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  Tuesday January 27th, 2015    

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Summary judgement asked in 30% rule lawsuit (01/02/2013)
By Emily Buss

Four Winona homeowners are preparing to face a judge later this month in an attempt to overturn Winona's controversial 30 percent rule. After stepping forward in October 2011 to challenge the rental ordinance, Anthony B. Sanders, an attorney for the Institute for Justice Minnesota Chapter, has worked with the homeowners to uncover evidence that he says proves the rule infringes on their rights as property owners. Sanders filed a motion for summary judgement late last week, and said this case could set a precedent for property rights case law.

Ethan Dean, Holly Richard, and Ted and Lauren Dzierzbicki filed the necessary paperwork last week that would, if approved, avoid a jury trial. A motion for summary judgement is a written request given to the court, which seeks a judgement in favor of the moving party before a lawsuit goes to trial.

"I'm pretty sure it won't go to [a jury] trial because we have the facts and we have the testimony that we think is undisputed," Sanders said. "What will happen this month is not actually a trial, but rather a hearing."

Evidence that Sanders says proves the city is "playing musical chairs with people's property rights," includes an outdated rental map that directly affected Richard's situation. Since filing the suit, Richard has obtained a rental license, but only after Sanders pointed out the date of the map.

"She was actually eligible for a rental license because another license on the block had expired in March 2008 and was never renewed," Sanders explained.

Another piece of evidence against the 30 percent rule that Sanders called a "jarring loophole" is the fact that current rental license holders are not prohibited from expanding their license to other units, such as in the case of a duplex, in an already rental-saturated neighborhood.

"The loopholes are for those who are privileged with the license. But if you don't have a license, you can't do anything with your property," Sanders said. "There is absolutely no justification for that aspect."

The four homeowners are seeking a $1 settlement and a ruling that could overturn the ordinance, which has been in effect since late 2005. Sanders said while his clients are not asking for a large sum of money, they are hoping for a bigger payment in the form of change.

"They are merely suing to have the law declared unconstitutional and are asking for the city to stop enforcing the ordinance," Sanders said. "The dollar worth of damage, or nominal denomination, they are asking for is symbolic of past rights violation."

Sanders and his clients are set to appear before a judge on January 23, during which the motion for summary judgement could be approved, striking down the controversial rental rule. However, if the judge denies the request, the case would go to a jury trial tentatively set for May.

"We would relish the opportunity to take this case to a jury trial because it would be great to show the unconstitutional violation of property rights," Sanders said. "But, we will just have to see what the judge says. Even if the judge rules that just our clients should be able to get rental licenses, that small move could still have a wider impact." 


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