HomeMy WebLinkAbout02 13 2012 Agenda Packet1�11Prior Lake, MN 55372
�WN6so'�A
PRIOR LAKE PLANNING COMMISSION WORKSESSION
AGENDA
Monday, February 13, 2012
6:00 p.m.
Little Prior Conference Room
INTRODUCTION
2. LEGAL CASE STUDY REVIEW
A. Continental Property Group (CPG) vs. City of Minneapolis (District Court)
B. Continental Property Group (CPG) vs. City of Minneapolis (Court of Appeals)
3. OTHER BUSINESS
A. 2011 Variance Summary Report
4. ADJOURNMENT
Phone 952.447.9800 I Fax 952.447.4245 I wNvNv.cityofgriorlakc.eom
Continental Property Group
VS.
City of Minneapolis
(District Court)
STATE OF MINNESOTA
COUNTY OF HENNEPIN
Bradley A. Hoyt
and Continental Property Group, Inc.,
Plaintiff,
GSA
City of Minneapolis,
Defendant.
Page 1 of 17
DISTRICT COURT
FOURTH JUDICIAL DISTRICT
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER
Case File No. 27 -CV -07-5826
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 Plaintiffs 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 ("Dress"),
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 ("Metgc"), 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:
1. Plaintiff's equal protection claim is DISMISSED.
2. Plaintiff's substantive due process claim is DISMISSED.
3. Plaintiff's 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 of remedies and damages.
5. The attached Memorandum in incorporated herein and made a part hereof.
9/17/2009
http://www.minnIawyer.cora/userfiles/pdf/Order°/`20(Final).htm
Dated; September 15, 2009
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT
Stephen C. Aldrich
Judge of District Court
Page 2 of 17
http://www.minnIaNvycr.com/tiserfiles/pdf/Order%20(Final).htm 9/17/2009
MEMORANDUM
I. Background
Page 3 of 17
In the fall of 2003, 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 ("ORT'). 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 Parc 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
jl]
square feet footprint built to the property lines ("the slab"). After taking a variety of factors 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 of 2004, CPED staff reviewed Plaintiff s application and issued a fourteen -page report recommending
that the City of Minneapolis Planning Commission "Planning Commission") deny the application. hater that month,
acting on the recommendation of CPED, the Planning Commission denied Plaintiff s 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.eom/userriles/pdf/Order%20(Finat).htm 9/17/2009
Page 4 of 17
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 PIanning 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 U.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 Plaintiffs 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 of the City's decision and the fairness of the 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 Plaintiffs 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.
http://www.minniawyer.com/userfiles/pdf/Order%20(Final).htm 9/17/2009
Page 5 of 17
On July 17, 2009, following the close of Plaintiffs case -iii -chief, the parties carne before the Court on
Defendant's motion for involuntary dismissal of all of Plaintiff s 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 protecti6n, substantive due process, and procedural due process rights.
11. Equal Protection
Plaintiffs 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 plaintiff's
application than to other applicants); Billy Grahant 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); Kouschade 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 >.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 Shorewood, 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
hup://www.rginnlawyer.com/userfiles/pdf/Ordcr%20(Final).htm 9/17/2009
Page 6 of 17
(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 Ehno, 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.7ohnson, 404 N.W.2d 301 (Minn. Ct. App. 1987), overruled on other
grounds by Myron v. City of Plyfnouth, 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 ofzlyden Hills, 281
N.W.2d 865, 869 (Minn. 1979) (parties similarly situated where decisions on applications were made at the "sa►ne
timc"); 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 Groveland
This application was for a seven -story, eighty-one foot tall building (approximately one-third the size
of Plaintiff's 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.
http://www.minn]aNvyer.com/userfiles/pdf/Order%20(Final).btrn 9/17/2009
Page 7 of 17
Bridge Place
This application involved a project located approximately two miles fi-om 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 Plaintiff s 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 Plaintiff's 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 Plaintiffs
application and, thus, for differential treatment.
Furthermore, a municipality cannot be, bound by previously issued variances. See Frank's Nursery Sales v. City
of Roseville, 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. 199 1) (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, Wrighf County
Board ofAdjustjrment, 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 5023, 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 re Johnson, at 301).
Finally, the evidence established that applicants for variances must demonstrate hardship through their
http:/hvww.rninnlawyer.com/userriles/pdf/Order%20(Final),htm 9/1712009
Page 8 of 17
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 allegedly did not demonstrate hardship but who
nevertheless was granted a variance. Because of this 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 alleged 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 allegation 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 challenging 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 Paid, 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." VonLandschoot v. City of
Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). "A zoning decision is arbitrary if the applicant meets the
standards specified by a certain zoning ordinance." Condor Coip. 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 all, only in extraordinary
situations and will not be found in 'run-of-the-mill' zoning disputes." Northpointe Plaza v. City ofBochester, 465
N.W.2d 686, 690 (Minn. 1991) "The test in the Eighth Circuit for determining whether there has been a violation of
http:l/www.minnlawyer,com/userfiles/pdf/Order%20(Final).htm 9/17/2009
Page 9 of 17
substantive due process in the context of § 1983 zoning actions is twofold: first, whether there has been a
deprivation of a protectable (sic) property interest and, second, whether the deprivation, if any, 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,
603-09 (8th Cir. 1986)). "jljn 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 of law."' Id. (citing Condor Corp. 912 F.2d at 220 (8th Cir. 1990)).
The Federal threshold is higher than the threshold under Minnesota law. Id. 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, Plaintiff had 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 Iimitations 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:
(1) 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,
http://www.minnlawyer.com/userfiles/pdf/Order%20(Final).htm 9/17/2009
Page 10 of 17
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 of light 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 findings of the Zoning
and PIanning Committee, are such general findings made. The plain meaning of the 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 of the 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 owri admission, "varied" in scale and character would result in the type of injury or
http!/www.minnlawyer.com/userfiles/pdf/Ordcr%20(Final).htm 9/17/2009
Page 1 I of 17
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. "kale 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 2010 plan. Specifically, the Downtown 2010 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 -facade 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]
IN. 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." Fosselmon v. Conam'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. 1975).
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 -snaking 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
http://www.minnlawyer.com/userfilcs/pdVOrder%20(Final).litm 9/17/2009
evidence or secret reports that have the effect of denying the
rebuttal evidence and testimony.
Page 12 of 17
person involved a fair opportunity to proffer
Arden H. Rathkopf et al., Rathkopf's The Law of Zoning and Planning § 32.13 (4(h 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.
Id. 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 conducted with Rill and open disclosures on the record and in a fair and meaningful manner.
The timeline of events and coin munications,[51 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 Plaintiffs proposed project prior to hearing Plaintiffs 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
http://www.minnlawyer.com/userfiles/pdf/Order%20(Fina1).htm 9/17/2009
Page 13 of 17
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 of aldermanic 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]
.Plaintiff's right to a fair hearing and violated its right to procedural due process.
V. Plaintiffs 42 U.S. C. § 1983 Claims
A cause of action exists under § 1983 if a party was deprived of a 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. Dept 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 other redress....
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 finds a denial of Plaintiffs procedural duo process rights exists, equitable remedies
and/or actual damages may be awarded under 42 U.S.C. § 1983. Id. See also Bi-e►ver• v. Chauvin, 938 F.2d 860 (8th Cir.
199 1) (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
http://www.miurnlawyer.com/userfiles/pdf/Order%20(Final).htcru 9/17/2009
Page 14 of 17
http://w-ww,miniilawyer.c.om/tiserflies/pdf/Order%20(Final).htm 9/17/2009
Page 15 of 17
10/29/03
Meyer, Scherer & Rockcastle sign retainer with Plaintiff for
Trial Exhibit 202
development of the project,
03/04-
A series of meetings between Plaintiff, its representatives,
Trial Exhibit 103
05104
Goodman C%R"), 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
04/27104
Hoyt receives a telephone tail 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 pro'ect.
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 Plaintiffs 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 Planning Commission onAug 23rd."
07/28/04
L.G. meets with Mayer to discuss Plaintiff's proposed project.
Trial Testimon
08/10/04
L.G. emails Metge stating, "I 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."
08/18104
CPED staff report issued recommending denial of Plaintiff's
Trial Testimony
application.
08/18/04
L.G. emails a constituent, stating, "I 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, "...
I don't even support it [...] if the 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 tine process will work."
08/23/04
The City Planning Commission holds a hearing on Plaintiff s
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
Hearin
09/07/04
L.G. emails a Summit House resident who opposed Plaintiff's
Trial Exhibit 139
proposed project, stating, "I 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
http://www.minnlawyer.com/userfiles/pdf/Order%20(Pina1).litm 9/17/2009
Page 16 of 17
http://www.minnlawyer.com/userfiles/pdf/Order%20(Final).htm 9/17/2009
about the Z & P meeting. I 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 sol At
least Lilligren, who you can corner at HRC. I am hoping to
have no problem with Barret, Scott, Barb, Sandy and Gary of
course and I 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
really 'need their vote gosh knows what they will want from
me. O
09/13/04
L.G. responds to an email from a neighborhood resident who
Trial Exhibit 142a
opposed Plaintiffs proposed project, stating; "I agree with
you and I will advocate vociferously against the appeal on
Wednesday, thanks for the e-mail."
09113/04
LG, responds to an email from a Summit House resident in
Trial Exhibit 142b
which she states, "f have not changed by position and will
continue to represent the many voices in opposition to the
roject as proposed."
09/13/04
L.G. emails the council members sitting on the Zoning and
Trial Exhibit 145
Planning Committee (who were set to hear Plaintiffs 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 girestions rior to Wednesday."
09/14/04
L.G. responds to several emails fiom 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
a ainst the appeal 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), adopts the findings of CPED and City Attorne .
09/23/04
Plaintiff exercises its option to purchase the property.
est.
09/24/04
The full City Council hears Plaintiffs 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 I might have mentioned to you when I received
your last einail on the Parc Centrale project. I 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 quosijudicial process. Iflgot involvedprior to the public
hearing I could face giving up my right to vote on the issue as
the information I would receive world be outside the public
heari2 rocess."
12/01/04
L.G. responds to an email from a neighborhood resident who
Trial Exhibit 160
opposed Plaintiff's proposed project, stating, "As you know,
http://www.minnlawyer.com/userfiles/pdf/Order%20(Final).htm 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 forfit (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 inade up my mind and ant
working to oppose the variance on this project. If the
developer hears this they will righ f illy question that they
didn't get a fair hearing with pre and that I made up my mind
prior to the public hearing. I'd also appreciate if you would
not eneourave people to contact rite about this at this time."
[i]
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 find 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 Plaintiffs claim of a -
violation of procedural due process.
[3] Defendant's contention that Plaintiff's 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: Minnick v. Chisago County Bd. of Commis, 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 (1st Cir. 1994); Henry Company Hoines, 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 v. 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.minniawyer.com/userfiles/pdf/Order%20(Final) Iitm 9/17/2009
Continental Property Group
vs.
City of Minneapolis
(Court of Appeals)
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
A10-1.072
Continental Property Group, Inc.,
Respondent,
VS.
City of Minneapolis,
Appellant.
Filed May 3, 2011
Affirmed in part, reversed in part, and remanded
Schellhas, Judge
Hennepin County District Court
File No. 27 -CV -07-5826
William R, Skolnick, Rolin L. Cargill III,' LuAnn Petricka, Skolnick & Schiff P.A.,
Minneapolis, Minnesota (for respondents)
Charles N. Nauen, Gregory J. Myers, Lockridge Grindal Nauen P.L.L.P., Minneapolis,
Minnesota (.for appellant)
Susan L. Naughton, League of Minnesota Cities, St. Paul, Minnesota (for amicus curiae
League of Minnesota Cities)
John M. Baker, Erin Sindberg Porter, Greene Espel P.L.L.P., Minneapolis, Minnesota
(for amicus curiae American Planning Association)
Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and
Stauber, Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant City of Minneapolis challenges the district court's decision that it
violated respondent's procedural due -process rights by depriving respondent of a fair
hearing on its land -use applications. Respondent cross-appeals to challenge the district
court's dismissal of its other claims for relief. Because we conclude that respondent did
not have a property interest entitling it to due -process protection, we reverse the district
court's decision that the city violated respondent's procedural due -process rights. We
affirm the district court's dismissal of respondent's equal -protection and substantive due -
process claims. But because the hearing before the city council was unfair, rendering the
city's decision arbitrary and capricious under state Iaw, we reverse and remand for a new
hearing.
FACTS
In the fall of 2003, respondent Continental Property Group (CPG) purchased an
option on property located at 343, 401, 403, and 409 Oak Grave Street, and 416 Clifton
Avenue, in the Loring Hill neighborhood of Minneapolis. CPG purchased its option with
the intention of developing the property. The property consisted of a surface parking lot,
which served nearby office buildings, and was zoned as part of an Institutional Office
Residence (OR3) district. The OR3 zoning classification restricts the height of buildings
to six stories or 84 feet. Additionally, because the property is located within 1,000 feet of
the ordinary high-water mark of Loring Pond, it is also subject to the standards of the
2
Shoreland Overlay (SH) district, which imposes a height restriction of 2-1/2 stories or 35
feet.
CPG engaged an architectural firm to design the project and assist in the process
of applying for needed land -use permits -and variances. CPG settled on one of the
architect's designs that included a slender mixed-use tower bordered by two-story
townhouses fronting on the adjacent streets. Because the project design exceeded the
height restrictions of the two applicable zoning districts, in July 2004, CPG applied for
two conditional -use permits (CUPs): one to increase the maximum permitted height from
a maximum of 2-1/2 stories or 35 feet to 21 stories and 230 feet; and a second to allow
for a multiple -family project containing 104 units. CPG simultaneously applied for two
variances: one to reduce the required corner side -yard setback off Clifton Place from the
required 48 feet to 16 feet for the proposed building and 4 feet for the proposed patio
area; and a second to reduce the rear -yard setback off the south property line from the
required 45 feet to 19 feet for the building and 8 feet for patios. CPG also requested a
major site -plan review.
In August of 2004, Minneapolis Community Planning and Economic
Development (CPED) staff reviewed the application and issued a 14 -page report
recommending that the Minneapolis Planning Commission deny the application. Later
that month, acting on the recommendation of CPED, the planning commission denied
CPG's application by votes of five to two on the CUPs, five to Wo on the variances, and
six to one on the site plan,
3
In September 2004, CPG appealed the planning commission's decision to the
Minneapolis City Council. On September 15, 2004, the planning commission's decision
was reviewed by the city council's zoning and planning committee. The zoning and
planning committee comprised five city -council members, including Lisa Goodman.
Following its receipt of testimony from CPED staff and CPG representatives, the
committee recommended that CPG's application be denied. The committee's vote was
unanimous—five to zero,
On September 24, liy a# vote of 13-0, the full city council adopted the findings and
recommendation of the zoning and planning committee and upheld the planning
commission's denial of CPG's requested CUPS, variances, and site -plan review.
Despite the city council's decision, CPG exercised its optiont^ o purchase the
pro erty in later September 2004 and, on November 23, submitted an application for a
second proposed roject on the property. That project design consisted of a seven -story,
77 -foot, 74 -unit building, and required CUPS for height and density as well as as sit�_e�
review. But the project design required no variances.
On January 23, 2005, CPED staff issued a report recommending that the planning �uawl y id
commission app:•ove the application. But, on February 23, CPG_ withdrew its application, � vt (+-
,�r) 234` 005
citing infeasibility due to higher -than -anticipated construction costs.
On March 27, 2007, CPG sued the City of Minneapolis alleging that the city;
council's decision in 2004, as well as a development moratorium it imposed in May
2005, Nvere arbitrary and capricious and violated CPG's equal -protection rights, entitling
; Ul e,d e464
wh&I t3 it to relief under 42 U.S.C. § 1983 (2006). On October 10, 2008, the district court
4
S3"0r, -S lqn
granted the city summary judgment on CPG's equal -protection claim but allowed CPG to
proceed with its action under a due -process theme and under Minn. Stat. § 462.361, subd.k��
1 (2010), based on its claim that the city council's actions were arbitrary and capricious.
The court ordered a trial to supplement the record of the city -council proceedings and for
CPG to challenge the reasonableness of the city's decision and the fairness of the process
afforded. The court later reinstated CPG's e ualprotection claim. 6W��
40
Following trial, the district court found that the city violated CPG's procedural . ,,,N #10 �pla.
due -process rights and concluded that CPG was entitled to qo end atory damages and c �
at� tortEeyI es. The court dismissed CPG's other claims. Appeals by both parties follow. 6Wd
DECISION
CPG's Due -Process Claims
The district court concluded that CPG was entitled to relief under 42 U.S.C.
§ 1983 because the city did not afford CPG procedural due process in its consideration of
CPG's land -use application. The city argues on appeal, among other things, that CPG is
not entitled to due -process relief because it did not have a protected property interest in
its CUP and variance applications. CPG argues that the district court erred by dismissing
its substantive due -process claim.
The United States Constitution provides that the state shall not "deprive any
person of life, liberty, or property, without due process of law." U.S. Const. amend XIV,
§ 1. As a threshold matter to any due -process claim, "the plaintiff must identify a
protected property interest to which the Fourteenth Amendment's due process protection
applies." Snaza v. City of Saint Paul, 548 F.3d 1178, 1182 (8th Cir. 2008); see also
5
1Vexris v. Swift, 785 N. W.2d 771, 779 (Minn. App. 2010) ("The threshold requirement of
any due-process claim is that the government has deprived a person of a constitutionally
protected liberty or jHoer� interest; in the absence of a liberty or property interest, a
right to due process does not accrue."). This prerequisite applies to both substantive and
procedural due -process claims. See Snaza, 548 F.3d at 1182 (substantive); Snyder- v. City
of Minneapolis, 441 N.W,2d 781,791 (Minn. 1989) (procedural).
"Property interests are created and their dimension defined by existing rales or
understandings that stem from an independent source, such as state Iaw, rules or
understandings that support claims of entitlement to certain benefits." Snyder, 441
N.W.2d at 791 (quotation omitted). "A protected property interest is a matter of state law
involving a legitimate claim to entitlement as opposed to a mere subjective expectancy."
Snaza, 548 F.3d at 1182 (quotation omitted). "A permit applicant may have a legitimate
claim to entitlement if the government's discretion is constrained by a regulation or
ordinance r-equiring issuance of a permit when prescribed terms and conditions have been
met." Id. at 1183 (emphasis added).
The property at issue in this case is located in an OR3 primary zoning district as
well as an SH overlay zoning district. Minneapolis, Minn., Code of Ordinances (MCO)
§§ 521.10 (2009), .30 (1999); Minneapolis Official Zoning Map Primary Plate 18
(2010), Overlay Plate 18 (2002). The Minneapolis Zoning Code provides that certain
uses in the OR3 district are "permitted" while others are "conditional." MCO
I Because the relevant ordinances have not materially changed since CPG filed its
applications, we cite to the most recent versions.
6
§ 547.30(a)—(c) (2010). Permitted uses "are permitted as of right in the district .. .
provided that the use complies with all other applicable provisions of this ordinance."
MCO § 547.30(b) (emphasis added). In contrast, conditional uses are allowed "provided
that the use complies with all other applicable provisions of this ordinance" and the
person wishing to establish the conditional use "obtain[s] a [CUP] for such use." MCO
§ 547.30(c).
Multiple -family dwellings comprising more than four units are allowed only as a
"conditional use," not a "permitted use," in an OR3 district. MCO § 547.330 (1999).
Therefore, a person wishing to establish a multiple -family dwelling of more than four
units within the OR3 district must obtain a CUP. And a CUP is required for structures
over six stories or 84 feet in the OR3 district, and over 2-1/2 stories or 35 feet in the SH
overlay district. MCO §§ 547.350(a) (2010), 551.480 (2008).
CPG's proposed project included a 21-stoty tower comprising more than four
dwelling units. Because the project proposed a conditional use of the property, rather
than a permitted use that CPG could build "as of right," CPG could proceed with the
project only it if obtained a CUP from the city. And the city's issuance of a CUP is
discretionary. See Minn. Stat. § 462.3595, subd. 1 (2010) ("Conditional uses may be
approved by the governing body ... by a showing by the applicant that the standards and
criteria stated in the ordinance will be satisfied." (emphasis added)); MCO § 525.300
(1999) ("A [CUP] ... allows the city to review uses, which because of their unique
characteristics, cannot be permitted as of right in a particular zoning district, but which
tnay be allowed upon showing that such use in a specified location will comply with all
7
of the conditions and standards of this zoning ordinance." (emphasis added)); Ainoco Oil
Co. v. City of Minneapolis, 395 N.W.2d 115, 117 (Minn. App. 1986) ("Conditional or
special use permits are zoning devices designed to meet problems that arise when certain
uses, although generally compatible with the basic use classification of a particular zone,
should not be permitted to be located as a inatter of right in a particular area of that
zone." (emphasis added)); see also Minn. Stat. § 645.44, subd. 15 (2010) ("`May' is
permissive."); MCO § 520.40(4) (2000) ("The word `may' is permissive."); Bitinninous
Materials, Inc. v. Rice Cno)., 126 F.3d 1.068, 1070 (8th Cir. 1997) (where ordinance
provided that permit "may be granted," grant of permit was discretionary, and applicant's
interest "amount[ed] to nothing more than an abstract need or desire" (quotation
omitted)).
If an applicant who meets the bare requirements in an ordinance had an automatic
right to a CUP, the distinction between conditional and permitted uses would be
meaningless. CPG therefore was not entitled to a CUP simply because it otherwise
complied with the ordinance and filed an application. Because CPG could not obtain a
CUP as of right, it did not have a protected property interest in its CUP application.
Similarly, CPG did not have a protected property interest in its variance application
because an applicant has no claim of entitlement to a variance. See Kru nnnenacher v.
City of Minnetonka, 783 N.W.2d 721, 727 (Minn. 2010) (stating that a governing body
has broad discretion to grant or deny a variance).
Citing Carey v. Piphus for the proposition that "the right to procedural due process
is `absolute' in the sense that it does not depend upon the merits of a claimant's
8
substantive assertions," CPG argues that it was not required to demonstrate a protected
property interest for its due -process claims. 435 U.S. 247, 266, 98 S. Ct. 1042, 1054
(1978). But Carey does not support CPG's argument. Carey stands for the proposition
that a person has a right to due process regardless of the merits of the substantive claims
to be decided at the hearing; the person still must have a property interest at stake to be
entitled to due process. See id at 266, 98 S. Ct. at 1053 ("It is enough to invoke the
procedural safeguards of the Fourteenth Amendment that a significant property interest
is at stake, whatever the ultimate outcome of a hearing." (emphasis added) (quotation
omitted)). The right to procedural due process does not guarantee process for process's
sake; the right to due process guarantees process for the sake of protecting an established
property interest. To assert its procedural due -process claim, CPG therefore was first
required to demonstrate that a protected property interest was at stake.
Citing Northpointe Plaza v. City of Rochester, 465 N.W.2d 686 (Minn. 1991),
CPG argues that it was entitled to a CUP as a matter of right despite the permissive
language in the statute and ordinance. In Northpointe Plaza, the supreme court noted that
where "the applicant for a CUP complies with the specified permit requirements,
`approval of a permitted use follows as a matter of right."' 465 N.W.2d at 689 (emphasis
added) (quoting Chanhassen Estates Residents Assn v. City of Chanhassen, 342 N.W.2d
335, 340 .(Minn. 1984)). But, here, CPG applied for a permit for a conditional use, which
the Minneapolis ordinance expressly states is a use that "cannot be permitted as of right."
MCO § 525.300. In Northpointe Plaza, the parties did "not challenge the lower courts'
rulings that [the applicant] had a protectable property interest in the CUP," 465 N.W.2d
9
at 689; the court accordingly did not examine the issue closely, and the statement upon
which CPG relies is dictum. Moreover, the ordinance at issue in Northpointe Plaza set
out several specific requirements that an applicant must meet before a CUP could be
granted. Id. at 687. Here, in contrast, the ordinance specifically states that a CUP "may"
be granted for uses that "cannot be permitted as of right," and lists factors that the city
must consider in deciding whether or not to issue the CUP. See MCO §§ 525.300, .340
(1999), 547.110 (2011) (emphasis added). Finally, Northpointe Plaza relied on
Chanhassen Estates in which the supreme court discussed permitted, not conditional,
uses, stating, "[T]he council's review of an application for a permitted use need go only
to the applicant's compliance with the specific requirements, regulations and
performance standards prescribed by the ordinance. Subject to such compliance,
approval of a permitted use follows as a matter of right." Chanhassen Estates, 342
N.W.2d at 340 (emphasis added), (quotation omitted). The Chanhassen Estates court
then immediately distinguished permitted uses from conditional uses, which may be
denied for reasons other than failure to strictly comply with the ordinance. Id
Northpointe Plaza therefore does not establish a rule that an applicant has a per se
property interest in a CUP application.
CPG also argues that it had a protected property interest in the form of its option to
purchase the subject property. But the property interest at stake in the context of a denial
of due process relative to a land -use application is the application itself, not the title to the
underlying property. See Snaza, 548 F.3d at 1183 (stating that a plaintiff's fee title in the
land did not entitle her to due process with respect to a CUP where the plaintiff "has not
10
presented any evidence that she has been denied her fee simple title in the land"). The
Snaza court noted that there were "over 70 principal uses for a property" in the given
zoning district that were "allowed without obtaining a [CUP]." Id. Similarly, in this
case, at the time CPG filed its application there were 19 permitted uses to which CPG
could put the property "as of right" and for which a CUP would not be required, see -
MCO § 547.30(a), (b) (2004), and there are now 25 such permitted uses, see MCO
§ 547.30(a), (b) (2010). Because the city did not deprive CPG of its interest in the
property, CPG's interest in its option to purchase the property did not entitle it to due
process with respect to the CUP.
Because CPG did not have a protected property interest in its CUP and variance
applications, we conclude that it had no constitutional right to due process in the
application -review process. The district court therefore correctly dismissed LPG's
substantive due -process claim; but eared by granting CPG relief on the basis that the city
violated its right to procedural due process.
,Statutory Judicial Review under Minn. Stat. § 462,36.1, subd. 1
Arguing that the city council's decision was arbitrary and capricious, CPG
maintains that the district court erred by dismissing its claim for judicial review under
Minn. Stat. § 462.361, subd, 1.2 We review "the decision of the city council independent
2 Although on appeal CPG characterizes its challenge as one to the district court's
decision on its substantive due -process claim, LPG's argument and cited cases
demonstrate that its challenge is to the district court's decision on its state -law claim as
well. As the district court noted, CPG seems to conflate two bases of relief with similar
legal tests—statutory judicial review of land -use decisions under Minn. Stat. § 462.361,
subd. 1, and substantive due process under the federal constitution. Although both tests
of the findings and conclusions of the district court." VanLandschoot v. City of Mendota
Heights, 336 N.W.2d 503, 508 (Minn. 1983). But where the district court has found that
the municipal record was inadequate and allowed discovery and a trial to supplement the
record, we may use the district court's record in conducting our review. See Swanson v.
City of Bloomington, 421 N.W.2d 507, 313 (Minn. 1988) (noting that the purpose of
allowing a trial to supplement the municipal record is to enable "satisfactory review")
Minnesota law provides that a person aggrieved by a city council's land -use
decision is entitled to judicial review in district court. Minn. Stat. § 462.361, subd. 1. A
reviewing court must "determine whether the municipality's action ... was reasonable."
VanLandschoot, 336 N.W.2d at 508. The decision is unreasonable if "it was arbitrary
and capricious" or "tire reasons assigned by the governing body'do not have the slightest
validity or bearing on the general welfare of the immediate area." Id. (quotation
omitted). Generally, a decision to deny a CUP application is arbitrary if the applicant
meets the standards specified by the zoning ordinance.3 Yang v. Cnty. of Carver, 660
use the words "arbitrary and capricious," these words carry different meanings. Compare
VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 507-08 (Minn. 1983)
(discussing standard under state law), ii,ith Northpointe Plaza, 465 N.W.2d at 689-90
(discussing standard under federal constitution's due -process clause). The district court
noted that because "[t]he Federal threshold is higher than the threshold under Minnesota
law[,] ... it logically follows that if [CPG's] claim fails under Minnesota law, it must
also fail under Federal law."
3 CPG argues that "[w]hen, as in this case, a zoning ordinance expressly authorizes the
proposed use by conditional use permit, the City's denial of the permit must be for
reasons relating to public health, safety and general welfare," citing CA Invs., Inc. v.
Village of Shorevietiv, 304 N.W.2d 320, 324 (Minn. 1981). But the standard set forth in
C.R. Invs, is merely the default standard that applies when the ordinance does not set
forth specific issues for the city to consider. Condor Corp. v. City of Saint Pahl, 912 F.2d
215, 221 (8th Cir. 1990) (citing Zylka v. City of crystal, 283 Minn. 192, 195, 167 N.W.2d
IN
N.W.2d 828, 832 (Minn. App. 2003) (citing Zylka v. City of Crystal, 283 Minn. 192, 196,
167 N.W.2d 45, 49 (1969)). But a decision is also arbitrary and capricious if the
decision -maker "relied on factors it is not permitted or intended to consider." bz re
Charges of Unprofessional Conduct Contained in Panel File 98-26, 597 N.W.2d 563,
567 (Minn. 1999); see also In re Block, 727 N.W.2d 166, 178 (Minn. App. 2007)
(mentioning this standard in the CUP context). Although a city council has broad
discretion to deny land -use permits, we may invalidate its decision if it did not act in
good faith.. VanLandschool, 336 N.W.2d at 508-09.
We agree with the district court that the city council's decisions to deny the CUPs
and variances had some basis in the record: the record contains evidence that CPG's
proposal was inconsistent with the scale and character of the neighborhood and might
block views of landmarks, open spaces, or bodies of water, which were sufficient bases to
deny the CUPS under MCO §§ 547.110(3), (4), 551.480(3); (4); and CPG made no
showing whatsoever of the "undue hardship" necessary to support a variance under Minn.
Stat. § 462.357, subd. 6(2) (2010), and Krunnnenacher, 783 N.W.2d at 727-28. But
when deciding LPG's procedural due -process claim, the district court found that
Councilmember Goodman, who took part in making the council's decision: "took a
position in opposition and exhibited a closed mind with regard to [LPG's] proposed
project prior to hearing [CPC's] appeal"; "adopted an advocacy role in opposition to
[CPG's] proposed project well before she discharged her quasi-judicial duties'; and "was
4S, 49 (1969)). here, the ordinance enumerates factors for the city's consideration.
Therefore, the default "public health, safety, and general welfare" standard does not
apply,
13
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."
The court also noted that "the opinion of the council member in whose ward a project is
proposed is given substantial weight" by other members of the council. The court's
findings, which are supported by the record, establish that the city council relied on
factors it was not intended or permitted to consider in denying CPG's applications. We
therefore conclude that the city council's decision was arbitrary and capricious and that
the district court erred by upholding it on review under Minn. Stat. § 462.361, subd. 1.
We turn now to the appropriate remedy. In Krum nenacher, the Minnesota
Supreme Court recognized that the standard remedy for the arbitrary -and -capricious
denial of a land -use permit is an order that the permit be issued. 783 N.W.2d at 732--33
(quotation omitted). "But," the court continued, "there is an exception to this general rule
when the zoning authority's decision is premature and not necessarily arbitrary." Id, at
733 (quotation omitted). Concluding that the city council had applied the incorrect legal
standard in its initial determination, the court remanded the case to the city council to
allow the applicant to have her application considered under the correct legal standard.
Id. at 732, 733. Here, like in Krunnnenacher, the city council's decision would not
necessarily have been arbitrary and capricious had the council followed the correct
standards and procedures in considering CPG's applications—namely, had it not allowed
a biased councilmember to participate in the decision. Under Krurmnenacher, we
therefore remand to the Minneapolis City Council for a new hearing and decision.
14
CPG's Equal --Protection Claim
CPG argues that the district court erred by dismissing its equal -protection claim.
The Equal Protection Clause of the Fourteenth Amendment requires the government to
"treat all similarly situated people alike." Barstad e,. Murray Chty., 420 F.3d 880, 884
(8th Cir. 2005). The threshold inquiry in a zoning case is whether the denied applicant
was "similarly situated" to successful applicants. Id. The applicant must then
demonstrate that there was no rational basis for differential treatment. Id.
CPG has failed to meet its burden on the threshold requirement that it identify
"similarly situated" successful applicants. CPG's brief mentions in conclusory fashion
that it was "intentionally treated differently by the City than others similarly situated,"
but fails to identify the applicants or explain how they were similarly situated. LPG's
equal -protection claim therefore fails.
The City Council's DevelopmentMoratorium
CPG argues that the district court erred by dismissing its "claim for damages
related to the development moratorium imposed selectively by the City in April 2005."
In its complaint, CPG alleged:
14. In April 2005, Councilmember Goodman
introduced an ordinance to impose a moratorium on all
development in the Loring Hill neighborhood. The alleged
basis for the moratorium was to allow the City to have a
detailed study prepared concerning the impact of the
development on neighboring buildings and the community.
The City imposed the moratorium in May 2005,
15. The City acted arbitrarily and capriciously with
respect to the moratoriumbecause it discriminated against
[CPG] and the City did not exercise good faith in imposing it.
15
The moratorium interfered with CPG's revised plan to build a seven -story structure
comprising three stories of offices atop four stories of parking.
On September 16, 2009, between the liability and damages phases of the trial, the
district court issued its order dismissing all of CPG's -claims except its procedural due -
process claim. The court stated that CPG "was denied a fair hearing on its appeal by the
Zoning and Planning Committee and, subsequently, by the City Council," and the court
permitted CPG to present damages evidence on that claim alone. Despite the court's
limitation on the scope of damages to be tried, CPG submitted a proposed damages
calculation asserting "more than $17 million damages it attributed to the moratorium and
the office tower concept." And CPG also submitted a trial memorandum stating that it
had additional evidence to present on the moratorium issue, which the court had "not
allowed" it to present during the liability phase. The district court denied CPC's request
to submit additional evidence on the- moratorium issue and clarified that CPG's claims
with respect to the moratorium were "dismissed with prejudice."
On appeal, CPG does not challenge the district court's dismissal of the statutory or
constitutional claims that it might have had arising out of the moratorium's allegedly
arbitrary and capricious nature --LPG's substantive arguments are aimed entirely at the
city's denial of its CUP and variance applications, rather than the moratorium. But CPG
does argue that the district court should have allowed it to present evidence of dainages
related to the moratorium, even though the court found liability only with respect to the
fairness of the hearing on the CUP and variance requests. This is an evidentiary and
procedural issue—CPG challenges the manner in which the district court directed that
16
evidence be offered for trial. "[M]atters such as trial procedure [and] evidentiary rulings
... are subject to appellate review only if there has been a motion for a new trial in which
such matters have been assigned as error." Sauter v. Wasemiller, 389 N.W.2d 200, 201
(Minn. 1986). Because CPG did not move for a new trial, it failed to preserve this issue
for appeal,
Damages
Both parties challenge the district court's damages award, which was based on
CPG's 42 U.S.C. § 1983 claims that the city had violated its constitutional nights. As we
have already concluded, CPG was not entitled to relief on its constitutional claims. And
money damages are not appropriate under Minn. Stat. § 462.361, subd. 1, for wrongful
denial of a land -use permit. See Krujmnenacher, 783 N.W.2d at 732-33 (noting that if a
denial is arbitrary and capricious, "the standard remedy is that.the court orders the permit
to be issued"); Carl Bolander & Sona v. City of Minneapolis, 378 N.W.2d 826, 829
(Minn. App. 1985) (stating plaintiff "has shown no Minnesota cases in which money
damages were awarded for the wrongful denial of a building permit"), revietiv denied
(Minn. Feb. 14, 1986). CPG's available remedy in this case is a fair hearing before the
city council. We conclude that CPG is not entitled to monetary damages, and we reverse
the district court's damages award.
Attot•ney Fees
The district court awarded CPG attorney fees under 42 U.S.C. § 1988(b) (2006),
which authorizes fee awards to prevailing parties in section 1983 cases. Based on our
17
conclusion that CPG is not entitled to relief on its constitutional claims, we reverse the
district court's attorney -fee award.
The city argues that it is entitled to an award of attorney fees on the basis that a
section 1983 defendant may be entitled to a fee award if a lawsuit is initiated or continued
in bad faith and for the purpose of harassment. See Buford v. Tremayne, 747 F.2d 445,
448 (8th Cir. 1984) (affirming fee award where plaintiff "was more interested in
harassing those persons he deemed responsible than vindicating his rights in a bona fide
lawsuit'); Am. Family Life Assurance Co. v, Teasdale, 733 F.2d 559, 569 (8th Cir. 1984)
(affirming fee award where plaintiff brought suit to harass and attack the integrity of
defendant and offered no evidence supporting claims); see also Minn, Stat. § 549.211,
subd. 2(1), 3 (2010) (providing that district court may sanction party who presents a
claim for an "improper purpose, such as to harass"). The city points to evidence in the
record suggesting that CPG did not genuinely expect- to win in, court, but instead sought
only to "exact [its] revenge on those who have wronged [it]" and to force Councilmember
Goodman "to pay a price for this,"
The district court was not persuaded that CPG manufactured this Iawsuit for the
purpose of harassing the city; nor are we. Although CPG did not successfully prosecute
its constitutional claims, its complaints were not unfounded—we have upheld the district
court's finding that CPG did not receive a fair hearing. We therefore decline to award
attorney fees to the city.
Affirmed in part, reversed in part, and remanded.
IE8
11\1
`�fNlvgSa�� Prior Lake, MN 55372
STAFF REPORT
IsT�r; T7�1�i �
SUBJECT: 2011 VARIANCE SUMMARY REPORT
PRESENTER: JEFF MATZKE, PLANNER
PUBLIC HEARING: YES X NO
DATE: FEBRUARY 13, 2012
INTRODUCTION:
This report provides the Planning Commission with information regarding the 2011 variance
activity. It is intended to give the Commission information that will be useful in evaluating
future variance requests, and in evaluating the need for ordinance revisions.
DISCUSSION:
The following table is a summary of variance activity for 2011, and a comparison of activity for
the previous 7 years.
Phonc 952.447.9800 / Fax 952.447.42451 x%r%v r.cityofprioriake.com
2011
2010
. 2009
.2008
2007
.2006.
2005
2004
Number of Applications
7
1
2
5
3
6
8
10
Number of Requests
13
9
3
9
18
14
17
23
Requests Approved
10
9
3
9
17
14
13
14
Requests Denied
3
0
0
0
1
0
4
9
Requests Incomplete
0
0
0
0
0
0
0
0
Requests in Process
0
0
0
0
0
0
0
0
Requests Withdrawn
0
0
0
0
0
0
0
0
PC Decisions Appealed
0
0
0
0
2
0
2
5
PC Decisions Overturned
0
0
0
0
0
0
0
0
Number Lots in SD
9
3
3
3
2
4
6
8
Number of Riparian Lots
8
3
1
2
2
4
6
6
Phonc 952.447.9800 / Fax 952.447.42451 x%r%v r.cityofprioriake.com
Table 2 compares the specific types of variance requests in 2011 to the requests for the seven
preceding years.
VARIANCE REQUESTS '
2011
2010
2009 ;;
2008
2007 •
.200G:
2005
2004
Lot Area
1
1
2
1
3
Lot Width Front
3
3
1
Lot Width OHW
Front Yard Setback
2
2
3
4
1
2
4
3
Rear Yard Setback
1
Side Yard Setback
2
2
3
4
4
2
Side Street Side Yard Setback
Side Yard Setback for walls > 50'
2
1
1
Eave Encroachment 5'
Sum of Side Yard Setback
1
1
1
1
15'Building Separation
1
1
2
2
Structure Setback to OHWM
2
2
1
1
5
Bluff Setback
1
2
Bluff Impact Zone
1
1
Impervious Surface Coverage
1
2
2
Fence Height
1
Wall Length/Building Height Ratio
Accessory Buildings
1
Driveway Setback
1
3
1
1
Driveway Width
1
1
Maximum Driveway Slope
Road Access Below the RFPE 907'
2
1
Parking Stalls
2
Subdivision of contiguous
nonconforming lots
1
Commercial/Business Requirements
1
In coin plete/Pendin /Withdrawn
0
0
0
0
0
0
0
0
The 2011 variance requests are comparable to requests made in the previous 7 years. The
variances were requested to make improvements in required yards of existing single family
dwellings as well as allow for development of legal nonconforming riparian lots.
In 2011, the City amended the variance section (Section 1108.400) of the Zoning Ordinance to
reflect new MN Statute legislative changes made in June of 2011. The changes to the findings
of fact may have affect on future variance applications with the phrase "practical difficulties"
taking the place of former hardship criteria to evaluate variance applications.
The staff has continued to work with applicants to reduce the number of variance requests by
reviewing submitted documents and eliminating requests through plan redesign when possible.
However, because many existing properties in the City are unique in size, shape, and natural
character it is sometimes impossible for the strict application of the Zoning Ordinance to be
applied. These cases of unique definable practical difficulties are the primary reason for
granting variances from the Ordinance.
ALTERNATIVES:
I . Accept the report and direct that it be transmitted to the City Council.
2. Direct further study of possible ordinance revisions in response to the
report.
ACTION REQUIRED:
A motion and second accepting the report, and recommend the report be presented to the City
Council for their review.
LU
a
v;
z
o;
a
U
U
LUc.v
r
r
0
C�i
CYi
CV
o
T
O
0
O
0
U
o
O
>
O
>
O
U
Q
T
Q
C)-o..
CL
CL
x
Y
O
o
o? `)
Cv ir)
Cn
a a in
Cn
o co
caa LO N
ti
r T C\I
f`
_
E
a) O O
C7
�`
cD
�co
�
E O
�
�Os
= C
E
O =3E
E
E E E
E
Q
•�
E
._.
E
•�
a)
-
U E U .0
C
C C C
C
E
0
O Q O
'L
O
E
E
�_
Q
cq
' E
E
E
E E E
CN N
.�
N Z
2
_2
o
LLI
t6 C'i O
a)
a) a) O
O O
a)
O
[a
(o U
U U
0
a) �
-�
a-.
Lti
(OFla
-a co ..
r= Er
o,�
E
,�.
E E�Em
E
to
co
10 �
m=
w
"_
E
E
o
Lit
LU
E L- o_,
O O ti� O
o
o� a� o—
v U v U v O
O
j
E'
a
Lo
CU
o
v %�
c
O a)
a
V
t= >, J
o� o v�
.--.
(VCV
m (O J
�� �� 0 -'d)c�
O
>
�
cu
a)
u 3
w E
� O
cot-
2
.a-.� a) U
Q�
a) a) U
d �
T S
� [Q
i3
� O
U�
M
Q ':
U.� C
CD C c Co ca co
�
co
� C
co Y) W Y) M co
C
M_j�
O
c
v) d
cn
m o
c
co
> ca
c N •� >' " �
v
iv
� -2 r-- -
"�
x v) cn
Q E Q
E Q
E
E
cu
Q
e U j�> cn
>
co c`�
> cu
m In
�
0 CV O (7 ce)3
E
[
E
�>
E
n
E•
a)
j`
O O
>7
jD
C)A>
O
m
O_ LD N
�.
M
-0 •6 (1I
>,
f
d O
-�--'Lo 0_ •
E- —
J
C
to�_
E '�
O --aU
as
Q V))
Q cn Q U)QCD
Q
tvn Q
E
E
E
Q
Q
Q
• • O
•
• • •
•
O
• •
•
•
O
•
OCl?
co
Cl?
co
U
U)
Z
Z
o
QW
Q
M
z
LU
LU
V
2
2-7
c
a
Q.
�
M
�
a) 2
n
M
a<
Lmx
2�
Cl)
Lu,
Or
�' Q
2)
C:)
0 o
w
�NLL
U�
o >
mm
N
OCV
pT
d
NO
ULC)
p Q
Lo
4D co
cII O
(� Y)CoLo
Lf)r
O
r
"...."LLI
".'. LL
a
v
z'
0
a
U
LU .
r
r
r
pd
r
r
�
Z
O
a
0
O
L
O
L
O
L
U
_
ami
a
Q
Q
E
v
Y
�_
N
'O
v- 0 "-
u�
E
ti
W-.�;-
E
E
C_
U
C �_
E
Ul
N
�
p � U
W
O co
D
E
U
�'
E
a 'o CO
,�
Q
E
O
L1J
CU
U
4L
C
j S
Mo OQ
LO
U
v`-
U
> w
O fU
Co Y
U
> a
t Al
N
QS r
�
> Q
,
.
(B Y
N
LO CD
-j-r
Q Co
O
.? i�V
m C O
N Y
L[) N
Q .*
Q
p Q r
co
Q s co
�, Q
Q
Q U3
•
0
•
•
•
0
•
0
LU
<..4
)
,-
w
U_ ::::'.::..
7co
Y
J:
Q
G
O
.= Y
Q .d
cn
4;
7,
Z
cpxUU�
U
O O
U
c LL
cB
'L
co �
co
��0�/,
Wco
W �'
W
' N
r
r
r
r-
LL.: