A. Nez Perce Extension1
'
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law
Thoma J. Campbell
(612) 452 -5000
Andrea McDowell Poehler
Rover N. Knutson
Fax (612) 452 -5550
Matthew K. Brokl
Thomas M. Scott
Nlar,uerite N1. McCarron
Gary G. Fuchs
George T. Stephenson
James R. Walston
Elliott B. Knetsch
June 30, 1995
' Mr. Don Ashworth
City of Chanhassen
690 Coulter Drive
Box 147
Chanhassen, MN 55317
I Re: City of Chanhassen - Nez Pearce
Dear Don:
' Enclosed is a copy of the Petition for Review of Decision of
the Court of Appeals Decision which Mr. Beddor's attorney has
filed with the State Supreme Court.
I am optimistic that the Supreme Court will not see any
reason to further review this matter. We will be filing the
appropriate response next week. I anticipate a decision from the
' Supreme Court shortly thereafter.
Please call if you have any questions.
' very truly yours,
CAMPB L t-, KNUTSON, SCOTT
P.A. By . �.
Thomas M. Scott
' TMS:ses
Enclosure
Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Ea(7an, \/1N 55121
W
TO: THE SUPREME COURT OF THE STATE OF NC NNESOTA:
Petitioners Frank Beddor, Jr., Todd Novaczyk, Sherry Novaczyk, Robert Post and Sandra
Post request Supreme Court review of the above - entitled decision of the Court of Appeals upon the '
following grounds: '
I. STATEMENT OF LEGAL ISSUES SOUGHT TO BE REVIEWED '
A. Whether the City of Chanhassen's denial of the petition for an Environmental
Assessment Worksheet ( "EAW ") was arbitrary and capricious. The Court of Appeals failed to '
address this issue and, instead, ruled that the trial court's findings with respect to this issue were
not clearly erroneous. The Court of Appeals erred in failing to review the administrative record
purportedly supporting su rtin the denial of the EAW petition. '
B. Whether the City of Chanhassen's official mapping of the proposed road extension,
without the benefit of a traffic or safety study, was arbitrary and capricious given the fact that
proposed ' '
Pleasant View Road is admittedly substandard and unsafe and the Cit P Po sed P roJ ect will cause
an increase in traffic. The Court of Appeals failed to address this issue and, instead, ruled that the
trial court's findings with respect to this issue were not clearly erroneous. The Court of Appeals '
erred in failing to review the administrative record.
C. Whether the trial court erred in finding that the Vineland Lot 5 pond and the County '
Road 17 pond were not protected natural resources under the Minnesota Environmental Rights Act, '
and furthermore, would not be impaired by the City of Chanhassen's proposed project. The Court
of Appeals failed to address the County Road 17 pond and its unrebutted status as a protected '
wetland. Additionally, it ignored the undisputed fact that at the time this lawsuit was commenced t
both the Vineland Lot 5 pond and the County Road 17 pond were classified by the City of
Chanhassen as protected wetlands, and were protected under both federal and state law. '
t
1 D. Whether the trial court erred in failing to consider "cumulative impacts" of increased
traffic, namely the extension of Town Line Road, in assessing the protected natural resource of
quietude. The Court of Appeals ignored the issue of cumulative impacts and based its opinion
solely on the 1.3 decibel increase in traffic noise from the City's proposed project.
E. Whether the Court of Appeals erred in failing to even mention, much less address,
the Petitioner's challenge to the trial court's findings regarding Christmas Lake. The Court of
Appeals completely ignored this issue, even though a considerable portion of both the trial and
appeal were focused on the likely impairment of this significant, protected resource.
F. Whether the Court of Appeals erred in affirming the trial court's finding of no
feasible and prudent alternatives to the City's proposed project, when the unrebutted record adduced
at trial showed that at least one, and likely two, feasible alternatives exist.
H. STATEMENT OF THE RULE SUPPORTING THE PETITION
This Petition is primarily grounded in Minn. R. Civ. App. P. 117, subd. 2(c), which
provides for appeal to the Minnesota Supreme Court where "the lower courts have so far departed
from the accepted and usual course of justice as to call for an exercise of the Supreme Court's
supervisory powers." The Court of Appeals applied the wrong standard of review to Counts II and
III of Petitioners' Amended Complaint. The entire decision is grounded in a conclusion that the
findings of the trial court were not "clearly erroneous." While the clearly erroneous standard
applies to Count I, it is inapplicable to Counts II and III where the reviewing court must take a
"fresh look" at the administrative record and determine whether the City of Chanhassen acted
t arbitrarily and capriciously. See Exh. C., pp. 23 -25. The information adduced at trial, and the
information before the City of Chanhassen when it acted, are markedly different. Id., pp. 27 -37.
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The Court also departed from "the accepted and usual course" by ignoring many of the
issues raised on appeal. The Court ignored the impacts to Christmas
Lake -- a lake that both
Petitioners and Respondents agree is a protected natural resource under the Minnesota '
Environmental Rights Act. Furthermore, absolutely no discussion is had about the County Road 17
Wetland -- a protected natural resource that Petitioners '
boners spent considerable time discussing in their
appeal. See Exh. F.
III. STATEMENT OF THE CASE
A. Facts. This lawsuit was commenced by Petitioners on August 13, 1993. As amended,
the Complaint contested Respondents' decision to proceed with an extension of a residential
roadway, Nez Perce Drive, through to a highly- trafficked and unsafe roadway, Pleasant View
Road. The Amended Complaint also challenged the realignment of a related roadway, Peaceful
Lane. Respondents' proposed project would force the needless destruction of more than twenty -two
mature trees, contribute to the impairment of an area of uncontroverted quietude, and likely cause
significant adverse effects on two protected wetlands and one of the most pristine lakes in
Minnesota, Christmas Lake. Such actions, Petitioners argued, violated Minn. Stat. § 116B.01, et
seq. Petitioners also challenged Respondents' decision to proceed with the road projects without
the benefit of an EAW, and without a single study or analysis of the traffic or safety concerns on
Pleasant View Road.
The evidence proffered at trial, together with the administrative record from Respondents'
EAW and traffic study decision, provided overwhelming support for each of Petitioners' three
claims. Significantly, following Petitioners' presentation of their case to the trial court, and
Respondents' subsequent Motion for a Directed Verdict, the trial court ruled as a matter of law that
Petitioners had established a prima facie case on every count set forth in the Amended Complaint.
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I
7
The record from trial reflects that Respondents failed to rebut many of the critical aspects of
Petitioners' case. Where rebuttal was offered, Respondents failed to controvert the well- established
facts set forth in the administrative record, or the reasoned opinions, based on personal observations
and actual testing, of Petitioners' expert witnesses.
The trial court's decision is replete with factual errors, misapplications of the law, and
erroneous legal conclusions that drastically impacted the outcome of the case. The Court of
Appeals ignored many of the challenges raised by the Petitioners in their appeal, and even more
significantly, applied the wrong standard of review to the EAW claim and the claim relating to the
official mapping without any traffic or safety analysis (Counts II and III).
B. Procedural History. The case was commenced in August of 1993. Following
discovery, Respondents unsuccessfully moved for summary judgment. Trial was had in early 1994.
Following Petitioners' case -in- chief, Respondents unsuccessfully moved for a directed verdict. The
trial court, however, ultimately issued a decision in favor of Respondents on all three counts of the
Amended Complaint. An appeal was taken to the Court of Appeals following post trial motions
to amend or, in the alternative, for a new trial.
Both Petitioners and Respondents submitted extensive briefing to the Court of Appeals;
Petitioners also filed a three- volume Appendix highlighting the key portions of the record.
Following oral argument on March 7, 1995, the Court issued a six -page opinion that ignored many
of the issues on appeal and applied the wrong standard of review.
IV. BRIEF ARGUMENT IN SUPPORT OF PETITION
The basis for Counts II and III of the Amended Complaint is the record and proceedings
before the Chanhassen City Council and Chanhassen Planning Commission. On appeal, the Court
of Appeals was required to make an examination of this record independent from the findings and
conclusions of the trial court. See Carl Bolander & Sons v. City of Minneapolis 502 N.W.2d 203,
207 (Minn. 1993); Urban Council on Mobility v. Minnesota Dept. of Nat. Resources 289 N.W.2d
729, 732 (Minn. 1980). The Court of Appeals, however, failed to review the administrative record
and, instead, engaged in a perfunctory review of the trial court's decision. See Exh. F. The
J
opinion is thus fatally flawed in completely ignoring the basis for Petitioners' appeal.
i
In addition to applying the wrong standard of review, the Court of Appeals also ignored
many critical aspects of the appeal. For example, no mention is made of either Christmas Lake
or the County Road 17 wetland -- two of the most significant natural resources at issue in this
lawsuit. See Exh. F., pp. 15 -18, 27 -30. The natural resources that are mentioned in the Order
received only nominal consideration from the Court of Appeals; a majority of the substantive issues
raised by Petitioners were simply never addressed. Id., pp. 25 -48; cf. Exh. F.
For these reasons, the Petitioners seek an order granting review of the decision of the
Court of Appeals.
DATED: June 15, 1995
DOHERTY, RUMBLE & BUTLER
PROFESSIONAL ASSOCIATION
rence A. MtSlor�ey ( #165876)
7 T d A. Noteboom ( #240047)
00 Fifth Street Towers
150 South Fifth Street
Minneapolis, Minnesota 55402 -4235
Ph: (612) 340 -5555
Attorneys for Petitioners
TAN\kn \86370
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CA1,IPBELL , KNUTSON, SCOTT & FUCHS, P . A May 16 , 95 1 - 3 :38 No .010 P .01
1 `
CAMPBELL,, KNUTSON, SCOTT & FUCHS, P.A.
1 Attorneys at Law
Suite 317 Eagandale Office Center
1380 Corporate Center Curve
1 Fagan, Minnesota 55121
(612) 452 -5000
FAX (612) 452 -5550
1
FACSIMILE TRANSMISSION - OVER SHEE
1
PLEASE DELIVER TO: DON ASHWORTH, KATE AANENSON
1 AND DAVE HEMPEL
FAX NUMBER: 937 -5739
1
DATE: MAY 16, 1995
1
SENDER: THOMAS M. SCOTT
1
RE: Pedd or v. Chanhassen - Appeal
1 COMMENTS: Attached is copy of decision from the Court of Appeals. Please
call if you have any questions.
1
1 TOTAL NUMBER OF PAGES: S (INCLUDING COVER PAGE)
1 IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL SHERRY AT (612) 452 -5000.
O ORIGINAL TO FOLLOW BY MAIL.
1
1 NOTICE OF CONFIDENTIALITY
The information contained in and transmitted with this facsimile is:
1 1. SUBJECT TO THE ATTORNEY - CLIENT PRIVILEGE;
2. ATTORNEY WORK PRODUCT; OR
3. CONFIDENTIAL.
1 It is intended only for the individual or entity designated above. You are hereby notified that any dissemination,
distribution, copying or use of or reliance upon the information contained in or transmitted with this facsimile by or to
anyone other than the recipient designated above by the sender Is unauthorized and strictly prohibited. If you have
1 received this facsimila In error, please notify CAMPBELL, KNUTSON, SCOTT & FUCHS BY TELEPHONE AT (612} 452-
6000 IMMEDIATELY. Any facsimile erroneously transmitted to you should be Immediately returned to the sender by
U.S. Mail or, if authorization is granted by sender, destroyed.
CHI K[ SCOTT & FUCHS, P.R t'] ay 16 95 13 :39 No .010 F .02
Th � .s opinion will be unpublished and
may not be cited e xcept as provide-d-
Minn. St4t, 9 480A.05, subd. 3 (1994),
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MAZE INQ'1111S QPINii. N OR, PUBLIC
IN COURT OF APPEALS
- 141F,
PRIOR 10 12:01 A.M. ON FILE DA-11,
C 111 I.ow
Carver County Mulally, Judge*
District Court File No. C9-93-1111
Frank Beddor, Jr., et al., Lawrence A. Moloney
Todd A. Noteboom
Doherty, Rumble & Butler
Appellants,
3500 Fifth Street Towers
150 South Fifth Street
Minneapolis, MN 55402-4235
VS.
Thomas M. Scott
City of Chanhassen, et al.,
Campbell, Knutson, Scott &
Respondents. Fuchs, P.A.
317 Eagandale office Center
1380 Corporate Center Curve
Eagan, MN 55121
Filed May 16, 1995
office of Appellate Courts
Considered and decided by Schumacher, Presiding Judge, Parker,
Judge, and Mulally, Judge.
U N P U B L I S H E D 0 P I N 1 0 N
MULALLY, Judge
Be6dor, et al appellants here, commenced this lawsuit in
1993 contesting the City of Chanhassen's decision to proceed with
* Retired judge of the district court, serving as judge of the
Minnenota Court of Appeals by appointment pursuant to Minn. Const.
art. V1, § 10.
' CRI , KI JUTSON , SCOTT & FUCHS , P . R May 16 , 95 15 : 119 No .010 P.07
.1
' an extension of a residential roadway. Beddor alleged
environmental degradation in violation of Minn. Stat. § 116B.01,
' the Minnesota Environmental Rights Act. The court ultimately ruled
for the city, after a denial of the city's motion for a directed
' verdict, and appellants moved for a new trial and for amendment of
' the findings, conclusions and order. The court made certain
amendments but denied the bulk of the requests in the motion and
' denied the motion for a new trial. Appellants now bring this
appeal challenging the trial court's findings of fact and
conclusions of law.
FACTS
Beddor objected to the City of Chanhassen's proposal to extend
' a local street through his property in order to provide access to
a certain residential parcel. The city council voted in favor of
' commencing condemnation of Beddor's property, but Beddor and
' certain of his neighbors objected. The council declined to
reconsider the project and condemnation proceedings commenced.
' Appellants then petitioned the city council to conduct a study
to assess the impact the project would have on the area, but the
' city decided a study was not required. Appellants then filed suit
' pursuant to the Minnesota Environmental Rights Act (MERA). Minn.
Stat. §§ 1168.01 -.13 (1992). Appellants then amended their
' complaint to include a count pursuant to the Minnesota
Environmental Policy Act (MEPA) , Minn. Stat. §§ 116D.01 -.07 (1992),
' and the Uniform Declaratory Judgment Act (UDJA) , Minn. Stat.
' §§ 555.01 -.16 (1992). The condemnation proceeding was joined with
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CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A
May 16 , 95 13:40 No . 0i10 P.04 ,
this action; the city's motion for summary judgment was denied, and
the case proceeded to trial.
The case was tried to the court with both sides presenting
expert testimony with respect to the impact on trees, water, and
quietude, as well as traffic volume and safety in the area. The
trial court ordered judgment for the city and Beddor appeals.
D E C I S I O N
Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility
of the witnesses.
Minn. R. Civ. P. 52.01. " [T] his court will only reverse a trial
court's findings of fact if, upon review of the entire evidence, we
are 'left with the definite and firm conviction that a mistake has
been made.'" In re Guardianshin of Dawson, 502 N.W.2d 65, 68
(Minn. App. 1993) (quoting Giovik v. Strope 401 N.W.2d 664, 667
(Minn. 1987)), pet for rev. denied (Minn. Aug. 16, 1993). On the
basis of this standard of review, we affirm the trial court's
findings of fact as follows.
1. The Minnesota Environmental Rights Act provides any
person in the state of Minnesota with a mechanism for protecting
the air, land, water, and other natural resources of the state from
pollution, impairment or destruction. County of Freeborn v.
on, 297 Minn. 218, 224, 210 N.W.2d 290, 294 -95 (1973). In
order to make a prima facie case under the Minnesota Environmental
Rights Act, plaintiffs must show that there is a protectable
natural resource and, second, that there is a likelihood of a
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' CAP1PBELL, KIdUTSON, SCOTT & FUCHS, P.R May 16 95 15 :41 PJo.01u P.05
' substantial impairment of that natural resource. Jd at 228, 210
N.W.2d at 297 (citing Minn. Stat. § 116B.02, subds. 4, 5 (1972)).
' Under MERA, protected natural resources include "all mineral,
animal, botanical, air, water, land, timber, soil, quietude,
recreational and historical resources." Minn. Stat. § 116B.02,
' subd. 4 (1992). In MERA cases, we review trial court findings
under the clearly erroneous test. Krmpotich v. City of Duluth 483
' N.W.2d 55, 56 (Minn. 1992).
Beddor challenges several of the findings of fact that the
' trial court made with respect to this count, specifically those
' regarding the impact the project would have on trees, water and
quietude.
' (a) Wetlands
Beddor challenges the trial court's finding that the ponds
' were not protected wetlands. While Beddor's expert testified that
' the Lot 5 pond was a wetland, there was evidence to show that this
was true in 1992 but that the designation was changed in February
t 1994 to "utilized pond." This was due to Beddor's own application
to obtain a wetlands alteration permit so that he could combine the
Lot 5 pond with another pond. Beddor completed the combination of
erroneous.
the two ponds in 1993
and the City
updated the wetland inventory
records to reflect the
fact that the
combined ponds had become one
utilized pond. The
trial court`s
finding is thus not clearly
erroneous.
i_ Ht1PBELL , KNUTSON , SCOTT & FUCHS , P . R [lay 16 ,9_5 13) :41 No . Ci 10 P . C?F- '
(b) Feasible and Prudent Alternatives
Beddor argues that the trial court's finding that there were
no feasible and prudent alternatives to the proposed project is
contrary to the record. This is not so. There was evidence
presented at trial that the alternatives proposed by Beddor
involved the construction of roads too steep to be prudent or
feasible. There was also evidence showing that diverting the
surface water, as proposed by Beddor, into another watershed would
be inconsistent with the principle of management planning to follow
natural drainage conditions as much as possible. The trial court's
finding that there were no feasible and prudent alternatives to the
proposed project is thus not clearly erroneous.
(c) ouietuds
Beddor's challenge to the court's finding with respect to
quietude is unpersuasive. There was disputed evidence as to what
the increase in the decibel level would be as a result of increased
traffic in the area. Beddor's own expert admitted that his
projected 1.3 decibel increase in traffic noise would not be
noticeable. The trial court's finding that the proposed project
would not threaten the quietude of the area was thus not clearly
erroneous.
(d) Environmental Assessment Worksheet (EAW)
Beddor challenges the trial court's finding that the City did
not arbitrarily and capriciously fail to conduct an EAW in this
matter. Under the applicable rule, a responsible governmental unit
shall order such an EAW if the evidence presented demonstrates that
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' CAMPEELL, KNUTSON, SCOTT & FUCHS, P.R May 16,95 13 :42 No.010 P.07
' the project may have the potential for significant environmental
effects. Minn. R. 4410.1100, subpt. 6 (1993) . The responsible
1 governmental unit shall deny the petition if the evidence does not
so demonstrate. Id. The court found that the mere suggestion that
there may be a potential for significant environmental effects was
' not enough to compel an EAW. This finding was not clearly
erroneous. Evidence at trial showed that the project at issue is
a minor one which will result in minimal if not unnoticeable
environmental impact. At the crux of appellant's argument is the
suggestion that since the so- called County Road 17 pond and
' Christmas Lake will experience some runoff from the project, an EAW
is warranted. But the trial court had ample evidence before it
' that this runoff would not be potentially significant. The trial
court's finding with respect to the city's refusal to conduct an
EAW is not clearly erroneous.
' (e) Traffic and Safety Issues
Beddor challenges the trial court's failure to find that the
' city's decision to proceed with the project was arbitrary and
capricious due to the city's failure to conduct a traffic and
' safety study. Contrary to Beddor's argument, there was evidence at
' trial showing that the City had continually considered traffic and
safety issues within the subject area. Other evidence showed that
four or five alternative plans for the road extension were
reviewed. At trial, it was demonstrated that additional traffic
' along the route would be minimal. There was also testimony at
trial that road signs had been placed along Pleasant View in
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t
C:Ah9PBELL , KNUTSON , SCOTT & FUCHS , P . A
May 16 , 95 13:43 No . 010 F.08' '
LEI
response to past concerns about traffic safety. The trial court's
finding with respect to the city's concern for traffic and safety
issues implicated by the project is not clearly erroneous.
2. Beddor claims that the trial court improperly considered
and gave weight to his former support for the extension of Nez
Perce Road through to Pleasant View, and improperly considered his
personal motivations in bringing the lawsuit,
in its initial judgment, the trial court, though evidently
aware of Beddor's alleged personal motivations in this action, was
of the opinion that no sanctions could be imposed because there
were factual issues raised, thereby precluding summary judgment.
Such factual issues were extensively entertained by the court in a
lengthy memorandum which concluded that Beddor's case failed the
MERA analysis. The trial court did not base its determination on
Beddor's alleged questionable intentions, but based it on the
resolution of the factual issues brought before the court.
D E C I S I O N
A review of the record reveals that the trial court's findings
in this case are not clearly erroneous. The findings and
conclusions in this matter are supported by the record and are
affirmed.
Affirmed.
F
u
April 11, 1995
Mayor Donald Chmiel
Councilmember Michael Mason
Councilmember Steven Berquist
Councilmember Colleen Dockendorf
Councilmember Mark Senn
' Chanhassen City Hall
P.O. Box 147
Chanhassen, MN 55317
' Dear Mayor Chmiel and Councilmembers:
' We understand that at recent Council and Planning Commission
meetings, it was decided that the City would continue its course
with the Nez Perce extension. Apparently, there must be a very
good (though unexplained) reason for the extension since the City
' is spending significant taxpayer dollars on legal fees and, in
the future, more fees and land acquisition costs. Though we
maintain our opposition to the extension, this letter concerns a
t different issue: Who is going to pay for this?
There have been various inquiries as to what the City has spent,
and will spend, on the extension. There have also been inquiries
' regarding where the funds would come from. None of these
inquiries have been answered.
Surely the City is aware that the only group of residents in
favor of the extension is the Lake Lucy neighborhood. The people
of Pleasantview, Vineland Forest and TrQen dl e have ; r tton ar+,d
voiced their opposition. We hope that you are not considering
' assessing these three neighborhoods. (The phrase "taxation
without representation" comes to mind.) We also hope that the
cost is not going to be levied against all Chanhassen residents
' by paying for it out of general funds.
We already pay more taxes than we care to and the latest proposed
' property tax increase -- at a rate greater than projected income
increases -- makes taxes and assessments a very sore subject. In
that our federal government -- far removed from us in Washington
-- finally got the message against increased taxes and
' entitlements, surely our local government understands this also.
Since this is an extension that only Lake Lucy wants, the only
7
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April 11, 1995
Page 2
fair and responsible way to pay for the extension is to assess
only that neighborhood.
The concept here is very simple: They want it, they pay for it.
After the Court of Appeals, any further appeals, the condemnation
and other proceedings, if the extension still goes through, then
all of those costs, and any construction costs, should be borne
solely by those residents who have asked for the extension. We
sincerely hope that our City is not of the mind to give the
extension to those residents but have it paid for by the rest of
US.
Please advise all of us as to what the City will do regarding
funding of the extension. If the issue is to be raised at some
future meeting, please give all of us advance notice (just as you
seem to give Lake Lucy) so that we may attend.
/
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