IN THE UNITED STATES DISTRICT COURTstmedia.startribune.com/documents/Lake+Elmo+Response.pdf ·...

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‘

Case 0:10-cv-02074-JNE-FLN Document 17 Filed 06/16/10 of 43

2 2

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)).


3 3

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.


"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").

4 4

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‖).


2

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).

5 5

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).


3

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.

6 6

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.


7 7

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.)


4

CSFGI abuts a portion of Highway 36 east of Highway 694 and directly west of theOak Park Heights. (Klatt Aff. at,-r 5.)

8 8

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.)


9 9

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


5 6

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.

10 10

―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.


11 11

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


7

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

12 12

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.)


8

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.)

1 13

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.)


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).

14 14

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).


10

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.)


16 16

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


17 17

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.


18 18

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,


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.


20 20

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


21 21

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


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.


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


24 24

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-


25 25

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


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,


27 27

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


28 28

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.


29 29

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-


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.)


31 31

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


32 32

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


33 33

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


34 34

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,


35 35

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


36 36

―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


37 37

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.


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).


39 39

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


40 40

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


41 41

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


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

[email protected]

[email protected]

(612) 373-0830

Attorneys for Defendants

s/ Jenny Gassman-Pines


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