Minnesota Court of Appeals Dismisses Nonprofit’s Suit

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SandBar 7:2, July, 2008 Minnesota Court of Appeals Dismisses Nonprofit’s Suit Save our Creeks v. City of Brooklyn Park, 2008 Minn. App. Unpub. Lexis 175 (Minn. Ct. App. 2008). Sara Wilkinson, 3L, University of Mississippi In a recent decision, the Court of Appeals of Minnesota dismissed claims brought against the city of Brooklyn Park by a nonprofit corporation concerned with the effects of a residential development on an area creek and wetlands. The nonprofit, Save Our Creeks, alleged that the city acted arbitrarily and capriciously when it denied a request for further environmental review of the development. Background The claims brought by Save Our Creeks arose in June 2003, when several individuals, including William Barton, petitioned the Minnesota Environmental Quality Board (MEQB) for further environmental review of several pending residential development projects planned by Brooklyn Park. Barton and the petitioners were concerned that the development would negatively affect Oxbow Creek and its surrounding wetlands. In turn, the MEQB designated the city of Brooklyn Park as the responsible governmental unit (RGU) charged with deciding the need for further environmental review. Brooklyn Park, as the RGU, determined that further environmental review in the form of an Environmental Assessment Worksheet (EAW) and/or an Environmental Impact Statement (EIS), was not required for the projects in the subject area and denied Barton’s petition. After Brooklyn Park denied his petition, Barton formed Save Our Creeks to dispute the city’s decision. Subsequently, Save Our Creeks filed a complaint for declaratory judgment against Brooklyn Park in August 2003, claiming the actions were in violation of the Minnesota Environmental Policy Act (MEPA) when it denied Barton’s petition for environmental review because several projects in Brooklyn Park met the mandatory EIS requirement. The nonprofit later added a claim alleging that Brooklyn Park violated the Minnesota Environmental Rights Act (MERA) when it refused further environmental review of the residential development near Oxbow Creek.1 Both parties moved for summary judgment. The district court denied Save Our Creek’s motion for summary judgment. The district court denied Brooklyn Park’s summary judgment motion with respect to the MEPA and MERA claims but granted summary judgment as to all other claims. At the close of trial, the district court granted Brooklyn Park’s motion to dismiss, concluding that Save Our Creeks did not meet its burden of proof by a preponderance of the evidence. The district court noted that no testimony was offered to support or explain any of the admitted exhibits nor was any testimony offered to show that Brooklyn Park’s decisions were arbitrary or capricious or that protected waters were encroached upon.2 Save Our Creeks appealed the district court’s decision. EIS or EAW? In its appeal, Save Our Creeks argued that dismissal of its MEPA claim was improper because Save Our Creeks presented evidence showing that Brooklyn Park acted arbitrarily and capriciously when it denied its request for further environmental review as required under MEPA. Save Our Creeks contended that further environmental review was required in the form of an EIS because the residential development projects: 1) eliminated a protected water or wetland; and 2) consisted of a project area that included over 1,500 units. Minnesota law3 sets forth the criteria for determining when an EIS and an EAW must be prepared by an RGU for a proposed project. According to Minnesota law, an EIS must be prepared when the proposed project has the potential for significant environmental effects resulting from any major governmental action. According to the law, an EAW is required when there is material evidence showing that the project may have the potential for significant environmental effects. 4 Save Our Creeks contended that further environmental review was warranted because Oxbow Creek is a Department of Natural Resources (DNR) protected water, and therefore the preparation of an EIS was required. To meet the threshold requirement for an EIS, Save Our Creeks had to establish that Oxbow Creek is a statutorily defined protected water or wetland under Minnesota law5 and that the disputed development projects would have eliminated Oxbow Creek. At trial, Save Our Creeks submitted an exhibit identifying protected DNR waters in Hennepin County and a list outlining the protected waters and wetlands in that area from 1984. The list of protected waters did not specifically list Oxbow Creek as a protected water, and Save Our Creeks did not provide testimony to establish that Oxbow Creek was one of the identified unnamed protected waters on the list. The court pointed out that even if Oxbow Creek had been identified as a DNR-protected water in 1984, Save Our Creeks was still required to establish that Oxbow Creek met the statutory definition of a protected water or wetland at the time of its 2003 petition. The Minnesota Court of Appeals agreed with the district court’s conclusion that the nonprofit did not provide sufficient evidence that the actions would encroach on protected waters. Number of Units in Project On appeal, Save Our Creeks incorrectly asserted that an EIS was required because the residential development project area concerned more than 1,500 attached and unattached units. According to Minnesota Law, an EIS must be prepared if the residential development includes 1,000 unattached units or 1,500 attached units for certain metropolitan RGUs. Further, multiple projects and multiple states of a single project that are connected actions or phased actions must be considered in total when comparing the project or projects to determine whether an EIS is necessary.6 One of Brooklyn Park’s city planners stated in an affidavit to support Brooklyn Park’s summary judgment motion that the total project area consisted of 1,590 units. Save Our Creeks argued that the affidavit constituted an admission that the developments met the threshold requirement to mandate an EIS. However, the affidavit identified a project area consisting of 36 individual development projects, which individually consisted of too few units to meet the mandatory EIS threshold. As a result, to establish that an EIS is necessary, Save Our Creeks must show that the separate development projects located in the project area in the city planner’s affidavit were connected actions. At trial, Save Our Creeks did not provide any testimony or other evidence to establish that the project area identified in the affidavit consisted of developments that are connected actions that met the mandatory EIS threshold. As such, Save Our Creeks did not establish that an EIS was mandatory and thus did not meet its burden of proof to show that Brooklyn Park’s actions in denying its petition for further environmental review were arbitrary and capricious. Conclusion Save Our Creeks failed to establish that Brooklyn Park acted arbitrarily and capriciously when the city did not require further environmental review of certain residential developments in the form of an EIS or EAW. Essentially, Save Our Creeks did not introduce sufficient evidence establishing Oxbow Creek as a DNR protected water, due in large part to a procedural error.7 Accordingly, the Minnesota Court of Appeals upheld the district court’s decision allowing the city of Brooklyn Park to continue residential development projects in the Oxbow Creek area. Endnotes 1. After extended litigation as to whether Save Our Creeks could proceed because a non-attorney signed its initial pleadings, Save Our Creeks filed an amended complaint on March 30, 2006. 2. At the 2006 trial, only Barton testified. One month prior to trial, Save Our Creeks filed a witness list that included several lay and expert witnesses not previously identified before the discovery deadline. Thus, the district court granted Brooklyn Park’s motion to exclude all but Barton’s testimony at trial. 3. Minn. Stat. § 116D.04 (2a); In previous holdings, the Minnesota Court of Appeals has stated that material evidence is evidence that is admissible, relevant and consequential to determine whether the project may have the potential for significant environmental effects. 4. Watab Twp. Citizen Alliance v. Benton County Bd. of Comm’rs, 728 N.W.2d 82, 90 (Minn. App. 2007). 5. Minn. Stat. § 103G.005, subds. 15-15a. 6. A connected action exists when the RGU determines that two projects are related because: 1) one project would directly induce the other; 2) one project is a prerequisite for the other; or 3) neither project is justified by itself. 7. See supra note 2.
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 7:2, July, 2008

Save our Creeks v. City of Brooklyn Park, 2008 Minn. App. Unpub. Lexis 175 (Minn. Ct. App. 2008).

Sara Wilkinson, 3L, University of Mississippi

In a recent decision, the Court of Appeals of Minnesota dismissed claims brought against the city of Brooklyn Park by a nonprofit corporation concerned with the effects of a residential development on an area creek and wetlands. The nonprofit, Save Our Creeks, alleged that the city acted arbitrarily and capriciously when it denied a request for further environmental review of the development.

Background

The claims brought by Save Our Creeks arose in June 2003, when several individuals, including William Barton, petitioned the Minnesota Environmental Quality Board (MEQB) for further environmental review of several pending residential development projects planned by Brooklyn Park. Barton and the petitioners were concerned that the development would negatively affect Oxbow Creek and its surrounding wetlands. In turn, the MEQB designated the city of Brooklyn Park as the responsible governmental unit (RGU) charged with deciding the need for further environmental review. Brooklyn Park, as the RGU, determined that further environmental review in the form of an Environmental Assessment Worksheet (EAW) and/or an Environmental Impact Statement (EIS), was not required for the projects in the subject area and denied Barton’s petition.

After Brooklyn Park denied his petition, Barton formed Save Our Creeks to dispute the city’s decision.

Subsequently, Save Our Creeks filed a complaint for declaratory judgment against Brooklyn Park in August 2003, claiming the actions were in violation of the Minnesota Environmental Policy Act (MEPA) when it denied Barton’s petition for environmental review because several projects in Brooklyn Park met the mandatory EIS requirement. The nonprofit later added a claim alleging that Brooklyn Park violated the Minnesota Environmental Rights Act (MERA) when it refused further environmental review of the residential development near Oxbow Creek.1

Both parties moved for summary judgment. The district court denied Save Our Creek’s motion for summary judgment. The district court denied Brooklyn Park’s summary judgment motion with respect to the MEPA and MERA claims but granted summary judgment as to all other claims.

At the close of trial, the district court granted Brooklyn Park’s motion to dismiss, concluding that Save Our Creeks did not meet its burden of proof by a preponderance of the evidence. The district court noted that no testimony was offered to support or explain any of the admitted exhibits nor was any testimony offered to show that Brooklyn Park’s decisions were arbitrary or capricious or that protected waters were encroached upon.2 Save Our Creeks appealed the district court’s decision.

EIS or EAW?

In its appeal, Save Our Creeks argued that dismissal of its MEPA claim was improper because Save Our Creeks presented evidence showing that Brooklyn Park acted arbitrarily and capriciously when it denied its request for further environmental review as required under MEPA. Save Our Creeks contended that further environmental review was required in the form of an EIS because the residential development projects: 1) eliminated a protected water or wetland; and 2) consisted of a project area that included over 1,500 units.

Minnesota law3 sets forth the criteria for determining when an EIS and an EAW must be prepared by an RGU for a proposed project. According to Minnesota law, an EIS must be prepared when the proposed project has the potential for significant environmental effects resulting from any major governmental action. According to the law, an EAW is required when there is material evidence showing that the project may have the potential for significant environmental effects. 4

Save Our Creeks contended that further environmental review was warranted because Oxbow Creek is a Department of Natural Resources (DNR) protected water, and therefore the preparation of an EIS was required. To meet the threshold requirement for an EIS, Save Our Creeks had to establish that Oxbow Creek is a statutorily defined protected water or wetland under Minnesota law5 and that the disputed development projects would have eliminated Oxbow Creek.

At trial, Save Our Creeks submitted an exhibit identifying protected DNR waters in Hennepin County and a list outlining the protected waters and wetlands in that area from 1984. The list of protected waters did not specifically list Oxbow Creek as a protected water, and Save Our Creeks did not provide testimony to establish that Oxbow Creek was one of the identified unnamed protected waters on the list. The court pointed out that even if Oxbow Creek had been identified as a DNR-protected water in 1984, Save Our Creeks was still required to establish that Oxbow Creek met the statutory definition of a protected water or wetland at the time of its 2003 petition. The Minnesota Court of Appeals agreed with the district court’s conclusion that the nonprofit did not provide sufficient evidence that the actions would encroach on protected waters.

Number of Units in Project

On appeal, Save Our Creeks incorrectly asserted that an EIS was required because the residential development project area concerned more than 1,500 attached and unattached units. According to Minnesota Law, an EIS must be prepared if the residential development includes 1,000 unattached units or 1,500 attached units for certain metropolitan RGUs. Further, multiple projects and multiple states of a single project that are connected actions or phased actions must be considered in total when comparing the project or projects to determine whether an EIS is necessary.6

One of Brooklyn Park’s city planners stated in an affidavit to support Brooklyn Park’s summary judgment motion that the total project area consisted of 1,590 units. Save Our Creeks argued that the affidavit constituted an admission that the developments met the threshold requirement to mandate an EIS. However, the affidavit identified a project area consisting of 36 individual development projects, which individually consisted of too few units to meet the mandatory EIS threshold. As a result, to establish that an EIS is necessary, Save Our Creeks must show that the separate development projects located in the project area in the city planner’s affidavit were connected actions.

At trial, Save Our Creeks did not provide any testimony or other evidence to establish that the project area identified in the affidavit consisted of developments that are connected actions that met the mandatory EIS threshold. As such, Save Our Creeks did not establish that an EIS was mandatory and thus did not meet its burden of proof to show that Brooklyn Park’s actions in denying its petition for further environmental review were arbitrary and capricious.

Conclusion

Save Our Creeks failed to establish that Brooklyn Park acted arbitrarily and capriciously when the city did not require further environmental review of certain residential developments in the form of an EIS or EAW. Essentially, Save Our Creeks did not introduce sufficient evidence establishing Oxbow Creek as a DNR protected water, due in large part to a procedural error.7 Accordingly, the Minnesota Court of Appeals upheld the district court’s decision allowing the city of Brooklyn Park to continue residential development projects in the Oxbow Creek area.

Endnotes

1. After extended litigation as to whether Save Our Creeks could proceed because a non-attorney signed its initial pleadings, Save Our Creeks filed an amended complaint on March 30, 2006.

2. At the 2006 trial, only Barton testified. One month prior to trial, Save Our Creeks filed a witness list that included several lay and expert witnesses not previously identified before the discovery deadline. Thus, the district court granted Brooklyn Park’s motion to exclude all but Barton’s testimony at trial.

3. Minn. Stat. § 116D.04 (2a); In previous holdings, the Minnesota Court of Appeals has stated that material evidence is evidence that is admissible, relevant and consequential to determine whether the project may have the potential for significant environmental effects.

4. Watab Twp. Citizen Alliance v. Benton County Bd. of Comm’rs, 728 N.W.2d 82, 90 (Minn. App. 2007).

5. Minn. Stat. § 103G.005, subds. 15-15a.

6. A connected action exists when the RGU determines that two projects are related because: 1) one project would directly induce the other; 2) one project is a prerequisite for the other; or 3) neither project is justified by itself.

7. See supra note 2.