Blaine/Atlantic Funding, LLC v. City of Blaine

U.S. District Court, District of Minnesota October 18, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Blaine/Atlantic Funding, LLC, Case No. 23-CV-00172 (JMB/DLM)

Plaintiff,

v. ORDER

City of Blaine,

Defendant.

Bryan J. Huntington, Katherine Cochran, and Kyle Vick, Larkin Hoffman Daly &
Lindgren, Ltd., Minneapolis, MN, for Plaintiff Blaine/Atlantic Funding, LLC.
Justin L. Templin, Hoff Barry, PA, Eden Prairie, MN, for Defendant City of Blaine.

This matter is before the Court on Plaintiff Blaine/Atlantic Funding, LLC’s (B/A)
and the City of Blaine’s (City) cross-motions for summary judgment. (Doc. Nos. 58, 61)
In their motions, B/A and the City each seek summary judgment in their favor on B/A’s
claim that the City’s denial of certain land-use applications, which would have re-zoned
property owned by B/A and allowed B/A to build an apartment building, violated the Equal
Protection Clause. For the reasons explained below, the Court denies both motions.
BACKGROUND
A. Municipal Land Use Planning
Blaine is a suburban city located in Anoka County, Minnesota, and is situated
approximately twelve miles north of downtown Minneapolis. The Minnesota Legislature
has acknowledged that cities within the seven-county Twin Cities metro area, which
includes Anoka County, “are interdependent” and, as a result, their development and land
use may impact other cities in the region.

Minn. Stat. § 473.851

.  Consequently, metro-

area  cities,  including  Blaine,  are  required  to  create  and  update  a  forward-looking 
“comprehensive plan” each decade.  See

Minn. Stat. § 473.859

.  Among many other things, 
comprehensive  plans  are  meant  to  identify  certain  areas  of  the  city  for  potential 
redevelopment and set forth a vision for future land use.  (See Doc. No. 66-3 at 3, 5.) 
After a city council adopts a comprehensive plan, the Metropolitan Council (Met 
Council) reviews it and any subsequent amendments to it “to determine their compatibility 

with each other and conformity with metropolitan system plans.”

Minn. Stat. § 473.175

, 
subd. 1.  The Met Council may require a city to modify parts of a comprehensive plan or 
any proposed amendments if it determines that the plan or amendment “is more likely than 
not to have a substantial impact on or contain a substantial departure from the metropolitan 
system plans.”

Id.

  A city may not implement any part of a comprehensive plan that has 

not been approved by the Met Council.

Id.,

subd. 2.
In December 2020, the Blaine City Council adopted the 2040 Comprehensive Plan
(2040 Plan). The 2040 Plan “establish[es] a vision for how the community will grow and
develop over the coming decades and is intended to be reflective of the desires of the entire
community,” and is meant “to inform decision making related to official controls, such as

the zoning ordinance.” Blaine 2040 Comprehensive Plan, City of Blaine, [hereinafter,
“2040 Plan”] at 1, https://blainemn.gov/558/Comprehensive-Plan [ https://perma.cc/4ZLS-
PV78 ].1 As the 2040 Plan notes, “[a] comprehensive plan does not ensure any change by
itself” and advises that changes to things like land use must be implemented by “elected

officials, commission members, city staff, and other stakeholders.” (2040 Plan at 1.) The
2040 Plan also identifies itself as a “living document” that is subject to revisions. (Id.)
B. Northtown Area Revitalization and Redevelopment Plan
At issue is in this case is a 6.2-acre parcel in Blaine’s “Northtown” area on which a

strip mall and a former Rainbow Foods grocery store—vacant since 2014—sits (the
Property). (Doc. No. 66-1 at 17:6–13.) At all relevant times, the Property is and has been
zoned for commercial use. (Doc. No. 66-3 at 5.) The Property is surrounded by
neighborhoods of single-family homes to the north and east, and by commercial properties,
including an enclosed shopping mall and County Highway 10 to the south and west. (Id.)
The 2040 Plan does not identify the Property as a priority area for redevelopment,2 and its
land-use plan designates the Property for “community commercial” zoning. (See

id. at 3, 5

.)                                                                       



1 At times, the Court necessarily refers to portions of the 2040 Plan that were not provided 
by the parties in their moving papers.  Pursuant to Federal Rule of Evidence 201, the Court 
takes judicial notice of the entire 2040 Plan.  Fed. R. Evid. 201(b)(2) (noting that a court 
may, sua sponte and at any time, take judicial notice of “a fact that is not subject to 
reasonable dispute because it . . . can be accurately and readily determined from sources 
whose accuracy cannot reasonably be questioned”).  The 2040 Plan was adopted by the 
City Council and is posted and publicly available via the City’s website. 
2 The 2040 Plan does, however, identify an area to the immediate northwest of the Property 
for “high-priority” development.  (See Doc. No. 66-3 at 3.)               
B/A purchased the Property in December 2020.  (Doc. No. 66-9 at 6.)  After 
unsuccessful attempts to attract commercial tenants to the empty Rainbow Foods box 

building (Rainbow Box), B/A began to consider multi-family residential development of 
the Property.  (See

id. at 7

.) A representative of B/A attended City Council workshop
meetings to discuss the transition of the Property from commercial to high-density
residential use, which would require City Council support for an amendment to the 2040
Plan to re-zone the Property. (See Doc. No. 25-6 at 2–5; see also Doc. No. 66-9 at 7.) City
Council Workshop minutes from June 2021 reflect that “[t]he council supported the

rezoning of this property to HDR-2 [high-density residential].” (Doc. No. 25-6 at 4.)
From July 2021 to July 2022, B/A and multi-family developer Roers Companies
(Roers) collaborated with the City Planning Commission to develop the Northtown District
Vision Plan (Northtown Plan), which set forth a framework for the redevelopment of the
business and residential districts around (and including) the Property. (See Doc. No. 66-7.)

According to Blaine Community Development Director Erik Thorvig, the “intent of the
Northtown Vision Plan was to engage stakeholders and our City Council in identifying
what that long-term vision is for the Northtown area,” and to “capture a vision and set out
implementation steps on how a portion of that vision or that vision in its entirety could be
carried out.” (Doc. No. 66-1 at 12:25–13:3, 13:10–13.) According to City Planner Sheila

Sellman, the Northtown Plan was to serve as a “guiding document—it’s guidelines, it’s not
part of our comprehensive plan” and it was not intended to make the comprehensive plan
more concrete or specific. (Doc. No. 66-4 at 7:20–25; see also

id.

12:5–6.)
On July 6, 2022, the City Council voted on a resolution entitled, “Approval of the
Northtown Area Revitalization and Redevelopment Plan.” (Doc. No. 25-5 at 5.) During

discussion on the resolution, the Northtown Plan’s proponents noted that several peer cities
“have completed future plans around these commercial nodes to address the changing retail
climate.” (Id.) The meeting minutes reflect that “[t]he plan introduces a mix of
commercial, residential, and civic uses,” but never squarely discusses details about new
multi-family developments. (Id. at 5–7.) Thorvig also noted that “[t]he plan is a framework
for future development, and it is anticipated that the full build-out will look different from

what is shown within the plan.” (Id. at 6.) After discussion, including acknowledgment
by councilmembers that “this was not a concrete plan,” and that the “project was not
finalized but the plan would assist in guiding the Council going forward,” the City Council
unanimously adopted the resolution. (Id. at 7.)
C. Denial of Applications to Re-Zone the Property

While the Northtown Plan was being developed, B/A and Roers worked together to
design a four-story 196-unit, market-rate, and amenity-rich multi-family apartment
complex known as the “Blaine Lakes Apartments” (the Project) to be built in place of the
Rainbow Box. (Doc. No. 66-6 at 3; Doc. No. 66-9 at 6.) A traffic-engineering firm
reported that the daily trips estimated at the Project would “generate far fewer trips than

what would be allowable under current zoning.” (Doc. No. 66-8 at 2.)
On October 7, 2022, several applications related to the Project were submitted on
B/A’s behalf for the City Council’s consideration (together, the Applications), including
applications for the following four changes: (1) a Comprehensive Plan Amendment
regarding the proposed change of zoning from commercial to high-density residential;
(2) re-zoning of the Property from Community Commercial to High-Density Residential;

(3) a conditional use permit allowing for a 196-unit apartment in a development flex zoning
district; and (4) a change in the plan, creating two lots, including one on which the
apartment building would be constructed. (Doc. No. 66-9 at 6.)
On November 9, 2022, the City Planning Commission held a public hearing on the
Applications. (Id. at 7–10.) Members of the public expressed their concerns about the
Project, including perceived negative impacts on traffic, air quality, neighborhood

aesthetics, and crime. (Id. at 7–9; see also Video Recording of November 9, 2022 Blaine
City Council Meeting, https://blainemn.portal.civicclerk.com/event/285/media.)
Ultimately, the Commission voted in favor of the Applications, sending the Applications
to the full City Council for a vote. (Doc. No. 66-9 at 12; Doc. No. 25-1 at 2–11.)
On December 5, 2022, the City Council considered the Applications. (Doc. No.

25-9 at 14–17.) It voted first on the application to amend the 2040 Plan to re-zone the
Property from commercial to high-density residential. (Id. at 14–16.) The proposed
amendment required five councilmembers’ votes to pass. See

Minn. Stat. § 462.355

, subd.
3. It received only four votes, and it did not pass. (Id. at 16.) As a result, the City Council
denied the remaining Applications. (Id. at 16–17.)

In its written statement of denial, the City Council stated as follows:
The Council denied the amendment request because the
Council:
a. Found the construction of a 196-unit apartment building
in this location is not consistent with the surrounding
land uses; and

b. Found that the size and the scope of the proposed
apartment was too large for the selected site and
surrounding area; and,

c. Would have a negative impact on the surrounding
neighboring properties; and,

d. Would increase traffic in the area without any proposed
mitigation measures being taken as part of the proposed
development project.
(Doc. No. 66-10 at 3.)
On April 23, 2023, approximately four months later (and three months after this
litigation commenced), B/A and Roers executed a “Letter of Intent” (Letter). (See Doc.
No. 67 (SEALED).) In it, B/A and Roers acknowledge that they “had been dealing on a
verbal agreement for the purchase and sale of the Property” but had not yet formalized a
written contract due to certain “unknowns” (e.g., shape of the building, number of units)
about the Project. (Id. at 3.) However, they agreed that,
now that the Project has not been approved by a single vote,
and legal action commenced, the parties have deemed it
advisable to memorialize their prior verbal understanding with
this Letter of Intent. This Letter of Intent is intended to outline
the terms and conditions for the purchase of this property by
Buyer from Seller.
(Id.) The Letter goes on to state that Roers and B/A contemplated that Roers would
purchase the Rainbow Box for a purchase price that was at least $1 million more than then-
current market-rate prices.3 (Doc. No. 66-2 at 5:1–5, 8:7–10.)

However, because the City did not approve the Applications, the sale contemplated
by the Letter never occurred. On November 20, 2023, approximately eleven months after
the City Council denied the Applications, B/A sold the entire Property (including both the
Rainbow Box and adjacent strip mall) to a third-party buyer for $7,575,000. (Doc. No.
66-17 at 3.) Approximately five weeks later, that buyer sold just the Rainbow Box to a

second third-party buyer for just shy of $950,000 less than the purchase price in the Letter.
(Doc. No. 66-20 at 3.)
D. This Action
In January 2023, B/A filed this lawsuit. In its Second Amended Complaint, B/A
alleges that the City violated its rights as a class-of-one to equal treatment under the Equal

Protection Clause and by denying the Applications without a rational basis. Specifically,
B/A argues that it was subject to disparate treatment by the City because, in the several
years preceding B/A’s and Roers’s conception of the Project, the City Council has
considered and approved land-use applications that allowed four other multi-family
projects to be built, as follows:

1. Cedar Green Apartments: a 138-unit market-rate, five-story apartment
project for which the City Council approved an amendment to the 2030
Comprehensive Plan to re-zone the property from medium-density

3 In the Letter, B/A and Roers also expressly acknowledge—twice, and in all-caps—that
the Letter was non-binding. (Doc. No. 67 at 5.)
residential to high-density residential in 2018. The property had been guided
for high-density residential in the then-draft 2040 Plan.
2. Lexi Apartments: a 182-unit market-rate, four-story apartment project for
which the City Council approved an amendment to the 2040 Plan to re-zone
the property from planned industrial/planned commercial to high-density
residential in 2021.
3. Arris II: a 64-unit market-rate, four-story apartment project for which the
City Council approved an amendment to the 2040 Plan to re-zone the
property from planned industrial/planned commercial to high-density
residential in 2021.
4. Blaine Apartments: a 111-unit market-rate, three-story apartment project for
which the City Council approved an application to re-zone the property from
low- and medium-density residential to high-density residential in 2022.
In B/A’s view, these apartment projects were sufficiently similar to the Project such that
the City’s approval of the applications that allowed these projects to be built—and the
denial of the applications to accommodate their Project—were without rational basis and,
therefore, unconstitutional.
DISCUSSION
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is “material” if its resolution affects the outcome of the
suit under the governing substantive law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  To survive the motion, the non-moving party must demonstrate the existence 
of specific facts in the record which create a genuine issue for trial.  Krenik v. Cnty. of Le 
Sueur,

47 F.3d 953, 957

 (8th Cir. 1995).  As is normally the case in a summary judgment 
motion, the evidence of the non-movant is to be believed, and all justifiable inferences are 
to be drawn in his favor.  Anderson,

477 U.S. at 255

.  However, when faced with cross-
motions, as here, the Court views the record in the light most favorable to the City when 
considering its motion, and in the light most favorable to B/A when considering its motion.  

See, e.g., Fjelstad v. State Farm Ins. Co.,

845 F. Supp. 2d 981, 984

 (D. Minn. 2012). 
I.   THE CITY’S MOTION FOR SUMMARY JUDGMENT                               
The City moves for summary judgment on B/A’s class-of-one claim.  The Court 
denies the motion because the City has not “inform[ed] the district court of the basis for its 
motion,”  or  otherwise  “identif[ied]  those  portions  of  the  record  which  it  believes 
demonstrate the absence of a genuine issue of material fact.”  Mensie v. City of Little Rock,

917 F.3d 685, 688

 (8th Cir. 2019) (quotation omitted); see also Fed. R. Civ. P. 56(c). 
The City bases its motion on only two sources: the factual representations contained 
in the Second Amended Complaint and the exhibits appended to attorney Justin Templin’s 
declaration (Doc. No. 64) (Templin Declaration).  Neither source sets forth facts, much 
less facts from “portions of the record [the City] believes demonstrate the absence of a 

genuine issue of material fact” for the following reasons.  See Mensie,

917 F.3d at 688

.  
The factual allegations contained in the unsworn Second Amended Complaint are not facts 
or record evidence.  More substantively, the Templin Declaration (Doc. No. 64) contains 
statements of fact but no explanation of how Templin came to know these facts or an 
explanation of how Templin is competent to testify as to these facts.  See Fed. R. Civ. P. 

56(c)(4) (requiring that a declaration submitted in support of a motion for summary 
judgment “be made on personal knowledge, set out facts that would be admissible in 
evidence, and show that the affiant or declarant is competent to testify on the matters 
stated”); see also Narum v. Eli Lilly & Co.,

914 F. Supp. 317, 321

(D. Minn. 1996)
(excluding paralegal’s affidavit that lacked foundation and details regarding basis of
personal knowledge from summary judgment record). For example, Templin makes

certain representations about City Council action, including whether the Northtown Plan
was submitted to the Met Council. (Doc. No. 64 ¶ 3.) Templin, however, provides neither
citation to a record document to support this representation nor any details regarding how
he came to know this information. Further, there is no representation that the exhibits
attached to the Templin Declaration have been produced as part of the discovery in this
litigation and they do not bear any Bates stamps to suggest as much. (See Doc. No. 64-1.)

As a result, the Templin Declaration lacks foundation and cannot be relied on by the Court.
Apart from the Second Amended Complaint and the Templin Declaration, the City
has not brought any evidence or identified any facts that could support judgment in the
City’s favor. For that reason, the City’s motion for summary judgment is denied.
II. B/A’S MOTION FOR SUMMARY JUDGMENT

B/A seeks judgment in its favor on its class-of-one claim. Because the evidence
presented contains a genuine dispute as to whether the City intentionally treated B/A
differently from others similarly situated, the Court denies B/A’s motion.
The Equal Protection Clause requires the government to “treat all similarly situated
people alike.” Mensie,

917 F.3d at 691

 (quotation omitted).  The U.S. Supreme Court 

recognizes a claim by a “class-of-one” under the Equal Protection Clause, including in 
zoning and land-use cases.  See Barstad v. Murray Cnty.,

420 F.3d 880, 884

 (8th Cir. 2005).  
A class-of-one claim is meant to “secure every person within the State’s jurisdiction against 
intentional and arbitrary discrimination.”  Village of Willowbrook v. Olech,

528 U.S. 562, 564

 (2000).  To prevail on a class-of-one claim, B/A must satisfy a two-part test, showing 
the following: (1) “[it] has been intentionally treated differently from others similarly 

situated;” and (2) “there is no rational basis for the difference in treatment.”

Id.

  In a class-
of-one analysis involving a zoning decision, the Court may not act as a “super zoning 
board” by “review[ing] the evidence and revers[ing] the commission merely because a 
contrary result may be permissible.”  Mensie,

917 F.3d at 692

 (quotation omitted). 
To establish the first prong of its class-of-one claim, B/A bears the burden of 
identifying “a specific and detailed account of the nature of the preferred treatment of the 

favored class, especially when the state actors exercise broad discretion to balance a 
number of legitimate concerns.”  Mensie,

917 F.3d at 692

 (quotation omitted).  The persons 
or entities to which B/A compares itself “must be identical or directly comparable” to B/A 
“in all material respects.”  Sanimax USA, LLC v. City of S. St. Paul,

95 F.4th 551, 564

 (8th 
Cir. 2024).  It is a “demanding standard,” Mensie,

917 F.3d at 692

, which is more difficult 

for a plaintiff to establish when the challenged government action involves “complex, 
multi-factored government decisionmaking processes.”  Sanimax,

95 F.4th at 565

 (quoting 
Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1203

 (11th Cir. 2007)).  Normally, but not 
always, “the ultimate determination as to whether parties are similarly situated is a fact-
bound inquiry and, as such, is normally grist for the jury’s mill.”  Cordi-Allen v. Conlon,

494 F.3d 245, 251

 (1st Cir. 2007).  However, when the undisputed factual record shows 
that a party is not similarly situated in all material respects, then a class-of-one claim may 
not survive summary judgment.  See Sanimax,

95 F.4th at 568

; Cordi-Allen,

494 F.3d at 251

; Solum v. Bd. of Cnty. Comm’rs for Cnty. of Houston,

880 F. Supp. 2d 1008

, 1014–15 
(D. Minn. 2012).  At the same time, small differences between comparators will not doom 
a class-of-one claim.  See Allegheny Pittsburgh Coal Co. v. Cnty. Comm’n of Webster 

Cnty., W.V.,

488 U.S. 336, 340

 (1989).                                    
Courts  look  to  two  attributes  to  determine  whether  comparators  are  similarly 
situated as a matter of law.  First, courts consider whether there is regulatory similarity—
i.e., whether the purported comparator asked the same body to take the same action.  See 
Barstad,

420 F.3d at 885

 (concluding plaintiff, who was made to obtain variance, failed to 
identify similarly situated landowner who had not been required to obtain same variance 

and thus could not satisfy similarly-situated prong of Equal Protection analysis); Anderson 
v. Douglas Cnty.,

4 F.3d 574, 577

 (8th Cir. 1993) (“A party claiming violation of equal 
protection must establish that he or she is ‘similarly situated’ to other applicants for the 
license,  permit,  or  other  benefit  being  sought.”);  Solum,

880 F. Supp. 2d at 1014

 
(concluding plaintiff, who sought and was denied variance application, was not similarly 

situated to landowners that sought conditional-use permits); see also Cordi-Allen, 494 F.3d 
at  251–52  (concluding  that  plaintiffs  must  “establish  factual  as  well  as  regulatory 
similarity” by “engag[ing] in the same activity vis-à-vis the government entity”); Purze v. 
Vill. of Winthrop Harbor,

286 F.3d 452, 455

 (7th Cir. 2002) (concluding that seeking 
different kinds of variances makes properties dissimilar).                

Second,  courts  also  consider  whether  there  is  factual  similarity—i.e.,  whether 
comparators share attributes that a reasonable decisionmaker would have found relevant 
when making the challenged decision.  See Sanimax,

95 F.4th at 565

 (holding that, when 
seeking to identify similarly situated comparators, Court must identify “full variety of 
factors  that  an  objectively  reasonable  government  decisionmaker  would  have  found 
relevant in making the challenged decision”).  A reasonable government decisionmaker 

would consider how a proposed development would impact surrounding areas as well as 
public opinion regarding a proposed development.

Id.

at 564–65.
In this case, B/A argues that the record establishes both regulatory and factual
similarity between the Project and all four identified comparators: Cedar Green
Apartments, Blaine Apartments, Lexi Apartments, and Arris II. The City disputes B/A’s
view of the record evidence, arguing that the Project has neither regulatory nor factual

similarity with any of the four comparators. The Court agrees with the City concerning
Cedar Green Apartments, Blaine Apartments, and Lexi Apartments, but the Court
concludes that a genuine fact dispute remains regarding whether the Project is similarly
situated to Arris II.
The Court first concludes that there is no regulatory similarity between the Project

and either Cedar Green Apartments or Blaine Apartments. Unlike the Project, neither
Cedar Green Apartments nor Blaine Apartments required an amendment to the 2040 Plan
because the 2040 Plan already guided the sites of these properties for high-density
residential use.4 (Doc. No. 66-4 at 5:15–18; Doc. No. 66-13 at 9–14; 2040 Plan at 144.)
In this way, the City Council’s decision to re-zone the properties to conform with the 2040

4 Cedar Green required the City Council to approve an Amendment to the 2030 Plan to re-
zone the property to high-density residential. However, the City Council had already slated
the property for high-density residential use in the then-draft 2040 Plan and, for that reason,
approved the proposed amendment. (Doc. No. 66-13 at 11–12.)
Plan was simply a fulfillment of a predetermined and pre-approved end. Under Barstad,
Anderson, and Solum, Cedar Green and Blaine Apartments are not, as a matter of law,

similarly situated comparators.
The remaining two comparators, Lexi Apartments and Arris II have regulatory
similarity to the Project: both required amendments to the 2040 Plan. However, Lexi
Apartments is factually dissimilar to the Project because it is not located near a low-density
residential neighborhood, and it received no opposition from neighboring landowners.
(Doc. No. 66-14 at 10–11.) Under Sanimax, a reasonable government decisionmaker

would find public input relevant to its decision; as a result, Lexi Apartments may not, as a
matter of law, be deemed a similarly situated comparator to the Project.
Whether Arris II and the Project are sufficiently factually similar is a genuine
dispute of material fact for trial. Cordi-Allen,

494 F.3d at 251

; see also Ziss Bros. Const. 
Co. v. City of Independence, Ohio, No. 1:07-CV-3767,

2010 WL 11538705

at *13 (N.D.

Ohio Mar. 30, 2010) (denying city’s motion for summary judgment on class-of-one claim
on grounds that “there are facts from which a jury could conclude that the properties are
similarly situated” and also that “there is evidence that they are not similarly situated”).
On one hand, the evidence presented includes evidence that Arris II and the Project have
some important similarities: both properties are adjacent to arterial roads or highways, and

neither Arris II nor the Project were designated as a priority-redevelopment areas in the
2040 Plan. (See 2040 Plan at 143.) In addition, the parties agree that both projects have
similar scope: Arris II is a sixty-four-unit, four-story structure that comprises 32 dwellings
per acre (Doc. No. 25-4 at 7), and the Project would have been a 196-unit, four-story
structure that comprised 31.61 dwellings per acre (Doc. No. 66-9 at 6; Doc. No. 79 ¶ 8).

On the other hand, however, the evidence presented also included dissimilarities
between the Project and Arris II, including the fact that the 2040 Plan designated the area
surrounding Arris II as “Planned Industrial/Commercial” use while the area surrounding
the Project was designated only for “Commercial” use in the 2040 Plan. (2040 Plan at
143.) In addition, the land uses for the neighboring properties of Arris II included high-
density residential use as well as single-family residential and commercial uses. (Doc. No.

25-3 at 8.) In contrast, the Project had no neighboring high-density use properties and
instead the Project’s neighboring properties were primarily single-family homes
(designated for low density residential use) and commercial properties (designated for
commercial use). (Doc. No. 66-3 at 5.) Finally, although the public raised concerns that
both Arris II and the Project would exceed zoning requirements and increase traffic (Doc.

No. 66-15 at 11; Doc. No. 66-19 at 18), the public raised a concern about increased criminal
activity only with respect to the Project, not Arris II. (Doc. No. 66-9 at 7). Given this
evidence, there remains a genuine issue of material fact concerning whether the Projects is
sufficiently similar to Arris II, precluding summary judgment.5

5 In light of this decision, the Court need not address whether the evidence presented also
contains a genuine fact dispute concerning the second prong of B/A’s class-of-one claim
(whether the City had a rational basis for any differential treatment).

ORDER

Based on the foregoing, and on all of the files, records, and proceedings herein, 

IT IS HEREBY ORDERED THAT:                                                
1.   Defendant City of Blaine’s motion for summary judgment (Doc. No. 61) is 
     denied; and                                                     
2.   Plaintiff  Blaine/Atlantic Funding,  LLC’s  motion  for summary  judgment 
     (Doc. No. 58) is denied.                                        

Dated:  October 18, 2024                /s/ Jeffrey M. Bryan              
                                   Judge Jeffrey M. Bryan            
                                   United States District Court

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Blaine/Atlantic Funding, LLC, Case No. 23-CV-00172 (JMB/DLM)

Plaintiff,

v. ORDER

City of Blaine,

Defendant.

Minn. Stat. § 473.851

.  Consequently, metro-

area  cities,  including  Blaine,  are  required  to  create  and  update  a  forward-looking 
“comprehensive plan” each decade.  See

Minn. Stat. § 473.859

.  Among many other things, 
comprehensive  plans  are  meant  to  identify  certain  areas  of  the  city  for  potential 
redevelopment and set forth a vision for future land use.  (See Doc. No. 66-3 at 3, 5.) 
After a city council adopts a comprehensive plan, the Metropolitan Council (Met 
Council) reviews it and any subsequent amendments to it “to determine their compatibility 

with each other and conformity with metropolitan system plans.”

Minn. Stat. § 473.175

, 
subd. 1.  The Met Council may require a city to modify parts of a comprehensive plan or 
any proposed amendments if it determines that the plan or amendment “is more likely than 
not to have a substantial impact on or contain a substantial departure from the metropolitan 
system plans.”

Id.

  A city may not implement any part of a comprehensive plan that has 

not been approved by the Met Council.

Id.,

id. at 3, 5

.)                                                                       



1 At times, the Court necessarily refers to portions of the 2040 Plan that were not provided 
by the parties in their moving papers.  Pursuant to Federal Rule of Evidence 201, the Court 
takes judicial notice of the entire 2040 Plan.  Fed. R. Evid. 201(b)(2) (noting that a court 
may, sua sponte and at any time, take judicial notice of “a fact that is not subject to 
reasonable dispute because it . . . can be accurately and readily determined from sources 
whose accuracy cannot reasonably be questioned”).  The 2040 Plan was adopted by the 
City Council and is posted and publicly available via the City’s website. 
2 The 2040 Plan does, however, identify an area to the immediate northwest of the Property 
for “high-priority” development.  (See Doc. No. 66-3 at 3.)               
B/A purchased the Property in December 2020.  (Doc. No. 66-9 at 6.)  After 
unsuccessful attempts to attract commercial tenants to the empty Rainbow Foods box 

building (Rainbow Box), B/A began to consider multi-family residential development of 
the Property.  (See

id. at 7

id.

12:5–6.)
On July 6, 2022, the City Council voted on a resolution entitled, “Approval of the
Northtown Area Revitalization and Redevelopment Plan.” (Doc. No. 25-5 at 5.) During

Minn. Stat. § 462.355

, subd.
3. It received only four votes, and it did not pass. (Id. at 16.) As a result, the City Council
denied the remaining Applications. (Id. at 16–17.)

b. Found that the size and the scope of the proposed
apartment was too large for the selected site and
surrounding area; and,

c. Would have a negative impact on the surrounding
neighboring properties; and,

477 U.S. 242, 248

 (1986).  To survive the motion, the non-moving party must demonstrate the existence 
of specific facts in the record which create a genuine issue for trial.  Krenik v. Cnty. of Le 
Sueur,

47 F.3d 953, 957

 (8th Cir. 1995).  As is normally the case in a summary judgment 
motion, the evidence of the non-movant is to be believed, and all justifiable inferences are 
to be drawn in his favor.  Anderson,

477 U.S. at 255

.  However, when faced with cross-
motions, as here, the Court views the record in the light most favorable to the City when 
considering its motion, and in the light most favorable to B/A when considering its motion.  

See, e.g., Fjelstad v. State Farm Ins. Co.,

845 F. Supp. 2d 981, 984

 (D. Minn. 2012). 
I.   THE CITY’S MOTION FOR SUMMARY JUDGMENT                               
The City moves for summary judgment on B/A’s class-of-one claim.  The Court 
denies the motion because the City has not “inform[ed] the district court of the basis for its 
motion,”  or  otherwise  “identif[ied]  those  portions  of  the  record  which  it  believes 
demonstrate the absence of a genuine issue of material fact.”  Mensie v. City of Little Rock,

917 F.3d 685, 688

 (8th Cir. 2019) (quotation omitted); see also Fed. R. Civ. P. 56(c). 
The City bases its motion on only two sources: the factual representations contained 
in the Second Amended Complaint and the exhibits appended to attorney Justin Templin’s 
declaration (Doc. No. 64) (Templin Declaration).  Neither source sets forth facts, much 
less facts from “portions of the record [the City] believes demonstrate the absence of a 

genuine issue of material fact” for the following reasons.  See Mensie,

917 F.3d at 688

.  
The factual allegations contained in the unsworn Second Amended Complaint are not facts 
or record evidence.  More substantively, the Templin Declaration (Doc. No. 64) contains 
statements of fact but no explanation of how Templin came to know these facts or an 
explanation of how Templin is competent to testify as to these facts.  See Fed. R. Civ. P. 

56(c)(4) (requiring that a declaration submitted in support of a motion for summary 
judgment “be made on personal knowledge, set out facts that would be admissible in 
evidence, and show that the affiant or declarant is competent to testify on the matters 
stated”); see also Narum v. Eli Lilly & Co.,

914 F. Supp. 317, 321

(D. Minn. 1996)
(excluding paralegal’s affidavit that lacked foundation and details regarding basis of
personal knowledge from summary judgment record). For example, Templin makes

917 F.3d at 691

 (quotation omitted).  The U.S. Supreme Court 

recognizes a claim by a “class-of-one” under the Equal Protection Clause, including in 
zoning and land-use cases.  See Barstad v. Murray Cnty.,

420 F.3d 880, 884

 (8th Cir. 2005).  
A class-of-one claim is meant to “secure every person within the State’s jurisdiction against 
intentional and arbitrary discrimination.”  Village of Willowbrook v. Olech,

528 U.S. 562, 564

 (2000).  To prevail on a class-of-one claim, B/A must satisfy a two-part test, showing 
the following: (1) “[it] has been intentionally treated differently from others similarly 

situated;” and (2) “there is no rational basis for the difference in treatment.”

Id.

  In a class-
of-one analysis involving a zoning decision, the Court may not act as a “super zoning 
board” by “review[ing] the evidence and revers[ing] the commission merely because a 
contrary result may be permissible.”  Mensie,

917 F.3d at 692

 (quotation omitted). 
To establish the first prong of its class-of-one claim, B/A bears the burden of 
identifying “a specific and detailed account of the nature of the preferred treatment of the 

favored class, especially when the state actors exercise broad discretion to balance a 
number of legitimate concerns.”  Mensie,

917 F.3d at 692

 (quotation omitted).  The persons 
or entities to which B/A compares itself “must be identical or directly comparable” to B/A 
“in all material respects.”  Sanimax USA, LLC v. City of S. St. Paul,

95 F.4th 551, 564

 (8th 
Cir. 2024).  It is a “demanding standard,” Mensie,

917 F.3d at 692

, which is more difficult 

for a plaintiff to establish when the challenged government action involves “complex, 
multi-factored government decisionmaking processes.”  Sanimax,

95 F.4th at 565

 (quoting 
Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1203

 (11th Cir. 2007)).  Normally, but not 
always, “the ultimate determination as to whether parties are similarly situated is a fact-
bound inquiry and, as such, is normally grist for the jury’s mill.”  Cordi-Allen v. Conlon,

494 F.3d 245, 251

 (1st Cir. 2007).  However, when the undisputed factual record shows 
that a party is not similarly situated in all material respects, then a class-of-one claim may 
not survive summary judgment.  See Sanimax,

95 F.4th at 568

; Cordi-Allen,

494 F.3d at 251

; Solum v. Bd. of Cnty. Comm’rs for Cnty. of Houston,

880 F. Supp. 2d 1008

, 1014–15 
(D. Minn. 2012).  At the same time, small differences between comparators will not doom 
a class-of-one claim.  See Allegheny Pittsburgh Coal Co. v. Cnty. Comm’n of Webster 

Cnty., W.V.,

488 U.S. 336, 340

 (1989).                                    
Courts  look  to  two  attributes  to  determine  whether  comparators  are  similarly 
situated as a matter of law.  First, courts consider whether there is regulatory similarity—
i.e., whether the purported comparator asked the same body to take the same action.  See 
Barstad,

420 F.3d at 885

 (concluding plaintiff, who was made to obtain variance, failed to 
identify similarly situated landowner who had not been required to obtain same variance 

and thus could not satisfy similarly-situated prong of Equal Protection analysis); Anderson 
v. Douglas Cnty.,

4 F.3d 574, 577

 (8th Cir. 1993) (“A party claiming violation of equal 
protection must establish that he or she is ‘similarly situated’ to other applicants for the 
license,  permit,  or  other  benefit  being  sought.”);  Solum,

880 F. Supp. 2d at 1014

 
(concluding plaintiff, who sought and was denied variance application, was not similarly 

situated to landowners that sought conditional-use permits); see also Cordi-Allen, 494 F.3d 
at  251–52  (concluding  that  plaintiffs  must  “establish  factual  as  well  as  regulatory 
similarity” by “engag[ing] in the same activity vis-à-vis the government entity”); Purze v. 
Vill. of Winthrop Harbor,

286 F.3d 452, 455

 (7th Cir. 2002) (concluding that seeking 
different kinds of variances makes properties dissimilar).                

Second,  courts  also  consider  whether  there  is  factual  similarity—i.e.,  whether 
comparators share attributes that a reasonable decisionmaker would have found relevant 
when making the challenged decision.  See Sanimax,

95 F.4th at 565

 (holding that, when 
seeking to identify similarly situated comparators, Court must identify “full variety of 
factors  that  an  objectively  reasonable  government  decisionmaker  would  have  found 
relevant in making the challenged decision”).  A reasonable government decisionmaker 

would consider how a proposed development would impact surrounding areas as well as 
public opinion regarding a proposed development.

Id.

494 F.3d at 251

; see also Ziss Bros. Const. 
Co. v. City of Independence, Ohio, No. 1:07-CV-3767,

2010 WL 11538705

at *13 (N.D.

ORDER

Based on the foregoing, and on all of the files, records, and proceedings herein, 

IT IS HEREBY ORDERED THAT:                                                
1.   Defendant City of Blaine’s motion for summary judgment (Doc. No. 61) is 
     denied; and                                                     
2.   Plaintiff  Blaine/Atlantic Funding,  LLC’s  motion  for summary  judgment 
     (Doc. No. 58) is denied.                                        

Dated:  October 18, 2024                /s/ Jeffrey M. Bryan              
                                   Judge Jeffrey M. Bryan            
                                   United States District Court

Reference

Status: Unknown