55-CV-21-4667

Filed in District Court

State of Minnesota
9/3/2021 1:28 PM

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN THIRD JUDICIAL DISTRICT

Case Type: Other/Misc.

Susan Wescott, Diane Lund, Rick Ties, Case No. 55-CV-21-4667

John Cassady, Kai Miller, and
Mary Richter,
CITY OF ROCHESTER’S ANSWER TO
Plaintiffs, THE VERIFIED COMPLAINT

v.

The City of Rochester, Minnesota,

Defendant.

Defendant City of Rochester, Minnesota (“City” or “Defendant”), for its Answer to

Plaintiffs’ Verified Complaint for Declaratory Judgment and Injunctive Relief (“the

Complaint”), states as follows:

1. To the extent a response to Paragraph 1 of the Complaint is required,

Defendant admits that the relief the Complaint seeks includes, but is not limited to,

declaratory relief under the Uniform Declaratory Judgments Act, Minn. Stat. §§ 555.01–.16,

admits that the Court has jurisdiction over this suit, and otherwise denies the allegations

of that Paragraph.

2. Defendant lacks information or knowledge sufficient to form a belief as to

the truth of the allegations of Paragraph 2 of the Complaint.

3. Defendant lacks information or knowledge sufficient to form a belief as to

the truth of the allegations of Paragraph 3 of the Complaint.

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Filed in District Court
State of Minnesota
9/3/2021 1:28 PM

4. Defendant lacks information or knowledge sufficient to form a belief as to

the truth of the allegations of Paragraph 4 of the Complaint.

5. Defendant lacks information or knowledge sufficient to form a belief as to

the truth of the allegations of Paragraph 5 of the Complaint.

6. Defendant lacks information or knowledge sufficient to form a belief as to

the truth of the allegations of Paragraph 6 of the Complaint.

7. Defendant lacks information or knowledge sufficient to form a belief as to

the truth of the allegations of Paragraph 7 of the Complaint.

8. Defendant admits the allegations of Paragraph 8 of the Complaint.

9. Regarding Paragraph 9 of the Complaint, Defendant admits that its Common

Council (“the Council”) has a Council President and six Council members, and that one

Council member represents each of the City’s six wards, but denies the remainder of the

Paragraph because it does not fully and accurately recite the text of the referenced

document.

10. Regarding Paragraph 10 of the Complaint, Defendant admits that venue is

proper in this Court, but not for the reasons stated in that Paragraph.

11. Regarding Paragraph 11 of the Complaint, Defendant admits that, according

to public records, Legacy Investments 02 LLC (“Legacy Investments”) is a Minnesota

Limited Liability Company organized on or about July 23, 2019, under the Minnesota

Revised Uniform Limited Liability Company Act, Minn. Stat. ch. 322C, that its principal

executive office address and registered office address is 4123 26th Street NW, Rochester,

Minnesota, that its mailing address is 2719 15th Avenue NW, Rochester, Minnesota, and

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State of Minnesota
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that its registered agent is Ben Kall. Defendant denies the remainder of Paragraph 11 of the

Complaint.

12. Regarding Paragraph 12 of the Complaint, Defendant admits that Kall has

served as a member of the City’s Planning and Zoning Commission (“the Commission”)

since he was appointed to that position by the Mayor with advice and consent of the

Council on January 22, 2020, denies that there is a “Zoning and Planning Commission” of

the City, and denies the remainder of Paragraph 12 of the Complaint.

13. Defendant denies the allegations of the first sentence of Paragraph 13 of the

Complaint, admits that the Commission makes recommendations to the Council in certain

circumstances set forth in the City’s Code of Ordinances but denies the second sentence of

Paragraph 13 of the Complaint because it does not fully and accurately recite the terms of

those Code of Ordinances provisions.

14. Regarding the first sentence of Paragraph 14 of the Complaint, Defendant

admits that on March 25, 2021, a virtual Microsoft Teams meeting was convened at

6:00 p.m. regarding Kall’s potential redevelopment of property at 521 14th Avenue SW,

Rochester, Minnesota, in which Kall, his architect, several members of the community, and

City staff participated and in which Kall and his architect described their proposed

development project, but Defendant again denies the implication in the first sentence of

that Paragraph that the March 25, 2021 meeting was just between Kall and the City’s

Community Development Department staff. Defendant denies the remainder of the first

sentence of Paragraph 14 of the Complaint. Further answering, Defendant denies the

second sentence of Paragraph 14 of the Complaint.

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 55-CV-21-4667
Filed in District Court
State of Minnesota
9/3/2021 1:28 PM

15. Defendant denies the allegations of Paragraph 15 of the Complaint.

16. Defendant denies the allegations of Paragraph 16 of the Complaint, including

its implication that the March 25, 2021 meeting was just between Kall and the City’s

Community Development Department staff, because its minutes reflect that it involved

many members of the general public in addition to Kall, his architect, and City staff.

17. Defendant admits the second sentence of Paragraph 17 of the Complaint.

Defendant denies the first and third sentences of Paragraph 17 of the Complaint because

they do not fully and accurately recite the content of Kall’s March 31, 2021 submission

addressed to the City’s Planning Manager, which included a cover letter with the phrase

“521 14th Ave SW Zoning Narrative” in the subject line, and a Zone District Amendment

Application and supporting documents.

18. Defendant denies the allegations of Paragraph 18 of the Complaint.

19. Defendant denies the allegations of Paragraph 19 of the Complaint because

that Paragraph does not fully and accurately recite the terms of the referenced Ordinance.

20. Defendant denies the allegations of Paragraph 20 of the Complaint because

that Paragraph does not fully and accurately recite the terms of the referenced Ordinance.

21. Regarding Paragraph 21 of the Complaint, if “immediate vicinity” is construed

to mean all adjacent parcels, Defendant admits that Paragraph. If “immediate vicinity” is

construed to include all properties 300 feet or less from the site, Defendant denies that

Paragraph.

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State of Minnesota
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22. Defendant denies the allegations of Paragraph 22 of the Complaint because

that Paragraph does not fully and accurately recite the terms of the referenced agenda item

or the accompanying staff report for that agenda item.

23. Defendant denies the allegations of Paragraph 23 of the Complaint because,

except for the allegation that the document “failed to indicate that Kall and/or Legacy

Investments was not the fee owner of the 521 Property,” that Paragraph does not fully and

accurately recite the terms of the staff report submitted to the Commission and to others

in the packet for the April 28, 2021 meeting of the Commission.

24. Regarding Paragraph 24 of the Complaint, if “affected properties” is

construed to mean registered owners of properties within 500 feet, Defendant admits that

Paragraph. Otherwise, Defendant denies that Paragraph.

25. Regarding Paragraph 25 of the Complaint, Defendant admits that Paragraph

but affirmatively alleges that the Commission considered a proposed zoning amendment

consistent with Section 60.331 (4) of the City’s Zoning Ordinance, which provides, “Any

individual may suggest to the City Council or the Commission that it initiate an

amendment on its own motion. Such suggestions are entitled to such consideration as the

Council or Commission deem appropriate.” Further answering, Defendant states that

Commissioner Krystal Jorgenson opened the public hearing on the proposed zoning

amendment, which was also consistent with Section 60.331 (4) of the Zoning Ordinance.

26. Regarding Paragraph 26 of the Complaint, Defendant admits that Paragraph

but affirmatively alleges that the Commission considered a proposed zoning amendment

consistent with Section 60.331 (4) of the Zoning Ordinance, which provides, “Any

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Filed in District Court
State of Minnesota
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individual may suggest to the City Council or the Commission that it initiate an

amendment on its own motion. Such suggestions are entitled to such consideration as the

Council or Commission deem appropriate.” Further answering, Defendant states that

Commissioner Jorgenson opened the public hearing on the proposed zoning amendment,

which was also consistent with Section 60.331 (4) of the Zoning Ordinance.

27. Regarding Paragraph 27 of the Complaint, Defendant admits that Paragraph

but affirmatively alleges that the Commission considered a proposed zoning amendment

consistent with Section 60.331 (4) of the Zoning Ordinance, which provides, “Any

individual may suggest to the City Council or the Commission that it initiate an

amendment on its own motion. Such suggestions are entitled to such consideration as the

Council or Commission deem appropriate.” Further answering, Defendant states that

Commissioner Jorgenson opened the public hearing on the proposed zoning amendment,

which was also consistent with Section 60.331 (4) of the Zoning Ordinance.

28. Regarding Paragraph 28 of the Complaint, Defendant states that the legal

interest of Kall and Legacy Investments in the property at the time they submitted the

rezoning application to Defendant’s Zoning Administrator was not yet a fee ownership, but

arose from an existing purchase agreement. Defendant denies the allegations of Paragraph

28 of the Complaint.

29. Defendant denies the allegations of Paragraph 29 of the Complaint because

that Paragraph does not fully and accurately recite the terms of the referenced minutes of

the April 28, 2021, Commission hearing and inaccurately describes the minutes in other

respects.

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Filed in District Court
State of Minnesota
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30. Defendant admits the allegations of Paragraph 30 of the Complaint.

31. Defendant denies the allegations of Paragraph 31 of the Complaint.

32. Defendant denies the allegations of Paragraph 32 of the Complaint.

33. Defendant denies the allegations of Paragraph 33 of the Complaint and

denies the implication that at the time of the Council’s meeting no rezoning application

had been submitted to the Commission or Council for review.

34. Regarding Paragraph 34 of the Complaint, Defendant admits that the

voluminous May 17, 2021 Council meeting agenda packet materials on the rezoning request

do not include the application that was attached to the narrative dated (and submitted to

the City on) March 31, 2021, and do not include a separate site development plan

application that became necessary upon the rezoning of the site. Defendant affirmatively

alleges that the May 17, 2021 Council packet did include the March 31, 2021 narrative.

35. Defendant denies the allegations of Paragraph 35 of the Complaint.

36. Regarding Paragraph 36 of the Complaint, Defendant admits that, at the

May 17, 2021 Council meeting, the Council voted to approve zoning change number

CD2021-002ZC after the Council heard from 15 community members regarding the

proposal, including Plaintiffs, but denies the allegation or implication that all 15 persons

objected to the proposal and asserted that the proposal would have a detrimental impact

on their own property interests as well as the public at large.

37. Defendant denies the allegations of Paragraph 37 of the Complaint.

38. Defendant denies the allegations of Paragraph 38 of the Complaint except to

admit that, “prior to voting on the purported rezone request,” the Council did not first

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Filed in District Court
State of Minnesota
9/3/2021 1:28 PM

make findings regarding the request to rezone, and this is accurately reflected in the official

minutes of that meeting.

39. Defendant denies the allegations of Paragraph 39 of the Complaint.

40. Regarding Paragraph 40 of the Complaint, Defendant admits the allegations

except to deny the implication that the actual text of the full proposed rezoning ordinance

was not before the Council at the June 7, 2021 first reading, because the full ordinance was

in fact in the packet for that Council meeting.

41. Regarding Paragraph 41 of the Complaint, Defendant denies that the site

development plan was received on June 16 (rather than June 24), 2021, and denies the

implication or allegation that Kall, Legacy Investments, or both did not submit a rezoning

application until June 16, 2021, but admits that, upon the Council’s approval of the rezoning

application previously submitted to the City, the need then arose for the developer to

submit a site development plan (including drawings and schematics concerning the

proposed structures to be built), that the developer submitted a site development plan, and

that the City has denied the site development plan with directions regarding necessary

revisions.

42. Regarding Paragraph 42 of the Complaint, Defendant admits the allegations

except to deny the implication that the actual text of the full proposed rezoning ordinance

was not before the Council at the June 19, 2021 second reading, because the full ordinance

was in fact in the packet for that Council meeting.

43. Defendant denies the allegations of Paragraph 43 of the Complaint.

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 55-CV-21-4667
Filed in District Court
State of Minnesota
9/3/2021 1:28 PM

44. Regarding Paragraph 44 of the Complaint, Defendant denies that Paragraph

except to admit the last sentence, and Defendant affirmatively alleges that at the August 2,

2021 Council meeting, opponents of the rezoning on the Council did not move to open the

matter for public comment but instead moved to continue the matter, a motion that failed

by a 2–5 roll-call vote.

45. Defendant denies the allegations of Paragraph 45 of the Complaint.

46. Defendant denies the allegations of Paragraph 46 of the Complaint.

47. Defendant denies the allegations of Paragraph 47 of the Complaint.

48. Defendant denies the allegations of Paragraph 48 of the Complaint.

49. Defendant admits the allegations of Paragraph 49 of the Complaint as to the

Council decisions referenced in the Complaint, but denies that Paragraph as to any other

City decisions regarding the property, including the issuance of a demolition permit and

any decisions regarding site development plans.

50. Defendant lacks knowledge or information sufficient to admit or deny the

allegations of Paragraph 50 of the Complaint.

51. Regarding Paragraph 51 of the Complaint, Defendant admits that it issued a

demolition permit to Kall or Legacy Investments on July 23, 2021, but denies that the

permit was “pursuant to zone change No. CD2021-002ZC.” Defendant affirmatively alleges

that the permit was issued because the applicant satisfied the conditions for the demolition

permit, which were not based on any planning or zoning decision of the City.

52. Regarding Paragraph 52 of the Complaint, Defendant incorporates herein its

responses to Paragraphs 1 through 47 of the Complaint.

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State of Minnesota
9/3/2021 1:28 PM

53. Defendant denies the allegations of Paragraph 53 of the Complaint.

54. Defendant denies the allegations of paragraph 54 of the Complaint.

55. Regarding Paragraph 55 of the Complaint, Defendant incorporates herein its

responses to Paragraphs 1 through 54 of the Complaint.

56. Defendant denies the allegations of Paragraph 56 of the Complaint.

57. Defendant denies the allegations of Paragraph 57 of the Complaint.

58. Defendant denies the allegations of Paragraph 58 of the Complaint.

59. Defendant denies the allegations of Paragraph 59 of the Complaint.

60. Except as expressly admitted, qualified, or denied, Defendant denies each

and every allegation of the Complaint, including the organizational headings to which no

number is assigned.

AFFIRMATIVE DEFENSES

1. The Complaint fails to state a claim or claims upon which relief may be

granted.

2. Plaintiffs’ claims are limited or barred by the doctrine of substantial

compliance.

3. To protect interested parties against damages that will result if the Court

grants Plaintiffs’ request for equitable relief and if that relief is improvidently granted, the

Court must condition any grant of such relief on Plaintiffs’ posting security in an amount

sufficient to fully protect against the full amount of potential damages that might result

from an award of such relief.

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State of Minnesota
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4. Because a property owner’s authority or right to obtain a demolition permit

for an ordinary structure on its property does not depend on the zoning status of the

property, because the Complaint is focused exclusively on contesting the zoning status of

the property, and because the Complaint concedes that the City has issued a demolition

permit for the structure on the property, any request by Plaintiffs to temporarily or

permanently enjoin the use of that permit would be invalid.

Defendant reserves the right to assert such additional or different defenses as those

defenses become known to it.

THEREFORE, Defendant City of Rochester respectfully requests that the Complaint

be dismissed, that judgment be entered in accordance with said dismissal, and that

Defendant be given judgment for costs and disbursements, and for such other relief as the

Court may deem just and equitable.

Dated: September 3, 2021 GREENE ESPEL PLLP

s/ Katherine M. Swenson
John M. Baker, Reg. No. 0174403
Katherine M. Swenson, Reg. No. 0389280
222 S. Ninth Street, Suite 2200
Minneapolis, MN 55402
jbaker@greeneespel.com
kswenson@greeneespel.com
(612) 373-0830

Attorneys for Defendant City of Rochester

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 55-CV-21-4667
Filed in District Court
State of Minnesota
9/3/2021 1:28 PM

ACKNOWLEDGMENT

The undersigned hereby acknowledges that pursuant to Minn. Stat. § 549.211,

subd. 3, sanctions may be imposed if, after notice and a reasonable opportunity to respond,

the Court determines that the undersigned has violated the provisions of Minn. Stat.

§ 549.211, subd. 2.

s/ Katherine M. Swenson
Katherine M. Swenson

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