9c. Moon Valley Aggregate Update + _
' CAMPBELL, KNUTSON SCOTT & FUCHS P.A.
Attorneys at Law
Thomas J. Campbell
' Roger N. Knutson (612)456-9539
Thomas M. Scott Fax(612)456-9542
Gary G. Fuchs
James R. Walston
Elliott B. Knetsch
Gregory D. Lewis April 30, 1991
Dennis J. Unger
' CHANHASSEN CITY COUNCIL
' Donald J. Chmiel, Mayor
Tom Workman, Councilman
Ursula Dimler, Councilwoman
Mike Mason, Councilman
' Richard Wing, Councilman
RE: Moon Valley Aggregate, Inc. v. City of Chanhassen
Dear Mayor and Councilmembers:
Enclosed is a copy of the Count's decision in the Moon
Valley lawsuit against the City. The City has won round one. The
Court ruled that the City can require Moon Valley to obtain a
permit from the City if it wishes to continue mining. The Court
' gave Moon Valley thirty (30) days to file its application. If it
does not do so, we can go back to Court and ask that the
operation be shut down. If the City denies the permit or if a
permit is approved with conditions, the Court retains juris-
diction to review the City's action.
• - yours,
C. PB i TSON, SCOTT
FUCHS, P.A.
0111°.
B .
! .ger N. Knutson
RNK:srn
Enclosre
' cc: Don Ashworth
Paul Krauss
Jo Ann Olsen
1
' Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122
' , UCr.100(A.89) •
I "3 c°of Fling,Entry,DocScst;nq
II Gerald S. Duffy
Anthony J. Gleekel
100 Washington Square Suite 1350
STATE OF MINNESOTA
II Minneapolis, MN 55401 •
COUNTY OF. CARVER
NOTICE OF: •
IE ia FILING _
Thomas M. Scott
I Campbell, Knutson, Scott & Fuchs PA El ENTRY OF JUDGMENT
3460 Washington Dr., Suite #202
Eagan, MN 55122 0 DOCKETING OF JUDGMENT
I -
I
L— •
IN RE: Moon Valley Aggregate, Inc. v.
City of Chanhassen COURT FILE NO. 90-27099
,-
' II You are hereby notified that in the above entitled matter that on 4-25-91
a: -
' Findings and Order was duly filed.
•
IIx Order was duly filed.
Findings of Fact, Conclusions of Law and Order for Judgment was duly
II filed. -
/
3r
Judgment was duly entered.
IIJudgment was duly docketed in the amount of $ • • " ' •
Other
Dated: 4-25-91 Ck-Y � A. VANEYLL, Court Ac�ninistrator
1
Copies attached. By:
I Deputy
Phone (612)-
Court Administration
Carver County Courthouse
I
. 600 East_4th Street
Chaska, MV 55318
II A true and correct copy of this Notice has been served by mail upon the parties
herein at the last known address of each, -pursuant to Minnesota Rules of Civil
Procedure, Rule 77.04 f
I.
t FILEE1
DISTRICT COURT '
APR 25 1991
STATE OF MINNESOTA CAry�� COUNTY DISTRICT COURT
COUNTY OF CARVER A. VsnEv;i FIRST JUDICIAL DISTRICT
courc AMINISTRATO1
CASE TYPE: 10/DECLARATORY JUDGMENT
Moon Valley Aggregate, Inc. , '
a Minnesota corporation,
Plaintiff, '
v. ORDER AND MEMORANDUM
AND JUDGMENT
City of Chanhassen,
Court File No. 90-27099
Defendant.
1
The above entitled matter came on before the Honorable
Philip T. Kanning, Judge of the District Court for the State of
Minnesota on the 12th day of April, 1991, pursuant to I
Defendant's Motion for Summary Judgment and Plaintiff's Motion
for a Temporary Injunction. Gerald S. Duffy, Attorney at Law, and
Anthony J. Gleekel, Attorney at Law, appeared for and on behalf
of Plaintiff; and Thomas M. Scott, Attorney at Law, appeared for '
and on behalf of Defendant. I
Based upon the proceedings, the submissions of counsel, the
affidavits on file, and all of the files and records, THE COURT
HEREBY MAKES THE FOLLOWING:
ORDER '
1. Defendant's motion for Summary Judgment is granted as
follows: The City of Chanhassen, through the exercise of its
police power, has the legal authority to adopt an ordinance ,
requiring Plaintiff Moon Valley to obtain a permit regulating
Plaintiff's nonconforming use of the subject property for mining ,
1
i
•
purposes.
2 . Plaintiff Moon Valley shall make an application for a
' permit pursuant to Ordinance #128, as adopted by the City of
' Chanhassen, within 30 days of the date of this Order. In the
event that Plaintiff fails to make such application for an
Ordinance #128 permit within 30 days of the date of this Order,
the City of Chanhassen shall have the option to seek an order of
this court requiring Plaintiff Moon Valley immediately cease its
' mining operations. Said permit shall be considered according to
the City of Chanhassen's normal course of permit application
' determinations.
3 . Plaintiff's motion for a Temporary Injunction is reserved
' pending a determination by the City of Chanhassen on Plaintiff's
' Ordinance #128 permit application. If such determination results
in any decision but an approval, Plaintiff may petition this
court for an expedited determination of Plaintiff's pending
request for a Temporary Injunction.
' 4. Defendant's motion to dismiss Plaintiff's Complaint in
its entirety and to have judgment entered in favor of Defendant
' is denied at this time.
' 5. The attached memorandum is incorporated herein.
6. All other motions of the parties not addressed above are
' denied.
Date: April 25, 1991. BY THE COURT:
c5-K/
JUDGMENT Phi ip T. Panning:s
udge
I hereby certify that the foregoing Order cons • utes the- Iudgmen in this
matter.
Dated: 4-25-91 j- Z/&et.
' Joyc'e A. VanEyll
Court Administrator
•
•
• MEMORANDUM 1
This matter comes before the court on cross-motions of the
parties . Plaintiff seeks a temporary injunction against
Defendant, enjoining Defendant from enforcing Ordinance #128
pending the disposition of the underlying Declaratory Judgment
suit. Defendant has requested Summary Judgment upholding its
power to adopt Ordinance #128 requiring Plaintiff to obtain a
permit to continue its mining operations on the property.
Defendant also seeks, through its Summary Judgment motion, to
have Plaintiff's entire Complaint dismissed and have judgment
entered in favor of Defendant on its Counterclaim.
The relevant facts for purposes of this ' memorandum are that
Plaintiff, Moon Valley Aggregate, Inc. , operates a mineral
excavation and mining operation on an approximately 80 acres site
located at 100 Flying Cloud Drive in Carver County within the
City of Chanhassen. This operation exists as a prior,
nonconforming use for purposes of zoning ordinance application.
Defendant, the City of Chanhassen, adopted Ordinance #128,
effective May 24, 1990, which would require mining operations
such as Moon Valley to obtain a permit in order to continue
operation. Existing "earth work" operations were given six months
to obtain the required permit, or cease business. Moon Valley is
the only "earth work" business presently operating in Chanhassen.
In order to obtain the requisite "earth work" permit, such a
business is required to take certain actions, including
presentation of a restoration plan for the land, providing an
irrevocable letter of credit to insure construction of necessary
improvements and conditions, complying with specified setback
limitations, providing fencing if specific vertical slopes were
present in the excavation area, complying with specified
appearance conditions, and operating within specified standards
covering such things as noise, hours of business, water quality,
wetland protection, and pollution.
Moon Valley did not forthwith set about seeking a permit
from the City of Chanhassen. Instead, Plaintiff filed suit for a
Declaratory Judgment Action on October 1, 1990. The basic gist of
Plaintiff's suit is that Plaintiff seeks a declaration of its
legal rights stating that Ordinance #128 is an illegal exercise
of the City of Chanhassen's police power because the ordinance
violates Plaintiff's nonconforming use rights , violates
Plaintiff's vested property rights in operating its business, and
violates Plaintiff's Due Process and Equal Protection rights. It
is now mid-April, 1991. Plaintiff is operating without a permit
in technical violation of Ordinance #128. Defendant has filed its
counterclaim seeking to prohibit Plaintiff's mining operations
until such time as an "earth work" permit has been successfully
obtained. The above facts are not presently in dispute between
the parties. '
3
Accordingly the court will first consider Defendant's motion
for Summary Judgment. Defendant seeks an order of the court
' declaring that the City of Chanhassen has the legal authority to
adopt an ordinance, specifically the adopted Ordinance #128 ,
requiring Plaintiff, a prior nonconforming use, to -obtain a
permit for the use of Plaintiff's property for mining purposes.
' Nonconforming uses - of property existing prior to the time a
municipality adopts an ordinance restricting usage of the
pr.=-rty in question are subject to reasonable regulation as
' allowe• by the state's nonconforming zoning law. Minn. Stat. 8
394.22, bd. 2 provides:
' 'The board may by ordinance adopt such regulations not
contrary to law as it deems desirable or necessary to
classify, regulate and control, reduce the number or
extent of and provide for the gradual elimination of
' nonconformities and occupancies, including requiring
nonconformities to conform with the official controls
of the county or terminate within a reasonable time as
' specified in the official controls. The board may by
ordinance impose upon nonconformities additional
regulations relating to appearance, signs, lighting,
hours of operation and other esthetic performance
I . . characteristics including but not limited to noise,
heat, glare, vibrations and smoke. "
' See City of Ruthland v. Keiffer, 124 Vt. 357, 205 A.2d 400
(1964) ; Goldblatt v. Hemptstead, 369 U.S. 590, 594-595, 82 S.Ct.
987, 8 L.Ed.2d 130,134 (1962) ; Lawton v. Steele, 152 U.S. 133,
137, 14 S.Ct. 499, 38 L.Ed. 385, 388 (1894) . Such interference
through regulation interposed on behalf of the public must be
justified by the interests of the public, and the means of
regulation must be reasonably necessary to accomplish that public
' purpose while not being unduly oppressive upon the party being
regulated. Goldblatt, 369 U.S. at 594-595; /.Lawton, 152 U.S. at
137. The party challenging the reasonableness of an ordinance has
' the burden of demonstrating the unreasonableness of such
ordinance. Goldblatt, 369 U.S. at 596. Accordingly, Defendant is
entitled to summary judgment to the effect that it has the legal
authority to adopt a reasonable ordinance requiring Plaintiff
' obtain a permit for the use of Plaintiff's property for mining
purposes.
' As to the matter of Plaintiff's application for a Temporary
Injunction, the court is cognizant of the fact that Plaintiff is
in technical violation of Ordinance #128, and if not for the
present legal action Defendant would be legally entitled to
' require Plaintiff to cease its mining operations. Therefore
Plaintiff's Declaratory Judgment action and Plaintiff's request
for a Temporary Injunction are prbcedurally proper before the
' court. Nevertheless, the court is in the difficult position of
having to make a determination of Plaintiff's entitlement to a
' 4
Temporary Injunction or, subsequently, Declaratory Judgment,
without having before it the Defendant's determination of
Plaintiff's entitlement or lack thereof to an Ordinance #128
permit. Until such a determination, the court cannot make a
decision upon the Temporary Injunction or a final decision on the -
Declaratory Judgment action. Therefore, the court reserves a
ruling on Plaintiff's request for a Temporary Injunction pending
Plaintiff's compliance with and Defendant's actions with respect
to the attached Order of this Court.
(4) .
•
•
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•
' CAMPBELL, KNUTSON, SCOT & FUCHS, P.A.
Attorneys at Law RECEIVER
Thomas J. Campbell
APR 3 0 1991
J p
Roger N. Knutson �1�Y OF ( HtiNHASS (612)456-9539
' Thomas M. Scott Eft Fax(612) 456-9542
Gary G. Fuchs
James R. Walston
Elliott B. Knetsch
Gregory D. Lewis
Dennis J. Unger April 29, 1991
4/, — Cc Nom'
VIA FACSIMILE TRANSMISSION
Mr. Paul Krauss
Director of Planning
' City of Chanhassen
690 Coulter Drive
Box 147
' Chanhassen, MN 55317
Re: Moon Valley Aggregate, Inc.
' vs. City of Chanhassen
Court File No. 90-27099
Our File No. 12668/201
' Dear Paul:
Enclosed please find a copy of the "Order and Memorandum and
' Judgment" which I received by mail today.
The Order essentially does the following:
1. Orders Moon Valley to submit its application for an earth
work permit by May 25, 1991;
' 2 . If Moon Valley fails to make the application by that
date, the City may then request that the Court issue an order
requiring Moon Valley to immediately cease its mining operations;
and
3 . Assuming Moon Valley submits its permit application by
May 25, the application shall then be processed in accordance with
the ordinance's procedures.
Judge Kanning has in essence decided to allow Moon Valley to
' continue to operate so long as it is making what he believes is a
good faith effort toward obtaining the permit. In that respect,
the Judge has set May 25 as the deadline for making the permit
application.
The Judge will continue to supervise the application process.
If the application is substantially incomplete or if Moon Valley
' Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122
I/
Mr. Paul Krauss
April 29, 1991
Page 2
otherwise drags its feet in connection with the processing of the
application, the City certainly has the option at any point in time
of going back to Judge Kanning and requesting that he enter an
order shutting the business down.
In sum, we will further discuss the matter once we see the
permit application submitted by Moon Valley. In the meantime, '
unless there is some dramatic change in the activities connected
with Moon Valley's operation, the Judge is permitting it to
continue the operation of its business. '
Please call if you have any questions.
Best regards. '
Very truly yours, '
C & BELFUCHSL, , P.A KNUTSON, SCOTT
By:
Thomas M. Scott ,
TMS:rlt
Enclosures ,
cc: Mr. Don Ashworth (w/enclosures)
(Also sent by regular mail. ) ,
1
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law
Thomas J. Campbell
' Roger N. Knutson
Thomas M. Scott (612) 456-9539
Gary G. Fuchs Fax (612) 456-9542
James R. Walston
' Elliott B. Knetsch
Gregory D. Lewis
Dennis J. Unger April 29, 1991 •
Mr. Gerald S. Duffy and
Mr. Anthony J. Gleekel
Siegel, Brill, Greupner & Duffy, P.A.
Attorneys at Law
100 Washington Square, Suite 1350
Minneapolis, MN 55401
Re: Moon Valley Aggregate, Inc.
vs. City of Chanhassen
Court File No. 90-27099
Our File No. 12668/201
' Dear Messrs. Duffy and Gleekel:
' Enclosed and served upon you is Defendant's Notice of Entry of
Order.
Very truly yours,
CAMPBELL, KNUTSON, SCOTT
' & FUCHS, P.A.
By:
Thomas M. Scott
TMS:rlt
' Enclosure
cc: Mr. Paul Krauss (w/enclosure)
Mr. Don Ashworth (w/enclosure)
1
Yankee Square Office III • Suite 202 • 3 60 Washington Drive • 55122
q 4 gton e Eagan, MN
1
STATE OF MINNESOTA DISTRICT COURT 1
COUNTY OF CARVER FIRST JUDICIAL DISTRICT
CASE TYPE: 10/DECL. JUDGMENT
Moon Valley Aggregate, Inc. , Court File No. 90-27099
a Minnesota corporation,
Plaintiff,
NOTICE OF
vs. ENTRY OF ORDER
City of Chanhassen, '
Defendant.
TO: PLAINTIFF MOON VALLEY AGGREGATE, INC. and its attorneys,
GERALD S. DUFFY and ANTHONY J. GLEEKEL of SIEGEL, BRILL,
GREUPNER & DUFFY, P.A. , 100 Washington Square, Suite 1350,
Minneapolis, Minnesota 55401.
PLEASE TAKE NOTICE that the attached "Order and Memorandum I
and Judgment" was entered and filed in the above-entitled action
on April 25, 1991.
Dated: April 29, 1991. '
CAMPBELL, KNUTSON, SCOTT
&t FUCHS, P.A. JA_
By:
Thomas M. Scott, #98498
Attorneys for Defendant
3460 Washington Dr. , Suite #202
Eagan, MN 55122
Telephone: (612) 456-9539
1
I
. .. _.. . .. . ... . . . =..r.;c _ _,.d4 .+-.�r,•i.+�:!�+.a.c li[a�..�-vni. i+l'_ ."•i"v°_;r.cs':-^,C;-r...
II UCF•I00(411)
Nohae of Fling.Entry.Oockatin.
1 E
Gerald S. Duffy
Anthony J. Gleekel STATE OF MINNESOTA
1 100 Washington Square Suite 1350
Minneapolis, MN 55401 •
COUNTY OF . CARVER
L
INOTICE OF: .
(- El FILING
IThomas M. Scott
Campbell, Knutson, Scott & Fuchs PA fl ENTRY OF JUDGMENT
3460 Washington Dr., Suite #202
IEagan, MN 55122 0 DOCKETING OF JUDGMENT
I
I IN RE: Moon Valley Aggregate, Inc. v. COURT FILE NO.
City of Chanhassen 90-27099
You are hereby notified that in the above entitled matter that on 4-25-91
Ia: .
IFindings and Order was duly filed.
x Order was duly filed.
IFindings of Fact, Conclusions of Law and Order for Judgment was duly
filed.
IIt Judgment was duly entered.
Judgment was duly docketed in the amount of $ • " •
I Other
�. -c C.- ��
Dated: 4-25-91 (JJYCE A. VANEYLL, Court Administrator
•' Copies attached. By:
Phone (612)- • • Deputy
Court Administration
I Carver County Courthouse
600 East 4th Street
Chaska, MN 55318
IA true and correct copy of this Notice has been served b y mail upon the parties
herein at the last known address of each, -pursuant to Minnesota Rules of Civil
Procedure, Rule 77.04
•
•
DISTRICT COURT
4PR 25 1991
STATE OF MINNESOTA CAr SIR COUNTY DISTRICT COURT
COUNTY OF CARVER __,..12y7.5 A' VEinEyll "FIRST JUDICIAL DISTRICT
cOUri:ACM;INls T RATOff
CASE TYPE: 10/DECLARATORY. JUDGMENT
Moon Valley Aggregate, Inc. ,
a Minnesota corporation,
Plaintiff, 1
v. ORDER AND MEMORANDUM
AND JUDGMENT
City of Chanhassen,
Court File No. 90-27099
Defendant.
1
The above entitled matter came on before the Honorable
Philip T. Kanning, Judge of the District Court for the State of
Minnesota on the 12th day of April, 1991, pursuant to
Defendant's Motion for Summary Judgment and Plaintiff's Motion
for Temporary Injunction. Gerald S. Duffy, Attorney at Law, and I
Anthony J. Gleekel, Attorney at Law, appeared for and on behalf
of Plaintiff; and Thomas M. Scott, Attorney at Law, appeared for
and on behalf of Defendant. 1
Based upon the proceedings, the submissions of counsel, the
affidavits on file, and all of the files and records, THE COURT
HEREBY MAKES THE FOLLOWING:
ORDER
1. Defendant's motion for Summary Judgment is granted as
follows: The City of Chanhassen, through the exercise of its
police power, has the legal authority to adopt an ordinance
requiring Plaintiff Moon Valley td obtain a permit regulating
Plaintiff's nonconforming use of the subject property for mining
.1
1
1
purposes.
2 . Plaintiff Moon Valley shall make an application for a
permit pursuant to Ordinance #128, as adopted by the City of
Chanhassen, within 30 days of the date of this Order. In the
event that Plaintiff fails to make such application for an
' Ordinance #128 permit within 30 days of the date of this Order,
' the City of Chanhassen shall have the option to seek an order of
this court requiring Plaintiff Moon Valley immediately cease its
' mining operations. Said permit shall be considered according to
the City of Chanhassen's normal course of permit application
' determinations.
3 . Plaintiff's motion for a Temporary Injunction is reserved
' pending a determination by the City of Chanhassen on Plaintiff's
' Ordinance #128 permit application. If such determination results
in any decision but an approval, Plaintiff may petition this
' court for an expedited determination of Plaintiff's pending
request for a Temporary Injunction.
4. Defendant's motion to dismiss Plaintiff's Complaint in
' its entirety and to have judgment entered in favor of Defendant
is denied at this time.
1 5. The attached memorandum is incorporated herein.
6. All other motions of the parties not addressed above are
' denied.
Date: April 25, 1991. BY THE COURT:
JUDGMENT Ph ip T. anning, udge.
I hereby certify that the foregoing Order cons • utes the--Jud n in this
1 matter.
Dated: 4-25-91 C; - ��t� ci
/Joyce A. VanEyll
Court Administrator
I/
MEMORANDUM I
This matter comes before the court on cross-motions of the
parties . Plaintiff seeks a temporary injunction against
Defendant, enjoining Defendant from enforcing Ordinance #128
pending the disposition of the underlying Declaratory Judgment
suit. Defendant has requested Summary Judgment upholding its
power to adopt Ordinance #128 requiring Plaintiff to obtain a
permit to continue its mining operations on the property.
Defendant also seeks, through its Summary Judgment motion, to ,
have Plaintiff's entire Complaint dismissed and have judgment
entered in favor of Defendant on its Counterclaim.
The relevant facts for purposes of this 'memorandum are that ,
Plaintiff, Moon Valley Aggregate, Inc. , operates a mineral
excavation and mining operation on an approximately 80 acres site
located at 100 Flying Cloud Drive in Carver County within the
City of Chanhassen. This operation exists as a prior,
nonconforming use for purposes of zoning ordinance application.
Defendant, the City of Chanhassen, adopted Ordinance #128,
effective May 24 , 1990, which would require mining operations
such as Moon Valley to obtain a permit in order to continue
operation. Existing "earth work" operations were given six months
to obtain the required permit, or cease business. Moon Valley is
the only "earth work" business presently operating in Chanhassen.
In order to obtain the requisite "earth work" permit, such a
business is required to take certain actions, including
presentation of a restoration plan for the land, providing an
irrevocable letter of credit to insure construction of necessary
improvements and conditions, complying with specified setback
limitations, providing fencing if specific vertical slopes were
present in the excavation area, complying with specified
appearance conditions, and operating within specified standards
covering such things as noise, hours of business, water quality,
wetland protection, and pollution.
Moon Valley did not forthwith set about seeking a permit
from the City of Chanhassen. Instead, Plaintiff filed suit for a
Declaratory Judgment Action on October 1, 1990. The basic gist of
Plaintiff's suit is that Plaintiff seeks a declaration of its
legal rights stating that Ordinance #128 is an illegal exercise
of the City of Chanhassen's police power because the ordinance
violates Plaintiff's nonconforming use rights , violates
Plaintiff's vested property rights in operating its business, and
violates Plaintiff's Due Process and Equal Protection rights. It
is now mid-April, 1991. Plaintiff is operating without a permit
in technical violation of Ordinance #128. Defendant has filed its
counterclaim seeking to prohibit Plaintiff's mining operations
until such time as an "earth work" permit has been successfully
obtained. The above facts are not presently in dispute between
the parties.
3
1
I
Accordingly the court will first consider Defendant's motion
for Summary Judgment. Defendant seeks an order of the court
declaring that the City of Chanhassen has the legal authority to
adopt an ordinance, specifically the adopted Ordinance #128 ,
requiring Plaintiff, a prior nonconforming use, to obtain a
' permit for the use of Plaintiff's property for mining purposes.
Nonconforming uses of property existing prior to the time a
municipality adopts an ordinance restricting usage of the
pr• = -rty in question are subject to reasonable regulation as
' allowe• by the state's nonconforming zoning law. Minn. Stat. g
394. 22, . bd. 2 provides:
11 'The board may by ordinance adopt such regulations not
contrary to law as it deems desirable or necessary to
classify, regulate and control, reduce the number or
' extent of and provide for the gradual elimination of
nonconformities and occupancies, including requiring
nonconformities to conform with the official controls
of the county or terminate within a reasonable time as
specified in the official controls. The board may by
ordinance impose upon nonconformities additional
regulations relating to appearance, signs, lighting,
' J hours of operation and other esthetic performance
characteristics including but not limited to noise,
heat, glare, vibrations and smoke. "
See City of Ruthland v. Keiffer, 124 Vt. 357, 205 A.2d 400
(1964) ; Goldblatt v. Hemptstead, 369 U.S. 590, 594-595, 82 S.Ct.
987, 8 L.Ed.2d 130,134 (1962) ; Lawton v. Steele, 152 U.S. 133,
137, 14 S.Ct. 499, 38 L.Ed. 385, 388 (1894) . Such interference
through regulation interposed on behalf of the public must be
justified by the interests of the public, and the means of
regulation must be reasonably necessary to accomplish that public
purpose while not being unduly oppressive upon the party being
regulated. Goldblatt, 369 U.S. at 594-595; :Lawton, 152 U.S. at
137. The party challenging the reasonableness of an ordinance has
' the burden of demonstrating the unreasonableness of such
ordinance. Goldblatt, 369 U.S. at 596. Accordingly, Defendant is
entitled to summary judgment to the effect that it has the legal
' authority to adopt a reasonable ordinance requiring Plaintiff
obtain a permit for the use of Plaintiff's property for mining
purposes.
' As to the matter of Plaintiff's application for a Temporary
Injunction, the court is cognizant of the fact that Plaintiff is
in technical violation of Ordinance #128, and if not for the
' present legal action Defendant would be legally entitled to
require Plaintiff to cease its mining operations. Therefore
Plaintiff's Declaratory Judgment action and Plaintiff's request
for a Temporary Injunction are procedurally proper before the
court. Nevertheless, the court is in the difficult position of
having to make a determination of Plaintiff's entitlement to a
1 4
I
i
Temporary Injunction or, subsequently, Declaratory Judgment,
without having before it the Defendant's determination of
Plaintiff's entitlement or lack thereof to an Ordinance #128
permit. Until such a determination, the court cannot make a
decision upon the Temporary Injunction or a final decision on the
Declaratory Judgment action. Therefore, the court reserves a
ruling on Plaintiff's request for a Temporary Injunction pending
Plaintiff's compliance with and Defendant's actions with respect
to the attached Order of this Court.
Orr/.
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