Agenda - Council - 11/24/2009 - Laserfiche WebLink

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found that,if the group home project does not go forward, respondents could lose tens ofthousands of dollars. The city argues that respondents failed to demonstrateany irreparable harm. See Cherne Indus., Inc. v. Grounds &Assoc's,Inc. , 278 N.W.2d 81, 92 (Minn. 1979) (a showing of irreparable harm isrequired to prevent undue hardship). The city suggests that respondents wouldnot suffer irreparable harm if they used the property as a group home for sixresidents. But Solid Foundations offered evidence that operating a home ofonly six persons is not economically feasible, and the city offered no evidencein rebuttal. The city did not offer any evidence of harm it would suffer inallowing the group home to operate. 3. Likelihood of success The third Dahlberg factor considers the likelihood that theplaintiff will prevail on the merits. Upper Midwest Sales Co. ,577 N.W.2d at 240 -41. In this case, respondents seek to overturn a zoningdecision. The Minnesota Supreme Court has stated: The standard of review is the same for all zoning matters, namely, whetherthe zoning authority's action was reasonable * * * Is there a 'reasonablebasis' for the decision? or is the decision 'unreasonable, arbitrary orcapricious'? or is the decision 'reasonably debatable'? Swanson v. City of Bloomington. , 421 N.W.2d 307, 311 (Minn. 1988)(citing Honn v. City of Coon Rapids , 313 N.W.2d 409, 417 (Minn.1981)). The city argues its decision had a reasonable basis because Haefele abandonedthe nonconforming -use by not utilizing the property as a group home since 1994."Abandonment ordinarily entails two factors: (1) intent to abandon, and (2) anovert act or failure to act indicating the owner no longer claims a right tothe nonconforming use." County of Isanti v. Peterson , 469 N.W.2d467, 470 (Minn. App. 1991) (quotation omitted). In this case, the districtcourt found that Haefele had presented evidence that indicated he did not havethe requisite intent to abandon. Accordingly, the district court found thelikelihood of success on the merits was with the respondents. The city points to two of Haefele's own actions as demonstrating an intent toabandon. First, Haefele listed the property for sale as a single - familyresidence in April 1997. Second, Haefele rented the home to a singleindividual. But Haefele has explained both of these facts. He listed theproperty in the single- family category of the multiple listing service becausehis realtor told him that group home facility operators searched that categoryfor facility sites. As far as renting the property to a single individual,Haefele acknowledges that he rented the property to a caretaker for nominalrent while searching for a group home tenant or buyer. Viewing the facts inthe light most favorable to respondents, the district court's finding thatHaefele did not possess an intent to abandon is not clearly erroneous. 4. Public interest The fourth Dahlberg factor considers the aspects of the factsituation, if any, that "permit or require consideration of public policyexpressed" in the statute. Upper Midwest Sales Co. , 577 N.W.2dat 241. The public policy expressed in Minn. Stat. § 462.357, subds. 7, 8(1998), is that group homes are permitted uses in residential zones.Accordingly, the