By Janice Gregorson
gregor@postbulletin.com
The city of Byron is asking Olmsted District Court for a protective order against a woman who has sued the city in a dispute over the height of a new apartment complex.
Geraldine Bernard filed the suit earlier this year, challenging the height variance granted by the city council for the construction of the Kodiak Apartments. Bernard said the three-story apartment complex is 10 to 15 feet higher than allowed by the city's zoning ordinance.
According to court documents, the city received a building permit application for the project in August, 2001. It was signed by Gerald Henricks, who is Byron's city and zoning administrator, as well as. a partner in the construction project.
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Bernard said that the height of the proposed project exceeded the maximum height allowed under the ordinance. The permit was approved by an employee supervised by Henricks. The ordinance violation was discovered after the building was substantially completed. Her suit claims that rather than enforce the ordinance, the city invited a variance application that it approved after a hearing without making requisite findings for a variance approval.
Bernard's attorney, Ken Moen of Rochester, said the minutes of the council meetings where the matter was discussed don't cover all issues addressed during the approval process. In addition, he said, the tapes of the meetings are inaudible. Moen wants to be able to take sworn statements from the city clerk, city administrator, city engineer and city fire chief to clarify and augment the record.
The city is opposed and seeks a protective order from the court prohibiting such depositions. Defense attorney Susan Sager of St. Paul, argues state law provides that judicial review of these types of matters be limited to the record developed before the city in making its decision. Specifically, that would include the resolution adopted by the council and meeting minutes of the proceedings. Sager said that any additional discovery should be limited to inquiries into procedural matters, such as if the council adhered to all rules in reaching its decision.
A hearing on the city's petition for a protective order is scheduled for Tuesday afternoon.
The city also has moved for summary judgment, in effect to have the suit dismissed. A hearing on that motion is set for Nov. 18.
