damages may be awarded under 42 U.S.c. ~ 1983. Id. See also Brewer v. Chauvin, 938 Fold 860 (8th Cir.
1991) (holding that public employee denied procedural due process may recover punitive damages and shifting the
burden of proof to the employer to show that even if procedural due process provided the decision was supported by the
preponderance of the evidence). Moreover, 42 U.S.c. ~ 1988 (b) expressly allows for "a reasonable attorney's fee as part
of the costs" when succeeding on Section 1983 claims.
BY THE COURT
Dated: September 16, 2009
Stephen C. Aldrich
Judge of District Court
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10/29/03 Meyer, Scherer & Rockcastle sign retainer with Plaintiff for Trial Exhibit 202
development of the proiect.
03/04 - A series of meetings between Plaintiff, its representatives, Trial Exhibit 103
05/04 Goodman ("L.G."), Kress, CPED staff, and neighborhood Trial Exhibit 105
organizations take place in which Plaintiff's proposed project Trial Exhibit 107
is introduced and discussed. Many residents contact L. G. to Trial Exhibit 109
voice opposition to the project. Trial Exhibit 130
04/27/04 Hoyt receives a telephone call from L.G. informing him that Trial Testimony
she received over eighty emails from angry constituents, but
refuses to share them with him. L. G. tells Hoyt that she
intends to turn down the proiect.
06/02/04 Hoyt emails L.G. informing her of his plans to go forward and Trial Exhibit 113
that he seeks her support. Hours after leaving the email, Hoyt Trial Exhibit 221
agrees to a "compromise" of fifteen stories, and restates the
importance of obtaining L.G.'s support. Hoyt does not
disclose the compromise plan with the City.
07/02/04 Mellblom submits Plaintiff's application to the Planning Trial Exhibit 123
Commission. Trial Exhibit 124
07/23/04 Mayer requests a meeting with L.G. to discuss Plaintiffs Trial Exhibit 126
proposed project and "to appropriately prepare for the
Minneapolis Plannin!! Commission on Au!! 23rd."
07/28/04 L.G. meets with Mayer to discuss Plaintiff's proposed proiect. Trial Testimonv
08/1 0/04 L.G. emails Metge stating, "1 am kind of concerned that CLPC Trial Exhibit 129
didn't oppose the project at 21 stories; this will not help my
effort. This looks to me like support for the project or at least
no opposition to it."
08/18/04 CPED staff report issued recommending denial of Plaintiffs Trial Testimony
application.
08/18/04 L.G. emails a constituent, stating, "1 am not supportive of a Trial Exhibit 132
high-rise as I do not believe it is in character with the
neighborhood [...] In order to deny the applicant's request we
need to address the issues that the planning commission is
required to review. Please know density is not up for
discussion... "
08/19/04 L.G. responds to an email from a constituent who opposed Trial Exhibit 133
Plaintiff's proposed project with the following statements, "...
1 don't even support it [...] ifwe want to stop the high-rise we
should stick to the points the planning commission will
evaluate in making their decision. The Staff did recommend
against this proposal. I think the process will work."
08/23/04 The City Planning Commission holds a hearing on Plaintiffs Trial Exhibit 302
application. At the conclusion of that hearing, the Planning
Commission adopts the CPED report's recommendation of
denial.
Prior to Kress lobbies Ostrow on behalf of L.G., to vote against Trial Testimony
Zoning Plaintiffs proposed project.
and
Planning
Hearing
09/07/04 L.G. emails a Summit House resident who opposed Plaintiff's Trial Exhibit 139
proposed project, stating, "1 have already "come out" against
the height of the project and was at the planning commission
meeting as well. We have Schiff; I'd suggest Lilligren,
Zimmerman, Niziolek, and Ostrow need calls/contacts."
09/10/04 L.G. emails Mayer, stating, "As usual I am very worried Trial Exhibit 140
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about the Z & P meeting. 1 am hoping you can get a good
number of folks to show up. I will not really be lobbying
anyone on the committee but I assume you are doing so? At
least Lilligren, who you can comer at HRC. 1 am hoping to
have no problem with Barret, Scott, Barb, Sandy and Gary of
course and 1 will have a brief chat with Dean Z prior to the
committee meeting. I think me talking to Paul, Dan or Robert
before the committee might make it worse for us if they think I
really 'need' their vote gosh knows what they will want from
me. Q
09/13/04 L.G. responds to an email from a neighborhood resident who Trial Exhibit 142a
opposed Plaintiff's proposed project, stating: "I agree with
you and I will advocate vociferously against the appeal on
Wednesday, thanks for the e-mai1."
09113/04 L.G. responds to an email from a Summit House resident in Trial Exhibit 142b
which she states, "1 have not changed by position and will
continue to represent the many voices in opposition to the
Droiect as DroDosed."
09113/04 L.G. emails the council members sitting on the Zoning and Trial Exhibit 145
Planning Committee (who were set to hear Plaintiff's appeal)
stating, "This has become an issue of EPIC proportions in
Loring basically because of the attitude, actions and behavior
of Brad Hoyte, the developer, and the ability of all of the
other projects (3) who have abided by the 6 story/84 feet
height limit in the OR3. This developer has directly and
indirectly threatened me, St. Mark's Church and members of
the community in order to get us to take his side of this
application." L.G. ends the email by inviting fellow Council
Members to "feel free to talk with me about any of this if you
have auestions Drior to Wednesdav."
09/14/04 L.G. responds to several emails from neighborhood residents Trial Exhibit 146
who opposed the project with a form answer in which she Trial Exhibit 147
states, "Thanks so much for sending this to all of the members Trial Exhibit 148
of the committee, I assure you I will do my best to advocate Trial Exhibit 149
af!ainst the aDDeal in committee." Trial Exhibit 150
09/15/04 The Zoning and Planning Committee of the City Council Trial Exhibit 304
hears Plaintiff's appeal of the denial of its application. The
Committee, by a unanimous five to zero vote (including
L.G.'s vote), adoots the findings ofCPED and City Attornev.
09/23/04 Plaintiff exercises its option to purchase the property.
(est.)
09/24/04 The full City Council hears Plaintiff's appeal of the denial of Trial Exhibit 305
its application. The Council, by a unanimous thirteen to zero
vote (including L.G.'s vote) adopts the findings of the Zoning
and Planning Committee.
10/12/04 L.G. responds to an email from Metge, stating, "Thanks for Trial Exhibit 156b
the email, as 1 might have mentioned to you when 1 received
your last email on the Parc Centrale project. 1 shouldn't attend
the CLPC meetings as they are outside of the official public
hearing. I serve on the Zoning and Planning Committee which
is a quasi judicial process. If I got involved prior to the public
hearing I couldface giving up my right to vote on the issue as
the information I would receive would be outside the public
hearinf! Drocess. "
12/01104 L.G. responds to an email from a neighborhood resident who Trial Exhibit 160
opposed Plaintiffs proposed project, stating, "As you know,
http://www.minnlawyer.com/userfiles/pdf/Order..1020(Final).htm
Page 16 of 17
9/17/2009
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
DRAFT
DRAFT
DRAFT
CITY OF CENTERVILLE
PLANNING AND ZONING COMMISSION
September 1, 2009
Pursuant to due call and notice thereof, the Planning and Zoning Commission held its regularly
scheduled meeting on September 1,2009, at 6:30 p.m.
PRESENT: Commissioner Damn Mosher
Commissioner Mark Pangell
Commissioner Jim Wekseth
Commissioner Jesse Lange
Commissioner Roland Parucci
ABSENT: Chair D. Love
Commissioner Thomas Wood
STAFF: Administrator Dallas Larson
OTHERS PRESENT: Council Member Ben Fehrenbacher
I. CALL TO ORDER
Commissioner Pangell called the meeting to order at 6:35 p.m.
I. Roll Call
II. APPEARANCESIPRESENTATIONS
None
III. PUBLIC HEARING
1. Code amendments relating to metal roofs on residential structures
Present to speak with regard to the matter:
Michael Scheller, 7267 Mill Road provided a brochure on metal roof materials
and asked that these materials be allowed.
Motion bv Commissioner Lan!!. seconded bv Commissioner Mosher. to close the
public hearinl!. All in favor. Motion carried unanimously.
Motion bv Commissioner Mosher to recommend that the Council adopt an ordinance
incorooratin!! rel!Ulations aDowin!! metal roofin!! materials on sinl!1e family homes as
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City of Centerville
Planning and Zoning Commission
September I, 2009
prepared bv staff. with the amendment to reouire that metal roofm2 must meet Class
IV hail standards. Motion seconded bv Commissioner Pan2elL all voted in favor
except Parrueci who voted no. The motion was declared passed.
Staff was directed to contact Brooklyn Park and Delano to see if they identified reasons for
specifying the thickness of metal materials in their regulations. That information should be
shared with P&Z members and with the Council.
IV. OLD BUSINESS
None.
V. NEW BUSINESS
The Commission received a proposed plat of land owned by the City of Centerville and
Sheehy Construction. The plat provides for three lots and one outlot.
Motion by Commissioner Parrucci. seconded bv Commissioner Lan2. to schedule a
public hearin!!: to consider the proposed Plat on October 6. 2009. at 6:30 p.m. All in
favor. Motion carried
VI. DISCUSSION ITEMS
None
VII. CONSIDERATION OF MINUTES
1. August 4. 2009. Meetin!!: Minutes
Motion bv Commissioner Mosher. seconded bv Commissioner Parrucci . to approve
the AUl!:Ust 4. 2009. minutes as presented. All in favor. Motion carried.
VIII. PLANNING AND ZONING COMMISSION MEETING ADJOURNMENT
Motion bv Commissioner Pan!!:ell. seconded bv Commissioner Lan!!:. to adiourn the
Meetin2 at 7:30 p.m. All in favor. Motion carried unanimouslv.
Transcribed by:
Dallas Larson, Administrator
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