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Ruling allows developer to sue over project

By Jeffrey Pieters

jpieters@postbulletin.com

A state appeals court decision will allow a Rochester developer to proceed with his lawsuit against the city.

Franklin Kottschade filed a legal challenge of the city council’s 2000 decision to approve a 16-acre townhome project, General Development Plan No. 151, subject to conditions that, in effect, shrunk the development area to slightly less than 5 acres.

The limitations reduced the capacity of his development from 104 townhomes to 26, Kottschade claimed.

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He initially challenged the city decision in federal court, but that court remanded the case to state court.

Kottschade filed a district court claim in 2006, but the court, in November 2007, granted summary judgment to the city, saying that the six-year statute of limitations for Kottschade’s claim had expired.

Kottschade appealed, and the appeals court interpreted the start of the six-year period differently. A ruling published Tuesday remands the case back to district court.

The development site lies along the south side of 40th Street Southwest, between U.S. 63 and 11th Avenue.

The city conditions included a requirement that Kottschade dedicate a 50-foot-wide strip of land along 40th Street for an eventual road-widening.

It also required that he dedicate land which, with land from neighboring properties, would be used to form a 40-acre pond. The pond would collect runoff from the area properties.

The limitations increased Kottschade’s development costs, per unit, from $22,378 to $89,511.

He said the city requirements constituted an uncompensated "taking" of his land for public purposes.

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The city disputes Kottschade’s characterization of the requirements as a "taking."

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