in the united states district courtstmedia.startribune.com/documents/lake+elmo+response.pdf ·...
TRANSCRIPT
Bergmann, Troy Bergmann, Country Sun
corporation, Andrew Daniels, Lynn Smith,
corporation, Dean Johnston, Steve DeLapp,
Smith, in their official capacities
No. 0: 10 dv 02074 NJE/FLN
, MEMORANDUM
, MOTION FOR AON
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Richard Bergmann, Chad Bergmann, Keith
Bergmann, Troy Bergmann, Country Sun
Farm & Greenhouse, Inc., a Minnesota
corporation, Andrew Daniels, Lynn Smith,
and Dan Fitzgerald,
Plaintiffs,
v.
City of Lake Elmo, a municipal
corporation, Dean Johnston, Steve DeLapp,
Brett Emmons, Nicole Park, and Anne
Smith, in their official capacities,
Defendants.
Case No. 0:10-dv-02074 NJE/FLN
DEFENDANTS' MEMORANDUM
OF LAW IN OPPOSITION TO
PLAINTIFFS' MOTION FOR A
PRELIMINARY INJUNCTION
INTRODUCTION
Plaintiffs seek the extraordinary relief of a preliminary injunction against the
enforcement of a commonplace distinction in land-use law. In support of their Motion,
they provide the Court with little more than pathos, free-market rhetoric, and inapplicable
legal authority.
One of many holes in Plaintiffs‘ Motion is their failure to demonstrate that the
City of Lake Elmo‘s inclusion of ―grown on the premises‖ language in the definitions of
Agricultural Sales Business and Agricultural Entertainment Business is the product of
economic protectionism. Without such a showing, the Court cannot conclude that
Plaintiffs are likely to succeed in establishing that the City‘s grant of the Bergmanns‘
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conditional use permit application (CUP), or its adoption of an ordinance that established
that type of conditional use, constitute discrimination against interstate commerce.
Plaintiffs‘ allegation that the City‘s ―true purpose is to prevent the sale of non-
Lake Elmo goods and to protect Lake Elmo produce from competition‖ (Compl. ¶ 68)
does not survive even casual scrutiny. It is supported by no evidence, and is disproven by
the Bergmanns‘ own assertions. Moreover, such allegations are completely implausible.
Restricting the use of agriculturally-zoned property in Lake Elmo for retail sales, while
freely allowing such commercial activity to occur in the City‘s commercial zones, does
nothing to protect Lake Elmo produce or the producers who grow it. If anything, it
damages local growers – as the Bergmanns‘ own affidavits attempt to show.
Moreover, the Plaintiffs fail to heed the U.S. Supreme Court‘s recent recognition
that courts should be ―particularly hesitant to interfere‖ with local governments ―under
the guise of the Commerce Clause‖ when they are performing what is ―both typically and
traditionally a local governmental function.‖ United Haulers Ass’n, Inc. v. Oneida-
Herkimer Solid Waste Management Authority, 550 U.S. 330, 344 (2007)
(―United Haulers‖). Zoning laws are just such a function. Supreme Court justices have
found it ―undeniable that zoning, when used to preserve the character of specific areas of
a city, is perhaps ‗the most essential function performed by local government, for it is one
of the primary means by which we protect that sometimes difficult to define concept of
quality of life.‘‖ Young v. American Mini-Theatres, 427 U.S. 50, 80 (1976) (Powell, J.,
concurring) (quoting Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall,
J., dissenting)).
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Flying in the face of these principles, Plaintiffs ask this Court to declare
unconstitutional a pervasive, generally-accepted means of delineating between
agricultural and commercial uses. Despite the Plaintiffs‘ rhetoric, Lake Elmo has done
nothing extraordinary by limiting the Plaintiffs‘ permission to engage in retail sales
outside of a commercial zone, to the sale of produce grown on the premises. See, e.g.,
Patricia E. Salkin, 4 THE AMERICAN LAW OF ZONING § 33:1 (5th ed. updated May 2010)
(―[W]here such businesses sell plants grown off-site or perform landscaping services at
other properties, they tend to be considered commercial, rather than agricultural.‖)
(emphasis added).
In any event, under the severability doctrine, the Court cannot grant Plaintiffs the
―best of both worlds‖ that their proposed order would inevitably provide. In 2009, the
Bergmanns requested a CUP as an Agricultural Entertainment Business, and the City
granted that request. The language that they now claim is unconstitutional is part of the
ordinance‘s definition for the type of permit that they applied for and received. But the
relief they seek from this Court—negating the effect of just the ―grown on the premises‖
language—would essentially rewrite the CUP and Ordinance 08-006, while leaving all of
the provisions favorable to them in effect. That would also leave Rural Residential
districts exposed to the risk that a purely retail business, potentially unlimited in scope,
would establish itself in the middle of a rural residential neighborhood. If the court
concludes that the Plaintiffs are entitled to a preliminary injunction, application of the
severability doctrine would mean that the only relief the Plaintiffs could properly receive
would be an invalidation of Ordinance 08-006 as a whole, and rescission of the CUP.
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"Green Acres" designation provides a lower tax rate for land in agriculturalproduction. See Minnesota Department of Revenue, Property Tax Division, "GreenAcres," Property Tax Fact Sheet 5 at 1, attached as Ex. A to the Affidavit of John M.Baker ("Baker").
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STATEMENT OF FACTS
Country Sun Farm & Greenhouse Incorporated (―CSFGI‖) has ―morphed‖ from an
ordinary family farm into a multifaceted business enterprise. It operates in an area on the
north edge of Lake Elmo designated on the City‘s Comprehensive Land Use Plan
(―Comp Plan‖) for Rural Agricultural Density (RAD), and zoned ―Agricultural‖ on its
zoning map. (Kyle Klatt (―Klatt‖) Aff. ¶ 4.) Its owners have substantially reduced and
delayed much of their property tax burden by enrolling most of their property in the State
of Minnesota‘s ―Green Acres‖ program, which is reserved for property that is ―devoted to
the production for sale of agricultural products. . . .‖ Minn. Stat. § 273.111, subd. 6;
(Bruce Messelt (―Messelt‖) Aff. ¶ 5.)1 Its neighbors include small farms, rural residences,
and open-space housing developmens. (Klatt Aff. ¶ 6.) Now, however, CSFGI currently
attracts customers for an array of retail products in part by offering forms of
entertainment, such as amusement park rides, a corn maze and a haunted house.
A. The City’s Comp Plan is designed to preserve rural character and a
downtown village center.
According to the City‘s most recent Comp Plan, the RAD land use designation
―represents low density semi-rural residential development. Working farms, Alternative
Ag uses, single family detached residences, and limited life cycle housing.‖ (Comp Plan,
III-2 (Baker Aff., Ex. B.)) Most of the City‘s outer areas are guided in this fashion. Id.
__________________________________ 1 ―Green Acres‖ designation provides a lower tax rate for land in agricultural
production. See Minnesota Department of Revenue, Property Tax Division, ―Green
Acres,‖ Property Tax Fact Sheet 5 at 1, attached as Ex. A to the Affidavit of John M.
Baker (―Baker‖).
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There are other areas of Lake Elmo that are zoned and guided in a way that allowscommercial retail sales, including areas near Interstate 94, areas guided "limitedbusiness," and a small commercial area at the intersection of Lake Elmo Blvd. and 10thStreet North. (Baker Aff., Exs. B (future Land use map), C, and D).
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By contrast, around the City‘s ―village center‖ is an area with a ―Commercial‖ land use
designation. Id. at III-5-6.
The Land Use Plan chapter of the City‘s Comp Plan places special emphasis on
three precepts, two of which are relevant:
The City’s desire to preserve its rural character, open space, and
green corridors.
The City’s desire to retain its identity and sense of community
by preserving the historic village center.
Id. at III-1. The Land Use Plan explains how the City has chosen to remain a
―community focused from its village core out:‖
A few communities have recognized this problem after-the-fact, and have
initiated measures to develop or redevelop areas that would create
community identity. A few other communities, including Lake Elmo,
have existing village centers that date from well before the suburban
explosion. Many of the long term residents of these communities still
consider these historic village centers, regardless of their scale, to be
“town” – the focal point of the sense of community.
Preservation of that sense of community, through the historic village,
becomes the second priority and focus of the Lake Elmo 2030 Land Use
Plan. The plan supports a community focused from its village core out,
rather than a lock step continuation of urbanization from the community
borders.
Id. at III-1 (emphasis added).2
__________________________________ 2 There are other areas of Lake Elmo that are zoned and guided in a way that allows
commercial retail sales, including areas near Interstate 94, areas guided ―limited
business,‖ and a small commercial area at the intersection of Lake Elmo Blvd. and 10th
Street North. (Baker Aff., Exs. B (future Land use map), C, and D).
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An accessory structure is one that is used as an adjunct of and in subordination toanother building, in the way that a garage is an accessory structure to a residence on thesame premises. Lowry v. City of Mankato, 42 N.W.2d 553, 558 (Minn. 1950).Conditional uses, like permitted uses, may occur only in the types of districts where thezoning ordinance so designates. Minn. Stat. § 462.3595, subd. 1. When granted, aconditional use permit usually includes added conditions on the use that are set at thetime of approval, and which must be met to keep the permit in effect. See Minn. Stat.§ 462.3595, subd. 3. The disputed language in this case is not a condition of the CUP,but is part of the definition of the type of conditional use for which the permit wasrequested and received.
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B. The City’s Zoning Map has distinct zones for agricultural and commercial
uses.
Under the Municipal Planning Act and the Metropolitan Land Use Planning Act, a
zoning map and ordinance should give effect to a city‘s comp plan. See Minn. Stat.
§ 462.356, subd. 1; § 473.865, subd. 2. Lake Elmo has adopted zoning ordinances that
divide the city into various districts and corresponding use categories. See generally
Lake Elmo City Code, Chapter 154 (Baker Aff., Ex. C.) Each zoning district has
designated uses that are either permitted, accessory, or conditional.3 For example, the R-
1 Residential District allows as permitted uses only single family residences, and allows
no business or commercial uses except home occupation business as accessory uses. City
Code § 154.041 (Baker Aff., Ex. C.) By contrast, the GB General Business district
allows a wide range of service, office, retail, and repair businesses, which include food
and grocery stores. Id. § 154.051 (A)(1).
C. Lake Elmo’s free intrastate, interstate, and international produce trade.
Contrary to Plaintiffs‘ Complaint, Lake Elmo‘s zoning ordinance allows in a
number of business districts retail sales of pumpkins, trees, and other produce, regardless
of their origin. Pumpkins and Christmas trees could be sold to the public as part of a
__________________________________ 3 An accessory structure is one that is used as an adjunct of and in subordination to
another building, in the way that a garage is an accessory structure to a residence on the
same premises. Lowry v. City of Mankato, 42 N.W.2d 553, 558 (Minn. 1950).
Conditional uses, like permitted uses, may occur only in the types of districts where the
zoning ordinance so designates. Minn. Stat. § 462.3595, subd. 1. When granted, a
conditional use permit usually includes added conditions on the use that are set at the
time of approval, and which must be met to keep the permit in effect. See Minn. Stat.
§ 462.3595, subd. 3. The disputed language in this case is not a condition of the CUP,
but is part of the definition of the type of conditional use for which the permit was
requested and received.
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permitted or conditional use in at least the following zoning districts: GB-General
Business (§154.051); HD-GB-DP - General Business Park Holding District (§154.052);
HD-GB-C General Business Commercial Holding District (§154.053);
HD-GB-SRD - General Business Sewered Residential Holding District (§154.054); and
VRG - Village Residential General Business Holding District (§154.060) (Klatt Aff. ¶ 7.)
Pumpkins, although possibly not Christmas trees, could also be sold in the
CB - Convenience Business district (§154.056). Id. Indoor pumpkin and tree sales would
be allowed as accessory uses to a greenhouse, nursery, or landscape business in the LB-
Limited Business district (§154.057). Id.
For example, Hagberg‘s Food Market, at 11325 Stillwater Blvd., operates in the
village center area, on property that is guided Commercial and zoned General Business.
(Klatt Aff. ¶ 8.) In a General Business zone, the zoning ordinance allows a long list of
permitted uses including ―food and grocery products,‖ ―nursery and garden supplies,‖
and ―flowers and floral accessories.‖ (City Code § 154 (Baker Aff., Ex. C.)) Hagberg‘s
website states that ―our produce department works with seasonal fruits and vegetables
from around the globe to bring in the finest quality foods.‖ (Baker Aff., Ex. E.)
(Emphasis added). Significant undeveloped areas adjacent to the village center exist,
including areas within the Village Residential General Business Holding District (where
all uses permitted in a GB district are also permitted), where all of the items that the
Plaintiffs allege are ―banned‖ from the City may be lawfully sold as a permitted use.
(Klatt Aff. ¶ 9; Baker Aff., Exs. V, F, and C at 2-3 and 77.)
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CSFGI abuts a portion of Highway 36 east of Highway 694 and directly west of theOak Park Heights. (Klatt Aff. at,-r 5.)
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D. 2004: the Bergmanns allay the City’s concerns about the scope and direction
of its retail sales operations.
Plaintiffs‘ opening brief devotes scant attention to an important episode in the
City‘s understanding of CSFGI‘s activities and interests. In April 2004, CSFGI requested
the City to amend its CUP to allow two additional greenhouses. Before this application
was filed, City staff met with the applicants on several occasions. (Baker Aff., Ex. G,
at 2.) ―Initial conversations centered on the applicant expanding the retail sales facility.‖
Id. Staff ―explained that, at some point, the City must address the issue of when a CUP
use in the AG zone actually becomes de facto commercial zoning- particularly when the
CUP in the AG zone fronts, and has access to, a major highway with 5 figure daily traffic
counts.‖4 Id.
In addition, the Planner expressed concerns about traffic and safety. While
seasonal operations meant that such issues arose for only a limited portion of the year,
―virtually any other use that could function out of retail structures on the site (should the
previously described chain of events take place) would introduce those traffic and safety
issues year round.‖ Id.
After the Planner advised the applicants that ―we would undoubtedly recommend
denial of a CUP amendment for this site that proposed expansion of the floor area for
retail sales,‖ id., the applicant instead proposed greenhouse additions to either end of the
existing retail sales structure. But the Planner‘s concerns remained. As his staff report
asked rhetorically:
__________________________________ 4 CSFGI abuts a portion of Highway 36 east of Highway 694 and directly west of the
Oak Park Heights. (Klatt Aff. at ¶ 5.)
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How much of the function of these additions is really ―growing‖ and how
much is expanded retails sales? When does a growing operation with
incidental retail sales become primarily a garden store with some growing
on the same site? Will it become necessary for the City to, in some way,
monitor the percentage of plants/landscape products sold on the site that are
actually grown on the site to determine whether this remains ―true‖ AG use
or not?
(Id.) The staff report prompted CSFGI to submit a written response four days later.
(Baker Aff., Ex. H.) In a direct response to the last of the rhetorical questions, CSFGI‘s
response emphasized that the plants sold at CSFGI were all grown on site:
We would be more than happy to have the city come and inspect our
facility to determine what percentage of our plants are actually grown on
site, because as the head grower of the facility, I can undeniably tell you
that each and every plant sold at our business has been personally seeded
by me or started from a cutting by one or another of the members of my
family.
Id. CSFGI then said that if the contrary were true, ―we could merely just place orders
with other growers every time our supply dwindled, and thereby utilize a much smaller
greenhouse facility.‖ Id. CSFGI explained that would prove more profitable in the long
run, but ―then we would not be an agricultural growing business, we would be a sales
lot.‖ Id.
CSFGI‘s Response allayed the City‘s concern. The Planning Commission
unanimously recommended approval, and the City Council followed suit. (Baker Aff.,
Ex. I.) In the Resolution of approval, the City Council quoted from CSFGI‘s written
response. (Baker Aff., Ex. J.) One of the findings in the 2004 Resolution also
demonstrates that CSFGI had also left the impression in the City officials‘ minds that
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In late 2006, the City Council modified the definitions of "Agriculture" and "Farm,Rural." (Baker Aff., Ex. K.)
In light of the 2004 history, the Plaintiffs' claim that Lake Elmo allowed them to selloff-premises produce for over 30 years (see PIs.' Br. at 7, 27) must be viewed in adifferent light.
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―their business is primarily growing and the sale of agricultural products grown on site.‖
Id. 5,
6
E. 2008: through Ordinance 08-006, the City amends its Code to clarify
references to agricultural uses and ensure they occur in “the proper zoning
districts.”
In early 2008, the City retained MRFA, an outside planning consultant firm, to
examine several specific issues arising in the implementation of the City‘s zoning
ordinance, including its sign code and agricultural sales uses in non-commercial zoning
districts. (Klatt Aff. ¶ 10.) As stated by MRFA Planning Consultant Ben Gozola in his
staff report to the City Council, ―this effort is intended to simplify the existing
agricultural sales uses into three categories, and to ensure those uses are allowed or
conditionally permitted in the proper zoning districts.‖ (Baker Aff., Ex. L, at 1.) This
was an open, public process, in which drafts were prepared by Mr. Gozola, circulated to
interested parties and discussed at several Planning Commission meetings, and revised in
light of the feedback received. (Klatt Aff. ¶ 11.)
On June 17, 2008, the City Council was presented with a staff report (and a
proposed Resolution, numbered 08-006). (Baker Aff., Ex. L.) Gozola‘s report posed the
question ―what types of operations currently exist (or have historically been used) in
Lake Elmo?‖ (emphasis added), and provided the following answer:
__________________________________ 5 In late 2006, the City Council modified the definitions of ―Agriculture‖ and ―Farm,
Rural.‖ (Baker Aff., Ex. K.)
6 In light of the 2004 history, the Plaintiffs‘ claim that Lake Elmo allowed them to sell
off-premises produce for over 30 years (see Pls.‘ Br. at 7, 27) must be viewed in a
different light.
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Given discussions to date and staff‘s research on the history of these uses,
we suggest the following are the main uses pertinent to Lake Elmo:
1. Commercial agricultural operations – farms operated for the
growing and selling of agricultural products.
2. Non-commercial agricultural – the non-commercial production of
crops such as fruit trees, shrubs, plants, flowers, and vegetables
(essentially the definition of ‗suburban farm‘ less a provision for
feeding domestic pets).
3. Agricultural Sales Businesses – a permanent operation for the on-
site sale of agricultural products produced on the site. Such
businesses can be focused primarily on the sale of products produced
on site, while others tend to branch out to include commercial
entertainment ventures (hay rides, corn mazes, haunted barns, etc).
4. Wayside Stands – temporary sales of agricultural products on
private property typically from the back of a truck (i.e. sweet corn
sales).
Id. at 3. Among the staff‘s recommendations were the following:
1. A new “Agricultural Sales” definition should be added. This
new definition can define the permanent yearly businesses that sell
agricultural, horticultural, or floricultural goods from the same
location year in and out during the various seasons of the year
depending upon the products being produced on the site (typical
seasons are summer flowers, fall pumpkins, and winter Christmas
trees).
2. A new “Agricultural Entertainment Business” definition should
be added. This new definition is needed to define those agricultural
sales businesses that – due to the nature of their activities – are more
akin to large commercial/entertainment operation than a traditional
roadside stand for the selling of fruits, vegetables, and flowers.
Examples of activities typically associated with an ―agricultural
entertainment business‖ include active farm tours, hay rides, petting
farms, haunted barns, etc.
3. “Agricultural Sales” should be classified as a permitted use,
while “Agricultural Entertainment” should be conditionally
permitted. In the ―A‖ [Agricultural] and ―RR‖ [Rural Residential]
zoning districts, agricultural sales are proposed to be permitted while
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The staff report also recommended that "the definition for Wayside Stand should beadjusted," but the proposed adjustment simply added the underlined text to the existingdefinition, so that it was defined as "A temporary
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agricultural entertainment is proposed to be conditionally permitted.
Performance standards for agricultural sales businesses are proposed
to be added to section 154.100 to give the city a level of assurance
that such businesses will not impact surrounding properties.
Likewise, a number of conditions must also be met in order to gain
approval of new agricultural entertainment businesses.
Id. at 3-4.7
Ordinance 08-006 did not attempt to make any changes to the long list of
permitted uses in commercial zones such as General Business, but instead focused
exclusively on the ―Agricultural,‖ ―Rural Residential,‖ and ―Open Space Preservation‖
(or ―OP‖) districts. See Ordinance 08-006, §§ 3, 4 and 5. (Pls.‘ Br., Ex. I.) It expanded
the set of permitted uses in a Rural Residential district to include Wayside Stands and
Agricultural Sales Businesses. See id., § 4. The definition of ―Agricultural Sales
Business‖ (―ASB‖) begins with the phrase ―the retail sale of fresh fruits, vegetables,
flowers, herbs, trees, or other agricultural, floricultural, or horticultural products
produced on the premises,‖ id., § 1, and the definition of ―Agricultural Entertainment
Business‖ (―AEB‖) incorporates this definition by beginning the definition of an AEB
with the words, ―An agricultural sales business that combines . . . .‖ Id. It also subjected
ASBs to a set of relatively limited performance criteria, id., § 6, and subjected AEBs to a
more restrictive set of criteria. Id., § 3.
__________________________________ 7 The staff report also recommended that ―the definition for Wayside Stand should be
adjusted,‖ but the proposed adjustment simply added the underlined text to the existing
definition, so that it was defined as ―A temporary structure or vehicle used for the
seasonal retail sale of agricultural goods produced by the operator of the wayside stand
on-site or on other property in Lake Elmo.‖ Ordinance No. 08-006, § 2 (Pls.‘ Br., Ex. I.)
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Before the City Council at the meeting where the CUP was granted, KeithBergmann stated that "the city staff recommended that we look into the agriculturalentertainment business CUP and that it might better clarify and organize the things thatwe do on the property." (Baker Aff., Ex. N, at 23-24.)
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It is notable that the definition of AEB explicitly authorized a holder of a
conditional use permit for an AEB to engage in a greater set of uses than was allowed by
the previous version of the City Code. (Klatt Aff. ¶ 15.) It did so in part by including a
non-exclusive list of ―examples of agricultural entertainment‖ which included
corn mazes, hay rides, sleigh rides, petting farms, on farm tours,
agricultural related museums, demonstrations of farming practices,
techniques and methods, fee based fishing and hunting horseback riding,
nature trails, haunted barns and similar activities which are related to
agriculture.
Ordinance 08-0006 § 1 (Pls. Br, Ex. I.) As Keith Bergmann would state to the City
Council the following year:
We looked at it, and my understanding it was proposed in 2008 just a year
ago or so by the city council and fits very well with what we do on our
property and we feel that the city almost kind of made it for us. And so we
appreciate that, I guess.
(Baker Aff., Ex. N, at 24) (emphasis added).
F. 2009: CSFGI applies for a conditional use permit as an AEB, and the City
grants that request.
In August 2009, CSFGI applied to the City for a conditional use permit for an
Agricultural Entertainment Business.8 (Klatt Aff. ¶ 16.) CSFGI also applied to rezone a
separate portion of its property from Rural Residential to Agricultural, and to then amend
their CUP application to include the separate parcel, a request that presumed the rezoning
would have been granted. (Id. ¶ 17.) (Those applications were denied, however, and that
__________________________________ 8 Before the City Council at the meeting where the CUP was granted, Keith
Bergmann stated that ―the city staff recommended that we look into the agricultural
entertainment business CUP and that it might better clarify and organize the things that
we do on the property.‖ (Baker Aff., Ex. N, at 23-24.)
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9
A distinguishing characteristic of conditional use permits is that they allow property"to be used in a manner expressly authorized by the ordinance." Zylka v. City of Crystal,167 N.W.2d 45,49 (Minn. 1969) (emphasis added).
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denial is not a subject of Plaintiffs‘ Complaint.) After consideration and approval of
CSFGI‘s CUP application by the Planning Commission (and the preparation of staff
reports to both the Planning Commission and the City Council), the City Council
unanimously approved the request on December 1, 2009. (Baker Aff., Exs. P, R.) Even
though the ―grown on the premises‖ language was incorporated into the definition of the
type of use for which Plaintiffs sought a conditional use permit, Keith Bergmann of
CSFGI told the Council at its December 1 meeting that such language in the 2008
ordinance was nevertheless inconsistent with their existing operations: ―many of our
pumpkins we now grow in Wisconsin and we grow in areas around the community and
outside of Lake Elmo. So we feel that that should be allowed in our Conditional Use
Permit, or our Conditional Use permit needs to [be] amended to allow us to do that.‖
(Baker Aff., Ex. N, at 25.)
Nevertheless, the ―grown on the premises‖ phrase was by that point a part of the
City Code‘s definitions of an ASB and AEB. (Baker Aff., Ex. Q.) Keith Bergmann‘s
statement that CSFGI ―should be allowed in our Conditional Use permit, or our
Conditional Use Permit needs to be amended to allow us to do that‖ assumed, mistakenly,
that a city could effectively use a conditional use permit to make the City Code more
permissive.9
Nevertheless, in light of Mr. Bergmann‘s description of the practices of CSFGI,
the City did more for CSFGI than simply grant the type of CUP that the CSFGI had __________________________________
9 A distinguishing characteristic of conditional use permits is that they allow property
―to be used in a manner expressly authorized by the ordinance.‖ Zylka v. City of Crystal,
167 N.W.2d 45, 49 (Minn. 1969) (emphasis added).
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The Mayor also made a motion, not requested by CSFGI, to delay enforcement onseasonal sales of Christmas trees for 30 days and to direct staff to correspond with theproperty owners who are selling Christmas trees and indicate that the City will beenforcing the ordinance next year. (Baker Aff., Ex. N, at 55.)
15 15
applied for. City Planner Kelli Matzek‘s report also recommended that the Planning
Commission and City Staff re-evaluate how certain commercial/agricultural uses were
regulated. (Baker Aff., Ex. Q.) As that staff report explained, this would allow the
commission and council to accomplish several things, including studying options for
regulating these uses as a commercial business, and reviewing the differences between
wayside stands and seasonal sales, and specifically whether or not the sale of produce
grown off-site should be allowed. Id. At the December 1 Council meeting, after granting
CSFGI‘s application for its AEB CUP, the Council unanimously directed the inclusion of
Staff‘s recommendations in the Planning Department‘s 2010 Workplan. (Baker Aff.,
Exs. R , at 6 and N, at 52-65.)10
G. 2010: Staff seeks input regarding potential improvements in its ordinance
from the Bergmanns and other stakeholders.
As a result of the Council‘s direction to the planning department and the Planning
Commission, in 2010, City staff has been seeking input from CSFGI, other potentially
affected stakeholders, and other interested parties, and considering alternatives with the
expectation that concrete recommendations would be made to the City Council by mid-
2010. (Messelt Aff. ¶ 8.)
In fact, the City‘s efforts to involve the Bergmanns in that dialogue included a
meeting with Keith and Dick Bergmann on May 12, 2010, where the City Administrator
attempted to work with them regarding potential ordinance amendments and
__________________________________ 10
The Mayor also made a motion, not requested by CSFGI, to delay enforcement on
seasonal sales of Christmas trees for 30 days and to direct staff to correspond with the
property owners who are selling Christmas trees and indicate that the City will be
enforcing the ordinance next year. (Baker Aff., Ex. N, at 55.)
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administrative options. (Id. ¶ 9.) At that meeting, the Bergmanns gave no indication
that, within a week, they would sue the City or that they had become personally involved
in filming movies (that would be posted on their attorneys‘ website) and preparing a
public-relations blitz to accompany the suit‘s filing. (Id. ¶ 10.) The Complaint named as
defendants not only the City itself, but each member of the City Council.
H. Chad Bergmann’s unexpected interest in operating a new Wayside Stand in a
Rural Residential district.
In reading Plaintiffs‘ Complaint, City officials were surprised to see that Plaintiff
Chad Bergmann announced a desire to open a wayside stand on the property where he
and his family live (in a Rural Residential district). (Klatt Aff. ¶ 18; Compl. ¶ 40.) The
Complaint stated that he wished to use that stand to sell fruit and vegetables that he had
grown on his Wisconsin farm. (Compl. ¶ 40.) The Complaint (and the affidavit
accompanying Plaintiffs‘ motion for preliminary injunction) provides no explanation of
why Chad Bergmann, whose family owns and operates CSFGI, wishes to sell produce on
the front or side yard of his house rather than as part of his family‘s retail produce sales
business, which is located nearby.
The City Code‘s definition of Wayside Stand – but not its definition of any type of
activity that Plaintiffs had previously expressed any interest in performing – presently
includes a reference to the sale of agricultural goods ―produced by the operator of the
wayside stand on-site or on other property in Lake Elmo.‖ See City Code § 11.01 (Baker
Aff., Ex. S) (emphasis added). Repeatedly using a concept found only in the Wayside
Stand definition, the Complaint focuses its attack on a supposed ―policy to enforce a ban
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on the sale of non-Lake Elmo Christmas trees and other agricultural products not grown
in Lake Elmo,‖ (which Plaintiffs‘ Complaint characterizes as ―the ‗Lake-Elmo-Only-
Sales Policy‘‖). (Compl. ¶ 50.)
As no Plaintiff had previously expressed an interest in operating a Wayside Stand,
let alone a Wayside Stand selling out-of-town produce, the City had never threatened to
enforce the law against any Plaintiff who engaged in out-of-town produce sales from
such a stand. (Klatt Aff. ¶ 19; Messelt Aff. ¶ 12.) Nevertheless, in the continuation of
the process of re-examining the City Code‘s treatment of retail sales of produce, which
began with the City Council‘s December 1 directive, City staff has recently proposed to
remove from the definition of ―Wayside Stand‖ the phrase ―or on other property in Lake
Elmo.‖ A public hearing on that proposed amendment is scheduled to be held by the
Planning Commission at its regularly-scheduled June 28, 2010 meeting. (Baker Aff.,
Ex. T.) After Planning Commission review, the City Council will then have the
opportunity to take up the proposed amendment at its July 6, 2010 regularly-scheduled
City Council meeting. Thus, by the time that Plaintiffs‘ motion for a preliminary
injunction is heard the following day, nothing in the City Code would refer to whether
produce sold in a noncommercial zone is or is not grown within the city limits.
LEGAL ARGUMENT
In evaluating Plaintiffs‘ claims for preliminary injunctive relief, a court considers
(1) the threat of irreparable harm to the movant; (2) the state of the balance between this
harm and the injury that granting the injunctive relief will inflict on other parties litigant;
(3) the probability that the movant will succeed on the merits; and (4) the public interest.
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See Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc).
The party requesting preliminary injunctive relief bears the ―complete burden‖ of proving
all the factors listed above. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.
1987).
When, as here, a preliminary injunction is sought to enjoin the effectiveness of
legislative acts or a regulatory scheme, the Court must apply a more rigorous standard
than the ―fair chance of prevailing test‖ and make a threshold finding that the party
seeking relief is likely to prevail on the merits. See Planned Parenthood Minnesota et al.
v. Rounds, 530 F.3d 724, 732-33 & n.6 (8th Cir. 2008) (en banc). Plaintiffs admit as
much. (Pls.‘ Br. at 14.) This standard helps insure that ―preliminary injunctions that
thwart a state‘s presumptively democratic processes are pronounced only after an
appropriately deferential analysis.‖ Id. at 733. Plaintiffs have not met that burden.
I. BECAUSE PLAINTIFFS CANNOT SHOW THAT THE CITY’S
ORDINANCE BENEFITS IN-STATE ECONOMIC INTERESTS, THEY
CANNOT SATISFY THE SUPREME COURT’S TEST FOR
DISCRIMINATION AGAINST INTERSTATE COMMERCE AND
CANNOT THEREFORE DEMONSTRATE A LIKELIHOOD OF SUCCESS
ON THE MERITS.
Plaintiffs‘ Motion rests entirely upon the ―discrimination‖ branch of the dormant
commerce clause doctrine. (See Pls.‘ Br. at 14-25.) Plaintiffs admit that discrimination
for the purposes of dormant commerce clause analysis is defined as ―differential
treatment of in-state and out-of-state economic interests that benefits the former and
burdens the latter.‖ (Id. at 14-15); see also, e.g., Fulton Corp. v. Faulkner, 516 U.S. 325,
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19 19
330 (1996). But Plaintiffs fail to analyze the facts of this case and the relevant case law
with that test firmly in mind.
Put another way, Plaintiffs have failed to make the required showing in part
because they have failed to truly show that the definitional language that they challenge is
the product of economic protectionism. That omission is unforgivable, because ―the
central rationale for the rule against discrimination is to prohibit state or municipal laws
whose object is local economic protectionism, laws that would excite those jealousies and
retaliatory measures the Constitution was designed to prevent.‖ Carbone, Inc. v. Town of
Clarkstown, 511 U.S. 383, 389 (1994) (emphasis added).
A. Plaintiffs’ assertion that Lake Elmo’s law constitutes “economic
protectionism” is fatally flawed, because of their failure to show that it
results in any local economic benefit.
1. An ordinance like this is particularly unlikely to protect local
economic interests, as the Bergmann’s participation as plaintiffs
vividly demonstrates.
The Bergmanns‘ status as plaintiffs, and their own allegations, demonstrate that
the ordinance does not benefit or protect local economic interests. The Bergmanns assert
that if they are not permitted to sell pumpkins grown outside of their premises, they will
―lose a substantial amount of business.‖ (Pls.‘ Br. at 26.) The Bergmanns‘ business
losses will not provide any economic benefit to Lake Elmo. On the contrary, assuming
that the Bergmanns‘ assertions regarding their sales are true, fewer people will travel to
Lake Elmo to purchase goods from Lake Elmo if the on-premises requirement is upheld.
Such a result would be more likely to hurt Lake Elmo‘s economy than it would be to
benefit it.
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The U.S. Supreme Court, among others, has emphasized that the dormant
commerce clause is particularly unlikely to be violated where local citizens bear much of
the challenged law‘s burdens. In United Haulers, the Court explained that
[o]ur dormant Commerce Clause cases often find discrimination when a
State shifts the costs of regulation to other States, because when the burden
of state regulation falls on interests outside the state, it is unlikely to be
alleviated by the operation of those political restraints normally exerted
when interests within the state are affected.
550 U.S. at 345 (internal quotation omitted). Conversely, ―[t]he existence of major in-
state interests adversely affected by [a law] is a powerful safeguard against legislative
abuse.‖ Id. at 345 n.7 (quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,
473, n.17 (1981)). Because ―the citizens and businesses of the Counties bear the costs of
the ordinances,‖ the Supreme Court found ―no reason to step in and hand local businesses
a victory they could not obtain through the political process.‖ United Haulers at 345; see
also Baker v. St. Bernard Parish Council, No. 08-1303, 2008 WL 3876282, at *14 (E.D.
La. 2008) (―That the Ordinance does not discriminate on the basis of geography is further
demonstrated by the fact that this action includes plaintiffs who are residents of
St. Bernard Parish.‖).
Here, the set of persons whose produce can be sold at retail in an agriculturally-
zoned district includes plaintiffs and non-plaintiffs who nevertheless objected to the
inclusion of ―on premises‖ language in the 2008 amendments. The Bergmanns, rather
than receiving a benefit from the on-premises language, correctly argue that they
themselves are experiencing a burden. Similarly, in 2008 Neil Krueger (of Krueger‘s
Christmas Trees of Lake Elmo) urged the City‘s consulting planner to ―remove ‗produced
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on premises‘‖ language from his draft ordinance, ―because even though the majority may
be produced on premises, some things such as wreaths, pumpkins, apples may also be
purchased from other growers and sold on premises.‖ (Baker Aff., Ex. U.) That local
growers are burdened by the challenged regulation, and had spoken out against it,
demonstrates that Lake Elmo‘s ordinance and CUP do not burden out-of-state interests
and benefit in-state economic interests.
2. Because this ordinance regulates where in Lake Elmo off-
premises produce may be sold, without prohibiting it from being
sold in the City’s commercially-zoned areas, it burdens local
property owners more, not less, than out-of-state economic
interests.
Plaintiffs‘ ―economic protectionism‖ allegation ignores another indisputable
aspect of zoning in general, and this zoning in particular. Whether the on-premises
language remains intact will have no effect on whether in-state or out-of-state produce
can be sold on commercially-zoned land because in-state and out-of-state produce can be
sold in any volume by any retailer on commercially-zoned land. Thus the plaintiffs who
live outside of Minnesota are not prohibited from selling their produce to retailers in
Lake Elmo.
As explained in the Statement of Facts, Lake Elmo land-owners on commercially-
zoned land are able to, and at present do, sell produce from within Minnesota and from
other states. According to its website, Hagberg‘s Country Market (―Hagberg‘s‖), located
in Lake Elmo, sells produce from ―around the globe:‖
Our produce department works with seasonal fruits and vegetables from
around the globe to bring in the finest quality foods. We also pride
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11
Plaintiffs' Complaint and Motion do not allege that the City adopted the "grown onthe premises" distinction to favor the economic interests of Hagberg's or others whoengage in commercial activity in a commercial zone.
22 22
ourselves on handling as many home grown fruits and vegetables as
possible, with many grown locally in the Lake Elmo area.
(Baker Aff., Ex. E.) Lake Elmo‘s ordinance and CUP for agriculturally-zoned land have
not curtailed such sales.11
Moreover, there are other retail stores besides Hagberg‘s, and
there continues to be undeveloped land in commercially-zoned areas.
―[W]here the burden on out-of-state interests rises no higher than that placed on
competing in-state interests, it is burden on commerce rather than burden on interstate
commerce.‖ Old Bridge Chems., Inc. v. New Jersey Dep’t of Envt. Prot., 965 F.2d 1287,
1295 (3d Cir. 1992). In this setting, it is more plausible to conclude that in-state
economic interests are burdened more, not less, than out-of-state economic interests. In
response to regulations of this kind, an out-of-state supplier can focus its marketing
efforts on potential retail stores or sales lots that are located in a commercial zone, and
thereby avoid the consequences of limitations that apply only to retail sales in
noncommercial districts. The Bergmanns, the Kruegers, and any other similarly situated
Lake Elmo owners of Agriculturally-zoned land are not so fortunate. If they are unable or
unwilling to obtain a rezoning of property to a commercial zone, their ability to augment
their agricultural business by entering the retail sales market in produce grown elsewhere
forces them to spend the additional money needed to lease or purchase a site in an area
properly zoned for such activity. If they must depend upon produce grown on the
premises to supply the demand they have attracted for their pumpkins or trees, and
__________________________________ 11
Plaintiffs‘ Complaint and Motion do not allege that the City adopted the ―grown on
the premises‖ distinction to favor the economic interests of Hagberg‘s or others who
engage in commercial activity in a commercial zone.
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23 23
weather conditions or blight have left them with a poor crop, the burden of that outcome
falls disproportionately on local growers. If they have no pumpkins to draw customers
who might also spend money, once drawn, to go through a corn maze or haunted house,
the ―local economic interests‖ are even further damaged.
That the ordinance burdens local economic interests distinguishes the facts of this
case from those in Hunt v. Washington State Apple Advertising Commission, 432 U.S.
333 (1977). In Hunt, the court‘s effects-based inquiry focused on the additional burden
the policy placed on out-of-state growers that was not placed on in-state growers. Id. at
351-52. Such a burden, which caused Washington apple growers to lose their
competitive advantage, is simply not present here because local growers are equally
burdened, or even more burdened, by the ordinance. Similarly, the court‘s focus in
SSDS, Inc. v. South Dakota, 47 F.3d 263, 271 (8th Cir. 1995), was on the burden on out-
of-staters, which was more than the burden on in-staters. Here, Plaintiffs have failed to
demonstrate that such a disparity exists.
The fact that the ordinance is directed at local landowners further demonstrates
that the ordinance and CUP do not benefit local economic interests. See, e.g., Wood
Marine Serv. Inc. v. City of Hanrahan, 858 F.2d 1061, 1065 (5th Cir. 1988) (upholding
zoning amendment designed to ―curtail further commercial development‖ in one of the
defendant‘s riverside areas because ―the ordinance is directed at local landowners alone.
Its purpose is to stop further commercial development within the city‘s boundaries, not to
favor local companies and the local economy at the expense of out-of-state rivals.‖). To
use the Fifth Circuit‘s logic, ordinance provisions that curtail certain commercial activity
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in the Agriculture zone are ―directed at local landowners alone,‖ and a purpose to control
commercial activity taking place in a noncommercial zone is not a forbidden purpose,
because it is not a purpose ―to favor local companies and the local economy at the
expense of out-of-state rivals.‖
3. For similar reasons, Plaintiffs are in no position to show that the
provisions create any meaningful incentive or reward for local
production of produce.
For similar reasons, the challenged provisions cannot provide local growers with a
more favorable market for their products. The same retail customer who must drive to
CSFGI to purchase a pumpkin grown on premises will still be able to drive down
Lake Elmo Avenue (or up Highway 36) to purchase a pumpkin from a commercially-
zoned grocery store. In the City‘s commercially-zoned areas, a retailer in that zone can
purchase produce (wherever it may be grown) for its customers at an efficient price. That
unavoidable fact prevents ―grown on the premises‖ provisions in Agricultural zones from
giving local growers an artificial incentive to grow more produce, or rewarding them for
doing so. They will always be subject to being undercut in price (or in quality, or both)
by another grower, warehouse, or grocery store.
Similarly, Plaintiffs argue that the ordinance and CUP ―made sales from farm
products grown in Lake Elmo easier‖ (Pls.‘ Br. at 19), but that is an especially
unconvincing claim. Instead, the sale of products grown in Lake Elmo is equally as easy
(or as difficult) as it would be without the on-premises language because on-premises
products could be sold even if the on-premises language was eliminated. Thus the on-
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premises language does not make it any easier to sell products grown locally in
Lake Elmo.
Locally-grown produce may indeed be better (if it is more fresh) or cheaper (for
buyers who live short distances away). But that is not caused, or changed, by the
inclusion of ―grown on the premises‖ provisions in noncommercial zoning districts.
Regardless of whether it is required or voluntary, growing pumpkins or Christmas trees
on the premises may enhance the business of companies like CSFGI, because the ―fall
farm‖ (or holiday time) experience that they use to lure customers will be a more genuine
one. If customers correctly perceive that the pumpkin or Christmas tree they paid more
for at a ―farm‖ was not grown there but was trucked in from another state, it may occur to
them the next year that they can get the same thing from their local supermarket, without
the extra gas and higher price.
B. Because the “on premises” language applies to offsite produce grown in
or outside of Minnesota, it does not constitute discrimination against
interstate commerce.
Not only have the Plaintiffs failed to demonstrate that the ordinance provides Lake
Elmo with an economic benefit, but the Plaintiffs cannot demonstrate that it creates a
distinction between in-state and out-of-state goods. When a law is even-handed as to in-
state versus out-of state economic interests, it does not implicate interstate commerce.
See, e.g., Old Bridge Chems., Inc, 965 F.2d at 1292.
Decisions rejecting dormant commerce clause challenges to zoning laws allowing
on-premises signs but forbidding off-premises signs are instructive. In a typical modern
sign code, ―on-premises signs‖ – that is, signs advertising a business, product sold or
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26 26
service available on the premises where the sign is located – are lawful in a broader
number of districts and circumstances than ―off-premises signs‖ (such as billboards,
which typically advertise a product or service that is not available on the premises of the
sign but only elsewhere). See, e.g., Metromedia Inc. v. City of San Diego, 453 U.S. 490,
494 (1981) (plurality). Regulations that ban off-premises signs from some or all districts
while allowing on-premises signs do not violate the dormant commerce clause, as at least
two federal courts have found.
In Nichols Media Group, LLC. v. Town of Babylon, 365 F. Supp. 2d 295, 314-315
(E.D.N.Y. 2005), the court rejected the Plaintiffs‘ argument that the City‘s more
restrictive treatment of off-premises signs violated the dormant commerce clause.
Babylon had banned (with one exception) signs advertising business or commercial
interests not connected with the property where the sign is located. Id. at 300-01. That
exception to the ban was applicable only in a Commercial Overlay District, and was not
available if the business, product or service advertised on the off-premises sign was not
located within that overlay district. Id. at 301.
In rejecting the dormant commerce clause challenge to the ordinance, the court
emphasized that the ban applied equally to off-premises advertising of things inside and
outside of the state:
The court finds the cases relied upon [by Plaintiffs] inapposite and
disagrees. First, Babylon‘s regulation allowing for limited off-site
advertising in the District makes a distinction not solely between in-state
and out-of-state advertisers, but between in-District and all other
advertisers, including those located throughout the Town and, indeed,
throughout the State of New York. Similarly, Islip‘s ordinance
distinguishes only between on-premise and off-premise advertisers. Thus,
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both of the Ordinances make distinctions that bar advertising by out-of-
state as well as in-state businesses.
While out-of-state advertisers are, indeed, prohibited from off-site
advertising in the District and in Islip, this fact, standing alone, does not
lead the court to conclude that either Ordinance is discriminatory on its face
and that strict scrutiny analysis applies.
Id. at 314-15; see also Lamar Advert. of Penn, LLC v. Town of Orchard Park, N.Y., 2008
WL 781865, at *13-14 (W.D.N.Y. 2008) (rejecting a dormant commerce clause claim
based on the assertion that the Defendant‘s prohibition on billboards advertising off-
premises businesses improperly favors local businesses over out-of-state and foreign
businesses ―[b]ecause the Fifth Ordinance uniformly restricts all off-premises advertising,
whether by an out-of-state or in-state business‖).
Here, Ag-zone property governed by an AEB CUP may not be used for the retail
sale of off-premises produce, whether the produce was grown across Lake Elmo Avenue
in Lake Elmo, across Highway 36 in Grant Township, across the St. Croix River in
Wisconsin, or across the country in North Carolina. The on-premises distinction does
not, therefore, suggest that Lake Elmo has discriminated against interstate commerce.
C. The pervasive use of “grown on the premises” distinctions to delineate
commercial from agricultural uses debunks Plaintiffs’ “economic
protectionism” theory, while justifying a deferential approach.
Courts should be ―particularly hesitant to interfere‖ with local governments ―under
the guise of the Commerce Clause‖ when they are performing what is ―both typically and
traditionally a local governmental function.‖ United Haulers, 550 U.S. at 344 (internal
quotation omitted). A classic function of zoning law is to channel similar types of uses,
by category, into specific areas where they are more likely to be compatible, while
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channeling them away from areas in which they are less likely to be compatible. See, e.g.,
Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 392-93 (1926). In that context, ―the
distinction between agricultural uses and commercial or industrial uses is fundamental.‖
Day v. Ryan, 560 N.E.2d 77, 82 (Ind. Ct. App. 1990). For example, the Minnesota Court
of Appeals has recognized that ―a retail and supply business for the general public‖ does
not constitute an agricultural use within the meaning of a township‘s zoning ordinance.
Stillwater Twp. v. Rivard, 547 N.W.2d 906, 910-12 (Minn. Ct. App. 1996).
Applying this distinction to sales of produce taking place in an agricultural zone is
complicated because ―[f]armers from time immemorial have had the right to sell the
produce from their farms.‖ DiPonio v. Cockrum, 128 N.W.2d 544, 547 (Mich. 1964)
(quoting, without approval, the district court). In this setting, both courts and legislative
bodies often draw the line in a manner that allows sales in an agricultural zone of stock
that is grown on the premises, thereby steering general retail operations to commercially-
zoned areas elsewhere within the community.
For example, several state appellate courts have articulated such a distinction. In
the words of the Georgia Supreme Court:
The selling of plants grown upon the place would not, in and of itself,
require a finding that the property was being used for commercial purposes.
Agricultural products are in the course of business sold, and if this record
showed that the ten acres were devoted primarily to raising nursery plants
and shrubs and the owner sold them on the premises, this would be
using the land for agricultural purposes. However, here the buying of
large quantities of nursery plants and reselling them on the premises,
with the other evidence, support the finding of the court that the property
was being used for commercial purposes.
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Anderson v. Humble Oil & Ref. Co., 174 S.E.2d 415, 417 (Ga. 1970) (emphasis added).
The Rhode Island Supreme Court reasoned in a similar fashion in deciding whether
operations in noncommercial districts whose commercial sales began with produce grown
on the premises can be subject to stricter regulation after they begin to sell products of
others‘ land:
In our opinion a stand from which to sell products grown on premises is
in aid of the use of the land in accordance with the purpose and terms of
the ordinance, as petitioner contends. But the sale of bananas, watermelons,
pineapples, and the like, to be imported from elsewhere and sold from
that stand, is not such a use of this land as is contemplated by the
ordinance. On the contrary, it amounts to a new, different and business use
which cannot be considered akin to a mere extension of a nonconforming
use as petitioner argues.
D’Acchioli v. Zoning Bd. of Review of City of Cranston, 60 A.2d 707, 710 (R.I. 1948);
see also Austin v. Zoning Hearing Bd. of Forks Twp., 496 A.2d 1367, 1369 (Pa. Cmwlth.
1985). Thus, in DiPonio, the Michigan Supreme Court held that a zoning ordinance
provision permitting in an agricultural district ―bonafide agricultural enterprises or uses
or land and structures‖ did not mean that a farmer could truck produce from the farmer‘s
market in Detroit back to sell at his produce stand in a rural township. 128 N.W.2d at
547-48. Instead, the Court held that ―the zoning ordinance should be construed to permit
the sale by a farmer of farm produce grown as a result of his farming operation carried on
within that portion of the township zoned AG Agricultural District.‖ Id. at 548.
The pervasive nature of ―grown on the premises‖ distinctions in zoning ordinances
is apparent in two different ways. First, throughout court decisions resolving disputes
about other aspects of agricultural zoning are recitals of unchallenged provisions that dif-
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12
See St. Croix County Zoning Ordinance, Section 17.09 (7). (Hall Aff., Ex. 5.)
30 30
ferentiate between stock that is and is not grown on the premises. See, e.g., Potts v. City
of Hugo, 416 N.W.2d 465, 468 (Minn. Ct. App. 1988); Lee v. Osage Ridge Winery, 727
S.W.2d 218, 219 (Mo. Ct. App. 1987); Neighborhood Bd. No. 24 v. State Land Use
Comm’n, 639 P.2d 1097, 1101 (Haw. 1982); and Patchak v. Township of Lansing, 105
N.W.2d 406, 411 n.1 (Mich. 1960). Second, review of zoning ordinances from around
the nation demonstrates that definitions of a frequently-used phrase like ―roadside stand‖
commonly refer to whether the stock was or was not grown on the premises. See, e.g.,
Weber County (Utah) Zoning Ordinance § 5-2 (8) (allowing in an A-1 zone a ―fruit or
vegetable stand for produce grown on the premises only‖); Monterey County (California)
Zoning Ordinance § 21.16.030 (N) (allowing, in a rural density residential district,
―stands for the sale of agricultural products grown on the premises‖ subject for further
limitations); Multnomah County (Oregon) Zoning Ordinance § 11.15.2130 (C) (per-
mitting in a Multiple Use Agriculture district, when compatible, the ―wholesale or retail
sales of farm or forest products raised or grown on the premises or in the immediate
vicinity‖); Loudoun County (Virginia) Zoning Ordinance Article 8 (―definitions) (defin-
ing ―Wayside Stand‖ as a structure on a farm for selling products ―principally produced
on said farm‖) (attached as Exhibits 1-4 to the accompanying Affidavit of Isaac B. Hall).
Indeed, in St. Croix County, Wisconsin – where the Bergmanns state that they grow
much of their produce sold on their Ag-zoned property in Lake Elmo – retail sales are not
part of the definition of agricultural uses,12
or a lawful use in an agricultural district, with
one exception – sales from ―Roadside stands selling only produce from the farm __________________________________
12 See St. Croix County Zoning Ordinance, Section 17.09 (7). (Hall Aff., Ex. 5.)
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operation on the premises by members of the farm family.‖ St. Croix County Zoning
Ordinance, Section 17.14(1)(g). (Hall Aff., Exs. 5, 6.) Thus, Lake Elmo‘s law is not the
kind ―that would excite those jealousies and retaliatory measures the Constitution was
designed to prevent.‖ Carbone, Inc., 511 U.S. at 390.
With that background in mind, there is no reason for the court to suspect that the
City was motivated by an unconstitutional purpose in drafting the on-premises language:
it is a well-recognized way that courts and other local governments distinguish between
agricultural and commercial uses. The importance to Lake Elmo of making that
distinction is further supported and documented by the objectives set forth in the City‘s
Comp Plan. The Plaintiffs‘ argument that the City‘s purpose of preserving rural character
is a pretext because the City has allowed hayrides and activities for families and children
(Pls.‘ Br. at 21) is unavailing. As the AES definition (and CUP) show, the City‘s grant of
permission to the Bergmanns for the hayrides and other activities is explicitly constrained
by a requirement that the activities be of an agricultural character, which goes hand in
hand with the City‘s attempt to maintain agricultural character through the on-premises
requirement. See Ordinance No. 08-006, § 1. (Pls.‘ Br. at Ex. I.)
D. The dormant commerce clause does not serve as a means of ensuring
“free trade,” unhindered by the need to conduct commercial
operations in commercially-zoned areas.
The Plaintiffs allege that farms such as CSFGI ―depend on business from
consumers in urban and suburban areas who visit farms in order to experience
agricultural activities such as hayrides, and corn mazes,‖ as well as to purchase seasonal
products. (Compl. ¶ 70.) They appear to argue that because the ordinance and CUP do
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not allow CSFGI to run its business where and as it pleases, the ordinance and CUP
violate the dormant commerce clause. But such an assertion is at odds with significant
case law. As the Supreme Court re-emphasized in United Haulers, ―‗The Commerce
Clause significantly limits the ability of States and localities to regulate or otherwise
burden the flow of interstate commerce, but it does not elevate free trade above all other
values.‘‖ 550 U.S. at 344 (quoting Maine v. Taylor, 477 U.S. 131, 151 (1976)) (emphasis
added). Nor does the doctrine ―give an interstate business the right to conduct its
business in what it considers the most efficient manner,‖ for the ―Constitution protects
the interstate market, not particular interstate firms.‖ Valley Bank of Nevada v. Plus Sys.,
Inc., 914 F.2d 1186, 1193 (9th Cir. 1990) (quoting Exxon Corp. v. Governor of
Maryland, 437 U.S. 117, 127-128 (1978)).
Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d 987 (E.D. Cal. 2006),
provides an apt example. In Turlock, Wal-Mart challenged the defendant city‘s
ordinance, which prohibited ―Discount Superstores,‖ claiming that the city‘s motive was
to protect local retailers from competition in violation of the commerce clause. Id. at
992, 994. The court determined that the ordinance did not erect barriers against interstate
commerce because the ordinance ―prevents any retailer, whether in-state or out-of-state,
from establishing the discount superstores marketing format in [the city].‖ Id. at 1012
(emphasis added). The court further explained that the commerce clause does not enable
retailers to run their business in their favored manner: ―There is no constitutional right to
do business in a retailer‘s optimally profitable store configuration, if the resulting
operation burdens environmental, traffic-pattern, economic-viability, and land-use
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planning interests of the host municipality.‖ Id. (emphasis added). Noting that a local
legislative choice to protect land-use-planning goals was entitled to deference, the court
concluded that the city‘s ordinance did not violate the commerce clause. Id. at 1020.
Here, the commerce clause does not mandate that the Plaintiffs be allowed to do
business in their preferred manner, nor does it mandate that Plaintiffs Lynn Smith and
Andrew Daniels be able to sell to the Bergmanns specifically or that the Bergmanns be
allowed to sell on their agriculturally-zoned land produce that they have bought or chosen
to grow off-premises. The Bergmanns can still sell their off-premises produce to
wholesalers or to retailers operating in commercially zoned areas. Similarly, Plaintiffs
Lynn Smith and Andrew Daniels can sell their products to retailers and wholesalers in
Minnesota and Lake Elmo. Simply put, the commerce clause protects interstate markets,
which under Lake Elmo‘s ordinance and CUP continue to function, not particular
interstate firms, such as CSFGI.
E. An effects-based challenge to a zoning ordinance is either unavailable,
or unproven by Plaintiffs.
Plaintiffs allege that the challenged provisions have a discriminatory effect on
interstate commerce. Even if such a claim may be brought against any zoning ordinance,
it cannot succeed.
Under the Supreme Court‘s decision in Exxon Corporation v. Governor of
Maryland, 437 U.S. 117 (1978), a party seeking to prove an effects-based claim under the
dormant commerce clause must also demonstrate that the law has (1) prohibited the flow
of interstate goods; (2) placed added costs on interstate goods; or (3) given in-state
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economic interest a competitive advantage over out-of-state economic interests. See id.
at 126 (―In fact, the Act creates no barriers whatsoever against interstate independent
dealers; it does not prohibit the flow of interstate goods, place added costs upon them, or
distinguish between in state and out of state companies in the retail market. The absence
of any of these factors fully distinguishes this case from those in which a State has been
found to have discriminated against interstate commerce.‖) (emphasis added). Stripped
of its pejorative adjectives and inappropriate analogies, Plaintiffs‘ brief has failed to
satisfy this burden. An ordinance that entitles an agricultural entertainment business in a
noncommercial district to a conditional use permit, but prohibits it from also engaging in
retail sales of produce from farms elsewhere, is too narrowly focused to have such
effects. Moreover, the Plaintiffs have failed to prove that it will have such effects.
In any event, in the context of zoning ordinances, this court should not even
entertain an effects-based claim. As Judge Paul Magnuson stated in Randy’s Sanitation,
Inc. v. Wright County, 65 F. Supp. 2d 1017, 1029 (D. Minn. 1999):
Zoning is a matter of particular importance to state and local governments.
As a result, federal courts have traditionally been somewhat hesitant to
interfere in the zoning process. That concern is particularly present here.
Randy‘s asks this Court, on the basis of two zoning decisions, to declare
that those decisions had ―the effect of discriminating against interstate
commerce.‖ Those decisions may have had such an effect, but no more so
than would any commonplace zoning decision preventing a distributor from
building a distribution warehouse in a residential zone. In short, the
County‘s actions cannot be deemed wrongful in this regard without a
consideration of motive—a factor which must be determined at trial.
(Internal citation omitted)(Emphasis added). But see Superior FCR Landfill Inc. v.
Wright County, No. COV/98-1911 (JRT/FLN), 2002 WL 511460 (D. Minn. Mar. 31,
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2002) (Tunheim, J.) (upholding submission of an effects-based claim to a jury). See
generally John M. Baker & Mehmet K. Konar-Steenberg, Drawn from Local Knowledge
. . . And Conformed to Local Wants”: Zoning and Incremental Reform of Dormant
Commerce Clause Doctrine, 38 Loy. U. Chi. L.J. 1 (2006).
II. PLAINTIFFS ARE NOT ENTITLED TO AN INJUNCTION TO ALLOW
CHAD BERGMANN TO SELL OFF-PREMISES PRODUCE FROM A
“WAYSIDE STAND” OUTSIDE HIS HOME.
As noted in the Statement of Facts, Plaintiffs‘ Complaint includes a surprising (if
not dubious) assertion that Chad Bergmann, a member of the family operating CSFGI,
intends to sell blueberries and sweet corn not as part of his family‘s business operations,
but on the yard of his home (located in a Rural Residential district).
First, Mr. Bergmann does not have a ripe ―as applied‖ claim. As set forth in the
Statement of Facts and accompanying affidavits of the City Administrator and the
Planning Director, the City has never threatened enforcement of the language of the
―Wayside Stand‖ limitations against any Plaintiff. (Messelt Aff. ¶ 12; Klatt Aff. ¶ 19.)
Simply announcing, for the first time in a Section 1983 complaint or follow-up affidavit,
that you have an intention to do something that would be inconsistent with the law does
not thereby ripen a constitutional claim (not involving expressive conduct). See Senty-
Haugen v. Goodno, 462 F.3d 876, 889 (8th Cir. 2006); In re Bender, 368 F.3d 846, 848
(8th Cir. 2004).
Second, Plaintiffs cannot present a facial challenge to the constitutionality of the
Wayside Stand definition, because they have failed to demonstrate that the definition of
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―Wayside Stand‖ is incapable of being applied in a constitutional manner. See United
States v. Salerno, 481 U.S. 739, 745 (1987).
Third, even if the claim is ripe, to the extent that Plaintiffs‘ challenge to the
Wayside Stand definition is based on its inclusion of a reference to goods grown ―on
other property in Lake Elmo,‖ City Code § 11.01, that challenge is highly likely to
become moot before an injunction issues. A public hearing on the removal of that
language is scheduled for June 28, 2010 before the Planning Commission, with a
regularly-scheduled City Council meeting scheduled for July 6, 2010. (Baker Aff.,
Ex. T.) There is no basis for Plaintiffs to seek an injunction against the enforcement of
language that appears to be on its way out of the City Code.
Fourth, the expected removal of the ―on other property in Lake Elmo‖ language
from the Wayside Stand definition would leave in place an ―on-site‖ limitation (which is
the functional equivalent of a ―grown on the premises‖ provision). Assuming that Chad
Bergmann somehow obtains standing to challenge the Wayside Stand definition, that
claim fails on the merits, for the same reasons that the attack on the ―grown on the
premises‖ language in the AEB and ASB definitions must fail.
III. THE STATE OF HARM AND THE INJURY THAT GRANTING THE
INJUNCTIVE RELIEF WILL INFLICT ON OTHER PARTIES WEIGHS
IN FAVOR OF DENYING THE MOTION FOR PRELIMINARY
INJUNCTION, AND IT IS IN THE PUBLIC’S INTEREST NOT TO
GRANT A PRELIMINARY INJUNCTION.
Weighing the potential harm Plaintiffs claim to face against the harm of granting a
preliminary injunction demonstrates that the injunction should not be granted. The City
and its citizens have a vested interest in the outcome of the legislative process. To grant a
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preliminary injunction despite that legislative process would send a message to Lake
Elmo citizens that the process can easily be invalidated. Additionally, granting a
preliminary injunction will stop the process that the City was undertaking, and in which
the Bergmanns were participating until a week before they filed this lawsuit, to work with
the Bergmanns regarding their proposed commercial activity on their agriculturally-
zoned land. But if the preliminary injunction is not granted, the Plaintiffs will still have
the opportunity to have their case heard through litigation in the manner and timing that
the vast majority of other litigants follow. For the same reason, it is not in the public‘s
interest to grant a preliminary injunction in this matter.
Overall, because the Plaintiffs cannot establish a likelihood of success on the
merits, and because the public interest and balancing of harms weighs against granting
the motion for preliminary injunction, this Court should deny Plaintiffs‘ motion.
IV. IF THE COURT CONCLUDES THAT THE CUP OR ORDINANCE 08-006
ARE FACIALLY UNCONSTITUTIONAL – AS PLAINTIFFS ALLEGE –
AND THUS THAT THE PLAINTIFFS ARE ENTITLED TO A
PRELIMINARY INJUNCTION, THE PROPER RELIEF IS TO
INVALIDATE THE CUP AND ORDINANCE 08-006.
Unless the court can conclude that the City Council would have adopted
Ordinance 08-006 omitting the allegedly unconstitutional limitation, and that the
ordinance is workable without that limitation, then the court cannot simply enjoin the
effect of a few words; Ordinance 08-006 must be invalidated as a whole. Similarly, if the
CUP includes a limitation that is unconstitutional, the court should rescind it, and thereby
leave in effect the CUP formerly in place.
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13
The legislature has provided guidance on how a ruling of partial invalidity of astatute should be implemented. Minn. Stat. § 645.20 (2000).
38 38
A. If the challenged portion of Ordinance 08-006 is unconstitutional, the
court must declare Ordinance 08-006 in its entirety unconstitutional.
In a Section 1983 suit, severability of part of a local ordinance is a question of
state law. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 772 (1988).
Under Minnesota principles governing severability, ―[o]ur primary goal in determining a
remedy is, insofar as possible, to effectuate the intent of the legislature had it known that
a provision of the law was invalid.‖ State v. Shattuck, 704 N.W.2d 131, 143 (Minn.
2005). 13
The Minnesota Supreme Court and the Eighth Circuit have construed Minnesota
law to preclude severance even when the words remaining after severance are capable of
being executed, where it is ―not at all clear‖ that the legislative intent was to prefer a
limited application of the statute. See Archer Daniels Midland Co. v. State, 315 N.W.2d
597, 600 (Minn.1982); Cellco P’ship v. Hatch, 431 F.3d 1077, 1083-84 (8th Cir. 2005).
In Archer Daniels Midland Co., the Minnesota Supreme Court concluded that a
state statute violated the dormant commerce clause because it explicitly limited a four-
cent per gallon tax reduction for gasohol to Minnesota gasohol. 315 N.W.2d at 599-600.
Emphasizing that ―we look first to the intention of the Legislature to fashion a remedy
consistent therewith,‖ id. at 600, the Supreme Court recognized that striking the
―Minnesota gasohol only‖ limitation so as to extend the tax reduction to out-of-state
concerns would frustrate the legislative intent, and ―conclude[d], therefore, that the
__________________________________ 13
The legislature has provided guidance on how a ruling of partial invalidity of a
statute should be implemented. Minn. Stat. § 645.20 (2000).
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remaining provisions of the Act, standing alone, ‗are incapable of being executed in
accordance with the legislative intent.‘‖ Id. (quoting Minn. Stat. § 645.20).
In Chapman v. Commissioner of Revenue, 651 N.W.2d 825, 835-36 (Minn. 2002),
the Supreme Court concluded that a Minnesota tax statute discriminated against interstate
commerce because, in calculating the alternative minimum tax (―AMT‖), taxable income
was defined in a way that excluded ―the Minnesota charitable contribution deduction,‖
which would apply to contributions to charities in Minnesota but not charities outside of
Minnesota. The Court then recognized that ―[i]n practical terms, the unconstitutional
discrimination of allowing a deduction for Minnesota charitable contributions but not for
others can be cured either by making all charitable contributions deductible or by making
none deductible.‖ Id. at 836. To answer this question, the Court asked ―which option the
legislature would have chosen if it had known it could not do both.‖ Id. at 837. Because
the court could not conclude that the legislature would choose to allow deductions for all
charitable contributions if its preference for a deduction only for Minnesota contributors
were invalid, the court‘s decision left no deduction for any charitable contributions for
Minnesota AMT purposes. Id.
Here, in allowing a new type of conditional use in the Ag zone defined as an
Agricultural Entertainment Business, the City Council incorporated the limitation on
sales from the definition of Agricultural Sales Business. That limitation is the only
meaningful limitation on retail sales of produce by an Agricultural Entertainment
Business (or an Agricultural Sales Business). As part of an ordinance that explicitly
allowed a greater range of nonretail forms of entertainment, the grown-on-the-premises
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limitation serves an important balancing role, helping to reduce the chance that the
overall operations become an overwhelming presence. Conversely, if that language is not
enforceable, the magnitude of retail produce sales operation by an AEB in an agriculture
district is potentially limitless.
Moreover, if the Court declares that the ―grown on the premises‖ language is
unconstitutional where it appears in Ordinance 08-006 (in the definition of Agricultural
Sales Business), but leaves the rest of the Ordinance in effect, an unintended and
particularly perverse risk is created. Ordinance 08-006 expanded the types of zones in
which Agricultural Sales Businesses could be located, for the first time making it a
permitted use in Rural Residential districts, which make up a significant portion of the
property in the City. See Ordinance 08-006, § 4 (Pls.‘ Br., Ex. I; Baker Aff., Ex. V.) So
long as such businesses are limited by the need to have grown the produce that is sold
there, there is a natural curb on the size of such businesses, thereby reducing the risk that
such activities will become incompatible with their residential neighbors. Not
coincidentally, to operate an Agricultural Sales Business that is not an Agricultural
Entertainment Business, the business need not obtain a conditional use permit, and need
not provide for parking on site. Compare Ordinance 08-006 at Sections 4 and 6, with,
Section 3. (Pls.‘ Br., Ex. I.) But if Plaintiffs succeed in their request that the court
deprive of its effect the ―grown on the premises‖ phrase in the definition of Agricultural
Sales Business (while leaving the rest of Ordinance 08-006 fully in effect), someone
wishing to sell an unlimited amount of produce could buy or lease an ordinary home on
an ordinary street in a Rural Residential district, line up its front and side yards with
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pumpkins or Christmas trees, and do business with no natural or formal limitation on the
scope of their commercial activities. Because it is a permitted use in a Rural Residential
zone, the City could not enforce its performance standards before the use is established,
but would be left enforcing those standards after-the-fact, through civil or criminal
enforcement. This demonstrates that, with the ―grown on the premises‖ language
nullified, the remaining provisions ―are incapable of being executed in accordance with
the legislative intent.‖ Minn. Stat. § 645.20; Archer Daniels Midland Co., 315 N.W.2d at
600.
Because it is ―not at all clear‖ that the City Council would have passed Ordinance
08-006 in its current form without any ―grown on the premises‖ limitations, id., the court
cannot simply enjoin the City from enforcing those words while leaving the rest of the
ordinance intact. In that setting, it must instead invalidate the entire ordinance, and leave
it to the City Council to demonstrate what alternative version of the ordinance would
attract a sufficient majority to pass without such limitations.
B. As part of any relief, the court should rescind the Plaintiffs’ CUP, and
not simply remove one of its limitations while leaving all of the
Plaintiffs’ remaining permissions in place.
The Minnesota Supreme Court has recognized that ―[a] conditional use permit is
in the nature of a contract between the city and a private party for the use of a piece of
property.‖ State v. Larson Transfer and Storage, Inc., 246 N.W.2d 176, 182 n.4 (1976).
Thus, with a CUP, as with a contract, when a court ruling invalidates a basic element of
the ―exchange‖ embodied in it, the court should rescind it.
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The Court should not force the parties to operate under an arrangement that is
plainly contrary to what the Plaintiff offered to do (when applying for a CUP for an
Agricultural Entertainment Business, which by definition included a ―grown on the
premises‖ limitation) and what the City agreed to do (by granting that permit through a
resolution that included language reiterating the ―grown on the premises‖ limitation).
There is a special reason why any invalidation of the ―grown on the premises‖
limitation should result in a rescission of the CUP. As noted above, that language is the
only limitation on the magnitude of an AES permit holder‘s retail produce sales activity
on the site. The permit could only be granted after the City applied a set of approval
criteria to the proposed operation, see Ordinance 08-006 section 3, (Pls.‘ Br., Ex. I),
which the City could reasonably expect would be conducted within the boundaries of the
AEB definition. If the Court frees the applicant from that limitation, but leaves the CUP
and its existing conditions in place, it will have circumvented the important role that
approval criteria and the imposition of conditions on a CUP play in the land use
regulation process. As a practical matter it will force the City to be the host of an
operation with conditions applicable to a scaled-back retail sales operation, but which in
fact could start to bring in and sell a potentially limitless array and supply of produce to
sell.
CONCLUSION
For the reasons set forth above, the Court should deny the Plaintiffs‘ Motion. If
the Court concludes that Plaintiffs have carried their burden, rather than entering the
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June 16, 2010
s nes
gassman [email protected]
Defendants
43 43
particular injunction as requested by Plaintiffs, the Court should instead rescind the
Plaintiffs‘ CUP and invalidate Ordinance 08-006.
Dated: June 16, 2010 GREENE ESPEL P.L.L.P.
John M. Baker, Reg. No. 174403
Jenny Gassman-Pines, Reg. No. 386511
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
(612) 373-0830
Attorneys for Defendants
s/ Jenny Gassman-Pines
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