DULUTH- A Minnesota Sixth District judge in Duluth has issued a temporary restraining order preventing the owners of Silver Rapids Resort from performing any construction related to its contested and controversial conditional use permit, or CUP, at least until a Nov. 27 hearing on two related lawsuits seeking to overturn the permit.
The order was issued exactly one week after a conference with District Judge Eric L. Hylden and the parties involved in the two lawsuits seeking to overturn the CUP and an associated preliminary plat, both for the proposed expansion of the resort.
The CUP and the plat were approved by the Lake County Planning Commission on Sept. 4. A grassroots opposition group called the Community Advocates for Responsible Development, or CARD, filed a petition for a Writ of Mandamus on Oct. 1 to overturn Lake County’s approvals. The Minnesota Department of Natural Resources filed a simpler appeal of Lake County’s CUP on Oct. 4.
Scheduling conference
The Oct. 15 conference was to schedule a hearing for the two legal actions and to discuss whether the cases should be consolidated. Four parties were present at the virtual conference: Silver Rapids, Lake County, CARD, and the Minnesota Attorney General’s Office representing DNR.
Usually, scheduling conferences are simple affairs where the parties agree on a date for a hearing. The Silver Rapids scheduling conference lasted an hour as the attorneys for the five parties disagreed on just about everything except the date for the Nov. 27 hearing.
The judge picked Nov. 27 to give the parties in the suit “enough time to punch something out” if any of the parties wish to file motions for summary judgment, which must be submitted 28 days in advance of a hearing.
Judge Hylden added, “That will also give everybody an opportunity to file a removal (of judge request) if they don’t want me on the case. If that happens, then I’ll find some other unlucky judge who is going to give up their day before Thanksgiving.”
Restraining order
Much of the scheduling conference was taken up by attorneys arguing what sort of document the judge should issue to prevent work on the Silver Rapids property before the Nov. 27 hearing, with arguments for or against writs versus restraining orders. Many of the comments strayed into the legal arguments of the two lawsuits.
Paul Shapiro on behalf of CARD pushed for a writ and Robert Torgerson on behalf of Silver Rapids held out for a simple temporary restraining order “to put on the brakes until the court’s judgment.” The writ that Shapiro advocated would have been a more complicated and stronger restraint on the resort that Silver Rapids would need to “answer” at the upcoming hearing to lift it. He was also in favor of some kind of action against Lake County to prevent the planning commission from repeating its actions of Sept. 4.
Because none of the parties could agree on the nature of the restraint that Judge Hylden should issue, Hylden directed the attorneys involved to submit their own proposals by Oct. 18. He added that he would then consider their arguments and decide on the type of order he would issue.
His determination issued on Tuesday morning stated, “Defendant Silver Rapids Resort LLC’s proposed order addressed the situation more appropriately, and the Court is adopting it with some modifications.”
The temporary restraining order prevents any construction work related to the CUP while allowing the resort to perform other work “including but not limited to maintenance and upgrades on existing buildings and structures at the resort.”
Consolidation
The CARD and DNR suits are similar, but the CARD case is more complex and involves more than the DNR’s suit. Because of the differences, Peter Wenker speaking for DNR made a statement at the conference against consolidation, while conceding that consolidation is up to the judge.
“Our case is a simple appeal of this decision,” Wenker said.” We don’t involve anything like a writ of mandamus or any MERA (Minnesota Environmental Rights Act) claims in (the CARD case), so we think judicial efficiency would not come into play for consolidation.”
Wenker did agree that a shared track for scheduling and initial hearings made sense.
Torgerson argued in favor of consolidation, which was expected given the similarities of the CARD and DNR suits. A consolidated case would favor his Silver Rapids client since one case is easier, quicker, and less expensive to argue than two.
Judge Hylden did not issue any order regarding case consolidation on Tuesday.