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Judge Fabian hears arguments in Maust vs. city of Preston


Fri, Nov 28th, 2003
Posted in Features

Judge James Fabian listened to two hours of oral arguments from attorneys on Friday, November 21 in the Elaine and Robert Maust mandamus action against the city of Preston.

In their suit, the Mausts maintain that they met all of the requirements for a building permit and that the city councils decision to deny them a permit was arbitrary and capricious. The city, in response, contends that their decision to deny the permit was reasonable. The council voted three to two to deny a permit to the Mausts on October 28 because 1) the application for a permit was incomplete and 2) the council felt that it was prudent to wait until pending litigation was completed.

The Mausts were represented by Andy Brown, while the citys attorney in the case was John Baker. The hearing was held at room 108 of the Fillmore County Office Building.

Prior to the hearing, the two lawyers and Judge Fabian conferred by teleconference to identify six issues of law that centers around the case.

1).Whether the Mausts must establish that the city had a clear duty to grant them the building permit?

2).What grounds were given in the city councils October 28 resolution to deny the Maust a building permit?

3).Whether any grounds beyond those given in the October 28 resolution should be considered, and if not, whether the grounds given on October 28 provide sufficient grounds to deny the Mausts a building permit?

4).Whether the Minnesota Environment Policy Act is violated if the city approves the Mausts permit?

5). Whether the Mausts must show irreparable harm for mandamus to be issued?

6).Whether the interim moratorium enacted on November 18 by the city council is applicable to the Mausts building permit application?

In his opening remarks, Brown told the court that the action of the city council was a last minute desperate attempt to stop Heartland.

Brown argued that the application for a building permit dated September 26 was for a peak power plant, which does not require the more stringent environmental permits. He said the permits for the tire burning plant would come later. Brown also said that the Mausts had met all the requirements laid out by the city and that a site plan had been on file with the city. He said there were insufficient reasons to deny the Mausts the permit.

Brown said there were no policy issues in this case and called the action of the council a political one.

Baker, in his remarks, said that the petitioner had put their spin on the facts.

He said that the citys actions were reasonable, in that it is up to petitioners (Mausts) to show that they have fully completed their application.

Baker told the court that the Mausts strategy of applying to remodel their existing building and then planning to apply later for Heartland related activities created problems for the city.

They divided up their building permits, Baker said. This piecemeal approach was a practical problem for the city, as it relates to the first of many permits to come.

Most of the arguments delivered by both sides during the hearing were over the details surrounding the legal issues.

Fabian only asked a few questions during the proceedings.

After Baker had sited the incompleteness of the application, and Brown had read the resolution of October 28 listing the reasons for denial, Fabian asked Baker, Is there anything else in these minutes that refer to the incompleteness of the application?

When Baker implied that there were not, Brown jumped in to say, This is a plain reading of the resolution.

Fabian has 90 days in which to rule, however it is expected that the Judge will reach a decision sometime before December 2, when a court in Rochester will hear a suit brought by SEMEP against the MPCA for not requiring an EIS for the Heartland plant.

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