Complaint: FOC, LLC vs. City of AftonThe legal complaint filed by FOC, LLC with Washington County District Court against the city of Afton.
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT
Case Type: Other Civil (Declaratory Judgment)
Court File No.: ______________
FOC, LLC., a Minnesota Limited Liability
Company and Atomic Properties, LLC.,
a Minnesota Limited Liability Company
City of Afton, a Minnesota Municipality,
Jim Fox, and Shelly Strauss;
The Plaintiffs named above, for their Complaint against the City of Afton, state and allege as follows:
PARTIES AND VENUE
1. The City of Afton (“Defendant” or “City’) is a municipal corporation organized and existing under the laws of the State of Minnesota and located entirely within Washington County, Minnesota.
2. Jim Fox is the Chair of the City of Afton’s Planning Commission, a duly appointed commission of the City of Afton subject to the mandates of the Open Meeting Law, Minn. Stat. § 13D.01 et. seq.
3. Shelly Strauss is the City Administrator of the City of Afton, and is responsible for the day-to-day operations of the City, including compliance with the Open Meeting Law.
4. FOC, LLC (“FOC”)(collectively with Atomic Properties, LLC is known as “Plaintiffs”), is a Minnesota limited liability company with offices in Minnesota.
5. Atomic Properties, LLC (“Atomic Properties”) (collectively with FOC, LLC is known as “Plaintiffs”), is a Minnesota limited liability company with offices in Minnesota.
6. Plaintiffs are the owners, as tenants in common, of real property consisting of approximately 70 acres of property located in the City of Afton, Minnesota, generally located South of Hudson Road and East of Manning Avenue (“Real Property” or “Property”). A true and accurate copy of the legal description for said property is attached as Exhibit A.
PLAINTIFFS’ ACQUISITION OF THE PROPERTY
7. In October of 2005, Plaintiffs signed a Purchase Agreement (“Purchase Agreement”) for the Property.
8. Plaintiffs purchased the Property specifically for the purpose of constructing light industrial facilities on the property, such as a manufacturing facility for Atomic Props & Effects, Ltd. and developing the remainder of the property for light industrial use.
9. The Purchase Agreement and the Addendum to the Purchase Agreement were contingent upon obtaining Industrial zoning for the Property under the existing City of Afton zoning code.
10. The City of Afton considered changes to its official controls relating to the Property in January of 2006. The City Council amended the Comprehensive Plan to include the Property within the boundaries of the Industrial zone, and removed language describing the Industrial zone as a “buffer” for residential development. The City Council also proceeded to re-zone the Property as Industrial under the City’s zoning code and official map. A true and correct copy of portion of the City of Afton Comprehensive Plan, for the Industrial zone, is attached as Exhibit B.
11. In February of 2006, the Metropolitan Council the Afton Comprehensive Plan Amendment, Ordinance 2-2006, to include Plaintiffs’ parcel in the Industrial Zone.
12. The Deed for the Property was signed and fee ownership transferred to Plaintiffs on March 1, 2006.
FOC, LLC’S ECONOMIC INTEREST IN THE PROPERTY
13. Plaintiff FOC invested in the Property to assist Atomic Properties with the construction of their facility on a 10-acre portion of the Property, and to profitably develop the remaining land consistent with the mandates of the City’s Industrial zoning regulations in place at the time of purchase.
14. Prior to January 2007, FOC began soliciting potential projects and buyers for the approximately 60 acres of the Property not slated for the Atomic Properties facility. FOC committed time, money and other valuable resources to the marketing and proposed legal development of the Property.
ATOMIC PROPERTIES’ ECONOMIC INTEREST IN THE PROPERTY
15. Plaintiff Atomic Properties invested in the property specifically to construct a headquarters and manufacturing facility on a 10-acre parcel of the Property.
16. Atomic Properties made the City of Afton aware of their intent to build on the Property. On November 29, 2005, the Planning Commission and the City Council received a Memorandum from then Afton City Administrator, Mitch Berg, regarding Plaintiff Atomic Properties desire to build a 70,000-80,000 square foot light industrial building on the Property. A true and correct copy of the Memorandum from Mitch Berg to the Planning Commission and City Council is attached as Exhibit C.
17. The proposed use of the Property was consistent with the City of Afton’s Industrial zoning as it existed at the time Atomic Properties purchased an interest in the Property.
18. From the closing on the purchase of the Property until Fall of 2006, Plaintiff Atomic Properties hired an Afton architectural firm and engineering consultants to design the new building to be used as a new office and manufacturing facility, study the site for wetland and environmental compliance, and surveyors to complete boundary and topographic surveys.
19. The architect commissioned by Atomic Properties was on the Afton design review committee and made a presentation of the Atomic Properties building designs to that committee in the Fall of 2006.
20. Through January 1, 2007, Plaintiff Atomic Properties had spent over $150,000 on design and consultation services specifically for the purpose of constructing a light-industrial building on the Property in conformance with then-existing City of Afton zoning laws.
THE CITY ACTS TO PREVENT ECONOMIC DEVELOPMENT
21. On January 16, 2007, the City of Afton passed Ordinance 3-2007, purporting to impose a moratorium, pursuant to Minn. Stat. § 462.355, on the Industrial Zone, including Plaintiffs’ Property. The stated purpose of the moratorium was to prevent development while the City considered revisions to the official controls governing the land included in the named zones.
22. Ordinance 3-2007 was legally deficient and failed to create a valid moratorium. The Ordinance failed to identify a process or study, which would statutorily justify a moratorium. By its terms, however, Ordinance 3-2007 as passed in January expired on July 21, 2007.
23. Because of the six-month term of Ordinance 03-2007, Plaintiffs were unable to perform any further actions toward development of the Property. Plaintiff FOC, LLC, in particular, lost all value of previous sales and marketing efforts directed at developing the Property.
24. Recognizing that the moratorium was due to expire, and having failed to consider the contemplated restrictions to its zoning during the original moratorium period, the City attempted to extend its moratorium on development. On June 22, 2007, the City published a Notice of Public Hearing in the “legal services” classified ad section of its official newspaper, the St. Paul Pioneer Press. Said notice did not comply with the legal requirements for a Notice of Public Hearing, a copy of which is attached and incorporated into this complaint as Exhibit D.
25. On July 3, 2007, the Afton City Council passed Ordinance 08-2007, purporting to extend the moratorium (“moratorium extension”), pursuant to Minn. Stat. § 462.355, on the Industrial Zone, including Plaintiffs’ Property.
26. Ordinance 08-2007 failed to make any of the factual findings required by Minn. Stat. § 462.355, subd. 4(c). No facts existed which would have allowed the City to make the proper findings of fact required by statute, even had the City re-considered the language of the Ordinance.
The Recommendations to “Down-Zone” Plaintiffs’ Property
27. On July 9, 2007, the Afton Planning Commission held a meeting in which it considered restrictions and changes to the Industrial Zone.
28. The Planning Commission reviewed a memorandum from Northwest Associated Consultants, Inc. (“Consultants”) regarding permitted uses in the Industrial District, and made seven recommendations regarding permitted uses and impervious surface in the City of Afton Industrial District. A copy of the recommendations is attached and incorporated into this complaint as Exhibit E. None of the seven recommendations dealt with landscaping or architectural standards, which were the subjects of two of the four Ordinances, subsequently passed by the Afton City Council on August 7, 2007.
29. At the same meeting, the Planning Commission recommended to the Afton City Council “down-zoning” Plaintiffs’ Property, exclusive of the other properties in the Industrial Zone. The Planning Commission made no mention of amending Afton’s Comprehensive Plan. The Commission adopted this recommendation against the advice of the Consultants and the City Administrator.
30. On July 17, 2007, the Afton City Council accepted the seven recommendations for proposed changes to the Industrial Zone and requested ordinances implementing the recommendations.
31. On July 26, 2007, the City of Afton issued Public Notices (“Notices”) regarding four Proposed Ordinances (“the Ordinances”), all of which would amend the City’s Industrial District Zoning regulations. The Notices indicated that the full texts of the Ordinances were available at Afton City Hall.
32. Upon seeing the Notices, Charlie Devine (a partner in FOC, LLC) went to Afton City Hall to obtain copies of the Ordinances, and discovered that only two of the four ordinances were available.
33. Plaintiffs sought an appraisal anticipating the economic effect of the City’s proposed changes to the zoning of their Property. On August 3, 2007, Plaintiffs’ appraiser opined that the City’s zoning proposals, if adopted, would decrease the value of Plaintiffs’ real property by over eight million dollars. A true and correct copy of the Letter from Most Appraisals & Associates is attached as Exhibit F.
34. On August 6, 2007, the Afton Planning Commission met to discuss the four proposed Ordinances.
35. During the Planning Commission public hearing, a representative of the Watershed District made comments regarding the impervious surface in the industrial zone. The representative of the Watershed District admitted, in relation to the proposed Ordinance pertaining to impervious surface restrictions, that the Watershed District has not performed impervious related studies on Plaintiffs’ Property, since Plaintiffs’ property became re-zoned to Industrial.
36. At the August 7, 2007 Afton City Council meeting, the Planning Commission did not approve the Watershed District to conduct a study regarding Plaintiffs’ parcel.
37. The Planning Commission also discussed and worked from a map relating to the Industrial District. The copy available to the public was not labeled correctly and included land not in the Industrial Zone. A copy of the map available to the public is attached as Exhibit G.
38. Afton City Planner Kimberly Holien presented a written report with findings to the Planning Commission at the meeting. Copies of the report were not made available to the public before or during the meetings.
39. Afton City Planner Kimberly Holien failed to present any findings that would support the current Afton Comprehensive Plan.
40. The Planning Commission Chair, Jim Fox, presented a chart of proposed uses that were adopted after the public hearing. A copy of Mr. Fox’s chart was not made available to the public during the Planning Commission public hearing.
41. Upon information and belief, Planning Commission Chair Person Jim Fox referred to Plaintiffs’ Property as a “transitional piece” of land, indicating that the Property should not be developed and suggested it be used as a buffer to the remaining industrial zone.
42. During the hearings, a representative of the Watershed District made comments in which the representative admitted, in relation to the proposed Ordinance pertaining to impervious surface restrictions, that the Watershed District has not performed impervious related studies on Plaintiffs’ Property, since Plaintiffs’ property became re-zoned to Industrial.
43. Upon information and belief, the Watershed District report did not suggest or recommend changing the maximum impervious permitted to only 10% for Plaintiffs’ Property.
44. Environmentally friendly low impact development (“LID”) methods for the Industrial District, including Plaintiffs’ property, had been previously approved by the Watershed District in June of 2006.
45. Representatives of Plaintiffs presented a letter to the City Council and Planning Commission. Representatives of Plaintiffs also presented testimony at the Planning Commission public hearing that the Ordinances would eliminate all reasonable uses of the property.
46. The Planning Commission made many changes to the proposed Ordinance after closing the public hearing. Most of the changes were not based on comments or discussion raised during the public hearing.
47. The Afton City Council met on August 7, 2007, and made additional changes to the proposed Ordinances, such as requiring a 200-foot buffer for Industrial Parcels south of Hudson Road, without allowing further public input.
48. At its August 7, 2007 meeting, the Afton City Council passed the Ordinances, as follows: 1) an ordinance amending section 12-134 of the Afton City Code relating to permitted uses in the Industrial District, and the establishment of multiple Industrial Districts; 2) an ordinance amending section 12-194 of the Afton City Code relating to exterior storage in the industrial district; 3) an ordinance amending section 12-143 of the Afton City Code relating to the Industrial District, establishing architectural standards, landscaping requirements, buffer yard requirements, and lighting requirements specific to the Industrial District(s); 4) an ordinance amending section 12-132 of the Afton City Code relating to impervious surface in the industrial zone. Copies of the ordinances are attached as Exhibits H, I, J and K.
49. The ordinance amending section 12-134 of the Afton City Code relating to permitted uses in the Industrial District, severely restricts the use of Plaintiffs’ real property to uses, which are only applicable to the Industrial Zone site I-1-C, such as agricultural, forest, single story office buildings, and restricted height light industrial buildings.
50. The ordinance amending section 12-194 of the Afton City Code relating to exterior storage in the industrial district, requires that exterior storage areas must be screened from view with a 95% opaque screen.
51. The ordinance amending section 12-143 of the Afton City Code relating to the Industrial District, establishing architectural standards, landscaping requirements, buffer yard requirements, and lighting requirements specific to the Industrial District(s), including a minimum twenty five percent (25%) glass coverage on all exterior building facades and a buffer yard of 200 feet. At the City Council meeting, Council determined that buffer yard only applied to property south of Hudson Road, Plaintiffs’ parcel.
52. The ordinance amending section 12-132 of the Afton City Code relating to impervious surface in the industrial zone decreases the maximum impervious surface from 65% down to 10% for the I-1-C District, Plaintiffs’ parcel.
53. At no point during the Afton City Council July 17, 2007 meeting; the August 6, 2007 City of Afton Planning Commission Meeting or the August 7, 2007 Afton City Council Meeting, did any Planning Commission member or City Council member make findings of, or even mention, how the Ordinances would help increase tax revenue, that being the sole Comprehensive Plan goal for the Industrial Zone.
54. At the same August 7, 2007 Afton City Council meeting, prior to passing the above-referenced Ordinances, the City Council gave a waiver to Chandler Properties, LLC to construct a 32,000 square foot addition to their parcel, located in the Industrial zone.
55. On August 7, 2007, the City of Afton also conducted a budget meeting, at which a 2008 budget was proposed, including a 76.1% Tax Levy increase for the 2008 property tax levy.
56. Each allegation set forth above is incorporated in each claim for relief below.
COUNT I: DECLARATORY JUDGMENT
ACTS INVALID AS CONTRARY TO STATUTE (MINN. STAT. § 473.858)
57. The City of Afton’s Comprehensive Plan states the only goal for the City’s Industrial Zone is to develop a sound tax base for the community and Independent School District #834, thereby avoiding excessive tax burdens on residential property owners.
58. The City did not take any action to amend the Comprehensive Plan on August 7, 2007.
59. None of the Ordinances passed by the Afton City Council on August 7, 2007 mention the Comprehensive Plan’s statement of goals for the Industrial Zone.
60. All of the Ordinances serve to severely limit or completely prevent economic development, particularly industrial development, within the Industrial Zone, jeopardizing the City’s tax base and placing added burden on the City’s residents and businesses.
61. Shortly before the City adopted the four Ordinances preventing industrial development in the Industrial Zone, the City, at a Budget Meeting, proposed a 78% increase in the City’s tax levy for 2008.
62. The City acted contrary to statute and in excess of its legal authority in adopting an ordinance amending section 12-134 of the Afton City Code relating to permitted uses in the Industrial District, and the establishment of multiple Industrial Districts.
63. The City acted contrary to statute and in excess of its legal authority in adopting an ordinance amending section 12-194 of the Afton City Code relating to exterior storage in the industrial district.
64. The City acted contrary to statute and in excess of its legal authority in adopting an ordinance amending section 12-143 of the Afton City Code relating to the Industrial District, establishing architectural standards, landscaping requirements, buffer yard requirements, and lighting requirements specific to the Industrial District(s).
65. The City acted contrary to statute and in excess of its legal authority in adopting an ordinance amending section 12-132 of the Afton City Code relating to impervious surface in the industrial zone.
66. The four enactments stated in paragraphs 56 through 59 above are arbitrary as a matter of law, invalid and unenforceable.
COUNT II: APPEAL OF ZONING DECISION (MINN. STAT. § 462.361)
67. As alleged above, the City took actions relating to the zoning of Plaintiffs’ Property on August 7, 2007.
68. The City Council adopted an Ordinance Amending Section 12-132, significantly exceeding any surrounding community’s impervious surface restrictions, without making sufficient findings that the extreme restrictions were justified by any legitimate interest in the public health, welfare, or safety.
69. A finding for Ordinance Amending Section 12-132, alleges that the Ordinance will mitigate the impact of industrial development on the surrounding area as an increase in the impervious surfaces would likely increase flood levels and cause homes in the neighboring Rural Residential districts to flood. Plaintiffs do not believe that there have been any studies showing that the previous ordinances would likely increase flood levels and cause homes in the neighboring Rural Residential districts to flood.
70. A finding for Ordinance Amending Section 12-132, alleges that the Ordinances supports the Comprehensive Plan policy to restrict industrial uses to those which do not pose a threat to air or groundwater by reducing the maximum impervious coverage allowed in the Industrial Districts. Reducing the maximum impervious coverage allowed in the Industrial Districts is not in the Comprehensive Plan for the Industrial zone. Additionally, previous City Council’s implemented low impact development methods (“LID’s”) to address groundwater and air.
71. A finding for Ordinance Amending Section 12-132, alleges that the Ordinance is consistent with the City’s Comprehensive Plan policy to implement limited growth policies and to maintain rural environment and atmosphere. There is no language for the Industrial District of the Afton Comprehensive Plan to “implement limited growth policies” or “maintain the rural environment and atmosphere.” The Industrial District is located next to Interstate 94 and includes numerous megawatt power-lines.
72. The City Council adopted an Ordinance Amending 12-134 eliminating most of the uses previously permitted under the Industrial Zone regulations, which would be understood as “industrial,” without making sufficient findings that such an act was justified by any legitimate interest in the public’s health, safety or welfare.
73. A finding for Ordinance Amending Section 12-134, alleges that the Ordinance is supportive of results obtained through the citywide survey conducted on the Industrial Corridor from 2006-2007. This survey had a very low response rate (less than 10%) of Afton residents. The survey was not done by a professional survey company and it was not sent to all property owners or any landowners in the Industrial District.
74. Another finding for Ordinance Amending Section 12-134, states that the ordinance will assist the City in establishing light industrial uses that are compatible with the surrounding neighborhood. This finding is inappropriate as the “buffer” related language, for the Industrial zone, was removed in January of 2006, from the Comprehensive Plan; the Comprehensive Plan does not call for the Industrial District to be compatible with the Residential District.
75. A finding for the Ordinance Amending Section 12-134, alleges that the Ordinance supports the Comprehensive Plan goal of providing a solid tax base. Nevertheless, this finding fails to outline how the Ordinance will support a solid tax base. These ordinances do not help to decrease the tax burden of residences as the ordinances will decrease land values and will decrease both the size and number of businesses in the Industrial District.
76. A finding for the Ordinance Amending Section 12-134, alleges that the ordinance promotes the public health, safety, and general welfare of the City by protecting residents in adjoining properties from excess noise, traffic flows, human traffic and waste related to industrial land uses. However, there were no prior studies showing any of these as problems. Further, many uses in the Industrial zone require Conditional Use Permits, in which the City may place conditions to protect the public health, safety, and general welfare.
77. The City Council adopted an Ordinance Amending Section 12-143 creating new and heavily burdensome setback, screening, buffer and landscaping requirements upon properties in the Industrial Zone, some of which contradict other applicable regulations elsewhere in the Zoning Code, without making sufficient findings that such an act was justified by any legitimate interest in the public’s health, safety or welfare.
78. The City Council adopted an Ordinance Amending Section 12-194, relating to exterior storage placing further restrictions upon properties in the Industrial Zone, without making sufficient findings that such an act was justified by any legitimate interest in the public’s health, safety or welfare.
79. According to a finding for the Ordinance Amending Section 12-194, the proposed zoning district change is “consistent with the City’s Comprehensive Plan policy to utilize architectural standards, berming, screening, sound, odor…” The portion of the Afton Comprehensive Plan relevant to the Industrial District does not call for more restrictive ordinances. Also, the City of Afton already had ordinances in place to screen Industrial uses.
80. The findings for all four of the Ordinances are inaccurate and not based on fact.
81. The four Ordinances passed on August 7, 2007 relating to the Industrial Zone are arbitrary as a matter of law because they directly contradict the specified standards for the Industrial Zone stated in the City’s Comprehensive Plan.
COUNT III: DENIAL OF EQUAL PROTECTION OF THE LAWS
82. Incorporating all allegations made above, the City has taken the described actions with the intent to drive Plaintiffs and other individuals engaged in light industrial businesses out of the City of Afton.
83. The City has favored similarly situated landowners preferring rural, agricultural or low-density residential uses for their property within the City, regardless of zoning.
84. Additionally, the City has even favored similarly situated landowners in the industrial area, as on August 7, 2007, the City Council gave a waiver to Chandler Properties, LLC to construct a 32,000 square foot addition to their parcel, located in the Industrial zone.
85. The City has engaged in conduct showing a desire to prevent landowners in the Industrial Zone from learning of the proposed changes and presenting an opposing viewpoint, such as posting inadequate notices, failing to have public materials available, and introducing significant changes after closing public debate.
86. The City lacks a rational basis for its actions.
87. The actions of the City directly contradict its own statement of policy concerning the health, welfare and safety of its citizens contained within the Comprehensive Plan, in making the sole goal of the City’s Industrial Zone producing significant tax revenue and reducing the tax burden on residents and commercial land uses.
88. The City’s acts contradicting its existing Comprehensive Plan are arbitrary as a matter of law and therefore invalid.
89. The City’s actions have caused Plaintiffs to incur damages in excess of $50,000.
COUNT IV: VIOLATION OF OPEN MEETING LAW
90. Written and printed materials distributed to or available to members of the Planning Commission on August 6, 2007, considered by the Planning Commission at a public meeting, and incorporated in the Planning Commission’s report to the City Council, were not made available to the public during the discussion of the proposed ordinances relating to Plaintiffs’ Property.
91. Planning Commission Chair Jim Fox and City Administrator Shelly Strauss are responsible for providing the public copies of materials distributed to commission members at meetings of the Afton Planning Commission.
92. The failure to make some or all of the materials available to the public was intentional and designed to prevent Plaintiffs and other Industrial Zone landowners from making informed comment in opposition to the proposals before the Planning Commission.
COUNT V: DECLARATORY JUDGMENT (INVALID MORATORIUM)
93. As alleged above, the moratorium adopted by the City fails to identify a legitimate process required to impose a moratorium under Minn. Stat., § 462.355, subd. 4(c).
94. The City lacked statutory authority to impose a zoning moratorium as it purported to do by adopting Ordinance 03-2007, and therefore the Ordinance, while in effect, was invalid and unenforceable.
95. As alleged above, the moratorium extension adopted by the City fails to address any of the statutory criteria required to extend a zoning moratorium under Minn. Stat. §462.355, subd. 4(c).
96. The City lacked statutory authority to extend the zoning moratorium as it purports to do by adopting Ordinance 08-2007, and therefore the Ordinance is invalid and unenforceable.
97. The City’s acts in adopting Ordinances 03-2007 and 08-2007 without statutory authority have cause Plaintiffs to incur damages in excess of $50,000.
COUNT VI: INVERSE CONDEMNATION
98. The highest and best use of the Property is light industrial building and development.
99. Plaintiffs’ investment-backed expectations were to construct light-industrial facilities on the Property in conformance with the zoning controlling the Property at the time of purchase, or to sell the Property or portions thereof to buyers intending an identical use.
100. Through the actions described above, particularly in adopting four Ordinances designed to eliminate the possibility of reasonable economic development on the Property, the City has deprived Plaintiffs of all beneficial use and enjoyment of the Property.
101. Plaintiffs presented evidence of the economic harm likely to result from enacting the Ordinances prior to the City’s adoption of the measures.
102. The City has so deprived Plaintiff without offering or paying just compensation.
PRAYER FOR RELIEF
Wherefore, Plaintiffs request judgment against Defendant and an entry of an Order as follows:
A. Awarding damages to Plaintiffs in an amount in excess of $50,000, the exact amount to be determined at trial;
B. Declaring each of the four Ordinances referenced above invalid and unenforceable as acts in excess of the City’s statutory authority;
C. Vacating the City’s action adopting each of the four Ordinances under Minn. Stat. § 462.361 as the Ordinances are not supported by sufficient findings stating a rational basis for the acts;
D. Determining that the City’s actions culminating in the adoption of the four Ordinances violate Plaintiffs’ rights to equal protection, and declaring the Ordinances unconstitutional on that basis;
E. Issuing a permanent injunction to prohibit the City from publishing, enacting and enforcing the Ordinances, as the Ordinances are invalid and unenforceable;
F. Ordering payment of a civil penalty by Defendants Jim Fox and Shelly Strauss for each violation of the Open Meeting Law alleged above;
G. Declaring the moratorium enacted and extended by the City invalid and unenforceable as an act exceeding the City’s statutory authority;
H. In the alternative, determining that the City’s conduct has deprived Plaintiffs of all beneficial use of the Property, and either awarding Plaintiffs just compensation for the lost value of the Property, or issuing a writ of mandamus requiring Defendant to initiate condemnation proceedings under Minnesota Statutes, Chapter 117.
I. Awarding Plaintiffs its reasonable costs and disbursements incurred as a result of the actions of the City, and reasonable attorneys’ fees under the Open Meeting Law and other applicable authority; and
J. For such other and further relief as the Court may deem just and equitable.
Dated: ___________________, 2007 KELLY & FAWCETT, P.A.
Patrick J. Kelly (0054823)
Christine M. Swanson (0343833)
2350 UBS Plaza
444 Cedar Street
St. Paul, MN 55101
Fax: (651) 223-8019
ATTORNEYS FOR PLAINTIFFS
ACKNOWLEDGEMENT REQUIRED BY
MINNESOTA STATUTE, SECTION 549.211, SUBDIVISION 2
The undersigned hereby acknowledges that pursuant to Minnesota Statute, section 549.21, subdivision 2, costs, disbursements and reasonable attorney and witness fees may be awarded to the opposing party or parties in this litigation if the Court should find that the undersigned acted in bad faith, asserted a claim or defense that is frivolous and that is costly to the other party, asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass or committed a fraud upon the Court.
Christine M. Swanson
Dated this ______ day of ____________, 2007.