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DeWalt v. City of Brooklyn Park

United States District Court, D. Minnesota

May 17, 2017

Rodney DeWalt, and DeWalt CEO, Inc., Plaintiffs,
The City of Brooklyn Park, Minnesota, a Minnesota municipal corporation, Defendant.


          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on Defendant the City of Brooklyn Park's Motion for Summary Judgment. For the following reasons, the Motion is granted.


         Plaintiff Rodney DeWalt is a black businessman who has been involved in the restaurant and nightclub industry for more than 30 years. (DeWalt Dep. (Docket No. 29-2) at 14-15.) DeWalt is the sole owner of Plaintiff DeWalt CEO, Inc. (Id. at 24-25.)

         A. “Gossip” and Creekside Plaza

         In May 2014, DeWalt moved to Maple Grove, Minnesota, intending to open an entertainment venue in the area called “Gossip.” (Id. at 44-46; Shepherd Aff. (Docket No. 29-2) Ex. 12.) According to Gossip's business plan, guests would “not only have the ability to gather and eat, enjoy cocktails and socialize but also experience great entertainment.” (Shepherd Aff. Ex. 12.) Gossip's anticipated competition was the Dakota Jazz Club and the Fine Line Music Café, which are located in downtown Minneapolis. (Id.) Gossip would have been open from 8 p.m. to 2 a.m. on Wednesday, Thursday, Saturday, and Sunday, and from 6 p.m. to 2 a.m. on Friday. (Id.) Gossip would host DJs, comedians, and other live entertainment, and would require a cover charge for admission. (Id.)

         DeWalt eventually identified a storefront (the “Property”) in Creekside Plaza, a multi-tenant shopping center in the City of Brooklyn Park (the “City”), as a potential location for Gossip “due to a high population of African Americans” in the area. (DeWalt Dep. at 46; Am. Compl. (Docket No. 7) ¶ 6.) Creekside Plaza is bordered by 85th Avenue North to the south and Noble Parkway to the west. (Larson Aff. (Docket No. 31) Ex. 1.) Two churches are located on the other side of Noble Parkway. (Id.) Directly north and east of Creekside Plaza is a residential neighborhood. (Id.) Creekside Plaza's tenants include a gas station, a convenience store, a Chinese restaurant, a Papa John's Pizza, an Anytime Fitness, and a daycare center. (Sherman Aff. (Docket No. 30) Ex. 3.) The Property is located between the daycare center and the Anytime Fitness. (Id.)

         Todd Larson, a senior planner for the City, informed DeWalt that Creekside Plaza was zoned for the type of use DeWalt was proposing, but that Larson would need more information about Gossip. Larson also informed DeWalt that he would need to apply for a Conditional Use Permit (“CUP”). (Larson Aff. ¶ 3; DeWalt Dep. at 83-84.)

         On January 22, 2015, DeWalt executed a 10-year Lease Agreement with Creekside Realty Associates LLC to rent and occupy the Property. (Shepherd Aff. Ex. 21.) The Lease Agreement was contingent on DeWalt securing a CUP within 90 days of the Lease Agreement's execution. (Id.)

         B. The City Code

         Creekside Plaza is zoned as a Planned Community Development District (“PCDD”). (Id. Ex. 18.) Only certain “Uses” are allowed in PCDDs, including certain “Conditional Uses” that require a CUP. See Brooklyn Park Zoning Code (“Zoning Code”) §§ 152.415(C), 152.035. The purpose of a CUP “is to allow the City discretion in permitting certain uses in particular zoning districts that may be compatible with uses in the district or perceived public needs under certain circumstances.” Id. § 152.035(A). When deciding whether to grant a CUP application, the City may take into account compliance with the City's Comprehensive Plan, traffic volumes, and parking and city services demands. Id. § 152.035(D). According to the City's Comprehensive Plan, Creekside Plaza is designated as a General Neighborhood Commercial land use. (Sherman Aff. Ex. 8 at 8.) A General Neighborhood Commercial land use includes “[r]etail, office, and personal service establishments that are oriented to residents of the immediate neighborhood.” (Id. Ex. 8 at 5.)

         A Class II Restaurant is a “Conditional Use” that requires a CUP. Zoning Code § 152.342.01. The Zoning Code defines a Class II Restaurant as an establishment that “serves food and is eligible for an intoxicating liquor license without a cover charge.” Id. § 152.008. To be eligible for an intoxicating liquor license in the City, “[a]t the time of the initial license application . . . for a restaurant, the applicant must provide written documentation demonstrating that at least 25% of the restaurant's gross receipts are attributable to the sale of food.” Brooklyn Park City Code (“City Code”) § 112.048. The City's liquor license ordinance further defines “restaurant” as any establishment “having appropriate facilities for the serving of meals . . . where meals are regularly furnished at tables to the general public and which employs an adequate staff to provide the usual and suitable service to its guests, and the principal part of the business of which is the serving of foods.” Id. § 112.030. In addition, Minnesota's liquor license statute defines a restaurant as an establishment “where meals are regularly prepared on the premises.” Minn. Stat. § 340A.101, subd. 25.

         C. DeWalt's CUP Application

         On January 29, 2015, DeWalt participated in a pre-application meeting with Larson and other City staff. DeWalt provided the City with Gossip's business plan and the parties discussed Gossip's proposed menu. (Larson Aff. ¶ 5.) When DeWalt informed City staff that he expected 85% of Gossip's clientele would be black, DeWalt claims that “the look on their face was like huh-uh, no. And that's when I knew that this could be a problem.” (DeWalt Dep. at 150.) The next day, DeWalt formally applied for a CUP to operate a Class II Restaurant on the Property. (Shepherd Aff. Ex. 11.)

         At the City's request, DeWalt provided the City with a sample menu and kitchen-equipment list for Gossip. (DeWalt Dep. at 64-65.) The sample menu included hamburgers, nachos, tacos, pulled pork sandwiches, fries, and salads, among other foods. (Shepherd Aff. Ex. 19.) DeWalt also planned to have a catering company provide food. (DeWalt Dep. at 99.) The equipment list included a “counter-top convention oven (food warmer), ” a hot dog broiler, nacho warmer, and a “soup kettle (cooker warmer), ” among other kitchen equipment. (Compl. (Docket No. 1) Ex. G.) The equipment list did not include a traditional oven or dishwasher, and the sample menu notes “All foods microwaved.” (DeWalt Dep. at 66; Shepherd Aff. Ex. 19.)

         On February 13, 2015, the City sent DeWalt a letter acknowledging that it received DeWalt's CUP application and informing him that Gossip did not qualify as a Class II Restaurant based on the City Code and DeWalt's proposed menu and equipment list. (Shepherd Aff. Ex. 13.) The City also informed DeWalt that a condition of approval would be “investing in a kitchen suitable for preparing and cooking [DeWalt's] desired menu.” (Id.) DeWalt did not provide the City with a revised menu or equipment list, or any written documentation that Gossip would generate 25% of its gross revenue from food sales. (DeWalt Dep. at 64, 67, 95.)

         As required by the CUP application process, DeWalt organized a neighborhood meeting to discuss his application. (DeWalt Dep. at 72; DeWalt Aff. (Docket No. 37) Ex. D.) The parties dispute whether City staff other than Todd Larson attended this meeting. (Larson Aff. ¶ 6.) DeWalt claims that once the neighbors understood DeWalt's proposal for the Property, they became racially hostile. (DeWalt Dep. at 77, 79.) According to DeWalt, neighbors stated, “you are not compatible, ” and chanted, “take it back to Maple Grove.” (Id. at 79.) One neighbor said that she would not be able to get up to go to work if DeWalt's clientele were in the neighborhood. (Id. at 80.) DeWalt also claims that one of the leaders of the meeting was racially hostile because he stated, “If you are not going to put in a fine food establishment, you are not welcome here.” (Id.) Other neighbors chanted, “We don't want no pat down.” (Id.) When DeWalt said that 85% of Gossip's clientele would be ...

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