Loading...
Administrative Section1' 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 ADMINISTRATIVE SECTION Letter from Representative David Minge dated February 5, 1995. Letter from Jim Hoese, Carver County Commissioner dated January 27, 1995. Letter from Nancy Krake, School District 112 dated January 30, 1995. Letter from Dave MacGillivrary, Springsted dated February 14, 1995. Letter from Ridgedale YMCA dated February 15, 1995. Letter from David Sonnenberg, President, City Engineers Association of Minnesota dated February 9, 1995. Letter from Jan Taher, Minnetonka Public Schools dated February 1, 1995. Information Regarding Beddor v. Chanhassen dated February 9, 1995. Memo to Don Ashworth dated February 21, 1995. Memo from Don Ashworth dated February 22, 1995. HRA Accounts Payable. Memo from Todd Gerhardt re: the Pedestrian Bridge dated February 23, 1995. S►EC, Ty CROPS AND NATURAq SOURCE! wdu`u M ENwRON UT. CREDIT. AND RURAL DEVELOPYENt C omm COMMITTEE ON SCIENCE, SPACE. �lC of the 'eniteb AND TECHNOLOGY �/ �/ SURCOMMRTEE E: kouge of Aepreontatibeg' TECNNOLOGT. ENVIRONMENT -No AV,AT. SCIENR 2b Motrict, ;ffiinnegota February 5, 1995 Mayor Donald Chmiel City of Chanhassen PO Box 147 Chanhassen, MN 55317 Dear Mayor Chmiel: 1508 LONGWORTN BDIL OHEG WASHINGTON, DC 20515' (202) 225-233t DISTRICT OFFICES: (SOUTH TOWN PLAZA) 542 FIRST STREET SO�UTN' MONTEVIDEO MN 58285 (612)269 (CITY SQUARE) 108 EAST THIRD STREET C HASK A, MN 55318 48 , (812) 48 -6567 (COURTHOUSE SQUARE) 938 FOURTH AVENUE P.O. Box 367 WINDOM. MN 56101 (507) 831 -0115 TOLL FREE 1 -(800)- 453 -9392 Thank you :for writing to express your views on several important issues. I appreciated the opportunity to meet with you recently in Chanhassen. As you may know, the balanced budget amendment was approved in the U.S. House of Representatives by a vote of 300 -132. I voted in favor of the amendment because the federal government has been unable to balance the federal budget for more than twenty -five years. This out - of- control deficit spending has amassed for us a staggering national debt of nearly $4.7 TRILLION. While I realize that amending our Constitution is serious business, we cannot continue to mortgage the future of our children and grandchildren with rampant spending. I am hopeful that a balanced budget amendment will force Congress to make the tough choices needed to balance budget. I agree that Congress must not balance the budget on the backs of state and local governments. That is why I voted in favor of the Unfunded Mandate Relief Act which was approved in the House recently by a vote of 360 - 74. This bill will make it out of order for Congress to consider legislation unless it identifies any unfunded federal mandates, has a cost estimate for those mandates, and provides funding for any mandate in excess of $50 million. This legislation is needed because Congress has relied too much on costly unfunded mandates to impose federal Policies on state and local governments. The time has come to end this bad habit of "passing the buck." If Congress cannot find a way to finance new policies that would be financially burdensome to state and local governments, then those policies should not be implemented. Once again, thank you for contacting me M mber of Congress S STATIONERY PRINTED ON PA ER MADE OF RECYCLED FIBERS 54koq W4 1 Office of COUNTY COMMISSIONERS CARVER COUNTY COURTHOUSE 1 Phone: 612/361 -1510 600 EAST 4TH. STREET, BOX 3 FAX: 612/361 -1581 z CHASKA, MINNESOTA 55318 P 1 i . COUNTY OF CAQVER Ursula Minter County Commissioner District #1 January 27, 19 95 1 6121934 -8974 1 James Hoese 1 County Commissioner District #2 Hon. Donald J. Chmiel 6121955 -3418 Chanhassen City Mayor 7100 Tecumseh Lane 1 Chanhassen, MN 55317 Dear Mayor Chmiel: Earl F. Gnan 1 County Commissioner In an effort to encourage public input at Carver County District #3 Board meetings, we are scheduling an-evening meeting the 5121467 -2989 first Monday of each month beginning at 4:00 p.m. On 1 subsequent weeks, board meetings will be each Tuesday at 9:00 a.m. We welcome and encourage your participation at these 1 Tracy D. Swanson meetings. County Commissioner District #4 1 6121448 -4458 cerely, iames i John Siegfried A. Ho e s e, Chair County Commissioner Carver County Board of Commissioners District #5 W - 6121448 -3024 1 H - 6121448 -3031 AHirmadve Action /Equal Opportunity Employer Primed on Recycled Paper Corklains Minimum 10% Post Consumer Waste School District U2 Office of Community /Staff Relations Nancy Kracke, Coordinator 110600 Village Road Chaska, Minnesota 55318 61 2/368 -3607 Dear �1.��_'�' ✓" ------------ - - - - -- &-�XIA_ JAA/ v January 30, 1995 Thank you for accepting our invitation to attend a discussion about academic standards for School District 112 on cC. group will meet at the Early Childhood Center in::fhe Board Roo the seO and floor. The Early Childhood Center is located at 110600 Village Ro m o will begin at //: ?>L a.(, ; the session will go for approximately 75 minutes. ad in Chaska. We The discussion group in particular . will be made up of approximately 8-12 people. We are interested a your thoughts and opinions about education in general and District II.. ri 2 r Since we are talking to a limited number of people, the success and uali of our discussion is based on the cooperation of the people who attend. We are looks forward to your participation. If for some reason you find you are not able to ng please call me at 368 -3607 (office) or 933 -2673 (home). attend, Thanks for taking the time to be involved in this important discussion. Sincerely, Nancy Kracke Community Relations Coordinator Serving the communities of eastern Carver County through equal opportunity in employment and education. S P R I N G ST E D 120 South Sixth Street Suite 2507 PUBLIC FINANCE ADVISORS Minneapolis, MN 55402.1800 (612) 333.9177 Fax: (612) 349.5230 Home Office 85 East Seventh Place 16655 West Bluemound Road Suite 100 Suite 290 Saint Paul. MN 55101.2143 Brookfield. WI 53005 -5935 (612) 223 -3000 (414) 782.8222 Fax: (612) 223.3002 Fax: (414) 782.2904 6800 College Boulevard Suite 600 Overland Park, KS 66211.1533 (913) 345 -8062 Fax: (913) 345 -1770 1850 K Street NW February 14, 1995 Suite 215 Washington, DC 20006.2200 (202) 466.3344 Fax: (202) 223.1362 Mr. Mark Senn, Council Member Chanhassen City Hall 690 Coulter Drive P.O. Box 147 Chanhassen, MN 55317 Re: Response to Your Question on Bond Insurance and Credit Enhanced Municipal Bond Sales Dear Mr. Senn: At the City's recent bond sale, you asked the question as to the number of bond issues that had bond insurance as part of the sale structure. I asked that the question be refined to Minnesota issues of a general obligation nature. I stated that I needed additional time to research the exact numbers, but I estimated that the number ran between 20 and 25 percent. This morning I had our Research Center review the 1994 Minnesota bond sale activity. They found that in Minnesota last year there were 586 bond issues. Of these, 10 percent had direct bond insurance, and an additional 16.4 percent had credit enhancement through the State bond insurance program for Minnesota school districts. Therefore, a definitive answer to your question is that 26.4 percent of Minnesota general obligation bond Issues in 1994 had either bond insurance or credit enhancement through a bond insurance -type vehicle. We trust that this fully responds to your question. Please feel free to contact me if I can be of any further assistance. Respectfully, avid N. MacGillivray ' Principal Director of Project Management cjb /Saint Paul Office cc: Mayor and City Council Members ' Mr. Don Ashworth, City Manager 4149. 7& RIDGEDALE BRANCH YOUNG MEN'S CHRISTIAN ASSOCIATION OF METROPOLITAN MINNEAPOLIS 12301 RIDGEDALE DRIVE MINNETONKA. MINNESOTA 55305 -1904 AREA CODE 612/544 -7708 FAX 612/544 -4765 February 15, 1995 The Rldgedale YMCA, as Part of a worldwide Association, is committed to serving our community and strengthening the mind, body and spirit of all individuals and families. Todd Gerhardt City of Chanhassen 590 Coulter Drive P. O. Box 147 Chanhassen, Minnesota 55317 Dear Todd: We really appreciated your visit to the Ridgedale YMCA on Tuesday. We hope we were able to give you additional information about our programs and services. Both of us are very excited about the possibility of working with you on this project. If we can be of any further help, please feel free to contact either one of us. Sincerely, Russ Horsch - IAi Executive Director Sue Erickson RH:mal Associate Executive Director RECE1 VED 1995 UN THE MINNEAPOLIS AREA UNITED WAY AN AFFIRMATIVE ACTION EMPLOYER CITY ENGINEERS ASSOCIATION of MINNESOTA / ENGIp� 9SS GCI A�� February 9. 1995 Diane Desotelle Water Resources Coordinator City of Chanhassen 690 Cotter Drive Chanhassen, MN 55317 Dear Diane, On behalf of the planning committee, I am writing to thank you for presenting at the 1995 Annual Meeting of the City Engineers Association, held January 18 -20, 1995 in Minneapolis, Minnesota. We had 150 registrants at the program this year from all over the state. The evaluations that we received from the attendees were very positive. Many people commented on how informative, timely, and pertinent the presentations were. Your presentation was a very important contribution to the program. Thank you again for helping to make the 1995 conference such a success. I Sz 1 David Sonnenberg, President City Engineers Association of Minnesota 1 CITY OF CHANHASSEN 'P t FIB 17 1995 1 G DEPT. i Minnetonka k1l Public Schools Learning Today for Success Tomorrow February 1, 1995 Dear Neighbor, We have an excellent opportunity for youl You can promote your business, product, or service by making a donation to the SILENT AUCTION held in conjunction with the MINNEWASHTA ELEMENTARY SCHOOL FUN FAIR. In previous years, contributions have included such things as gift certificates, various services, and merchandise, as well as promotional discounts for adults and children. The 1995 FUN FAIR will be held on FRIDAY MAY 5th. It is a night of family fun and also serves as an important fundraiser for our school. The Minnewashta Parent Teachers Organization (PTO) funds many of the academic and enrichment projects for the school with the funds raised by the Silent Auction. The response from our community in the past has been terrific and we hope you will help us out again. A volunteer will be contacting you regarding your contribution within the next two weeks. Thank you for your continued support. Sincerely, PTO Volunteers Jan Taher 28135 Boulder Bridge Dr. Shorewood, MN 55331 474 - 1097 Linda Mott 1504 Fairfield Rd. S. Minnetonka; MN 55305 544 -5358 � ,'trcEel t Susan Champa C /rY pP ... . 'e .! s9 7 9.9 s S 5500 Nelsine Dr Shorewood, MN 55331 474 -3179 1 L'4�� ...�.'_ _ _ 1., �' i:, � ;-, � %. � I �1l_ C �i`j'1C %.,i.l -\, /"bv"„-�C A'._L, � � i`� �Z _c F • . � •, linncwashla Elcmentar% school 2 6350 Smithtunn 12urd }.\ccl%ibr. Minnesota 4-5 331 I.luid P. I.a%s. Principal (612) 474-4241 j � ' Mr. Don Ashworth City of Chanhassen 690 Coulter Drive, Box 147 ' Chanhassen, MN 55317 RE: Beddor v. Chanhassen Dear Don: I Enclosed for your information please find copies of the following: ' 1. Respondents' Brief and Addendum which we filed with the Minnesota Court of Appeals on January 27, 1995. ' 2. Appellants' Reply Brief. The briefing of this matter has now been completed. The next step is oral arguments before the Court of Appeals which I anticipate will be sometime in March or early April. The Court then has 90 days after the date of the oral arguments to render its decision. ' Please call if you have any questions. TMS:slc Enclosures cc: Ms. Kate Aanenson (Enclosures) Mr. Dave Hempel (Enclosures) Best regards, CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Th mas M. Scott RECEIVED . 1995 w i r OF CHANHASSEN Suite 317 • EaganIale Office Center • 1380 Corporate Center CUrve • E loan, MN 5 5121 CAMPBELL, KNUTSON, SCOTT & FUCHS, PA. ' Attorneys at Law Tho„ nas J. Campbell (612) 452 -5000 Andrea McDowell Poehler Rover N. Knutson Thomas M. Scott - Fax (612) 452 5550 Todd L. Nissen Mar,uerite M. McCarron Gary G. Fuchs George T. Stephenson lanes R. Walston, February 9, 1995 ' Elliott R. Knetsch ' Mr. Don Ashworth City of Chanhassen 690 Coulter Drive, Box 147 ' Chanhassen, MN 55317 RE: Beddor v. Chanhassen Dear Don: I Enclosed for your information please find copies of the following: ' 1. Respondents' Brief and Addendum which we filed with the Minnesota Court of Appeals on January 27, 1995. ' 2. Appellants' Reply Brief. The briefing of this matter has now been completed. The next step is oral arguments before the Court of Appeals which I anticipate will be sometime in March or early April. The Court then has 90 days after the date of the oral arguments to render its decision. ' Please call if you have any questions. TMS:slc Enclosures cc: Ms. Kate Aanenson (Enclosures) Mr. Dave Hempel (Enclosures) Best regards, CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Th mas M. Scott RECEIVED . 1995 w i r OF CHANHASSEN Suite 317 • EaganIale Office Center • 1380 Corporate Center CUrve • E loan, MN 5 5121 NO. C9 -94 -2016 STATE OF MINNESOTA IN COURT OF APPEALS Frank Beddor, Jr., Todd Novaczyk and Sherry Novaczyk, and Robert L. Post and Sandra J. Post, Appellants, vs. City of Chanhassen, its Mayor Don Chmiel and City Council Members, Respondents. RESPONDENTS' BRIEF AND ADDENDUM Lawrence A. Moloney, #165876 Todd A. Note600m, #240047 DOHERTY, RUMBLE & BUTLER, P.A. 3500 Fifth Street Towers 150 South Fifth Street Minneapolis, MN 55402 -4235 (612) 340 -5555 Attorneys for Appellants Thomas M. Scott, #98498 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 (612) 452 -5000 Attorneys for Respondents TABLE OF CONTENTS Table of Contents ............. ............................... i Table of Authorities ............ ............................... iii Statement of Legal Issues ........ ............................... 1 Statement of Case ............. ............................... 2 Statement of Facts ............ ............................... 4 Argument................ ............................... 16 I. THE EVIDENCE TAKEN AS A WHOLE STRONGLY SUPPORTS THE TRIAL COURT'S DETERMINATION THAT THIS TINY STREET PROJECT DOES NOT VIOLATE THE MINNESOTA ENVIRONMENTAL RIGHTS ACT ........................... 16 A. The street will not materially adversely affect water resources ........ ............................... 18 1. The City introduced competent expert testimony on water quality issues which was accepted by the trial court ......... 18 2. Appellants, who have the burden of proof, introduced entirely speculative, contradictory testimony on water quality issues that was rejected by the trial court ........... 20 3. The trial court's determination that the City will not materially, adversely affect water resources by placing storm water from development into a storm water pond designed to improve overall water quality is not contrary to the evidence .. ............................... 24 B. The evidence is uncontroverted that this street project will not have any noticeable impact on Appellants' claimed natural resource of quietude......... ............................... 26 C. The trial court's determination that the loss of a few trees does not constitute a substantial impairment of natural resources is not clearly erroneous .... ............................... 28 as D. The evidence fully supports the trial court's finding that there is no feasible and prudent alternative to the proposed project ... . II. THE CITY DID NOT ACT ARBITRARILY AND CAPRICIO 31 DECIDING NOT TO DO AN ENVIRONMENTAL ASSESSMENT IN WORKSHEET ...... ..........:.................... "I- THE EVIDENCE FULLY SUPPORTS THE TRIAL COURT'S ' ' 34 DETERMINATION THAT THE CITY'S LEGISLATIVE PLANNING DECISION CONCERNING WHEN AND WHERE TO CONSTRUCT THIS STREET WAS NOT ARBITRARY AND CAPRICIOUS ... _ . . • • . 40 Conclusion ........ ............................... Addendum ............................................. 44 ............... ADD -i -ii- TABLE OF AUTHORITIES Paves Cases ' City of Barnum v. County of Carleton 394 N.W.2d 246, 250 (Minn. Ct. App. 1986) 35 ' Ben ,zston v. Village of Marine on St. Croix 310 Minn. 508, 246 N.W.2d 582, 585 (1976) 40 ' Carl Bolander & Sons Co. v. Minneapolis 488 N.W.2d 804, 809 (Minn.Ct.App. 1992) ......................... 34, 35 ' Chase v. City of Minneapolis 401 N.W.2d 408, 412 (Minn.Ct.App. 1987) ........................... 35 ' Fohl v. Common Council of Village of Sleepy Eve Lake 80 Minn. 67, 82 N.W. 1097, 1098 (1900) ............................ 40 ' Highland Recreation Defense Found. v. Natural Resources Comm'n 180 Mich.App. 324, 446 N.W.2d 895, 898 (1989) ....................... 30 Kent County Road Commission v. Hunting 170 Mich.App. 222, 428 N.W.2d 353, 358 -359 (1988) .................. 29, 30 ' Krmpotich v. City of Duluth 483 N.W.2d 55, 56 (Minn. 1992) .. ............................... 18 ' M.P.I.R.G. v. White Bear Rod & Gun Club 257 N.W.2d 762, 782 (Minn. 1977) ........................... 17, 26, 27 State of Minn. by Bruce Kasden v. Indep. School District No. 87, Moose Lake. Minn. No. C7 -88 -1597 (Minn.Ct.App. February 28, 1989) ...................... 30 Portage v. Kalamazoo Countv Road Commission 136 Mich.App. 276, 355 N.W.2d 913, 915 -916 (1984) ............... 29, 30, 31 ' Rochow v. Spring Arbor Township 152 Mich.App. 773, 394 N.W.2d 102, 104 (1986) ....................... 30 ' Swanson v. City of Bloomington 421 N.W.2d 307, 313 (Minn. 1988) . ............................... 35 F— -iii- Wacouta Township v. Brunk-ow Hardwood Corporation 510 N.W.2d 27, 30, (Minn.Ct.App. 1993) .......................... 17, 29 White Bear Docking and Storage Inc v City of White Bear Lake 324 N. W.2d 174, 176 (Minn. 1982) . ............................... 35 Statutes Minn. Stat. §116B.01 ......... ............................... 1, 2 Minn. Stat. §116B.02, Subd. 5 .... ............................... 16 Minn. Stat. §116B.03, Subd. 1. ... ............................... 16 Minn. Stat. §116B.04, Subd. 4 .... ............................... 16 Minn. Stat. §116D ............ ............................... 2 Minn. Stat. §116D.04 .......... ............................... 34 Minn. Stat. §116D.04, Subd. 2a ... ............................... 34 ' Minn. Stat. §116D.04, Subd. 2a(c) (1992) ............................ 34 Minn. Stat. §412.221, Subd. 6 .... ............................... 40 Minn. Stat. §462.351 to §462.364 ............................... 40,41 Minn. Stat. §462.359 .......... ............................... 41 Minn. Stat. §462.359, Subd. 2 .... ............................... 41 Minn. Stat. §462.359, Subds. 3 and 4 ............................... 41 Rules Minn. R. App. P., Rule 128.02, Subd. 1(c) , , , , , , , , , , , , , , , 4 Minn. Rule 4410.0200, Subd. 24 .................. . 37 -iv- Minn. Rule 4410.1100 ......... ............................... 34 Minn. Rule 4410.1100, Subp. 6 (1992) .............................. 34 Minn. Rule 4410.1700, Subp. 7 .......... ....... • ........ • • • • • .. 38 ' Minn. Rule 4410.2100, Subp. 2 (1992) .............................. 34 1 -v- LEGAL ISSUES 1 • Is the trial court's determination that the proposed street project doe - the Minnesota Environmental Rights Act (MERA not violate clearly erroneous? )� Minn. Minn Stat. §11613.01 ems 2• Is the trial court's determination that the City did not act ar capriciously in deciding not to do an Environmental Assessment b Wo Works and (EAW) clearly erroneous? eet 3 • Is the trial court's determination that the City did not act arbitra capriciously in making its legislative planning decision as to street location cle and ann erroneous? arty -I- STATEMENT OF CASE On July 26, 1993, the City of Chanhassen initiated condemnation proceedings to acquire property owned by Appellant Frank Beddor, Jr. for a local street project. On August 13, 1993, Appellants commenced this action pursuant to the Minnesota Environmental Rights Act (MERA), Minn. Stat. §116B.01 et seg ., against the City, its Mayor and City Council members seeking unspecified equitable relief relating to the proposed street project. On or about September 24, 1993, Appellants served and filed an Amended Complaint. 1 Count One reasserted Appellants' MERA claim. Count Two alleged a violation of the Minnesota Environmental Policy Act (hereinafter "MEPA "), Minn. Stat. §116D et seg ., in regard to the City's August 30, 1993 decision not to complete an Environmental Assessment Worksheet (hereafter "EAW "). Count Three generally alleged that the City acted arbitrarily and capriciously in connection with its planning decision to proceed with the proposed street project. The u orted environmental concerns underlying Appellants' MERA and MEPA claims P rP Y g PP ' involved traffic noise, tree loss and water quality. The record of the City's proceedings relating ' to Counts Two and Three was supplemented at trial by expert testimony on these issues. The matter was tried to the Court, the Honorable Robert J. Goggins presiding, on February 28, March 1, 2, 3, 7, 8 and 9, 1994. After post -trial briefing the parties made final ' oral arguments on April 15, 1994. On June 3, 1994, the Court made and entered its Findings of Fact, Conclusions of Law ' and Order for Judgment dismissing Plaintiff's Complaint in its entirety. Judgment was entered ' on July 14, 1994. On August 3, 1994, the Court, in response to Plaintiff's motion for Amended Findings or, In The Alternative, a New Trial made and entered its Order to Amend Findings of Fact and Conclusions of Law and Amended Judgment. On September ember 27, 1994 Appellants filed their appeal from the original Judgment and the Amended Judgment. A from the denial of their motion for a new trial. Appellants did not appeal -3- ' STATEMENT OF FACTS Respondents submit this Statement of Facts. Appellants statement makes a mockery of the requirements that "facts must be stated fairly, with complete candor," and that the statement of facts summarize the evidence "tending directly or indirectly to sustain the verdict, findings or determination" by the trial court. Rule 128.02, Subd. 1(c), Minn. R. App. P. Appellant Beddor is the owner of Vineland Lot 5, the undeveloped 3.5 acre parcel being condemned by the City for the local street project which is the subject of these proceedings. ' Beddor is a resident of the State of Florida. He is the owner of a home located at 910 Pleasant View Road on Christmas Lake in Chanhassen, just to the north of the street project area. He ' is p also the developer of an 8.7 acre, 15 -lot subdivision, called the Troendle Addition adjacent to the street project area. In the early 1980s he also developed Christmas Acres Estates, a seven -lot subdivision located immediately north of the project area next to Christmas Lake. AA pp. 180 -181. Appellants Todd Novaczyk and Sherry Novaczyk are owners of property located at 6371 Pleasant View Cove in Chanhassen. Appellants Robert L. Post and Sandra J. Post are owners of property located at 489 Pleasant View Road in Chanhassen. AA p. 181. Neither the Novaczyks nor the Posts were present at trial or in any way participated in these proceedings. Beddor financed the entire cost of the lawsuit. Tr. p. 356. The proposed project consists of the extension of a local, residential street called Nez ' Perce Drive approximately 400 feet to the northwest over a grassy, open area from its present ' terminus at a temporary cul -de -sac to Peaceful Lane which connects to Pleasant View Road. It also involves the realignment of Peaceful Lane to access a proposed 7.1 acre, 13 -lot residential subdivision called Tower Heights Addition. The realigned Peaceful Lane accessing the Tower Heights plat will be called Tower Heights Drive. AA pp. 181 -182. (See ADD pp. 1 -2, for reference which are copies of Tr. Ex. 1 showing the existing conditions and Tr. Ex. 2 showing the proposed project.) The purpose of the project is to improve traffic circulation by providing a north/south connection through the area, improve access to the neighborhood for emergency and public safety vehicles, and provide street access for the new Tower Heights development. AA p. 182. The extension of Nez Perce Drive to Pleasant View Road has been planned by the City since 1989 when Vineland Forest, an 18 -lot subdivision further to the east was approved. AA p. 182. PLANNING BACKGROUND In 1989, when the Vineland Forest plat was before the City Council, City staff examined alternative access concepts for serving Vineland Forest and the area to the west which now consists of the Troendle Addition developed by Beddor, the proposed Tower Heights Addition and Beddor's Vineland Lot 5. Four alternatives were subsequently submitted to the City Council. The City approved the access concept plan which provided that Nez Perce be extended from its then terminus at Lake Lucy Road at the southeast comer -of this 40 -acre rectangular study area and loop to the northwest and connect with Pleasant View Road via Peaceful Lane. The project now being challenged is the last segment of this plan. AA p. 182. (See ADD p. 3 for reference, which is a copy of AA p. 783 showing the access concept plan adopted in 1989, with the different areas labeled for illustrative purposes.) A September, 1989 staff report analyzed the different access concepts and set forth the planning reasons for a through street to Pleasant View Road. The report stated at page two: -5- Given the size of the study area, staff estimates that approximately 55 homes could eventually be built. Each single family home will generate approximately 10 trips per day. This estimate is based upon the access and development concept plans that are ' presented in this report. The plans attempt to provide lots consistent with city development standards. In our opinion, to adequately serve this large an area a through street connection is warranted. The connection is important to being able to provide adequate levels of service for local residents and reasonable emergency vehicle response times. From the standpoint, of the larger, surrounding neighborhood a north/south connection is considered to be of benefit for traffic flow and emergency vehicle access ' since it would be the only connection between Powers Boulevard and Lotus Lake. AA pp. 183, 775. 7 C t In December of 1989, the Vineland Forest plat was approved and it was subsequently developed with Nez Perce terminating in a temporary cul -de -sac at the western edge of the subdivision. A temporary barricade was erected and a notice regarding the ultimate extension of the street was placed in the chain of title of each lot. AA p. 183. In 1990, Appellant Beddor purchased the 8.7 acre Troendle property for residential development. The property is located between the Vineland Forest plat to the east and the proposed Tower Heights subdivision and Beddor's Vineland Lot 5 parcel to the west. AA p. 183. It essentially occupies the middle portion of this 40 -acre rectangular study area. In January of 1991, the City Council gave preliminary plat approval to Beddor's Troendle n 0 Addition. Access to the Troendle Addition was obtained by removing the temporary cul -de -sac placed on the west edge of the Vineland Forest subdivision and extending Nez Perce Drive into the Troendle Addition consistent with the plan to ultimately extend the street to Pleasant View Drive at Peaceful Lane. As with the Vineland Forest plat, the present temporary barricade was erected at the present terminus of Nez Perce at the western edge of the Troendle Addition. AA pp. 183 -184. t As part of the Troendle Addition plat review, city staff reaffirmed the planning reasons for extending Nez Perce to Pleasant View Drive via Peaceful Lane. The October 17, 1990 staff report stated: Access into this area of the City was explored in detail with the review and approval of the adjacent Vineland Forest subdivision. During review of that subdivision, it became clear that the City wished to maintain continuity of north/south flow between Pleasant View Road and Lake Lucy Road and points further south to maintain reasonable access for emergency vehicles and residents. At the same time, residents along Pleasant View Road were concerned that if traffic were introduced too far to the east that Pleasant View Road would have an undue burden from increased traffic. Consequently, an access concept was developed whereby Nez Perce Road would be ultimately extended through the Vineland Forest plat and over to adjacent parcels where it would intersect with Pleasant View Road at the current site of Peaceful Lane. AA p. 184, 841. In making its decision on the Nez Perce Drive extension to Pleasant View Road, the City Council had to balance competing concerns about traffic expressed by Lake Lucy Road residents with those of Pleasant View Road residents. Lake Lucy Road residents wanted Nez Perce extended to Pleasant View Road at the same time Beddor developed the Troendle Addition. AA pp. 184 -185. In response to the concerns of the City Council and Lake Lucy residents about when Nez Perce would be extended to Pleasant View Road, Daryl Fortier, acting on behalf of Beddor, reiterated to the City Council Beddor's support for the connection to Pleasant View Road. AA p. 185. In April of 1992, the City Council ordered the preparation of a feasibility report relative to the extension of Nez Perce Drive to Pleasant View Road in order to more thoroughly define the alignment and construction costs. AA p. 185. The feasibility report, dated July 8, 1992, shows two slightly different alignments of the extended Nez Perce Drive, the difference being whether there would be a curve or "T" intersection at its junction with the existing Peaceful Lane. AA p. 186. -7- The City Council subsequently tabled action on the project due to the uncertainty of the ' ownership status of Vineland Lot 5, the property over which the road would be built. Beddor ' was negotiating for the purchase of the property at that time, which he completed later in 1992. ' AA p. 186. VINELAND LOT 5 POND After Beddor purchased Vineland Lot 5, the City issued a grading permit to Beddor for the purpose of excavating out, shifting and enlarging a pond on Vineland Lot 5 and joining it with a pond located in Beddor's adjoining Troendle Addition. Tr. Ex. 240. In reviewing Beddor's grading permit application, the City staff determined that Beddor did not need to obtain a wetland alteration permit to do his excavation work within the pond area. The history of the Lot 5 pond, as Beddor's own planner, Daryl Fortier contended, ' indicated that it was originally a man -made pond and not a protected wetland. AA p. 187. In a June, 1992 letter to the watershed district, Tr. Ex. 245, Fortier summarized the Lot 5 pond history: ' In it's natural state, this property did not have standing water, nor did the adjacent Troendle site. All ponds in this area are man made. The Owens pond [Lot 5 pond] was ' created to accommodate watering of horses and had an outlet pipe to the west greater than 8". This pond was neatly edged and used daily, exhibiting no growth of canary ' grasses nor cattails and reed grasses. This situation changed when the city improved Peaceful Lane. The outlet was reduced to the current 8" PVC pipe and it was constructed with an uphill gradient. This caused the pond to exceed its banks and created shallow, silty side slopes. Although Mr. Owens attempted to get this corrected, he was not successful. Additional filling then occurred on the property line between Owens & Troendle ... we are not certain who did the ' unauthorized filling. This caused additional ponding to start occurring on the Troendle property, with the accompanying vegetation. ' Because of the above items, there has been considerable debate as to whether this pond is indeed a protected wetland. In 1986 the City defined the pond area and high water table. In 1991 they also conducted a survey of the area with a D.N.R. representative. -8- �7 The city has concluded that this is not a wetland. None - the -less it is the owner's intent to treat this pond as we would a wetland and to preserve and enhance its benefits. Tr. Ex. 245, In May of 1992, the City's wetland mapping consultant as art o inventory f a city -wide wetland ry process had identified the Lot 5 pond as a naturall Troendle Addition pond as a utilized water body under the C• wetland and the Beddor's grading work, which was completed ' ity's Wetland ordinance. After p in 1993, the City staff subsequently classified the combined Lot 5 /Troendle Addition pond as one utilized Pond (Tr. Ex. 275), defined by Section 20 -403 of the Chanhassen City Code as a water body: created for the specific purpose of surface water runoff retention an improvements. These water bodies are not to be classified wetlands water quality work on these water bodiesetlaanAd alteration a not be lands even if they take on wetland characteristics. permits shall required to undertake p. 187. The combined Lot 5 /Troendle Addition pond has an existing into it from Beddor's Troendle Addition. Existing overland d storm water pipe running drainage also flows into it from all directions, including Pleasant View Road to the north and Peaceful Lane to the west. AA p. 1 87 -188. The September 4, 1992 grading permit granted to Beddor Z' ( r• Ex. 240) was conditioned upon incorporating any modifications to the site grading and /or resulting from the extension of Nez Perce Drive. The grading storm sewer improvements permit also required that Beddor grant the City a drainage easement over the pond up to the 100 - Beddor did b year flood elevation, which y easement, in December of 1992. AA p. 188. 19 EAW PETITION On May 24, 1993, the City Council designated Alternative "A" as set forth in the July ' 8, 1992 Feasibility Report as the preferred alignment of Nez Perce Drive across Vineland Lot 5 and directed that condemnation of the property be commenced. AA p. 188. Beddor subsequently in June of 1993 wrote a letter to Art Owens (Tr. Ex. 265), the contract seller of the Tower Heights property stating that "it's in my best interest to do ' everything I can to discourage his [the Tower Heights developer's] plat" and requesting Owens to give him an opportunity to buy the property if the developer cannot perform. AA p. 188, ' Tr. Ex. 265. ' On or about July 26, 1993, the City Attorney initiated condemnation proceedings to acquire Vineland Lot 5. AA pp. 188 -189. Two days later, the City received a copy of a Petition from Beddor and his supporters requesting preparation of an Environmental Assessment ' Worksheet (EAW) which had been filed with the Minnesota Environmental Quality Board. AA p. 189. ' The EAW Petition AA . 925 -930 prepared b Beddor's attorneys, the PP �P P Y s Y� ' claimed potential environmental effects of the street project as follows: ' Petitioners believe that the project will potentially adversely affect the environment in the following ways: Cause the unnecessary destruction of at least 22 mature trees ranging in age from 50 - 100 years old Adversely affect a wetland /pond located adjacent to the Nez Perce Drive extension Cause increased traffic to Pleasant View Road and Nez Perce Drive which will create safety- related concerns of owners abutting Pleasant View Road and Nez Perce Drive -10- Result in increased air pollution and noise levels to landowners adjacent to Pleasant View Road and Nez Perce Drive. AA pp. 189, 926 -927. The EAW Petition makes no reference to environmental concerns about Christmas Lake. The only "material evidence" it references relating to drainage is the following statement: The proposed extension creates an additional significant environmental impact to a wetland /pond area on Beddor [Vineland] Lot 5. The extended road, as planned, would be directly adjacent to the pond (see attached map, Exhibit D), subjecting it to road salt and oil contamination due to runoff. AA pp. 189, 927. The EAW Petition did not raise any issue over any purported cumulative effects of any related or anticipated future projects. AA pp. 189 -190, 925 -930. On August 23, 1993, the City Council considered the EAW petition and on August 30, 1993, it adopted its Findings of Fact and Decision (AA pp. 508 -509) determining that an EAW was not needed and would not be prepared. The EAW Findings specifically address the fact that the few trees to be removed are not unique or different from others in the area in species, size, aesthetics or historical significance. The EAW Findings also specifically address in detail the status of the combined Lot 5 /Troendle Addition pond after Beddor's grading work as being part of the City's storm water system, the fact that the pond will be expanded to provide adequate drainage for the area and that the street will not come within 150 feet of the pond. AA p. 190. STORM WATER DRAINAGE On or about September 13, 1993, the City Council approved the Preliminary Plat for the Tower Heights Addition, conditioned upon completing the extension of Nez Perce Drive and the developer providing detailed storm sewer calculations and ponding calculations to the City Engineer for review and approval. AA p. 190. Storm water from the street project will flow into the Vineland Lot 5 pond and then to the west through a pipe under Peaceful Lane to a pond east of County Road 17 ( "County Road -11- 17" pond), where it then combines with other storm water drainage from the developed area to the west, flows through other ponds and eventually into Christmas Lake to the north. AA p. 191. Nez Perce Drive, as extended, will not come within 150 feet of the Lot 5 pond and therefore will not physically impact the pond. AA p. 191. The City is developing a comprehensive surface water management plan (Tr. Ex. 306, AA p.. 901) for the City at a cost of approximately $260,000. The City has also established a Surface Water Management Plan Task Force, adopted a Best Management Erosion Control Handbook in October of 1992 and adopted a new Wetland Protection Ordinance in December of 1992. AA p. 191. The City's surface water management plan is a state -of -the -art plan for managing surface water runoff with the ultimate goal of reducing the level of phosphorus and other pollutants entering lakes to natural or pre - development levels. AA pp. 191 -192. The Vineland Lot 5 pond was built in accordance with the Natural Urban Runoff Program ( "NURP ") design standards when it was excavated and reconfigured by Beddor in 1992 and 1993. Tr. pp. 128 -129; Tr. Ex. 14. A NURP pond is designed to facilitate the removal of pollutants from storm water by causing the particles to settle to the bottom of the pond with the cleaner water then moving on through the storm water system. --AA p. 192. The County Road 17 pond is designated an Ag /Urban wetland under the Chanhassen City Code Section 20 -403, which are defined as follows: Wetlands. AR /Urban Wetlands that have been influenced by agricultural or urban (residential, commercial, or industrial) land usage are called Ag /Urban. Influences include: over nutrification, soil erosion and sedimentation, and water quality degradation. As a result of these influences there is a loss of plant species diversity, overcrowding and domination by invasive species such as reed canary grass, and reduction in wildlife habitat. AA pp. 192 -193. -12- The additional runoff from the proposed project going into the Lot 5 and will . P not be any different in quality or quantity then any other drainage already going into the and into nto other ponds in the drainage district, or directly into Christmas Lake as a result of the already-existing development in the area. Tr. pp. 262 -263 . There is no evidence as to either the amount of additional runoff or phosphorus enera by the street project itself. All the evidence is inclusive of the additional runoff and g ted phosphorus resulting from the overall development of the Tower Heights Addition into single family homes. AA p. 193. The City will not violate any federal, state or local wetland rule or e re in . connection with the handling of the storm water from the proposed project. AA 19 P 3. The Christmas Lake drainage district within Chanhassen in which this project is is approximately area is ately 240 acres. The overall Christmas Lake drainage project approximately 1200 - 1500 acres. Tr. p. 774. In 1987, the 45 -lot Curry Farms subdivision was developed within the Chanhassen portion of the drainage district. Tr. P. 871 -872. Beddor's Tr oendle Addition development is essentially the same size as the proposed Tower Heights subdivision one acre of the development drains into the Lot 5 pond and eventually into Christmas Lake. Tr. P. 1021. One of the City's consulting engineers, Cecilio Olivier, as part of his extensive the City's surface water management plan analyzed each and within the work on P e Christmas Lake drainage district in Chanhassen. He testified that approximately 0.6 ou Phosphorus would reach Christmas Lake on an annual nds of additional al basis as a result of the overall development of the project area into single family homes. He applied a widely- accepted -13- methodology, the Walker Model, to the specific ponds through which this drainage will flow. ' He testified in detail as to his methodology, including a recitation of the specific depth of the ' ponds. Tr. pp. 740 -773. Appellants' expert, Richard Osgood on the other hand, testified that an additional three 1.3 kilograms) of phosphorus would make its wa pounds ( g ) p p Y to Christmas Lake on an annual basis as a result of the overall development of the Tower Heights area into single family homes. Tr. ' p. 222. The City's expert lymnologist, Steven McComas, testified that the three pounds of additional phosphorus projected by Osgood results in 0.1 part per billion of additional phosphorus concentration in the lake. Even this three pounds projected by Appellants' expert is not analytically detectable and would not have any impact on water quality according to ' McComas. Tr. pp. 870 -871. Osgood agreed that it was not detectable analytically. Tr. p. 1131. McComas placed Osgood's projected three pounds of phosphorus in context. He testified ' and Osgood agreed that the excrement from two or three geese frequenting the lake during a ' year can generate three pounds of annual phosphorus input into Christmas Lake (Tr. p. 866 (McComas); Tr. pp. 270 -271 (Osgood)), and that just one application of fertilizer to one a lace 1/2 pound of phosphorus into the lake. Tr. . 270 (Osgood); 0,000 square foot lawn can p p p p P ( b ' Tr. pp. 925 -926 (McComas). McComas testified about all the various sources of phosphorus including pollutants in the rain that falls directly on the lake surface, dust, waterfowl, house pet droppings, surface water runoff and a wide - variety of human activities. Tr. pp. 865 -868. He ' also testified about the constantly changing variables of lake dynamics which impacts phosphorus I levels. Tr. p. 873. -14- T . TRAFFIC N O I SE The project's neighborhood is an almost fully developed residential area with city water and sewer and other urban services. It is platted and zoned for residential development. ' Pleasant View Road, where the purported traffic increase will occur, is designated a collector street. AA p. 775. , The City's traffic expert, Dennis Eyler, testified that the proposed project would result ' in an additional 64 cars per day along Pleasant View Road to the east and an additional 208 cars on the one block stretch of Pleasant View Road to County 17 to the west of the Nez Perc - , e Pleasant View Road intersection. AA p. 196; Tr. pp. 974 -977; Tr. Ex. 297. Appellants' ' traffic engineer, James Benshoof, testified that he did not have an opinion as to the amount of additional traffic that would result from the proposed project , p p p o�ect compared to the existing situation. AA p. 196, Tr. pp. 461 -462. , Appellants' noise expert, Richard Van Doeren testified that based on a projected ' hypothetical increase in vehicles of 300 per day on Pleasant View Road, the sound level would increase by 1.3 (db) decibels at a point 30 feet from the edge of the roadway. He admitted that ' a 1.3 (db) decibel increase would not be noticeable to the average individual. AA p. 196, Tr. ' pp. 530 -531. TREE IMPACT ' The Nez Perce Drive extension itself will result in the removal of two apple trees and ' some nursery stock recently planted by Beddor. The Tower Heights access road will result in the removal of 22 trees, including a mix of eight poplar, boxelder, locust s ' g P P � spruce and maple which are ten inches or less in diameter. The largest trees are a 30" oak, and a 30" basswood , and one 26" oak. The rest are a mixture of medium size oak, maple and ash. AA pp. 196 -197. -15- None of the trees to be removed are rare, unique, endangered or different in size or species from other trees in the area. AA p. 197. There is no consequential impact on other ' natural resources, such as wildlife habitat, resulting from the tree removal. AA p. 197. The Tower Heights access essentially follows an existing driveway alignment. AA p. 197. ARGUMENT ' I. THE EVIDENCE TAKEN AS A WHOLE STRONGLY SUPPORTS THE TRIAL COURT'S DETERMINATION THAT THIS TINY STREET PROJECT DOES NOT VIOLATE ' THE MINNESOTA ENVIRONMENTAL RIGHTS ACT Under MERA, any person residing in the state may maintain a civil action in the name ' of the state of Minnesota seeking equitable relief to protect the air, water, land or other natural resources from "pollution, impairment or destruction." Minn. Stat. §116B.03, Subd. 1. "Natural resources" are defined in Minn. Stat. §116B.04, Subd. 4, to include "all mineral, animal, botanical, air, water, land, timber, soil, q uietude, recreational and historical resources." "Pollution, impairment or destruction" is defined as any conduct which either violates any environmental quality standard or governmental permit, or "conduct which materially adversely affects or is likely to materially adversely affect the environment." Minn. Stat. §116B.02, Subd. 5. Appellants do not contend that the street project violates any environmental quality standards. Rather, Appellants rely exclusively on the general standard that the street ' project is likely to materially adversely affect protectable natural resources. ' There is no elaborate standard prescribed by MERA. Rather a balancing test is to be used in which "the utility of a defendant's conduct which interferes with and invades natural -16- resources is weighed against the gravity of harm resulting from suc M•P.I.R.G. v. Whit B e ear Rod &Gun Clu ch an interference or invasion. b, 257 N. W.2d 76 The utility is balanced with the harm caused in order t 2, 782 (1�(inn. 1977). o determine if protection is warranted Pursuant to MERA. In 510 N. W.2d 27, 30, (Minn.Ct.App. 1993), the court stated that "[ajimost eve adverse impact on a natural resource" and �' human activity has some kind of that MERA cannot be construed as "prohibiting virtually all human enterprise. " This street project is an incredibly typical and small garden -va ' project. It involves one of the most basic, discretionary iety public improvement ry fiinctions of the highest utility that a municipality performs, e.g, planning the layout of streets t P to service existing and future development. The evidence is undisputed that the street itself is placed in a location which has no unique natural features. The 4 00 -foot Nez Perce extension will involve the destruction of an It does not wildlife built across a grassy field. y ildlife habitat, wetlands, trees or other unique natu feature. One would be hard pressed to find a more enviro nmentalI q ral y benign location. The only negative impact of the Tower Heights access road is the re Otherwise, it likewise has no ' moval of a few mature trees. impact on any protectable natural resource. Appellants concede that both Beddor's Vineland Lot S and Will be developed with single - family homes, just a s Beddor's the Tower Heights property J r's Christmas Acres Subdivision next to the lake was in the early 1980s, the 45 -50 lot Cu rry Farms Addition to the northwest in the mid 1980s, Beddor's presently - developing Troendle Addition, development which has occurred within the ition, together with all of the other 1200 - 1500 acre Christmas Lake watershed. Incredibly, while conceding this area will be developed, Appellants based their entire claim of -17- indirect adverse impacts on water quality on the claimed impact of this overall development rather than the street project itself. It is in this context that this street ro'ect must .be P ,1 analyzed in determining if it will cause a substantial impairment to water resources. A. THE STREET PROJECT WILL NOT MATERIALLY ADVERSELY ' AFFECT WATER RESOURCES. ' The clearly erroneous standard governs the appellate court in reviewing a trial court's findings of fact in a MERA case. Krmpotich v. City of Dulut 483 N. W.2d 55, 56 (Minn. 1992). Findings of Fact may be set aside only if, "upon review of the evidence as a whole, the appellate court is left with the definite and firm conviction that a mistake has been made." Id. at 56. 1. The City introduced competent expert testimony on water quality issues which was accepted by the trial court. One of the City's consulting engineers, Cecilio Olivier as part of his extensive work on ' - the City's surface water management plan analyzed each pond within the Christmas Lake drainage district in Chanhassen. He testified that approximately 0.6 pounds of phosphorus ' would reach Christmas Lake on an annual basis from the development of the entire Tower Heights area, including the street project and Beddor's Vineland Lot 5. In arriving at this opinion, he applied a widely- accepted methodology, the Walker Model, to the specific ponds ' through which this drainage will flow. g g Tr. pp. 740 -773. Appellants' expert, Richard Osgood, opined that three pounds (1.3 kilograms) of ' additional phosphorus, five times more than the amount projected by Olivier, would go into Christmas Lake as a result of the overall development of the Tower Heights area. Tr. p. 222. ' The City's expert lymnologist, Steven McComas testified that even the additional three 1 pounds of phosphorus projected by Osgood would result in only a 0.1 part per billion of 1 -18- additional phosphorus concentration in the lake. McComas test' . analytically detectable and would not have a testified that this amount is not any Impact on water quality. Tr, pp, 870_871, Osgood agreed that it was not detectable analytically. Tr. , p 1131. McComas testified about all the various sources of phosphorus rain that falls directly on the lake surface, dust, waterfowl, ncluding pollutants in the owl house pet droppings, surface water runoff and awide- variety of human activities. Tr, pp, 865.868. constantly changing variables of lake dynamics which un He also testified about the pacts phosphorus levels. Tr, p, 873. Not only did the evidence show the minuscule impact of this overall nothing of the impact of just the street project, it a era11 development, to say implementing state - of- the -art water quality also demonstrated that Chanhassen is q ty management techniques to improve water quality in this area and throughout the City. The Vineland Lot 5 water from this project will drain is desi Pond into which the additional storm fined as a NUItP pond to facilitate the removal of phosphorus and other nutrients. Osgood admitted that NU � technoloQ Ponds are the best available by for water quality management and that in using them, the doing what his former employer, CItY of Chanhassen is the Metropolitan Council, is encouraging cities to do to les non -point pollution of lakes and rivers. sen Tr, P. 288. Additionally, the City has spent $ over Comprehensive Surface Water Management the last two years developing its PIan, which Osgood admitted on several occasions is astate -of- -the -art plan, to reduce the amount of Pollutants from surface water runoff going into lakes to natural or pre - development standards. Tr. Pp. 7 30 -731. The City is taking a lead amongst Twin Cities suburbs in addressing water quality issues. es. Tr. pp, 730 -731. -19- 2. Appellants, who have the burden of proof, introduced entirely speculative, ' contradictory testimony on water quality issues that was rejected by the trial court. The proposed project challenged in this lawsuit is the extension of Nez Perce Drive to ' Pleasant View Road and realignment and extension of Peaceful Lane into the Tower Heights plat. Appellants' pleadings, as reaffirmed by counsel during trial, do not challenge the overall development of the Tower Heights subdivision. ' In spite of Appellants concession that this area will in fact be developed, Osgood's projected three pounds of additional phosphorus going into Christmas Lake is based upon the entire development of Tower Heights into single family homes. Tr. pp. 221 -222, 262 -263. It is in no way limited to the drainage that would be collected as part of the storm sewer system installed with street. Substantial portions of the drainage from the developed Tower Heights lots will continue to flow overland into the Lot 5 pond and County Road 17 pond. ' As to the amount of additional phosphorus, Osgood admitted that, unlike the City's expert Olivier, he neither calculated the amount of phosphorus initially going into the Lot 5 pond nor analyzed the ponds through which this drainage flows. He stated in response to his own attorney's questions: Q. Let me just try this a different way. What were your calculations as to the amount of phosphorus going into the Lot 5 pond based on your calculation of four acre feet of additional runoff coming from the Tower Heights addition and ' roadway projects? A. Oh, sorry. I didn't -- I didn't calculate the amount of phosphorus going into Lot 5 pond. My calculations were on the water -- on the sub watershed district basis, what went into Christmas Lake. Q. Right. And that was 3 pounds? A. 1.3 kilograms, yes. Q. And that was based on what conclusion as to the efficiency of the system? A. That was based on no conclusion on the efficiency of the system. It included an estimate based on my experience and the experience in the literature. Tr. p. 1110. 1 -20- 1 Osgood was a planner at the Metropolitan , P Council from 1980 to 1991. He presently operates a business called Ecosystem Strategies from his home in Shorewood. Tr- Ex. 18. He ' was retained by Appellants specifically for this litigation and initially rendered an opinion in an Affidavit dated December 20 1993, submitted in opposition to Respondents' motion for summary judgment that: ' A significant increase in nutrient input into Christmas Lake is RQaijble as a result of the proposed development and the associated work on Nez Perce R , Peaceful Lane. Tr, p. 585. (Emphasis added.) oad and Osgood's "studies" of Christmas Lake upon which he based his ' s hypothesizing at trial consisted of collecting water samples in 1980, 1981 and 1985 as part of an overall sampling of P g metropolitan lakes. Tr. p. 212. The samples showed the phosphorus concentration in Christmas Lake at that time to range between 17 to 25 parts per billion (Tr. pp. 216 -217), chlorophyll concentrations of 2.5 parts per billion and Secchi Disk transparency readings ranging ma from "roughly 17 feet up to 30 feet ", both during a given year, and from year to ear. Tr. Y . p. 273. ' At trial, Osgood theorized that phosphorus concentrations of between 25 - 30 arts ' billion in the lake was some sort of threshold which if reached - would cause increases in ' chlorophyll (algae) and a resulting noticeable decrease in lake clarity. He then asserted that the introduction of three pounds of phosphorus which is equivalent of 1 /10th of one part er billion of phosphorus concentration in Christmas Lake (Tr, P n PP• 870 -871 (McComas); Tr, p. 1131 , (Osgood)) would somehow, apparently at some unknown time in the future, cause this threshold to be reached. He initially made this projection based upon data as to the lake's condition in 1980, 1981 and 1985, claiming that no recent equivalent data was available. Tr. p. 236. 7 -21- When the trial judge expressed grave doubts about any opinion based upon such old data, ' Osgood quickly found there was in fact new available data. Over the lunch hour on the first day t of trial, Osgood had faxed to the courthouse data from a Minnesota Department of Natural Resources (DNR) sampling of the lake in 1991. Tr. Ex. 258. This data showed a transparency ' reading on on y e day in June of 1991 which was 23 feet. It also shows dissolved oxygen levels which ranged from 3.0 ppm to 9.6 ppm. On the morning of March 3, the fourth day of trial, Osgood presented additional, newly- ' obtained data on water quality in Christmas Lake from the Minnehaha Creek Watershed District collected on one day in July of 1993. Tr. p. 577. Osgood testified that this 1993 data was within the ranges observed in the 1980, 1981 and 1985 samples and that the lake had not changed from the standpoint of phosphorus, chlorophyll and clarity during this 13 year time frame. Tr. p. 578. No change had occurred in Christmas Lake during this period even though, for example, 45 new homes had been developed in the Curry Farms Addition within just the small portion of ' the Christmas Lake drainage district within Chanhassen. The Curry Farms subdivision is a "real world" example of a development three times larger than the entire- Tower Heights subdivision located closer to the lake that has not after seven years had any impact on Christmas Lake water ' quality. Tr. pp. 8 71 -872. ' There were many other inexplicable aspects of Osgood's testimony. For example, his 1981 data projected the annual phosphorus load into Christmas Lake from all sources to be approximately 500 pounds, with 135 pounds from atmospheric conditions and 350 pounds from ' surface runoff into the lake. Tr. pp. 267 -268. Later on at trial, he testified to a total annual r ' -22- phosphorus load of only 93 pounds, based upon some undefined methodology, with 60 pounds of the total amount from surface runoff and 33 pounds from atmospheric sources. Tr. p. 596.. Having conveniently reduced the projected overall runoff phosphorus level from 350 pounds to 60 pounds, he could then testify that his projected three pounds of phosphorus from the 7 -acre Tower Heights development represented a 4.7 percent increase in the annual runoff input of phosphorus to Christmas Lake and a three percent increase in total annual phosphorus loading. Tr. p. 596. Osgood agreed that under his theory Beddor's Troendle Addition would likewise place similar quantities of phosphorus into Christmas Lake. Tr. pp. 1146 -1149. Osgood's testimony was absolutely incredulous. It means that the increased phosphorus from these two tiny housing projects, e.g. the proposed Tower Heights development and Beddor's own Troendle Addition, occupying roughly 15 acres in a total Christmas Lake watershed of between 1200 - 1500 acres would generate nearly ten percent (10`70) of the annual phosphorus load into the lake from surface runoff. Additionally, Osgood even agreed with McComas that it has not been proven that phosphorus is the missing ingredient that is limiting algae growth in Christmas Lake. Tr. p. 1133. Osgood stated that the presence of large bodied daphnia which eat algae was the key to keeping chlorophyll levels down. Tr. pp. 1133 -1134. Clearly, the trial court was justified in finding the testimony of Cecilio Olivier projecting a 0.6 pound increase in annual phosphorus loads and the McComas testimony of no measurable impact from even the three pounds of phosphorus projected by Osgood as being much more credible than Osgood's speculative opinions based upon data collected between 9 to 14 years ago and wildly different projections of the overall phosphorus loading into the lake. The trial court -23- heard extensive evidence on this topic, judged the credibility of the witnesses and made its decision. It is not clearly erroneous. 3. The trial court's determination that the City will not materially, adversely affect water resources by placing storm water from development into a storm water pond designed to improve overall water quality is not contrary to the evidence. Appellants contend that this street project should be enjoined because the surface runoff will go initially into the Lot 5 pond. In 1992, the City Council approved Appellant Beddor's request for a grading permit for the purpose of excavating out and combining the then existing pond on Lot 5 with a pond located in Beddor's adjoining Troendle Addition development. Tr. Ex. 240. City staff agreed with Beddor's planner, Daryl Fortier's position at that time that the pond was not a protected wetland and therefore could be filled and altered. AA p. 187. Construction of the new pond was completed in July 1993. In December of 1992, Beddor granted to the City a drainage, ponding and utility easement covering the ponding area. AA p. 188. ' This new pond is part of the City's surface water drainage system. It is designed as a NURP pond for purposes of being the initial recipient of surface water. An existing storm water ' pipe from Beddor's Troendle Addition flows into the pond from the south. Existing overland ' drainage flows into the pond from the north, east and west. AA pp. 187 -188. A City consultant classified the old Lot 5 pond as a natural wetland /pond based on site ' observations that were made in May of 1992. Tr. Ex. 272, p. 1. At that time the then separate pond on the Troendle Addition was classified as a utilized pond. Tr. Ex. 272, p. 4. ' In 1993 and early 1994, City staff updated the wetland inventory records to reflect the fact that the combined Lot 5 /Troendle pond was now one utilized pond. Tr. Ex. 275. This was 1 -24- U, done in the context of an overall review which resulted ' In the revision of the classification of numerous other ponds in the City. Tr, Ex. 275, The Count considered to be an Ag /Urban wetland under the City Road 17 pond has- always been ty's ordinance. Clearly, the whole issue about the wetland status of the Lo is irrelevant for at least two reasons: first, the street itself does not come within 150 feet of the Pond, therefore there is no idling or alteration of the may be considered a jurisdictional wetland under federal, state or local ordinance does not mean it cannot be used for storm water purposes. To the contrary, water quality improvement techniques for protecting lakes and pristine wetlands a Olivier, Osgood, and City planner pawl Kraus ' _ s testified to in exhausting detail by Krauss (Tr- Pp. �62_564) involve the use of both NURP Ponds, such as the Lot 5 pond, and naturally occurring impacted b .1 Ag /Urban ponds which have been y development, such as the County Road 17 pond, as r devices for sto recipients of and filtration rm water runoff. There will be some impact on the Lot S and Count runoff. Y Road 17 ponds from additional Osgood admitted that this impact was not something that can be quantified. Tr, pp, 210- 211. As the trial court specifically addressed in its is that the function of these memorandum •AA pp, 203_204, the point downstream ponds is in fact to have pollutants collect in them instead into water bodies like Christmas of going Lake. The use of these ponds for surface drainage is part of the state - -the -art water quality management water utilizing in order to gement techniques that Chanhassen is Protect overall water resources in urbanized areas. There is more than ample evidence to ort t sup increasing p he trial court's determination that s the amount of storm water gong into these ponds d Beddor w does not violate MERA. When anted a grading permit to alter the Lot 5 pond in 1992 his own planner, Daryl Fortier, -25- researched the history of the pond and convinced City staff that it was man -made. Tr. Ex. 245. It was administratively classified by the City as a utilized water body. It was redesigned as a NURP pond to improve downstream water quality. Appellants' trial expert on wetland delineation, while calling the Lot 5 pond a jurisdictional wetland under federal, state and local law, opined that it would be considered an Ag /Urban wetland under the City ordinance. Tr. p. 307. This means under the City's admittedly state -of -the -art surface water management plan it would be used as a receptacle for storm water, like the County Road 17 pond which carries that classification, in order to protect natural wetlands, pristine wetlands and lakes. B. THE EVIDENCE IS UNCONTROVERTED THAT THIS STREET PROJECT WILL NOT HAVE ANY NOTICEABLE Il12PACT ON APPELLANTS' CLAIMED NATURAL RESOURCE OF QUIETUDE. Appellant Beddor does not want the last segment of Nez Perce Drive extended beyond r r his Troendle subdivision because it may slightly increase the amount of traffic on Pleasant View Road, where he lives. While Beddor's support of the planned extension at the time his own subdivision was approved is inconsistent with his present position, he certainly has the right, which he has done with vigor, to attempt to convince the City that planning considerations now dictate the rerouting of Nez Perce in another direction. However, there is no basis for a legal challenge to this project based upon traffic considerations. Appellants' own noise expert admitted there would be no detectable increase in traffic noise. AA p. 196; Tr. p. 530 -531. Under MERA, in order to have a cause of action, there must be the impairment or destruction of a protectable natural resource. In M.P.I.R.G. v. White Bear R. & G. Club, 257 N.W.2d 762 (Minn. 1977), the court addressed "quietude" as a natural resource under MERA. The M.P.I.R.G. Appellants alleged that noise from a proposed gun club operation would substantially disturb the quietude of the area, and that lead shot would have a toxic effect on wildlife in a wetlands. Id., 257 N.W.2d at 770. -26- The court fund that the evidence clearly established t ' 0 o y that the marshland area in which the gun club was to be located was a quiet, natural oasis remote from any freeways, the , immediate developed urban area, and with relatively little development of any sort around the ' area. Id. at 770. As to the noise resulting from the gun club, the evidence showed that the sharp, impulsive sounds of gunfire can be a health threat when heard repeatedly, and that tests , showed the decibel levels from the shooting were far idexcess of that considered permissible ' to avoid health threats and degradation of the environment. Id. at 771. Here, the project's neighborhood is an almost fully developed residential area with city ' water and sewer and other urban services. It is platted and zoned for residential development. , Pleasant View Road, where the purported traffic increase will occur, is designated a collector street. Appellants' counsel conceded to the trial court that the street project challenged in this ' lawsuit will not impact the quietude of the Pleasant View Road neighborhood. Appellants' ' Amended Post Trial Brief, AA p. 69. Appellants' traffic engineer, James Benshoof, admitted that he did not even have an opinion as to the amount of additional traffic resulting from the extension of Nez Perce to ' Pleasant View Road compared to existing conditions. Tr. pp. 461 -462. The only evidence on ' this issue is the testimony of Respondents' traffic expert, Dennis Eyler that the Nez Perce extension would result in an average of an additional 64 car trips per day along Pleasant View Road to the east and 208 additional daily car trips on the one block stretch of Pleasant View ' Road to County Road 17 to the west from the new Nez Perce /Pleasant View Road intersection. AA p. 196; Tr. pp. 974 -977; Tr. Ex. 297. ' Eyler's projection includes the 13 new homes in the Tower Heights Addition and assumes ' the 1995 upgrade of Town Line Road, to which Appellants' expert attributed additional -27- cumulative future traffic impacts. Eyler's analysis included not only use of the MnDOT metropolitan forecasting model but also involved subdividing the project neighborhood into ' smaller units and utilizing another computer forecasting system to assess the local impacts of ' connecting Nez Perce Drive to Pleasant View Road. Tr. pp. 954 -956. Appellants' noise expert, Richard Van Doeren, testified that using a noise prediction ' computer model, a hypothetical increase of 300 car trips per day would hypothetically increase ' the L90 decibel level at a point 30 feet from the edge of a roadway by 1.3 decibels between 6:00 a.m. and 7:00 a.m., assuming five percent (5 %) of the daily traffic occurs between those hours. ' Tr. Ex. 271.' Van Doeren admitted that a 1.3 decibel increase in traffic noise would not even ' be noticeable to the average human, yet alone constitute any substantial impairment of a purported natural resource of quietude located 30 feet from the roadway. AA p. 196, Tr. p. ' 530 -531. ' C. THE TRIAL COURT'S DETERMINATION THAT THE LOSS OF A FEW TREES DOES NOT CONSTITUTE A SUBSTANTIAL IMPAIRMENT OF ' NATURAL RESOURCES IS NOT CLEARLY ERRONEOUS. There is no reported case in Minnesota enjoining a project because it involved cutting ' down trees. Likewise, there is no reported case in Michigan, whose statute is nearly identical to ours and whose case law has been adopted by Minnesota courts, stopping a project due to tree impact. Additionally, when trees are analyzed as a protectable natural resource it is typically 1 ' 'Van Doeren's overall assumption about hypothetical noise levels between 6:00 a.m. and 7:00 a.m. is faulty because it assumes 5% of the daily traffic will be on the ' road at that time. Tr. Ex. 271. Respondents' noise expert, James Kranig, did this identical projection, based upon 1,000 car trips per day, but used actual hourly traffic count data on Pleasant View Road from July of 1993 which shows 2.5 % of the daily ' traffic between 6:00 a.m. and 7:00 a.m. Tr. Ex. 293. 1 -28- in the context of a stand , or grove of trees as a unit and the habitat or other natural resource that exists, rather than the aesthetic value of individual trees. , In Portage v Kalamazoo County Road Commission 136 Mich.App. 276, 355 N.W.2d ' 913, 915 -916 (1984), the Michigan court developed criteria by which to assess the type of conduct which constitutes a significant "materially adverse effect" ' upon a protectable natural resource. This four part Portage test was adopted by Minnesota in State ex rel Wacouta ' Township v l3rankow 510 N.W.2d 27 (Minn.Ct.App. 1993). It provides for an examination of the following factors: ' (1) whether the natural resource involved is rare, unique, endangered, or has ' historical significance; (2) whether the resource is easily replaceable, (for example, by replanting trees...); (3) whether the proposed action will have any significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed); and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the nature and location of the wildlife affected. Id. at 30. Applying this criteria, the court in Portage refused to prohibit planned removal of 74 trees within eight feet of both sides of a paved road, holding that the tree removal did not "rise to the requisite level of impairment or destruction of a natural resource so as to constitute an environmental risk and justify judicial intervention. " Portage 355 N.W.2d at 916. Michigan again applied the Portage criteria in Kent Count Road Commission v. Hung 170 Mich.App. 222, 428 N.W.2d 353, 358 -359 (1988) and declined to P rohibit the removal of trees. The court held that the impact of removing 60 to 70, 100 - year -old trees did not rise to a level of material impairment under the statute. In denying protection, the court -29- stated that the 60 to 70 trees that would be removed were neither unique nor of any historic ' significance. Kent 428 N.W.2d at 359. - In Rochow v Spring Arbor Townshin 152 Mich.App. 773, 394 N.W.2d 102, 104 (1986), the court found that removing 248 trees along a 0.7 mile road project did not violate the 1 Michigan statute. The court held that there was insufficient evidence to establish that the project ' was part of an overall policy by the Road Commission to summarily remove trees without ' consideration of environmental facts. Likewise, in Highland Recreation Defense Found. v. Natural Resources Comm'n 180 ' Mich.App. 324, 446 N.W.2d 895, 898 (1989), the Michigan court again declined to prohibit the ' removal of trees on the grounds that there was no indication of a "significant consequential impact on the environment justifying judicial intervention. " In State of Minn by Bruce Kasden v. Indep School District No. 87,_ Moose Lake. Minn. No. C7 -88 -1597 (Minn.Ct.App. February 28, 1989), the Minnesota Court of Appeals applied the Portage four -part test and upheld the trial court's findings that the grove of trees was not "unique", too small to be significant and that the destruction would not have a material adverse impact on the environment. Here, there are two apple trees and Beddor's recently - planted nursery stock within the construction limits of the proposed Nez Perce extension itself. Tr. Ex. 301. There are 22 trees which will be removed in connection with the construction of the Tower Heights access road. Tr. Ex. 281. These 22 trees include a mix of eight poplar, boxelder, locust, spruce and maple which are ten inches or less in diameter. The largest trees are a 30" oak, a 30" basswood, and 1 one 26" oak. The rest are a mix of medium size oak, maple and ash. Tr. Ex. 281. 1 -30- Applying the Portage test, there is no evidence that any of these trees are rare, unique, endangered or have historical significance. Trees are a renewable resource. .The City is requiring the Tower Heights developer to plant 62 new trees throughout the development to partially replace these trees and others removed on individual lots. Tr. Ex. 254. Finally, there is not one shred of evidence that wildlife habitat will be impacted by the tree removal. The project is not cutting down a grove or stand of trees. The street will generally follow an existing driveway which already bisects the area. Tr. Ex. 282. D. THE EVIDENCE FULLY SUPPORTS THE TRIAL COURT'S FINDING THAT THERE IS NO FEASIBLE AND PRUDENT ALTERNATIVE TO THE PROPOSED PROJECT. Appellants concede that the area of the proposed street project will develop. There has already been extensive grading work done on Vineland Lot 5 in connection with Beddor's 1992 grading permit. The Tower Heights property will be developed into single family homes. Some additional surface water runoff is going to occur. The only feasible and prudent method for dealing with surface water runoff is to utilize the water quality management plans which the City has and continues to implement. Appellants argued at trial that the City should perform extraordinary engineering feats to somehow divert the drainage from the Tower Heights Addition to another lake rather than utilize the existing ponding system within the Christmas Lake drainage district. While this is possible from an engineering standpoint, it is certainly not feasible and prudent from the standpoint of the City's overall efforts to protect water quality. Olivier testified that diverting surface water from this project area would involve crossing a major watershed divide and be contrary to the basic concepts of the City's surface water -31- management planning which is to follow natural drainage conditions as much as possible. Tr. pp. 778 -779. Economic considerations can be considered as a factor. Minn. Stat. §116B.04. The costs would be substantial with really no resulting benefit to water quality. There would be additional costs of roughly $178,000.00 just for the cost of constructing the pipe to get the water to another lake. This does not include any land acquisition costs of $35,000.00 - $70,000.00, i.e. 20% - 40%, costs of possible realignment of the pipe and future maintenance costs. Tr. pp. 784 -785. All these costs would be in addition to the cost of installing the storm sewer systems within the Tower Heights plat and the Nez Perce Drive extension, and the modification of the Lot 5 pond to increase its capacity and NURP functions. Tr. pp. 785 -786. This extraordinary engineering efforts would be for the purpose of diverting some small unknown amount of phosphorus into a different lake. While it may be possible from an engineering standpoint, it is clearly not feasible and prudent from the standpoint of overall water quality management and use of funds to lessen phosphorus impact on lakes in the area. Something as simple as eliminating one lawn fertilization per year on one 10,000 square foot lawn near the lake would prevent 1/2 pound of phosphorus from going into the lake. Tr.p. 270. Clearly, it is not prudent to incur extraordinary engineering costs to divert surface water from one lake watershed to another for the sole purpose of shifting some small unknown amount of phosphorus to another place. As Chanhassen City Planner Paul Krauss testified, it is the goal of Chanhassen, as well as it should be, to protect all lakes in the City. Tr. pp. 652 -653. Neither Beddor's "Solution" (Tr. Ex. 3) nor "Alternate Solution" (Tr. Ex. 6) are alternatives to the City's proposed street project. They involve an entire reconfiguration of the Tower Heights plat, which Appellants' counsel has repeatedly confirmed is not being challenged -32- in these proceedings. Neither alternative provides for a north/south street connection for traffic access. The "Solution" loops the road back to Lake Lucy Road. The "Alternate Solution" leaves the existing long Nez Perce cul -de -sac and adds another long cul -de -sac into the Tower Heights property off of Lake Lucy Road. Both alternatives route all of the traffic from the area onto Lake Lucy Road, with virtually no change in through trips on Pleasant View Road compared to the City's proposal. Eyler testified that there would be only eight fewer car trips per day on Pleasant View Road under Beddor's "Solution ". Tr. pp. 978 -979; Tr. Ex. 297. Eyler's projection is consistent with Benshoof's estimate of only a 17 second (28/100 of a minute) shortening of travel time for a hypothetical 13 minute commuter trip toward Minneapolis for motorists who might perceive Nez Perce Drive as a shortcut to Pleasant View Road under the City's proposal. Tr. Ex. 89, AA p. 765. Additionally, both Beddor's "Solution" and "Alternate Solution" street alignments involve utilizing a 50 -foot outlot on Lake Lucy Road. The adjoining homes are set back only 25 -30 feet. Tr. pp. 60 -61. The City's standard right -of -way width is currently 60 feet. Tr. p. 709 -710. In order to meet both road and boulevard grade requirements a six foot retaining wall would have to be constructed. Tr. p. 685. Finally, the storm sewer along Lake Lucy Road is not designed to handle runoff from this drainage district. Tr. pp. 846 -848. Neither of Appellants' alternatives lessens overall runoff compared to the City's proposal. Again, Appellants concede that the area is going to develop and generate some additional pollutants regardless of where the road is placed. -33- The evidence fully supports the trial court' finding that there is no feasible and prudent alternative to the street project in light of the fact that this area will be developed into single- , family homes. ' II. THE CITY DID NOT ACT ARBITRARILY AND CAPRICIOUSLY IN DECIDING NOT TO DO AN ENVIRONMENTAL ASSESSMENT WORKSHEET. Appellants allege in Count Two of the Amended Complaint that Respondents improperly refused to prepare an Environmental Assessment Worksheet ( "EAW "), thereby violating Minn. ' Stat. §116D.04 and Minnesota Rules 4410.1100. Minn. Stat. §116D.04, Subd. 2a, requires that ' an EAW be prepared "whenever material evidence accompanying a petition by not less than 25 individuals ... demonstrates that, because of the nature or location of a proposed action, there may be potential for significant environmental effects." Minn. Stat. §116D.04, Subd. 2a(c) ' (1992). An EAW is for the purpose of determining whether or not an Environmental Impact Statement ( "EIS ") is needed. Minn. Rule 4410.2100, Subp. 2 (1992). Once a valid petition is filed, the City is required to evaluate the petition and ' accompanying evidence to determine whether the proposed project-may have the "potential for significant environmental effects." Carl Bolander & Sons Co. v. Minneapolis 488 N.W.2d 804, 809 (Minn.Ct.App. 1992) (citing Minn. Stat. §116D.04, Subd. 2a(c)). If and when the City ' concludes that the project meets this standard, Minn. Stat. §116D.04, Subd. 2a, requires I preparation of an EAW. The petition shall be denied if "the evidence presented fails to demonstrate [that] the project may have the potential for significant environmental effects." Minn. Rule 4410. 1100, Subp. 6 (1992). 1 -34- The City's evaluation and decision regarding whether an EAW is required will not be disturbed unless it is unreasonable, arbitrary, or capricious. Carl Bolander & Sons Co., 488 N.W.2d at 810; Chase v. Citv of Minneanolit 401 N.W.2d 408, 412 (Minn.Ct.Ap .1987 . P ) The Court's review of the City's EAW decision in Bolander was based upon the Cit 's record of its proceedings. This "record" review is pursuant to the Minnesota ota Supreme Court's holding in Swanson v City of Court stated: in Bloom ton 421 N. W.2d 307, 313 (Minn. 1988) in which the Where the municipal proceedings was fair and the record clear and complete, review should be on the record. Where the municipal body has proposed formal findings contemporaneously with its decision and there is an accurate verbatim transcript of the proceedings, the record is likely to be clear and complete. This rule mandating "exercise restraint a record review is based upon the duty of the judiciary, except in those rare cases in which the City's decision has no rational basis, to P nt and accord appropriate deference to civil authorities in the performance of their duties. " White Bear Dockin and Storage. Inc. v. City of White Bear Lake, 324 N. W.2d 174, 176 Minn ( 1982). The Court's authority to interfere in the management of municipal affairs is, and should be, limited and sparingly invoked. Id. at 175. Here, the trial court, as requested by Appellants, denied the City's request that the City' EAW decision be based solely on the record. y The court agreed with Appellants that the record could be augmented by expert testimony at trial. See Plaintiffs' Memorandum in Opposition to Defendants' Motion in Limine; and Tr, pp, 2, g, This court must thus give substantial deference to the trial court's ability to judge the credibility of expert witness testimony and consider both the evidence before the City and additional evidence introduced at trial. City of Barnum v. Coun of Carleton, 394 N. W.2d 246, 250 (Minn. Ct. APP• 1986). -35- The City received the EAW petition on or about July 30, 1993. The rules require a determination by the City within 30 days. On August 23, 1993, the City Council considered the ' EAW Petition, and on August 30, 1993 the Council adopted its Findings of Fact and Decision I determining that an EAW was not needed and would not be prepared. The EAW Petition filed by Beddor's attorney makes absolutely no reference to any potential impact on Christmas Lake. It states: ' Petitioners believe that the project will potentially adversely affect the environment in the following ways: ' Cause the unnecessary destruction of at least 22 mature trees ranging in age from 50 - 100 years old ' Adversely affect a wetland /pond located adjacent to the Nez Perce Drive extension ' Cause increased traffic to Pleasant View Road and Nez Perce Drive which will create safety - related concerns of owners abutting Pleasant View Road and Nez ' Perce Drive Result in increased air pollution and noise levels to landowners adjacent to ' Pleasant View Road and Nez Perce Drive. Tr. Ex. 52, AA p. 388 -389. In its recitation of the "material evidence of the Potential for Significant Environmental Effects" the only statement on drainage issues is as follows: The proposed extension creates an additional significant environmental impact to a ' wetland /pond area on Beddor Lot 5. The extended road, as planned, would be directly adjacent to the pond (see attached map, Exhibit D), subjecting it to road salt and oil contamination due to runoff. ' Tr. Ex. 52, AA p. 389. No mention is made of any potential impact to Christmas Lake in spite of Beddor's long history as a homeowner on Christmas Lake and developer of residential property within the 1 -36- drainage district. Addit' ' tonally, in July of 1993 when the EAW Petition was filed, Beddor's representatives had reviewed and commented on the July, 1992 feasibility e ' Y port, - analyzed the tree loss, developed their alternate solutions and presented them to the Council and actively ' participated in planning commission hearings on the Tower Heights plat. Yet n even a ' mention of any possible impact on Christmas Lake as a result of this development. There was no way the City could have divined from other available information tha how this little street in an area that everyone admits will develop ould some P somehow have some sort , Of impact on Christmas Lake. The "studies" of Christmas Lake performed b Osgood 1981 and 1985 involved simply the inclusion of Christmas Lake in an inventory of water samples p. 212 , from numerous lakes in the metropolitan area. Tr. p . ' The Findings adopted by the Council explicitly addressed the fact that the street will b constructed 150 feet away from the Lot 5 pond and that runoff will go i nto the pond which i s , s and will continue to be used for storm water purposes. Tr. Ex. 230, 7 Findings evidence at trial as discussed b � g and 9. The , above confirms the function of the Lot 5 pond for storm water Purposes consistent with the City's state -of -the -art storm water manse ' g ment planning, The Findings adopted by the Council addressed the fact thar trees will be im concluded that the f pacted and ew trees which will be impacted are "not unique or different from other trees in the area in species, size, aesthetics, or historical significance ' . Tr. Ex. 230, Findings 4 and 5. The evidence at trial not only shows the City's Findings as to tree impact p were by no means ' arbitrary and capricious; rather the accuracy of the Findings were virtually conceded by Appellants. ' Finally, issues involving traffic safety concerns on Pleasant View Road are n , environmental im act. of a potential P Minn. Rule 4410.0200, Subd. 24. While traffic noise may be an -37- ' environmental concern, evidence at trial from Appellants' own experts demonstrated that, traffic noise on Pleasant View Road resulting from this project would not even be noticeable just 30 ' feet from the edge of the roadway. AA p. 196, Tr. p. 530 -531. ' Appellants attempt to make much of the fact that City staff recommended that an EAW be prepared and that the cost of completing the document was discussed by the City Council. ' The City had already been sued by Beddor under the Minnesota Environmental rights Act before ' it made the decision on the EAW. City staff was recommending an EAW because of the pending litigation rather than any belief that it was necessary for environmental reasons. Paul ' Krauss stated in his August 18, 1993 report to the City Council: ' I have discussed the matter at length with the City Attorney and City Manager. While we do not believe the petition raises any noteworthy issues that have not already been discussed at length, nor do we believe that the EAW will add significantly to the debate, we do believe it would be useful to undertake the EAW. It is clear that this matter is going to be litigated in one form or another. The Mayor and City Council have already been served with a suit (see attached documents) on the matter. We believe the City ' would be in a better position to respond to the matters with a completed EAW. ' Tr. Ex. 58, AA p. 470. As to the cost issue, it is clearly understandable that the Council would have such concerns. What is relevant is the fact that the EAW petition and supporting material were reviewed and specific Findings were made by the Council dealing with the lack of any potential for significant environmental impacts. Finally, Appellants cite language from the EAW rules which provides that the "cumulative potential effects of related or anticipated future projects" is a factor to be considered in deciding whether an EAW should be prepared. Minn. Rule 4410.1700, Subp. 7. The other project Appellants pointed to at trial is the upgrading of Town Line Road. -38- The City did not act arbitrarily in failing to specifically address any otential , P cumulative impacts in relation to this project for several reasons: First, the EAW eti ' ' p tion prepared by Appellants' attorney fails to make any mention of the Town Line Road project or the concept of cumulative effect; ' Second, the Town Line Road upgrade is by no means a project which is related to the Nez Perce extension. It is a project which has its western terminus at Highway 101 more than ' two miles to the east of the project area involved here. It is a Hennepin County project located d in Eden Prairie and Minnetonka. Tr. Ex. 85; AA p. 566. ' Third, the evidence at trial totally failed to establish that the Town Line Road upgrade would cause any additional traffic on Pleasant View Road Pg , resulting from the Nez Perce extension. As discussed above, Appellants' traffic expert did not give any opinion as t ' 0 additional traffic on Pleasant View Road as a result of the Nez Perce Drive connection as ' compared to present conditions. The City's traffic expert testified that there would only e an additional 64 car trips per day on Pleasant View Road east of the Nez Pe y ' Perce connection, even considering the Town Line project. AA P. 196; Tr. p. 974 -977; Tr. Ex. 297. In sum the failure , ailure of the EAW petition to even raise an -issue involving cumulative project and the impacts, the fact that there is no connection between the Nez Perce ' p Town Line Road upgrade and the evidence at trial showing no cumulative impact between the two protects clearly demonstrates that the City did not act arbitrarily and capriciously in dealing traffic noise issue in deciding with the ' b not to do an EAW. This project has been placed under an environmental microscope in the context t of Appellants' MERA claim which was the focus of their case before the trial court The trial ' court's resounding factual rejection of Appellants claimed environmental harm from this r p otect ' -39- has Appellants now refocusing their argument before this court to the EAW claim. Appellants come before this court arguing that after all this intense environmental review,. this project ' should be further delayed while the City does an EAW to see if there is the potential for ' environmental harm. This matter should be put to rest. The trial court's decision, based upon a review of the record as supplemented by expert testimony, determining that the City did not act arbitrarily and capriciously in deciding not to do an EAW should be affirmed. THE EVIDENCE FULLY SUPPORTS THE TRIAL COURT'S ' DETERMINATION THAT THE CITY'S LEGISLATIVE PLANNING DECISION CONCERNING WHEN AND WHERE TO CONSTRUCT THIS STREET WAS NOT ARBITRARY AND CAPRICIOUS. ' One of the most basic legislative functions of a City is the determination of street ' locations. In Fohl v Common Council of Village of Sleepy Eve Lak 80 Minn. 67, 82 N.W. 1097, 1098 (1900), the Court stated: The power and authority to establish and lay out streets and highways is legislative, and all questions of expediency and necessity are exclusively committed to that branch of the ' government. The power may be delegated to municipalities or municipal boards or commissioners, and their conclusion and determination as to the propriety and necessity ' of a proposed street or highway is as final and conclusive as though the legislature itself had determined the same. Such questions are not open to judicial review. I In Bengston v. Village of Marine on St. Croix 310 Minn. 508, 246 N.W.2d 582, 585 ' (1976), the Court again citing Fohl v. Common Council supra held that: Determinations of when and how highways should be constructed, improved, or ' repaired are in essence a legislative function, and absent some duty imposed by statute or otherwise, these determinations must be left largely to the judgment and discretion of the officers who are charged with making them. ' In exercising its legislative authority to layout, open, widen or extend streets a city is acting pursuant to its specific powers set forth in Minn. Stat. §412.221, Subd. 6. The provisions 1 -40- Of 4 62.351 to 462.364, which provide for statutory comprehensive plan, zoning decisions, subdivision eview, deal with ado ption of a street n regulations and official ma Purposes Stat. pursuant to Minn, PPing for future §462.359. Official mapping is a statutory procedure w location. hereby a city can desi It requires a survey locatin g the c It a future centerline of the roadwa road and recording of the survey. , a Public hearin Y Minn. Stat g process authority 462.359, Subd. �. y to deny building permits within the 'napped n gives the city the right of administrative review b right -of- - It the way, subject to the landowner' y the Board of Appeals and s Subds. 3 and 4. Adjustments. Minn, If it is determined that the Stat. §462 359, Permit should be issued, the city then has six m to actually acquire the right -of -way by sonde mnation, onths Here, the City did not officially ma Property Y in accordance the Nez Perce Road extension across Bed s With this i dor s statute. Rather, the to actually acquire the Cty has initiate', c ondemnatio n property. The trial court did conclude, hov, proceedings mapped the street and ever, that the Cit reviewed the decision Y °facially Appellants requested. under an arbitrary and capricious The evidence full standard as and act arbitrarily Y supports the trial court's decision n that the City did not The City has always recognized that there e are traffic safety concerns It is difficult politically to attem on Pleasant View Mr. Fortier's statement of pt ph y si cal i mprovements to the road as evidenced plat: Mr. Beddor's enced b Troendle Position in 1991 when he was seeking approval of his A417, Mr. Beddor wants to B the wide make certain that he' Will Supporting o rang of Pleasant View son record of saying he is Opposed to it. Road. He will be in no way one of the many people who Tr. Ex. 5, P. 16. -41- City Planning Director Krauss stated in his Troendle Addition planning report: It should again be stressed that staff does not foresee a major upgrading of Pleasant View Road due to the real limitations and potential impacts that exist in this area. We do ' believe that it will be necessary at some point in time to consider safety related improvements. Safety related improvements could include widening the pavement so that cars are able to pass one another safely, modifications to curves to improve sight ' distances and the ability of traffic to negotiate the area. Any such improvements that are considered in the future would only be done with extensive neighborhood involvement ' and with great sensitivity to maintaining the character of the area. Tr. Ex. 213, p. 9; AA p. 800. The remedy of Beddor and residents on Pleasant View Road is not to upgrade the street, ' but rather to put the traffic on other streets. In connection with this project that means the traffic from the area goes to Lake Lucy Road, whose residents have their own set of legitimate ' traffic concerns relating to additional volumes of traffic, speeding cars and the safety of their ' children in this area which is populated by younger families in more modestly - priced homes. Tr. Exs. 210 and 276. (Testimony of Lake Lucy Road representative Terry Barke before City Council.) The City worked through these competing concerns in 1989 when it selected the future alignment of Nez Perce which is now to be completed. It again went through these concerns when Beddor's Troendle Addition was being reviewed in 1990 and 1991. The issue of the distribution of traffic from this area was again addressed extensively in 1993. Appellants' argument that the City has not taken steps to address traffic concerns of Pleasant View Road residents is simply not true. The Vineland Forest developer initially proposed having 21 homes access solely off of Pleasant View Road further to the east from the proposed connection. Tr. Ex. 207, p. 1, AA p. 772. The present route supported by Beddor, has been designed and constructed to loop through the area with the connection at Peaceful Lane -42- at the very western end of Pleasant View Road near County Road 17. Tr. Ex. 211, p. 3. Additionally, in 1989 signage changes were made on Pleasant View Road. Tr. p. 686 -687. The ' speed limit on substantial portions of the street is 25 mph. Finally, as discussed above the additional traffic on Pleasant View Road generated by the ' Nez Perce project itself is quite small. Elyer testified to an additional 69 car trips per day with ' very little difference between the City's proposal and Beddor's alternate solution. Appellants' ' traffic expert based his projections largely on anticipated future development to the west and made no effort to specifically identify the additional traffic generated by the Nez Perce ' connection itself. I The October 1990 Eastern Carver County Comprehensive Transportation Planning Study does not project anywhere near the overall volumes on Pleasant View Road that Benshoof does. , It projects traffic volumes in 2010 at a maximum of 1500 vehicles per day under the "all or ' nothing" forecast and between 1900 and 2700 at different locations on Pleasant View Road under the "capacity constraint" forecast. Tr. Ex. 36, Figures 9 and 10, AA pp. 295 -296. , The City has to decide local traffic issues as part of its legislative function. Appellants' I request that this project be enjoined "until such time as a thorough and detailed analysis of traffic I and safety can be completed of Pleasant View Road" is not an available remedy and is quite simply preposterous. The issue has been studied to death. -43- CONCLUSION The trial court heard all the evidence, judged the credibility of the witnesses and made its decision. Appellants were given tremendous leeway to present virtually any remotely relevant evidence. They do not assert any errors of law occurring at trial. Appellants are simply asking this court to substitute its findings for those of the trial court. The evidence overwhelmingly supports the trial court's findings. Its decision must be affirmed. Dated: January 2 , 1995. CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. B y : ct P Thomas M. Scott, #9$498 Attorneys for Respondents 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (612) 452 -5000 .. INDEX TO RESPONDENTS' ADDENDUM Existing Conditions Map (Tr. Ex. 1) Proposed Project Map (Tr. Ex. 2) .. , • , ' ' ' ' ' ' ADD -1 , Access Concept Plan (Tr. Ex. 3) • , , , , . ' ' ' ° ' ' ' ' ' • • • • ADD -2 ADD -3 ADD -i ,�,..• •tw .. Vrs - � a - �ti�e r•:y c3 t o A C!'�i'� -. -J.t•,r -;5 w ' t - � - rrs • L r'i+'c:;•;�Yi ra • - "T 1. •• ti 4 . 1 c• ti�..i 't .lit. 'u ' 1 , .�5' e : �q,1! 1:1Z �.�s � -:. �..: s• 1 a.� ° `} �'\ r `.� s �n a� !, 'll Y i. • fir. .�tLL r .. )� J.r,., �w3 _'!r {�a. tt «s ti t +w •♦ r i\ er � ~1 r .. t �r: ..a t r ti - � i✓ i �� '� � s ti `�. 1. 1 -: ,• 'r '!r• r ]Jr s �1 t -• r - -•�� r �� ti t �1, � •• � r ..' '. ~ J •r�„ �rv' -t c a' T���`o ��• F � � � c ") ��' i� - ti t lF'r••'z• �. Y M rw.tr' - ir r+ -: ' •, ,,'?•r• -• : j t �"S �. �' T . �. , r � r .l A� ,� �:... � ./T "•'r t ' ••" a Y . �• { : • c y a .!'• � '1 ,1 i •• +�_�. �� "1 ��1 'Si !p '�`J A..�T _ ..� � t "I' a, � t r r .I '�, ♦ 4 . GYM ��,• II�. .r ` R �'_ J� r �' +r• � �. .r_ � r � • ` r t►� � Z f ; - �' � - .N r ♦ ) , . < ��� • • .� J� • fir. r a ►t' r ae• ) s. �'4f ,�-•`` �• i •\ � �'�. F Gc � �'.^ -:, J"`- �-•w♦. + 'ter - � ?�� w ^1 \ '�•' ` • i +!c• -*, :' �+ 7�05 @�w .•0;.� ::�•:dl�+� �'�:!'a► %i`' � „ �.�'l� i t4., 77 '� ..u'��''(���:� 3L.•. ; ''•,ti..: -. `.1�' c r��• •; `1 � tiw ;�. f .��.. t , •- ? e r'• a r Z ...a�;��••r T �i7 vR?.•N1,,'.ti l ^ - • .z 'f - A! > �. , .i MI c _�.. ` � • j T �1 • ��M� r r j .• j~ •. � � ����ti -�� ♦ ,a .w� •• �� IT: • r'�t `_'M '• -, y ► v w` ����!� � -,/ L' 4.`', .Tz..��i ") ` +. J )':, .w '�+ �, ^e , ` L Tc �� _ � - 7' P,\ 1 •'� - aa • t,:'. "� y � T i - � 4 � .� ��. - >>Ti.�•�1��� t` _'+ � - r 1 � t ..� " . " ��n y �. ' ''.i ' -. : `�- r . .n.. ' +`. ' �` ` •`����a /j �� � .v� •L!1 a. ♦a. ,. -a , � _ 3 -..mo i' t :• t � s �i S_ r•t'i'`.. ; , : �` •G •!' .I � � t:,. 1 �y =,.�,� ''S -' �•- .: 1 � , t c .:�A yai".a� �� r • f � "+ .. .� •,,, ..�.f `'�:c, y �K • R J 1 .�; a r , b7 Kt's• p j •?. fi T •�',�a ='V' � � -.,� � . � , t � `R. -.-� 4 � ? may. � 9��i� � � _f � � a ` . ��� 'fir Z� -.x � � ��t!� _ ��;� tr_:��3 � 1 - • } (.aT: •�� � ._.�i._ ilT Est - �3. i�.. �" -.'i,` r ,ti f� '� a *,_t ` \ '~..• •T Y �•�'• _ _ 1� q ; �N tom= • A te ', ►.- 1 M _ i C fY .17 ��t ♦ � �• � � � - � -- } - 1 �.� f.� f�1! y t 7 ���• y . r� .�ti r -� -.. ��•�� t -�: - !S, a.•-C v � ��+�•g. y..r(� �'+� s '? C , �.�If! rfv .. � �” ,. 7. y�•. �� �, �= � a -. ,b '. ♦'. r te. y�,•� •`` � �V ��R� � - �. ^. J, d v 1r �. w.14� r ''1Y,5.13•• -,.��, •. �" • �• ' SlL 7 1�- � a �_ "� ♦-•(: 5 i * ' -• . .r 1 1 ,Z � u �• a r .f y: '• 1. h� '� y :.:i .Z� �`�� ,•„• -.: •7: �� •• �. ' { 1,.1.x.. !.._— ��+ J. � ✓S +T � ,.• y � . rte.... _- � � r. 1 � • [ y ' y � �' `• 1 .7t�Q ''.� c y , y.-A c �• r �+Y'. SJ • _ ••�..�� OLD a i; F�. �.-7' i;4 /'� �y r t. _ .� '+ } I �!*.�� ^•~ •� t ;. .'. .'? { '..�� " - Y ' '� : r- `•c t d ' �. L i.�,,; j� •` 43'r' � • , a. `! �'� R «� ��' � i t .,��j2�' { }� Q ..• i,- "�Y� ' -. : •0• � w. \. Via: ';� . � - 1�.,f <.:�<Z.:.. � •"\ t� <. <c .i�t. `'�-- �� _: •��• � � -;�:' � - � �/' yam' - �•1ti ��'• . •• n1 � •ri -,.•'1 ►� �:h� �i ': -.•TS_ ' -L .� '.'.. a -, � • c ) ;i r r ! a ♦ �� a .�= _ •� +y.."'•ro_'L. •- t.�.. ? � � - �1r � ti �,�?'.j �� , ti.;.,_'.. - • Z •1. .'r • ' = 7t�yr. t _ • �.�•� • ; -• fi - �•_y..,' ` - ^1 r_ r• _ •y .sati •t • 'G i .' _ 7 iS►+.• '- • 7 1 ` -�`yr Q� -r .:. Ar EU ' ;ter tv .��,. • � •�} _ r_ � 7 ,. �.� •.. �� ♦. . + , � "ter . � K. j •..� ? .� � •'!�; •. w • r' "'� .. 11 � - c `�• �ti0. � -rte ;� -_ • �- � _' �.' � � a.�� -: +�1: ... t om - � • • _ • �+ -�,,; s +.•• r „ • } -' =" }�N r• �t.1a�7� ��_ cs �� f • �_ � .. » •v � iY6 � � ��i t. '•`i. �r S `F iii r � • ice _.••- if•Q/'.'3.-�111ip;:i'tir•`. c .: �.� _ . ^'... ._ •�. _ i � ' S. j '. ��. ass•..., ' •� '� , . � � --� ,� s- - - 3 'iif , ,O hl t�pl?1 • ' _ 1 ��` �SC� s,,, r 4%. !.)•n�:�; ' �r� r v tits - i'/'r� •'!'{ .. - _q'':�� +i' ' __ d• i�� r Z I- Ir 1. ` ` - r yl ; L •,['. -� i.'N,; i. '. : 7•' �I... �♦ '*Y r- :. ��r r, �T + � :r�w i.. }r ..�.. Ul AL LW IV iL ic �r1 1 ••„• � s L ( . ` L y u.F �; t� Y � i w• �.� ,�. �. /��•_ 'art , q �� G - : ~ r' �,� r ' i ti , r ti • " -f� 1 i t $ r 1� r'F � .. > ti, j am ' e, `_ y'� �7 t� f r y. �. w ' • r 's r ± I�{� .•�•j �- t� 't .7 �'r• I,. ~^ � ••�• 1N , .:J �I t r.` T I``� =f. -•: `'f•• } _ - � . fir' `� t •'•� ?•; �! _ tea. �.. i ... � `� {{t s. � -- � r d�. ♦ S .. � �. ��t � -'►'• �. � • : i' �` ♦ y •. •a.`O: � Tom. _ . •MM 71 �. r 'r 4 ±.. . i � .il "3•� �.r 2 - ll� .tom . s? �.� I. _ - w - _Xna ti r• .. • tai - ►. _ t' -'� �.:� t .�� i ce- " S "'. - ~mod f■ • 6 - .• ''S' � ;:i�� - - t _ lk �G�iRN �Ew �W Y c .T' \ C 41 P� D T R HE TS C) Ate,. 1 ALTERN 1 A 781 1 0 NDL D TI t 1 I i 1 1 I ' I I 1 ATIVE 3 r .C" CHSN1737 ADD -3 No. C9 -94 -2016 1 STATE OF rvf NNESOTA IN COURT OF APPEALS O Frank Beddor, Jr., Todd Novaczyk and Sherry Novaczyk, and Robert L. Post and Sandra J. Post, Appellants, VS. City of Chanhassen, its Mayor Don Chmiel and City Council MemberE, Respondents. J APPELLANTS' REPLY BRIEF CAMPBELL, KNUTSON, SCOTT & FUCHS DOHERTY, RUMBLE & BUTLER PROFESSIONAL ASSOCIATION 3 PROFESSIONAL ASSOCIATION Thomas M. Scott Atty Reg. No. 98498 Lawrence A. Moloney 317 Eagandale Office Center Atty. Reg. No. 165876 Todd A. Noteboom 1380 Corporate Center Curve Atty. Reg. No. 240047 Fagan, MN 55121 3 (612) 452 -5000 3500 Fifth Street Towers 150 South Fifth Street Minneapolis, MN 55402 -4235 (612) 340 -5555 Attonteys for Respondents Attorneys for Appellants TABLE OF CONTENTS I. INTRODUCTION ........... ............................... 1 ILARGUMENT ............. ............................... 4 A. RESPONDENTS FAILED TO RESPOND TO THE ARGUMENTS RAISED BY THE HOMEOWNERS AND HAVE MISCHARACTERIZED THE LEGAL STANDARD APPLICABLE TO AN ENVIRONMENTAL ASSESSMENT WORKSHEET ........... 5 1. An Environmental Assessment Worksheet Must Be Prepared Where The City Has Any Knowledge That A Project May Have The Potential For Significant Environmental Impacts ......... 5 2. The Findings Of Fact Reflect That The City Did Not Adequately Consider The Potential For Significant Environmental Impacts to Other Protected Natural Resources .................... 7 1 1 3. Respondents Improperly Considered Cost In Determining Not To Prepare An EAW ............................... 10 4. An EAW Is Still Needed Even After This Litigation ......... 10 B. RESPONDENTS' DECISION TO OFFICIALLY MAP THE EXTENSION OF NEZ PERCE DRIVE AND REALIGNMENT OF PEACEFUL LANE WAS BOTH ARBITRARY AND CAPRICIOUS IN VIEW OF THE LONGSTANDING TRAFFIC AND SAFETY CONCERNS SURROUNDING PLEASANT VIEW ROAD ......... 11 1. The City's Decision Is Subject To Judicial Review .......... 11 2. The City's Decision Was Both Arbitrary and Capricious ....... 12 C. RESPONDENTS HAVE MISCHARACTERIZED THE RECORD RELATING TO THE CLAIMS UNDER THE MINNESOTA ENVIRONMENTAL RIGHTS ACT. THE COURT WAS CLEARLY ERRONEOUS IN FINDING NO VIOLATIONS OF THE ACT ....... 14 1. The Court's Finding That Christmas Lake Will Not Be Impaired IsClearly Erroneous ............................. 14 i 2 • The Court's Finding Wetlands Are Not Protected t Resources And d Count Is Clearly Will Not Be Road l y Erroneous ......... , , paired 3. The Court " " • • • .......... 1 c Project Will Not Cum lati Er o eous In Finding y mpact Quietude • The proposed 4 • The Court's Finding that is No Feasible And p • • • • • • � • • • • 20 to the proposed project is Clearly odent Alternative III. CONCLUSION Y Erroneous , , , • • • • • , •••.........23 ii TABLE OF AUTHORITIES C a s e s Carl Bolander & Sons Co. v. City of Minneapolis, 488 N.W.2d 804, 809 (Minn. Ct. App. 1992) ....................... ..............................7 S tatute s Minn. Stat. § 116D.04, subd. 2a ..... ............................... 7 Minn. Stat. § 116B.01, et seq . ...... ............................... 2 Minn. Stat. § 116D.01, et seq .................................... 2, 5 Minn. Stat. § 462.361 .......... ............................... 12 Rules Minn. Rules 4410.1100, subp. 6 ... .............................5, 6, 10 Minn. Rules 4410.1400 - 4410.1600 .. ............................... 11 iii I. INTRODUCTION Respondents' Brief is a reflection of the efforts made, and the tactics taken, by the City ' of Chanhassen at trial. It subtly yet repetitiously calls into question the sincerity of one of the ' Homeowners in bringing this challenge; it portrays the City of Chanhassen as a responsible, if not angelic, governmental unit. Respondents' Brief provides a story of two extremes: an ' unsympathetic land developer and a lowly city trying to serve its constituents. The story, ' however, has no place in this lawsuit. It should have been ignored at trial. It must be ignored on appeal. ' Respondents ask the Court to affirm the trial court's decision because one of the , Homeowners developed property in Chanhassen in years past, because one of the Homeowners allegedly expressed support for the road extension in the past, and because the City believes that ' one of the Homeowners did not bring the suit for environmental reasons. Respondents drape ' their "state -of -the -art" water management plan before the Court to suggest that their motives are somehow purer than the Homeowners' and therefore the ' y ought to prevail. With hollow indignation, Respondents then assert that the Homeowners have made a "mockery" of the case. , A mockery, however, is transforming an environmental lawsuit, brought principally under the ' Minnesota Environmental Rights Act ( "MERA ")' and the Minnesota Environmental Protection Act ( "MEPA "), into a historical examination of the plaintiffs' alleged motives. This lawsuit was and is directed at the actions and inactions of the City of Chanhassen. The alleged conduct ' ' Minn. Stat. § 116B.01, et es ' Z Minn. Stat. § 116D.01, et seg_ 1 ' 1 ' of the Homeowners is irrelevant and inappropriate. It is offered by Respondents solely to cloud the prima facie case of wrongdoing that the Homeowners successfully proved at trial. ' As discussed in detail below, Respondents' Brief fails to cogently and legally respond to I the arguments for reversal raised in Appellants' Brief to the Court. With regard to Count II, Respondents attempt to hide behind an inapplicable legal standard and behind a surface water ' that had not been sent to the City management plan Y at the time the Environmental Assessment ' Worksheet ( "EAW ") petition was denied. Respondents assert that they did not have to consider potential impacts to Christmas Lake because it is not specifically mentioned in the EAW petition. This argument is legally invalid; it is directly contrary to the language of the Minnesota Rules ' which focus on information "otherwise known" to the city, not information specifically listed ' in the petition. Additionally, they assert that the expensive "storm water management plan" demonstrated that the runoff would flow through a series of ponds and that the harmful waste would be filtered and removed. The City denied the petition on August 30, 1993; it did not, ' however, even have a draft of the storm water management plan until sometime after October 4, 1993, when it was mailed to the Mayor and City Council. Respondents' argument is thus fatally ' flawed. The Homeowners are entitled to a reversal on Count II and the project must be enjoined ' until an EAW is prepared. It is difficult to even assess Respondents' argument with respect to Count III. They appear to challenge the trial court's conclusion that there was an official mapping of the ' proposed project, although such issue has never been raised by Appellants or Respondents in any documents previously submitted to this Court. As a matter of law, the question of whether there was an official mapping is not properly before the Court and should not be considered. Judicial 2 review is afforded by statute and the only issue on appeal is whether Respondents acted arbitrarily and capriciously in officially mapping the project. As discussed below, Respondents ' did not adequately respond to the Homeowners' argument on this point. They identified no study; they identified no analysis. There has been no substantive rebuttal to the Homeowners' argument on appeal. ' Respondents also fail to adequately respond to the Homeowners' argument that the district ' court's judgment on Count I is clearly erroneous. They ignore the unrebutted testimony from the Homeowners' experts regarding the status of protected resources, the likely impairment airment of ' protected natural resources, and they fail to properly apply the law in addressing feasible and ' prudent alternatives to the proposed project. The trial court, for example, found that the Homeowners presented unrebutted testimony that the Vineland Lot ' 5 pond was a protected wetland. Respondents do not address this in their brief nor do they address the Homeowners' ' argument as to why this compels a reversal; instead, Respondents provide a lengthy historical account of one of the Homeowners' efforts to ' obtain a grading permit for the Lot 5 pond. Where the Homeowners provided detailed argument on the likelihood of material impacts to the ' wetlands, Respondents chose to stick to their story of alleged historical inconsistencies by one Homeowner. With respect to Christmas Lake, Respondents try to muddy the waters with mischaracterizations of the record. Such tactics cannot change the fact that the parties agree that ' Christmas Lake is a unique resource that is particularly sensitive to increases in nutrients such as phosphorous. ' The following argument responds in detail to the deficiencies in Respondents' Brief. As set forth herein, the Homeowners are entitled to a reversal on all three counts of their Amended ' Complaint, or, at a minimum, to a new trial. H. ARGUMENT RESPONDENTS FAILED TO RESPOND TO THE ARGUMENTS RAISED BY THE H AND HAVE MISCHAR ACTFRIZED THE LEGAL STA APPLICABLE TO AN ENVIRONMENTAL ASSESSMENT WORKSHE 1 An Environmental Assessment Worksheet Must Be Prepared Where The City Has Any Knowledge That A Project May Have The Potential For Significant Environmental Impacts ' As discussed more fully in Appellants' Brief to the Court, the Minnesota Environmental ' Rights Act ( "MEPA ") and corresponding Minnesota Rules set forth the legal requirements for when an EAW must be prepared. See Minn. Stat. § 116D.01, et Q,.; Minn. Rules 4410.1100, subp. 6. The Rules, in particular, state that: ' the RGU shall order the preparation of an EAW if the evidence presented by the petitioners, proposers, and other persons or otherwise known to the RGU ' demonstrates that, because of the nature or location of the proposed project, the project may have the potential for significant environmental effects. ' Minn. Rules 4410.1100, subp. 6 (emphasis added). Respondents ignored this language in August, 1993 when they denied the EAW petition, they ignored it at trial, and they ignored it ' in their response to the Homeowners' appeal. The law, however, is clear and must be given ' effect. Respondents have a fundamental misunderstanding about the purpose of an EAW petition ' and the circumstances under which a RGU is required to prepare an EAW. In their brief to the ' Court, Respondents represent that under Minnesota law, a city need only evaluate the petition and accompanying evidence in making its determination. See Respondents' Brief, p. 32. This, 4 quite simply, is not the rule governing when a petition for an EAW must be granted. As set forth above, a city must consider not only the language of the EAW petition and accompanying , evidence, but also evidence "otherwise known" to it at the time the EAW decision is made. ' Minn. Rules 4410.1100, subp. 6. This distinction is not one of semantics. The RGU cannot rely solely on the language of the EAW petition in making its decision; any and all information , known to the city must be considered or the decision is improper. Id ' In addition to violating the Minnesota Rules, Respondents' argument is also tenuous on a purely common sense level. If believed, Respondents' argument would force petitioners to ' essentially conduct an environmental analysis before submitting a petition to ensure that every , potential impact was clearly set forth to the RGU. In cases such as this where the RGU possesses most of the information regarding the potential for environmental impacts, ' Respondents' argument would insure that most impacts remain unconsidered and unexplored. ' This argument shifts the burden of environmental compliance from the RGU to the petitioners and distorts an conceivable sea petition process might otherwise serve.' ' Y purpose P P g At the time it denied the petition for an EAW, Respondents knew that the proposed ' project may have the potential for significant environmental impacts to Christmas Lake. It had , before it three studies prepared by Richard Osgood in 1980, 1981 and 1985 describing the purity and quality of Christmas Lake. See Trial Transcript pp. 191; 212 -219 (Osgood Direct). These ' studies put Respondents on notice that Christmas Lake was and is extremely sensitive to changes , in phosphorus levels, and indicate that the lake will rapidly deteriorate if a certain threshold in ' The trial court ultimately rejected Respondents' argument on this point, agreeing with , the Homeowners that Minnesota law requires consideration of potential impacts "otherwise known" to the RGU -- not just those raised in the EAW petition. See AA -263. 5 ' r ' phosphorus concentrations is exceeded. Id In conjunction with this detailed information, Respondents knew that all of the runoff from the proposed project would ultimately flow into Christmas Lake. See Trial Transcript p. 211 (Osgood Direct). Based on all of this information, ' it is simply unmistakable that at the time they received the EAW petition, Respondents knew that there may be the potential for significant environmental impacts to Christmas Lake. Respondents Brief offers further insight into the severity of its mistake in failing to prepare an EAW. First, Respondents cite only to the Carl Bolander decision and the relevant provisions of MEPA. See Respondents' Brief, p. 34 (citing Carl Bolander & Sons Co. v. Citv ' of Minneapolis 488 N.W.2d 804 809 (Minn. Ct. App. 1992 ; Minn. Stat. § 116D.04, P � � PP ) I subd. 2a). It is clear that Respondents have never understood the importance of looking to the Minnesota Rules in determining the precise requirements for an EAW petition; it is equally clear ' that Respondents failed to address anything more than what was identified in the EAW petition Po Y g itself. There can be no surer example of why Respondents' decision was arbitrary and capricious. Christmas Lake was completely ignored and there was every reason to believe that it may be seriously impacted by the proposed project. Ignoring the potential impacts on ' Christmas Lake warrants a reversal in this case. 2. The Findings Of Fact Reflect That The City Did Not Adequately Consider The Potential For Significant Environmental Impacts to Other Protected Natural Resources ' Respondents' Brief provides a summary and conclusory response to the Homeowners' ' argument that other natural resources were not adequately considered before denying the EAW petition. The response brief, much like the original findings of fact, fails to discuss the County ' Road 17 pond. See Respondents Brief, p. 37. Presumably, Respondents agree with the 6 Homeowners argument on appeal. They have done n thin to suggest that consideration was given to the potential impacts to the wetland before denying the EAW petition. Similarly, Respondents' Brief, much like the original findings of fact, ignore the 22 mature trees that will 'be lost if the proposed project is completed. This concern was specifically raised in the EAW petition and has been completely ignored by Respondents ever since. With regard to the Vineland Lot 5 wetland, Respondents' Brief offers very little discussion in response to the Homeowners' challenge on appeal. The brief ignores the fact that the both the Vineland Lot 5 pond and the County Road 17 pond were identified as wetlands on Chanhassen's wetland inventory list at the time the EAW petition was denied. See AA -274 (Trial Exh. 35); AA -302 (Trial Exh. 37); AA -893 (Trial Exh. 263). It ignores the City's policy of protecting such wetlands and the City's finding that "treating wetlands simply as storm water holding areas overlooks their potential for wildlife habitat, groundwater recharge areas, filtering bodies for nutrient loading into the watershed, and for open space." See Trial Exh. 278, p. 6 (not contained in Appellants' Appendix). Moreover, Respondents ignore the fact that the City Council and City Planning Commission were erroneously informed that both ponds were not wetlands prior to making the EAW decision. See AA -381. Respondents' meager reply to Appellants' Brief is simply to assert that "the function of the Lot 5 pond for storm water purposes [is] consistent with the City's state -of -the -art storm water management planning." See Respondents' Brief, p. 37. There is no argument from Respondents on whether the Vineland Lot 5 pond is a protected wetland. There is no argument from Respondents concerning the potential for impacts to the Vineland Lot 5 pond. Again, Respondents try to hide behind their "state -of -the -art" storm water management plan for protection. The plan, however, was not sent 7 ' to the City, even in draft form, until approximately six weeks after it denied the EAW petition. See Trial Exh. 306 (not contained in Appellants' Appendix). Accordingly, the plan offers no ' support for Respondents' decision to deny the EAW. P ' In response to the Homeowners' argument regarding the potential for increased noise, Respondents assert that they had no obligation to consider the expansion to Townline Road and additional traffic to be introduced in the relevant area. See Respondents' Brief, pp. 38 -39. First, Respondents suggest that they did not need to consider Townline Road because it was not expressly referenced in the EAW petition. Id As discussed supra however, this argument is invalid. The extension of Townline Road was information "otherwise known" to Respondents ' when it denied the EAW petition. Second, Respondents assert that the extension of Townline Road is not "related" to the Nez Perce extension. Id. This is simply not true. As discussed in Appellants' Brief (p. 31), the City was fully aware when it received the EAW petition that by 1996 the extension of Townline Road would introduce substantial new traffic into the relevant ' area. See AA -565 (Trial Exh. 85). Finally, Respondents argue that the expert testimony at trial did not suggest that the extension of Townline Road would result in additional traffic. See ' Respondents' Brief, p. 39. While Homeowners disagree with this statement, such argument is irrelevant in a record review case where the only issue is whether the City had information suggesting that there may be the potential for.increased traffic and thus increased noise in the area. Additionally, the record before the City, at the time it made the EAW decision, indicates ' unequivocally that the extension of Townline Road had the potential to increase traffic to the relevant area. See AA -675 to AA -683 (Trial Exh. 85); AA -799 to AA -800 (Trial Exh. 213). M Respondents' Brief completely misses the mark on the issue of noise and the cumulative impact of the Townline Road extension. Respondents Imnronerly Considered Cost In Determining Not To Prevare An I EAW The City Council meeting minutes reflect that Respondents' decision to deny the EAW petition was motivated almost exclusively by cost concerns. See AA -1503 (Trial Exh. 61). Respondents. now assert that "it is clearly understandable that the Council would have such [cost] concerns." See Respondents' Brief, p. 38. Respondents, once again, appear confused on the appropriate considerations for an EAW determination. There is absolutely no mention of "cost" as an appropriate factor in the EAW criteria. See Minn. Rules 4410.1100, subp. 6. Even the City Attorney recognized this during the City Council meeting where the EAW petition was addressed; he commented that "[e]conomic considerations is not one of the factors." See AA- 1503 (Trial Exh. 61). The City Council, however, ignored this advice and based its decision solely on cost. Id. Respondents have failed to demonstrate that anything other than cost was considered when the decision was made to deny the EAW petition. 40 An EAW Is Still Needed Even After This Litigation Respondents final argument appears to be that after a full trial there is no longer anything to be gained from preparing an EAW. See Respondents' Brief, pp. 39 -40. This is a desperate argument and one that must be rejected. Respondents ask the Court to ignore their failure to properly address the potential for significant environmental impacts at the time the EAW petition was submitted. In effect, they seek to be excused from the administrative rules and regulations surrounding preparation of an EAW because some of the environmental issues received close scrutiny at a subsequent trial. 2 1 I 1 C Such an argument encourages an RGU to ignore environmental concerns, much like Respondents did in this case, and to force a group of petitioners to file a lawsuit if the law is to be enforced. Such an approach is absolutely backwards. The City of Chanhassen cannot be rewarded for its neglect and for its arbitrary and capricious decision. Under applicable law, Respondents had an obligation to prepare an EAW in August, 1993. This obligation has not subsided simply because the petitioners were forced to commence a trial. Allowing Respondents to escape their responsibility also defeats the full purpose of an EAW. As the Court is no doubt aware, an EAW serves many purposes, not the least of which is a process whereby many are invited to comment on the findings of the RGU. See Minn. Rules 4410.1400 - 4410.1600. Preparation of the EAW is followed by a publication and distribution to many organizations and persons, and there is a 30 -day period where comments are received to address the accuracy and completeness of the material contained in the EAW. Id. The comment period also allows feedback on the need for exploration of other potential impacts before the project is commenced and the possible need for an environmental impact statement on the proposed project. Id. Respondents are essentially asking the Court to discard this fundamental aspect of the EAW process, following its improper decision not to prepare an EAW. Respondents' argument must be denied and the proposed project enjoined until a full EAW has been completed. B RESPONDENTS' DECISION TO OFFICIALLY MAP THE EXTENSION OF NEZ PERCE DRIVE AND REALIGNMENT OF PEACEFUL LANE WAS BOTH ARBITRARY AND CAPRICIOUS IN VIEW OF THE LONGSTANDING TRAFFIC AND SAFETY CONCERNS SURROUNDING PLEASANT VIEW ROAD 1. The City's Decision Is Subject To Judicial Review 10 Curiously, Respondents appear to challenge the ro riet ' P P y of the trial court's willingness to review the decision to extend Nez Perce Drive and realign Peaceful Lane on the Tower Heights Addition property. See Respondents' Brief, pp. 40 -41. Armed with common law case authority, Respondents suggest that the trial court erred in even considering Count III of the Id , ' Homeowners' Amended Complaint. This argument, however, is gravely mis laced P The trial court found that there had been an official mapping, and judicial review was thus afforded ' Pursuant to Minn. Stat. § 462.361. The question of whether there was an official mapping, or whether there was even a decision to map, is not an issue before this Cou rt. More to the p nt, the question of whether this issue is subject to judicial review has not been raised in either , Appellants' or Respondents' Statement of the Case.' Respondents' common law arguments g merits ' opposing judicial review are thus doubly misplaced. The issue is not before the Court and even if it were, judicial review is expressly allowed by statute. The only issue with regard to ' Count III is whether the decision to officially map was arbitrary and capricious v i Respondents knew about traffic and safety concerns at the time the en what ' ey made their decisions ?• The City' Decision Was Both Arbitrary and C annc]rn�c As Respondents concede in their brief to the Court, "The City has always t recognized there are traffic and safety concerns on Pleasant g that View Road. See Respondents' Brief, p. 41. While the question of judicial review is not before the court established , the legislature judicial review in cases where there is an official mapping or in cases where ' is a "decision" to officially map a proposed street. See Mi nn. has clearly whether the City of Chanhassen officially mapper Stat. § 462.361. Accordingly, "decision" to map th the street e extension, judicial review is allowed by statute. ion or simply made the ' S Not only is this limited issue supported by Appellants' and Res ndents' the Case, but it is further supported by Respondents' statement of legal issues i Statement e ' brief to the Court. See Respondents' Brief g n their response p. 1 (issue no. 3). 11 1 Without any support from the record, Respondents now assert that the City "worked through" the competing concerns over traffic and safety stemming all the way back to 1989. Id at p. 42. While minor signage changes may have been made on Pleasant View Road over the years, nothine has been done to study or evaluate the existing problems on the road and whether an overcrowded road can tolerate additional traffic without significant safety concerns. The trial court found, and Respondents apparently agree, that the City of Chanhassen conducted a study of traffic and safety issues prior to officially mapping the extension of Nez Perce Drive and the realignment of Peaceful Lane. See AA -179 (Findings of Fact 185). The record simply does not support this conclusion. Neither Respondents nor the trial court are able to point to a single "study" of the traffic and safety issues surrounding Pleasant View Road. It is undisputed that Pleasant View Road has been substandard and unsafe since 1989. See AA- 772 (Trial Exh. 207). There is no disagreement that this condition deteriorated from 1989 forward. See AA -275; AA -308; AA -787; AA -792 (Trial Exhs. 36, 39, 212, 213). Finally, there does not appear to be any disagreement that if Respondents did not study the traffic and safety concerns before mapping the road extension, that a subsequent decision would, necessarily, be arbitrary and capricious. Accordingly, the question before the Court is whether Respondents engaged in a study of traffic and safety concerns before making the decision to officially map the road extension. Again, the trial court concluded that such a study had been conducted, although it did not refer or cite to any specific study in its opinion. AA -179 (Findings of Fact 185). Similarly, Respondents have failed to identify any study that was done of traffic and safety concerns before the decision to officially map was made. The reason for these shortcomings is simple: there 12 h was no study. Nothing exists. Respondents admit knowing of the traffic and safety problems with Pleasant View Road, yet failed to address these concerns before blindly proceeding with the extension of Nez Perce Drive and realignment of Peaceful Lane. The decision was arbitrary and capricious by its very nature. The Homeowners' are entitled to a reversal on Count III; Respondents must conduct a thorough analysis of traffic and safety concerns to determine if Pleasant View Road can handle any increase in traffic from the proposed project. C RESPONDENTS HAVE MISCHARACTERIZED THE RECORD RELATING TO THE CLAIMS UNDER THE MINNESOTA ENVIRONMENTAL RIGHTS ACT, THE COURT WAS CLEARLY ERRONEOUS IN FINDING NO VIOLATIONS OF THE AC 1. The Court's Finding, That Christmas Lake Will Not Be Impaired Is Clearly Erroneous As indicated in Appellants' Brief, one issue on which the parties agreed at trial was that Christmas Lake is a rare, if not unique, natural resource; it is perhaps the highest quality lake in the metropolitan area. Trial Transcript pp. 880; 895 -97 (McComas Cross); pp. 216 -219 (Osgood Direct). Outside of the litigation, the City itself has prepared a Storm Water Management Plan which not only recognizes the importance and sensitivity of Christmas Lake, but also, on this basis, recommends improvements in the storm water management system that would reduce the amount of phosphorous introduced into Christmas Lake. See Exh. 306, Vol. I, pp. III -5, V -6, V -11, Vol. II, IV -226 to 229 (not included in Appellants' Appendix). In the context of this litigation, in which the City seems constrained to focus on just one Homeowner rather than the natural resources it should be protecting, Respondents blatantly mischaracterize the record in an effort to persuade the Court that an increase in the annual 13 C phosphorous load will not impair Christmas Lake. Examination of the record below does not ' support such a conclusion. From Respondents' scatter -gun attack, the following major contentions emerge. First, Respondents argue that only a relatively small amount of additional phosphorous will be ' introduced into Christmas Lake, and that such a small amount cannot reasonably be expected ' to cause a discernable impact. See Respondents' Brief, pp. 18 -19. Second, Respondents argue that if such an impact were to occur, the results would already be apparent due to the additional development that has occurred since the studies were conducted on Christmas Lake in the 1980's. Id at p. 22. Third, Respondents argue that the possibility of such impacts should be discounted because single events, such as heavy rainfalls or release of goose excrement, ' encompass similar releases of additional phosphorous that have not caused the deterioration of ' Christmas Lake. Id. Neither Respondents nor the trial court can support such assertions based on the evidence received at trial. The record specifically contravenes the contention that a relatively small amount of phosphorus cannot impair Christmas Lake. All parties agreed at trial that it is desirable to limit ' the addition of phosphorous into a lake. As stated in the City's own Surface Water Management Plan: In Chanhassen, nutrients like phosphorous and nitrogen are a major concern because they can cause algal blooms and excessive aquatic plant growth severely affecting surface water quality. The importance of controlling sediment transport by any means cannot be overemphasized. ' Exh. 306, Vol. I, p. III -5. ' 14 ' The critical concept in addressing whether a relatively small amou nt of phosphorous can impair a lake is the concept of a "threshold." The limnologists testifying for both parties ' recognized that lakes do have a threshold. See Trial Transcript p. 233 (Osgood Direct); pp. t of a threshold means that at a certain The concept ' 903; 912 -13; 920 -21 (McComas Cross). p point, a small change will have significant and drastic consequences. At one point in the trial, the threshold concept was analogized to pushing something over the edge of a table so that it ' falls to the ground. See Trial Transcript p. 90 (Osgood Cross). The analogy is an extremely helpful one. If one moves a book in a series of small pushes toward the edge of a table, until the book actually reaches the "threshold," each push has only a minimal effect. When the threshold point is ultimately reached, however, even a small push will cause the book to pass the threshold and fall to the ground. Both Appellants and Respondents recognized that the ' ecosystems of a lake can be pushed in the same fashion until, at the threshold point, the balance ' of the ecosystem and the quality of the lake are permanently impaired. Given that Respondents own accepts limnolo ist is this conclusion, neither the City nor the Court may validly assert that ' g P a small influx of phosphorous cannot impair Christmas Lake. As explained by Mr. Osgood, the sensitive balance that the Homeowners seek to protect hnia." These small creatures raze on the edible ' in Christians Lake involves large - bodied dalp g forms of algae presently found in Christmas Lake. If the threshold point is crossed, however, the dalphnia will no longer be able to flourish and perform their cleansing function. Trial Transcript pp. 35 -61. Respondents also argue that the threshold will not be crossed in this instance because ' other developments have been built in past years without pushing Christmas Lake beyond the , 15 ' critical point. This argument is invalid. Through a careful examination of the record adduced at trial, and ignoring the disingenuous "spin" contained in Respondents' Brief, it is evident that these earlier developments support the conclusion that Christmas Lake is now at the threshold point. ' Respondents' limnologist, Mr. McComas, presented no testing data from Christmas Lake or any other metropolitan area lake. The only evidence in the record of where the threshold ' point rests for Christmas Lake is thus the studies conducted by Mr. Osgood. Similarly, the only ' data regarding the present level of phosphorous in Christmas Lake came from these Osgood studies. As explained by Mr. Osgood, the data collected from Christmas Lake defines not a threshold point but a threshold "range." See Trial Transcript p. 12 (Osgood Recross, March 3, ' 1994). Lakes are obviously variable, and data collected in tests such as conducted by Mr. Osgood reflect an average within that range. Trial Transcript p. 130 (Osgood - Rebuttal Redirect). Referring again to the analogy of pushing a book off of a table, the variable conditions found in the natural world make it impossible to define precisely how close the book is to the threshold of the table. Similarly, in 1985, Mr. Osgood was only able to establish how close Christmas Lake was to the threshold based upon a range of values from similar lakes. It is not ' surprising that when individual developments were built in the 1980's that the threshold was not crossed; each new development, however, caused an increase in phosphorous that pushed the lake closer to that threshold. See Trial Transcript, pp. 12 -15 (Osgood Recross, March 3, 1994). Given that several additional developments have been built since the Osgood studies, any margin for error has clearly been eliminated. Mr. Osgood is now able to conclude that Christmas Lake ' 16 c is at the critical or "threshold" point. Id Just as importantly, - Po tly, Respondents limnologist can point to no contrary evidence. Given the absence sence of substantive evidence, Respondents resort to clouding the issues. Respondents, for example, refer the Court to water samples taken ' Minnehaha Creek Watershed District to ar P by the DNR and the b the gue that development occurring after Mr. Osgood's , 1985 study had no effect on Christmas Lake. See Respondents' Brief, is both fallacious and misleadin p• 22. Such an argument ' g. Mr. Osgood referred to these highly limited samples only after the trial court expressed concern that perhaps the threshold point may since the time of Mr. Osgood's 1985 stud Y have been passed y Trial Transcript pp. 49 -52. Mr. Osgood was able , to use this data to support the conclusion that the threshold had not et Christmas Lake. Id at Y been reached in pp. 57 -59. This data was not precise enough, however, to be ' interpret the phosphorous levels in Christmas Lake, or other elements of water used to chemistry. Id, ' at p. 57. Accordingly, no inference could be drawn from this data that the in Christmas Lake had not increased. Trial Transcript Phosphorous level ' P PP• 580 -581. The data simply reflec ed t that based on the water clarity, the threshold had not yet been crossed. Id. at pp. 58 -59. Respondents use similar sophistry in arguing that the additional hos h into Christmas Lake will not, by itself, be analytically e P porous introduced ' As indicated in the testimony of Mr. Osgood, y tectable. Respondents' Brief, p. 19. lakes stratify in the natural world and phosphorous ' is concentrated within a given strata. Trial Testimony, pp. 136 -37 P Respondents' argument, , therefore, is absolutely pointless and neither advances nor clarifies any of the issues on apps, Finally, Respondents' reliance on comparisons between the influx single events, such as a heavy f phosphorous from y rainfall, and the annual increase in the introduction of 17 ' phosphorous from the challenged project, is an apples to oranges comparison. Such argument only serves to confuse the Court and the issues. Trial Transcript, pp. 135 -37 (Osgood - Rebuttal ' Redirect). Such tactics must not be considered. ' Beneath all of the rhetoric from Respondents trying to minimize the impact of purportedly small increases in phosphorus to Christmas Lake is the fact that the City's own Surface Water Management Plan recommends improvements in the City's system that would reduce the amount Manag p y y of phosphorous introduced into Christmas Lake. See Exh. 306, Vol. II, pp. IV -227 and 228. ' These recommendations are based upon the recognition that phosphorous "can cause algal blooms and excessive aquatic plant growth severely affecting surface water quality." Id. at ' Vol. I., p. III -5. These proposed improvements have not been implemented to date. At present, therefore, the protection of Christmas Lake depends on the enforcement of the Minnesota Environmental Rights Act. As shown above, there is no dispute that Christmas Lake is a precious resource, and that this resource will be irreparably damaged if its ecosystem ' is pushed beyond the threshold point. The only evidence introduced at trial regarding the present state of Christmas Lake demonstrates that the threshold point has been reached, but not yet passed. Respondents' approach, and apparently the appeal of the trial court, has been to ' require evidence that the damage has already occurred. Such a requirement is an anathema to the prophylactic purposes of MERA. This Court must reject the findings of the trial court as ' clearly rroneous and mandate that one of the several available alternatives be pursued. Y � p ' 2. The Court's Finding That The Lot 5 and County Road 17 Wetlands Are Not Protected Resources And Will Not Be Impaired Is Clearly Erroneous As reflected in Appellants' Brief, it is undisputed in the record that both the Lot 5 pond and the County Road 17 pond are wetlands protected by federal and state statute. See 18 Appellants' Brief, pp. 39 -40. Moreover, in its latest submission, Respondents admit that "[t]here will be some impact on the Lot 5 and County Road 17 ponds from additional runoff." Respondents' Brief, p. 25. Respondents' defense on this issue is based upon the unsupported contention that damage to a protected wetland is acceptable if it is part of a storm water management program. MERA, however, reflects no such exception. The question is not whether Respondents have a purportedly good reason for damaging a protected resource; the question is whether there are feasible and prudent alternatives to such destruction. As discussed in Appellants' Brief and below, there are in fact several feasible alternatives to the City's plan. While it would serve no purpose to discuss all of the distortions of the record presented in Respondents' Brief, it should at least be noted that contrary to Respondents' assertions on . P 20 of their Brief, Mr. Osgood did in fact testify as to the amount of additional phosphorous directed to the Lot 5 wetland, calculating an annual additional input of 6 pounds. Trial Transcript, P. 116 (Osgood - Rebuttal Redirect). The important point, however, is that the City does not dispute that the additional phosphorous and runoff will impact ponds which the record reflects are protected resources under federal and state law. 3. Cumulatively Impact Quietud e The most notable aspect of Respondents' Brief on the issue of impairment of quietude is Respondents' failure to address the evidence and issues presented by the Homeowners. Respondents apparently prefer to argue against a claim that the Homeowners have repeatedly disavowed (i.e. that the City's proposed project, in and of itself, would impair an area of Protected quietude). See Appellants' Brief. p. 45. This has never been the Homeowners' claim. 19 At trial, the Homeowners presented unrebutted evidence that Pleasant View Road, in the '. vicinity of the proposed project, was an area of protected uietude under MERA. Even q the tri al ' court acknowledged that an area of protected quietude had been established. See AA -195 (Findings of Fact 166). Both the trial court and the Respondents, however, ignored the ' unrebutted testimony hat the proposed project, in tandem w' Y P Po P J m ith the expansion of Townline Road, ' would cumulatively impact quietude by causing noise levels in excess of the Minnesota Noise Standards. Minnesota law specifically acknowledges that environmental impacts may be ' cumulativ See Minn. Rule 4410.0200, subp. 11. Given the utter failure of Respondents to rebut what the trial court found was a prima facie case under MERA, the court's subsequent finding that there was no impairment of quietude is clearly erroneous. ' 4 The Court's Finding that is No Feasible And Prudent Alternative to the Proposed Project is Clearly Erroneous As reflected in Appellants' Brief, while the City carries the burden of establishing an affirmative defense that no feasible and prudent alternative is available, in this case, the City's own engineer proffered an alternative routing of the storm water from the proposed project that ' he acknowledged was feasible. Under the City engineer plan, the storm water Y g P e would be directed away from Christmas Lake and the two affected wetlands. In their response brief, Respondents make a feeble effort to avoid the obvious conclusion that they have not met their ' burden of establishing he absence of such alternatives. ternatives. ' Respondents suggest that their own alternative is not prudent because it would involve ' directing the storm water across the local watershed. However, Respondents' own submission indicates that the City's Storm Water Management Plan does not preclude diverting water from t 20 re appropriate. See Res Respondents' Brief, . 32. Moreover, the trial ' its natural drainage whe Po P record reflects that the City has, in the past, diverted storm water from one drainage area to ' another. See Trial Transcript, pp. 1027 -28. Respondents also suggest that their objections to the alternative suggested by their own , po 88 J expert somehow contravenes water quality concerns. Respondents' Brief, p. 31. No record ' support is given for this proposition, and, in fact, the record supports the proposition that ' diverting water i nvolve minimal environmental effects. to either Lake Lucy or Lotus Lake would See AA -272, AA -273 (Trial Exhs. 23 and 24). ' Respondents raise cost concerns, but the City's engineer admitted that his costs were but ' preliminary estimates presented without any study or analysis. Trial Transcript, p. 848 -50. Moreover, the City's own Storm Water Management Plan reflects that there are a variety of ' funding sources for capital improvements relating to water quality. See Exh. 306, Vol I., ' P. VII -1. Finally, with respect to the "Solution" and "Alternate Solution," which merely involved the use of an outlot to access out of the Tower Heights Addition project, as contemplated when ' the outlot was originally acquired, Respondents only articulated objections are that a retaining w would be required as well as a 10 foot variance from the standard right-of-way for ' all ou eq residential streets. Respondents own witnesses admitted that the retaining wall is feasible and ' that the City could simply grant a variance for the 50 -foot right -of -way. Trial Transcript, pp. , 706 -10 (Hempel Cross); AA -73 to AA -75. 21 1 Respondents arguments that no feasible and prudent alternatives exist are unsubstantiated. The trial court's decision in this regard was clearly erroneous. The Homeowners are entitled to a reversal on Count I of their Amended Complaint. ICI CONCLUSION For the reasons set forth above, and as discussed in detail in Appellants' Brief and Appendix, the Homeowners respectfully request that the Court reverse the judgment of the trial court in all respects. DATED: February 6, 1995 i 3500 Fifth Street Towers 150 South Fifth Street Minneapolis, Minnesota 55402 -4235 (612) 340 -5555 Attorneys for Appellants TAN/kz&n4676 22 DOHERTY, RUMBLE & BUTLER PROFESSIONAL ASSOCIATION CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 ' (612) 937 -1900 • FAX (612) 937 -5739 MEMORANDUM TO: Don Ashworth, City Manager yr FROM: Scott Harr, Public Safety Director . DATE: February 21, 1995 SUBJ: Commendation for Bob Attached is a letter of commendation for County Control Team (AKA: SWAT commendation with you. But I also th Chanhassen's role in the Control Team. With our involvement, all three law County Control Team (Carver Cou last year, and after discussing the 1 be good to have us represen on members, each with spec' ssignm quartermaster for th m, and is it become necessary. A MW a whole. from Carver County )m'Sgt. Spielman, the Supervisor of the Carver ). 1 As always, I am pleased to share this this kould be a good opportunity to explain Chaska and Chanh ter with the sheriff's the team. This spe ents that they are spi i charge of tear gas) ions are represented on the Carver sen). Bob was invited to participate dministration, I agreed that it would dl tactical team is made up of ten ly trained for. Bob is acting as a iemical agent operation should this SZA entries that the group makes as Last week the Patrol Sergeated out the Control Team because of .a °situation where a man in western Carver County was threatenings officers that tried to stop him. Bob was c entry, which resulted in the man being si discovered and seized the loaded gun near t g that�wF1W - ' o tld kill any law enforcement e three officers assigned to make the initial without incident. Bob was the officer that ;on. This specialized group is not, fortunately, called upon too often; however, when they are, no one else will do. Throughout our involvement with the Southwest Metro Drug Task Force, we have discovered that firearms are more and more frequently found in numerous situations. As an example, I would use the example of when Community Service Officer, Sheila Losby, found a i 1 1 1 1 1 1 1 1 1 1 Don Ashworth February 21, 1995 Page 2 stolen vehicle (occupied by several juv� . were loaded guns in the car. The use c. practice in the United States over the lay, is excellent. You might notice that in the letter to Bo are referred to. This is an underst:, extraordinarily dangerous situations, tlh only call wholly underfunded. Bec contribute to the team, I have volunteer contribution, and plan to ask council tc This is another example of how Ci :.. organizations, to provide quality public fiscally conservative way. g:WetyNsh* :nty stopped the vehicle, there. _earns has become an accepted Carver County Control Team the teams "austere resources" iat. is called upon to handle et from the county that I can `.. ave additional personnel to ns for the group as part of our the near future. ie county, as well as other ants of Chanhassen in a most Office of County Sheriff = Carver County Courthouse 600 East 4th Street, Box 9 CARVER Chaska, Minnesota 55318 -2190 COUNTY TO: Officer Bob Zydowsky From : Sergeant Spielman Date : February 20, 1995 Subject : Letter of Commendation Allen J. Wallin Sheriff Emergency: 911 Sheriff Admin.: (612) 361 -121; Dispatch Non - Emergency: (612) 361 -1231 Toll Free: 1- 800 - 487 -5730 It is with a great deal of pleasure that I write this letter commending you for your outstanding efforts that were instrumental in the peaceful resolution of the "suicidal man with gun" call that occurred in the city of Cologne on the evening of February 16th, 1995. You performed your specific job on the Control Team under adverse weather conditions and with austere resources. Your professionalism, teamwork and "can do" attitude contributed significantly to the successful mission accomplishment of the Control Team. This outstanding performance of duty reflects great upon yourself, the Control Team, and the Chanhassen Public Safety Department. Sincerely, J.D.Spielman Command Sergeant Carver Co. Sheriff's Dept. C.T. cc. Sheriff Wallin Captain Holt Public Safety Director Harr Agrmative Action ✓Equal Opportunity Employer Printed on 10 %a Post - Consumer Recycled Paner f 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 CITY OF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 TO: Mayor and City Council FROM: Don Ashworth, City Manager DATE: February 22, 1995 SUBJ: Trash the "White Rusted Wagon" Whenever I have to fill out a form asking the tone —white and rust;" but hopefully those da increase in the vehicle allowance for the City a late model vehicle and leasing such in the s in the metro area. This particular lease is pay employees. [Bet you can't guess where I about $285 /month with operating costs b is the 1995 budget was $400. Nfr vehicle, I always fill in "two . Included in the 1995 budget is an office (me). I anticipate looking for n as exists for most of the businesses the NSP lease program for their I am anticipating a lease cost of to approximately $385. Included in As I am the one who is going to be nmg my name owil make sure the city council was a 1 e of the fact that this ; and, to the best of my knowl , is consistent with comp last summer /fall. No acti , , necessary, but if this is not item should be pull Vplaced under "Council Presentai Thanks again proposed lease, I wanted to l been included in the budget .ation discussions which occurred rsistent with our discussions, the it MEMORANDUM a, o, C 1 Y N 4 X 4 I LU d � t LL N a Iz oa O W Y 1 J F� 1 � N j 1 S J 6 p W 2- OC O 1••• Y H S O O W i O ik h • J 1 1 1 2 1 1 J Z_ X S 1 W W F•• w CA LL X Y O W 0 r 1u a N H < > 9L 3! W N W W C, cA W O 0 01 Co Y •- l0 Cr •O Li L 1•- Ol N •O c o y � Y a W C Ln N O J 0) W Y C u LL V � W V1 Q V1 A •� 3 N C VI cw FA LU O C $.- W < Y 2 3 S 0: 7w O S LL J N p 00. 4 3 O! W 10 00 L-, � Y w < < O d U N_ CL' 1 ti 1 1 1 r 1 I r 1 I Y C7 C_ w 1 1 O 1 .p vim? C; 1 0 0 0. u Y CO 1 1 r l P P � L � CO Co 1 Co Wa 01 O C Im OI 'uc• E -c °dam w r •F Y � l4 Y Y N Y •-• � O Y N •u W N• O O y O C 10 �E 0F�11 to C O L U L to 0 ow O` N N "o > d C N L W O O/ W O 01 01 EE O Y�'i U C Y 01 Y C C L a�gwo 2L C Y O Y L 0 o L. 01 N Y Y O O C L OIL U OI L •- O C Y 7 0 O N N_w m O Y C'> ' 1L1pp p O to L 01 L Y p 7 Y N O 1 O L N L L L O • N G. .Y Y L W ' C a Y 01 N L C Y CI C Y C ^ •� OI C •� N 7 N •� Ol to ' C u m M Y N Y 41 a W Y 01 �. 10 COI C . Y C y O qq — 01 � C Al Of L W W U a 'u ^ a L O • 7 01 > d u L O N m W C O EE G'� OI � 01 C C tClpp E Y C C Y C 00 L E d 41 W '>.d5 Q \ L N Y u a w L Y 01 E CC 01 N •C .u•� L. O U) 1 1 O! L. u C Z m C� L U tI C. N O " CC M a W 1?1p C V• t0 7 U O 1 • 01 O O Y w 01 N ^ 1 Y C� O C 7 0 Y O 0.- •• -• , C H J L N•� 10 � � O O LEE 0 •C Y X L C d OI Y N W O•� L S W N a, o, C 1 Y N 4 X 4 I LU d � t LL N a Iz oa O W Y 1 J F� 1 � N j 1 S J 6 p W 2- OC O 1••• Y H S O O W i O ik h • J 1 1 1 2 1 1 J Z_ X S 1 W W F•• w CA LL X Y O W 0 r 1u a N H < > 9L 3! W N W W C, cA W O 0 01 Co Y •- l0 Cr •O Li L 1•- Ol N •O c o y � Y a W C Ln N O J 0) W Y C u LL V � W V1 Q V1 A •� 3 N C VI cw FA LU O C $.- W < Y 2 3 S 0: 7w O S LL J N p 00. 4 3 O! W 10 00 L-, � Y w < < O d U N_ CL' Ce of O O U I.- IZ W W S CC Cr G oo U U _W X X x W W U W in C.7 2 4 OC p S S Q Y U Y 2 Y C U U O V1 O 00Q— zzz a a U U M M N « d d S S d OI i L i O O O 00 •- zzz xxx is ° s O O O ,00. - N It 10 O M � O O N O A < 6 Q S COS O a � � O AAA U N Ct .. U O•+N N CL_ O 6 < CK ZO 1.-r-r 0 zzz 258 d •O CO V\ a O P Y 2 Y u j . U O J Z U O dY<' W W W 2 N 2 xa, S Ln L 1 1 M 1 1 1 M 1 1 P � P O O Co M CO Cl I 1 1 .! P � 1 r 1 V1 PNOO�t 1 O OP�C Co M Co r 1 r I P W 1O V10NV1 ti 1 .off 0LninLn H 1 N d 2 2 2 z C SS SS > 1 Y Y Q Z Y Y �zzY 1 u u u u u u I U U U U U U 1 1 01!10000 1 N N h N 1 1 2 2 2 2 2 2 1 x x 1 Y > W - J Z O J J Z O 1 O CC •-• •-• O cC •aaxssa OOC P 00a cC 1 N U N N N U ►�1 MON V10 1I�N0NV10 V>NP�rJ .ova rri <aaaa O . I S S S S S S MO ; — — 1 1 Co .- 1 N 1 O i M 1 P . 1 O . 1 IL d •O �t P O M1.O O . P00 O.O�1 P 1 P O• h 00 1� l� 1 1 N 1 .U. 1 H � Y I.N.. •� FY 1 2/ --C• = r 2 I U N U d U I+ O U 6 W me 1 H H Y W OC 1 O JNN> 0 • YO SOOC oat P 1 i 00 1 P .O N i CO 00 M P 1 P 00 •O 1 M d Ln CO 0 W L 01 < of W99 w w W W W W W W O OOOO t.7 QaQaa a 2 2 2 2 2 5 2 cC Y Y Y Y Y Y Y Y 1•- /- /•- !- H H H H U U U U U U U U 99999999 M �1M�M000.O Z 2 Z 2 2 2 2 2 xxx xox H /-•H W ►-5 �- 2 2 2 J Z\ z O 000-•0 O oC aSSSS�sa \ \ \ \ \ \ O V1O2 Co 0000 w V 1 N V 1 N LA A V 1< MMN •M.tMU �PO N.O V1J M V1 P Vl 00 P M V1 M Cli Cm '• N ti P M 0 V1 Co N O O ti �aadaaaaa O N •O 00 d •O V ! 19 V111POP N 00 Go Co Co P�1�0000 OOhP N . H Q N d tJ � Y i C72dx J Z 1 S J0 > p O Z S Z< Z Z CO GG YOC C92• -• JcC JW< -p I m m U d m W S W 1 ti 1 1 1 1 I r 1 I 1 1 1 P 0 O 1 .p vim? 1 0 0 O O r r 0 1 r 1 rrr CO 1 1 r l P P � � Co Co 1 Co Ce of O O U I.- IZ W W S CC Cr G oo U U _W X X x W W U W in C.7 2 4 OC p S S Q Y U Y 2 Y C U U O V1 O 00Q— zzz a a U U M M N « d d S S d OI i L i O O O 00 •- zzz xxx is ° s O O O ,00. - N It 10 O M � O O N O A < 6 Q S COS O a � � O AAA U N Ct .. U O•+N N CL_ O 6 < CK ZO 1.-r-r 0 zzz 258 d •O CO V\ a O P Y 2 Y u j . U O J Z U O dY<' W W W 2 N 2 xa, S Ln L 1 1 M 1 1 1 M 1 1 P � P O O Co M CO Cl I 1 1 .! P � 1 r 1 V1 PNOO�t 1 O OP�C Co M Co r 1 r I P W 1O V10NV1 ti 1 .off 0LninLn H 1 N d 2 2 2 z C SS SS > 1 Y Y Q Z Y Y �zzY 1 u u u u u u I U U U U U U 1 1 01!10000 1 N N h N 1 1 2 2 2 2 2 2 1 x x 1 Y > W - J Z O J J Z O 1 O CC •-• •-• O cC •aaxssa OOC P 00a cC 1 N U N N N U ►�1 MON V10 1I�N0NV10 V>NP�rJ .ova rri <aaaa O . I S S S S S S MO ; — — 1 1 Co .- 1 N 1 O i M 1 P . 1 O . 1 IL d •O �t P O M1.O O . P00 O.O�1 P 1 P O• h 00 1� l� 1 1 N 1 .U. 1 H � Y I.N.. •� FY 1 2/ --C• = r 2 I U N U d U I+ O U 6 W me 1 H H Y W OC 1 O JNN> 0 • YO SOOC oat P 1 i 00 1 P .O N i CO 00 M P 1 P 00 •O 1 M d Ln CO 0 W L 01 < of W99 w w W W W W W W O OOOO t.7 QaQaa a 2 2 2 2 2 5 2 cC Y Y Y Y Y Y Y Y 1•- /- /•- !- H H H H U U U U U U U U 99999999 M �1M�M000.O Z 2 Z 2 2 2 2 2 xxx xox H /-•H W ►-5 �- 2 2 2 J Z\ z O 000-•0 O oC aSSSS�sa \ \ \ \ \ \ O V1O2 Co 0000 w V 1 N V 1 N LA A V 1< MMN •M.tMU �PO N.O V1J M V1 P Vl 00 P M V1 M Cli Cm '• N ti P M 0 V1 Co N O O ti �aadaaaaa O N •O 00 d •O V ! 19 V111POP N 00 Go Co Co P�1�0000 OOhP N . H Q N d tJ � Y i C72dx J Z 1 S J0 > p O Z S Z< Z Z CO GG YOC C92• -• JcC JW< -p I m m U d m W S W A O 2 7 t O U v W J > W cc 7 41 1 , r ► -a Ln ; r W N r r ' ' 1 0 O W 1 J � � 1 1 r I U x s U 1 V1 r Q r W >OrO< 0. O O 00 O 00 O 1 I.- S V1 1 M 1 V7 V7 V7 Q > u. N , r ac W o n. r 0 W A 10 1 1 V1 Ln A .O V100 10 ' 1 0a ' J OA 000�ON V1 r .O P N O101P�VIO VI 00 N PP O 1 x . t7 < Ppp 00 O M ; P O 00 ►/� PM O pp 00 OO.� O 1Inn A nI 1 A A 1 ; 1 z S PO P00 OO 000 P 1 �O 00 A A 00A 00 .O VI f� 001�.OA VI VI A 1 r J 2 1 U OP �A1 VIN . V1 1 •O •0 N •O OIMOOP MIf11011 -PP 1 . O 1 1 x z 1 W •OM I�.O a•O AA •O •O A A .O O 1 .O A 00 �P1�OOP V1 Ln Nwm U, A 1 A � � P ; 1O Ln Ln 1n V1 VI V, •O In In m VI 111 r Ln r ; 1 1 1 1 1 1 af ce OC , OIC OC OC Or m W W 1 d� 1 GC O: CC OC OL OC K N cc O ac OC N K w V1 O1 ; W WW W WWW I OlI W W WWW WW• --WHW W►.W W LU OIr C7OC72 W 0O0m 01 1 192(5 2I9 O0 2I.7 i.7 it9 <C72O C7 Z C7Z 10 r Z ! «• I•- r 1 •- <6 <«+••+ OC4 •- � < <•-• <— -� t 1 ZSS66ZZZZZ<Z p K 4 Z<Z <ZZZ<<Z Z <Z ZZ-C t� <i6< Q< < ; < W ; J YY Y Y Y >Y »Y YY I Y Y Y > > >> Y Y Y Y> Y Y.+ > >Y Y > »Y Y Y Y ; Y I- I.- » >r►- I- HI - >r-» U U V U U U U U U U U U I H I- » > F - ►- » HI - H f- SI ► - ►- HI r -r►- »> ; 0 0 0 U U U U U U U U U U U< U U U U U U U U U U U 1 1 > ; U , N 9L 0 0 0 0 0 0 0 0 0 0 0 0 r 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 ' V\ A A VI A A VI VIA O•VI � OO ��O! - N P VI V• — 0 1 0.0 N 00 M1N 1 M V1 1 1 >OW O \� Zi2222222222 I Z2ZZZ2Z2222Z22222Z 222ZZ2Y2 1 2 H W CU O 2 » 1-- HFHF >F-HH O O 2 2 2 2 2 0 2 2 2 1 HH W HF•- F- I- HHHHI - -/- W I- W HF- F- W Hi- M- I Z 2 J 2 2 2 2 2 2 2 2 2 2 J 2 J 2 2 2 J 2 2 2 r H 1 2 as eccc 000000e000 1 00 0000000000 --0-- o00 -•0OO 1 0 In $ d. 1 zzncszzzzzzzzzzzzz zzzzzzz r z Z O <J W \ \ \ \ \ \ \ \ Kd'=VI VIO V1000111'1 V1 1 \ \ W \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ ; \ \ \ w 1 V1OSP000 1 \ OCJ <QF N 00 V% fe In<V1 fc f� P O N O O O InPOP d'OOOPOOOZ 1 P OH N O OO�InAOV10N N O N lOInONOtn InO 1 {n r f� �< UUOVIMMNIUNMN 1 NMO •MMV1INMNN—M •M •UMNN •MM-2 LLJ> O1 A VI 0010 0N 00 1 1MP�NA N.- A VI I VI V1 I N VI.O O P 10 VIA•0 1 � MNN 00 m.0 OOOOAOA OPN A O.O.NVINMoWLn V1Mtn10101n. -M I 1 oWN NN�It ; Ul W Q < saa • < M I Q < Q « Q Q N r< W d N N d 6 d d d <= O d •O d Q d Q<< d Q 4 d d 4< d fA N Q N N! d< Q Q N Q 00 M d A o i m m i i i i i i d z i 1 z z z z z z z z m z z z z z m m z m m 3i i iM� 3� m 3 l Z m P 1 1 , O 1 , Y U N 1 O 1 N r p r W ' a 1 • 1 r W U. O 1 00 1 1 W 1 W VI I ; 19 3 N 1 1 to 1 d a a aad d d d 1 L]« VI VI V1 .O P I •O M 0: 10 to 1 .p NIAPOO.0wcIJ�0(I/D�01A0rI�n/- VI P N IAA V10 P 0 1 1 3SZ p .. .1pp 00000000A 001 00 CO OO C c , OA �0 O 1 A ^h�.•O�•O �001�•O f��• LA VI A•O Ln n VI zs •O�•O V VI p N p •O ; 9n ik W 1 H ' t9 N LU Z iz W Y 2 H J> Z W 7 J r O ► , t9 O < �-• W W W Q 1 O W O J Q W W 3 U 0. OL' > J U O J 0 W W 3 N< d'QJJ 2 J W �- 1 OC 0� > r J d Q= OC J Z W W W N N 1 Q 19 O = < a W Q W.-• Y x W I W WYI.9 W> 1- <z N 1-0 N> W Y V l 1 S 1 O N O[ 0 W J_ YYJ-+ d W .... J W •+> 2 W W IL> W YJ> d 1 CO W JC711 •-•d W NH.+.. NC Vl C9 G0 Vl W _ N_< 1 C7 < OOL O Z J VI 00 J 'W 2 232 -< Vl d J M=3 I W d 1 ! I r W J Z •� J J S W J pp p W O[ QF -pCmmS W Q= d < >•+1 =C O Z6 OC 1 F- F U) W O O►-Y S u O X Y J a N Z z ]L O Z 0 1 O LIL 1 0 OC 0 W 6 d d U Vl d 0 >tC O F-• O J Q d -+O Q K OIC 6= i.7 1 f- Y> 3 3 J Y V1 J 6 0 0 d N •-• m S 6 6...- p z -= 00 2 O= O 0 I Z '7 Vl W CO S<d'wz W J N W WOG o �V Z Z <F O <S S OIC <�-• 1 3UI..7 C9QN3U U «==Nw USN d >..J I W 1 S 259 i I I • t j I I I i i I � y I I I i I I I I A . 2 N C N � cr p� y y m m C ,, y � CO < SL i m s y H J to Z y F y y E F < Z C Y tY Y S 2 � < S y t Y ', p N O ca °,7 x V J g a O S G U I i V C m x co a I co co N i I M < N7 I E ix Ja y N L < V � S O! O p OC co N I i J c. _cc • � I � I L ,S i I I • t j I I I i i I � I I 1 I I I I i I I I I i I 1 I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 MEMORANDUM CITY OF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 TO: Don Ashworth, City Manager FROM: Todd Gerhardt, Assistant City Manager DATE: February 23, 1995 SUBJ: Update on Pedestrian Bridge At our last city council meeting, staff was as] the pedestrian bridge. Attached please find a outlining the history of this project and a mat #1). I have also attached city council minute approved the design for the pedestrian bridge di'to, review the council's past action regarding titter "dated February 22 from Fred Hoisington x of estimated budget costs (see Attachment of February 14, 1994 whereat the council The city council should also be aware that the HRA on this project. The bid opening is scheduled for M; the council to consider award of bids ` their regular inDOT are currently soliciting bids , 1995 and staff will be requesting n2 on March 13. Hoisivon Koegler Group Inc. ma Todd Gerhardt Ion Assistant City Manager City of Chanhassen 690 Coulter Drive Chanhassen, MN 55317 Re: Pedestrian Bridge Status Report Dear Mr. Gerhardt: February 22, 1995 1 I have reviewed our records and, at your request, assembled an historical record of the various stages of the design of, and approval for, the Highway 5 Pedestrian Bridge. I will simply highlight a few point in support of the attached matrix. The cost of the original bridge was underestimated at the time of the ISTEA application. While there was some discussion of a unique bridge, plans showed minimal Continental bridge, which was unacceptable to MnDOT at the a covered brid r a time, would have cost $300,000 to construct. That figure did not include design, planning, land ac uisition legal, approaches, trails, or landscaping. q After the selection of SRF and MS & R who designed the bridge, it was decided that the gateway nature of the bridge's location warranted an upgrade. Two schemes were developed for a garden bridge. Scheme A included pop compromise was ultim -up trellises, a large center pier an an air space between the deck and beam. Scheme B op none of these features. A ately approved by the IRA and the City Council which eliminated the space between the deck and beam and downsized the center pier. Approvals w ere granted by the BRA on January 20,1994 and the City Council on February 4, 1994. The total budget at that time excluding approaches, trails and landscaping was $670 875 with an HRA contribution of $390,875. h In March of 1994 the HRA and City Council approved Tax Increment Plan Modifi 13 which included a $507,000 HRA contribution for the Pedestrian Bridge. On act cation 1994, a Status Report was gi ven to the g Ober 13, Plus the bridge approaches trails HRA �"'�� included an accounting of costs to - date estimated at $566,286. and landscaping. The total HRA contribution was The project is currently being advertised and bids will be opened on March 1, 1995. The current construction estimate for the bridge is $470,000 (not including approaches, trails landscaping and ancillary costs). expect a favorable bid. Should the Since this is a good time for biddin bridge come in at about $470,000, the total project , be approximately $ inclue the a g' w might well will g pproaches, trails and landscaping. The Chanh 45 en \ 15 \3tatsrpt1t Land C1s /Env;ronmenral ■ Pianninea/Desien 612- 835 -3160 HOISINGTON KOEGLER 282 P03 FEB 22 1 95 17:35 Todd Gerhardt Page 2 HRA's contribution will be approximately $513,000 which is $6,000 higher than the budget established by TIP Modification 13. When the bids have been formally taken, the City Council will have to consider the award ' of a contract at its March 13th City Council meeting. I hope this adequately explains the status of the Pedestrian Bridge. If you have questions, give me a call. Sincerely, '. ' Fred L. Hoisington, AICP President FLH /mhn ' Enclosure: ■ Pedestrian Bridge Status Report '4 " Wt ■ Paul Krauss Memo re: Approval of Plans for the Pedestrian Overpass. eZ ■ February 14,1994 City Council Minutes �*3 ' ■ October 13, 1994 Update on Project Costs for Pedestrian Bridge '`'f Chanhassen \9415 \statsrpt.1tr u 1 J t t CIT CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 TO: Don Ashworth, City Manager FROM: Paul Krauss, AICP, Planning Director Acft 59 CW M A;- 1Nod Dat Dat . ! o • �_�___� Date Submitted to Commissidl} ' DATE: February 9, 1994 Date S ti ^"ed to Council SUBJ: Approval of Plans for the Pedestrian Overpass `- As the Council is aware, the City has received a Federal ISTEA grant to share in the cost of ' constructing a pedestrian bridge. The bridge will span Highway 5 from high ground located east of the Hanus Building. The bridge has been thought of for many years but is a major component of the new Highway 5 Plan. It links several neighborhoods on the south with the CBD and may ' ultimately connect to a park and ride facility. The grant requires that construction be underway this summer or we stand to lose the funding. ' The firm of Hoisington - Koegler Group was retained to work with staff on the rather involved design and approval process. The design was subcontracted out to SRF and M S & R Architects. Several concepts were initially considered. Early on it was concluded that MnDOT would not ' permit a roofed structure, that had been discussed when the grant was prepared, due to concerns over ice damage to vehicles. The one that was selected for refinement is based upon a design similar to what is found with garden type structures. This will take advantage of the considerable landscaping and reforestation that will occur around both landing areas. It is also designed to allow vines to creep onto the structure at both landings and from a central support pillar. ' During early staff reviews, we asked that the bridge be given more definition. As a result, raised sections were incorporated at the center and both ends. We thought that the center support pillar ' appeared undersized in light of the scale of the highway corridor. A larger, more visually significant structure was added. ' The design was taken to the HRA on December 16, 1993. The initially proposed modifications would have cut approximately $100,000 from the construction budget. This would have deleted the raised sections, larger central support and the "floating walkway" concept that the architect strongly supported. The Planning Commission reviewed the plans on January 12, 1994. They had computerized graphics that placed the bridge into color photos of the site (these will be available at your meeting). From the photos they concluded that the raised sections and larger ec MEMORANDUM Don Ashworth February 9, 1994 ' Page 2 support pillar were important to the design. However, the floating deck, a $40,000 item, was not ' visible due to shadowing. The commission thought this could be deleted and recommended accordingly. The HRA reviewed the Planning Commission recommendations at their January 13 meeting. , They voted to fund the project as recommended by the Planning Commission. At a recent meeting, the Council asked for an opportunity to review the plans. We have thus scheduled this item for your agenda. I would remind the Council that time is of the essence if we are to remain on schedule and receive the Federal funding. , i 1 L CITYb F a CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 ' MEMORANDUM TO: Housing and Redevelopment Authority ' FROM: Todd Gerhardt, Assistant Executive Director ' - DATE: January 14, 1994 SUBJ: Pedestrian Bridge Design Attached please find a memo from Fred Hoisington outlining the cost differential of the two design alternatives for the Highway 5 pedestrian bridge. He also highlighted that the Planning Commission was supporting Scheme A which included the trellises and the larger center pier, but they did not support space between the beam and the bridge deck; thus the price difference would be as follows: Total Costs Scheme A $512,500 (Without the space between the beam and deck, but does ' include the larger center pier and the pop -up trellises) Scheme B 6$4 7,500 (Includes smaller center pier, no pop -up trellises, and no ' space between the beam and the deck) Difference: ($45,000) Staff would recommend that the HRA support the Planning Commission recommendation and select Scheme A for a total project cost of $512,500. 1 fA Attachments ' 1. Memo from Fred Hoisington dated January 12, 1994. 2. Bridge designs. J L .o 's:' s. �'a .. z.. •.s - _ _ gyp_ •Ii. _ • •� � Tam.• S.�_ i _ ..�_ _. s� - a �. ate. ::�:. • }.? - . i. � `s'=. •.L i s __ ���y.L. A. ._ YS~ -.. tZ •. i . w•�L -`_ ��� �� � _ T: . f. - 1� is Nk • 1 Wit. ieq _ =-a. =� � • -- . .r'• '• - --- 1:� ..— - = a �.. � -•�� � -sf �•/ � = • - �'3- - ' 't _ � =��� . s ; °•_ ' . i." , : ` �.,.� -� —t , . _ ; _-_; �;;. �' � ,�- '`' .. ho i • , _'£'.� 1, . , s►t . c- i. - 5'"F'k _2 - � -,a g. - ,J� �" �� s • - _ �`M+syafrlf�:;r. i [1:, — - •,::- ..r a _.. • , :1 -► •:; . � jt -.. !- ."= - � - - ' � • � r 4" r . obi.' r. tS .� ~rte �i - - • , .� _� � Y = � i ��_� .�� =+ � - ; Y.1� a •.• 1 . �t�a u ' " • 1 _ s • �ti . ` r � t iii ._ _ �• f � f:��v....Y•►f� ��•,�'4.• I I LI lift SL ,j„t •:r rte% _ � - - •_ �� ��� � � i...y�. �'_ -_. .� va- • Y} } ►. a ; s �` - ` - i a •,.ate` �ti�_ .. - a ;• r� ;•' .. 1 -•c �� � �y�� ��ia� r� s i 3,. �. �1l dot � ���- 'a•�•• - a a`f?' �_ 1:� �— -�_ � i _�i �...� >s�'�'.Y: '�S''!� ! "fi :' . ..f.• - � y �j - a ' j � * _� -,a .. r =_' �` ;` � +" aya � ry { •.' • , . —` VV_1Y�� -t t Sri "�fI 5c �'� \ - 1Z„ M: •��.. :..i�"�. t s:._� .t txs � i� t ,ate � •� ` r WE -- - -- -_ t.'•':%' •i�YVO� - -2 -. N.. r`' _ • T•2l � �' I-e - f F1 �� o j n- A A Mac mmmgw _ 3 . :!ifi 16 • L Av gas -P"W-rje to A & ik j . 1 �.:. RL''.'''. s: d1 := ,�.LL.:: ' AM$ M.;X. CC. 'f4 OVve F!7; .�- , ice.. - •... - _� i lop IF .JI Mani 1! 1 1 I 'IV J4 m** r A: Ak a TOEE v, Iv. Or— AA­ X- 5 f: :J A w - nl . 1 1 NZ i • V_ � P -3i IL • - Tilt ja k - A ,2w To MA t Yf it f • J' Nt mom a Xmw ones= � � 2� o pme o MIR- F'S mmm SMS m m UBE FrOm I m im mw WK Mile 9-1-OM fell WN I M 10=11 = 1=1 RENEW win I l RL llP@ low ON .e 1. MR 9w--r- ir A v o ml MOM mum m I ass SON siomi. mumArmy—F Myl–ti luffy at .110 ovi'M scat M Fla E 011 lie I W 1 . 1 ; Ir I U" C r--m- , six 2 : GEM - a c o t o nwa FAIN OHS 03. ffiffi!- 12 mom. cmul SON m m d or iiabi , — III r M 19 P-R 1 J EE in p - m C4'2-1 r mew a, 3 � ism tQ - ran -, I as F 911111m o f. e I rL Mtn L".Lo.dma nmiff NM v"wv tC try 10=11 = 1=1 RENEW win I l RL llP@ low ON .e 1. MR 9w--r- ir A v o ml MOM mum m I ass SON siomi. mumArmy—F Myl–ti luffy at .110 ovi'M scat M Fla E 011 lie I W 1 . 1 ; Ir I U" C r--m- , six 2 : GEM - a c o t o nwa FAIN OHS 03. ffiffi!- 12 mom. cmul SON m m d or iiabi , — III r M 19 P-R 1 J EE in p - m C4'2-1 r mew a, 3 � ism tQ - ran -, I as F 911111m o f. e I rL Mtn L".Lo.dma nmiff NM v"wv tC try mum m I ass SON siomi. mumArmy—F Myl–ti luffy at .110 ovi'M scat M Fla E 011 lie I W 1 . 1 ; Ir I U" C r--m- , six 2 : GEM - a c o t o nwa FAIN OHS 03. ffiffi!- 12 mom. cmul SON m m d or iiabi , — III r M 19 P-R 1 J EE in p - m C4'2-1 r mew a, 3 � ism tQ - ran -, I as F 911111m o f. e I rL Mtn L".Lo.dma nmiff NM v"wv tC try 011 lie I W 1 . 1 ; Ir I U" C r--m- , six 2 : GEM - a c o t o nwa FAIN OHS 03. ffiffi!- 12 mom. cmul SON m m d or iiabi , — III r M 19 P-R 1 J EE in p - m C4'2-1 r mew a, 3 � ism tQ - ran -, I as F 911111m o f. e I rL Mtn L".Lo.dma nmiff NM v"wv tC try r M 19 P-R 1 J EE in p - m C4'2-1 r mew a, 3 � ism tQ - ran -, I as F 911111m o f. e I rL Mtn L".Lo.dma nmiff NM v"wv tC try Age ji 4A Ilan r - - rt- �; a •�� *�••�_ .� ��• � �} -�s� -r.- .•,roar a "�i= fl .77 . t gto— •r � 1 d• �.. � Age ji 4A Ilan r - - rt- �; a •�� *�••�_ .� ��• � �} -�s� -r.- .•,roar a "�i= fl .77 . t gto— jo At Ut U4 %I M Obf- F t a_� tov. + _a. 47 r ' 1� I ' , T * It. le 47 r P m L4&:. 1 ;"� � •1 t4v - - sL IL T . X130 �� a '.��� j�' � ;':l rim t: • • 1 i R h i :%w WRINJIM;.., M M. i-mmmm I ISM I a 3 wow 0 to I _ m ! M �eu IN - �—, M-- a q mm-m� i umw# rsiatc OWN f2m WMAX19i --- MUM I I�� i—■iit JI ff Egg M 159 =van 11! 1 2 1 1,2 4 M *. I son lsima& P� rr it NUNN s PLUEN rumum some owl rp ull :.. mnn 111; R 1 ME M. ... M . .. iii *Mlame Simon IF Mm g w. I P-3 VA ri .t .::j. VIC t i I all i. MUSE =R am B M.P., f7i MU 72 La WIN Ia A 4 MAI 'A z A sm ism sum as- Big as . . • . . . . . . . . ►. . . . Fu! OP i T , - ass scew�� Its all AL w JI M Matz -mitt 1"mi cow-w P-71 LZ Kia W. for I I I F j I I I . r 21 x• 02 ` E12 -S 5 -3160 HG I S I NG KOEG�R Hoisi v= Ko4er Group Inc. ©13 a n To: Don Ashworth and Todd Gerhardt From: Fred Hoisington, Planning Consultant Subject: Status of Highway 5 Pedestrian Bridge Design Selection Date: 1 -12 -94 JAN 12 - 94 14:�er At the HRA's regular meeting on December 1S.� a s it m aller � p refeence for smaller the lessor of two bridge designs which call abutments, removal of the pop-up trellises and elimination of the space between the beam and the bridge deck. The construction cost differential between the options is approximately $80,000 (cost estimates enclosed). The pop-up trellises add less than $3,000, though the estimates do no efle a {; the d � o� ost of $30 On add $41,000 r and the space requires a larger superstructure On January 5, the Planning Commission gave strong support to Scheme A including the trellises and large center pier e�w o redu the ono of the air the ndge. between the bridge deck and the beam as a The Planning Commission's recommendation would reduce Scheme A by $30,000 - 35,000. Also, in response to some of the coterns raised d ess th e �e Ssueo f durability and a lett from the architect, Thomas y $ security. Please review this information as part of your deliberation- As you are aware, we are under a very difficult schedule to get the bridge designed, bid and under construction by July of 1994. SRF is continuing to process our requests through MnDOT and the Federal Highway Administration in anticipation that the design of the bridge will commence as of January 25, 1994. L ... _..I - e1---•-- rr% —: -- HIGHWAY 5 PEDESTRIAN BRIDGE ESTYMATE OF TOTAL PROJECT COST Hoisington KoegIer Group Inc 1 -12-94 Scheme A 1) Scheme B 2) Construction .. $550,000 $470,000 Design 90.000 Planning 51000 5,000 Land Acquisition 28,600 28,600 Legal Total Project Cost S628,100 $598,600 FHWA Contribution (IST'FA) Total BRA Cost $402,100 $318,600 1) With Pop-up trellises, large center 2) Without these features. ter and air P "re between bridge deck and beam, Hoisington KoegIer Group Inc 1 -12-94 nu DINUIUN KUr-ULtK JAN 12 '94 14:27 ------ - MS &R . 1 Post -if fax Note 7671 � Arcbheaure Interior and Urban Dlslgn CIO Meyer, Seheror & ibckeastle, Ltd PhOn« « 325 Second Avenue North Pnane « ax ° (,p Minneapolis, Minnesota SS401 .ISO 1 Fax 9 Tel 612 375.0336 Fax M2 2 342.2216 Su==7 of Estimated Cost Garden Sm=we 16 December 1993 PrJored by 3trser- Roscoe.rwrseb, lx- ScbtIDeA - South Abutment f 540,000 � : 335,000 North Abutment t $40,000 t S33,000 Pier t $63,000 t $32,000 Superstructure Stec] . t $160,000 t 5130,000 Painting It 510,000 3 510,000 Deck t $27,000 t 527,000 Railing ±$120,000 t x120,000 Treatments ( and Piers) t 525,000 t $21,000 Structure Excavation t S10,000 * $10,000 Guardrail x SS,000 1$51000 Subtotals 10% Contingency .t S500,000 f S42S,000 f 550,000 s 342,300 Grand Total t SSS0,000 t $467,500 9 ;•t.Vpn�wc.do� Eq, importunity L/ery, M S & R � December 23, 1993 Architecture Interior and Urban Design Merer, Scherer i Rockcauda. L.td. 32S Second Avenue North Minneapolis, Minnesota SS401.1601 1 Fred Hoisington Hoisington Koegler Group 7300 Metro Boulevard Edina, Minnesota 55439 Re: Chanhassen Pedestrian Bridge Dear Fred: Tel 612 375.0336 Fax 612 342.2216 I'd like to respond to the two concerns raised in your meeting with the Chanhassen HRA about pedestrian bridge. The two concmns, as I understand them., arc durability and security. The design as it currently stands is a schematic design and, after approval to proceed further, development of it will address in detail the best durability and security within the constraints of the budget, MnDOT regulations, and the aesthetic concept represented. Durability The typical chain link fence used on freeway rit expect to use a 6- or 8 -gauge material for the welded wife mesh tha�bein � �' We This is substantially stronger. All the framing members which will support the mash are sufficiently strong to take any normal use and stronger than normal chain fink support. The finish of 211 members will be a top quality, field - applied paint over galvanized steel. Normal maintenance on bridges is projected as being repainted the fast time 1S years after initial installation and every 10 years thereafter. We schedule to be true for this bridge as well, if not better, expect this maintenance Security: The level of enclosure required along highways varies from circumstance to circumstance. The typical height of chain fink fencing on any freeway vehicular overpass is eight feet. The pedestrian bridge crossing 14 lanes of traffic at the Walker Art Center Sculpture Garden has no chain link fence and some pedestrian bridges have chain link fences that go up the side and over the top. The proposal for Chanhassen to take the mesh to a height of eight feet seem to me to be a common sense response. If it is deemed desirable to fully enclose the bridge, there would be some added cost as well a the necessity to do some redesign. It is my opinion that fully enclosing the bridge will give it a claustrophobic and fearful character which is at odds with the city's intentions. Y urs sincerely, AI�AA� comas Meyer, AIA cc Gere Seiner, SRF e:\tc -'nFV 3341293.doe 1 1 Equal 4pporwntty Effplvyw I y ' City Council Meeting - February 14, 1994 Councilman Senn: If we're going to do the 24th, could we reschedule the school thing because of the HRA conflict and everything else or is that? Don Ashworth: Well the school thing is. Acting Mayor Mason: The school thing is being set by Minnetonka. I mean he's invited a number of other cities so I don't think that one will change. I think if we can get the HRA meeting changed, that might be the ' thing to do, which I would like to pursue. Don Ashworth: And then potentially try for March 2nd as far as trying to get Council members together with our whatever. Okay, good. I'll put a copy of this in our next packet. Acting Mayor Mason: Please do. Okay, let's move on. I forgot. We still have some consent stuff to deal with. CONSENT AGENDA: bi bu --6 . APPROVAL OF THE PEDESTRIAN BRIDGE ACROSS HIGHWAY 5. Councilman Senn: I guess Don, what is this? I mean is this our one shot at the pedestrian bridge or what's the rocess? (, Don Ashworth: Well I got the impression the City Council wanted to be updated as to you know, what does this X thing look like and what is it we're proposing to do and so yeah. We're putting it onto this agenda as an opportunity for the City Council to look at it and say you agree or disagree. Do we have the colored ones to hand out or show around? I mean these are terrible copies. Todd Gerhardt: I don't have it. We handed out the pictures at the last meeting and I've got... Councilwoman Dockendorf: Are the vines included in the bid? Todd Gerhardt. Yes. It's part of landscaping, Don Ashworth: The HRA had initially looked at this with, they could reduce costs if they reduced the pillar sections on either side. Reduce the landscaping, etc and it went back to the Planning Commission. Planning Commission said gee. 'You know this thing really should, this should represent something coming into our community. The original plan should really be relooked at and so they wanted to see this in, what I'll cal it the more massive form. It went back to the HRA. HRA said, okay. We'll agree with Planning Commission so they put back in the whole pillar structure. The vining. The kind of, the central collection spot in the center. They did delete some miscellaneous areas that potentially could save some dollars and lice there's a 4 inch what, decking thing that the architect thought was important but nobody could see it and it was $40,000.00. So they junked that. ■ Todd Gerhardt: It made a shadow between the deck of the bridge and the I -beams so to speak... Councilman Senn: Well is there, I mean does the Council have an opportunity to really sit and look at this design and decide where they want to go or not? I guess the big question I have is l the administrative packet tonight it says the HRA has already made the decision and they've already given the go ahead for the plans and 45 City Council Meeting - February 14, 1994 specifications based on that approval. I mean do we have input to it or don't we? Don Ashworth: We've been trying to keep all of the groups informed here and at the same point in time we're under a real stringent deadline by the State. I think that again it's gone back to the HRA twice and that was to consider Planning Commission comments. We were kind of in hopes that the Council would look at the recommendations of the Planning Commission and HRA and say yeah. This looks good. But if you wanted to put it to a work session. wow. We should then somehow try to pick out some immediate type of date. Otherwise we will forego the grant because we will not meet the, when does this have to be completed Todd? By this next fall? Todd Gerhardt: It has to be completed by fall. Don Ashworth: Of 90, of this fall. This fall. Todd Gerhardt: We have to start construction as soon as the road restrictions come off. Councilman Senn: One of my problems is I guess real simply, here we are at the last minute again. No real chance to look at it. I have, I see that their recommendation says let's go with the large pier and stuff which is a more weighty structure and ... design and do final plans and specs so ... Ile other issue I have, these questions I have related to it, relate effectively to the project costs. When the City Council is asked to go ahead and support this application, earlier in, well basically in 1993 we were given application and the date in front of us and we were told that the total project cost was going to be $400,000.00, of which a federal amount was to be $280,000.00 and there was to be a local amount of $120,000.00. Now. depending on which scheme you look at, we're looking at a total project cost of $628,000.00 and $598,000.00 respectively. The federal portion's still the same, 280 but the City's portion is now up to $402,000.00 or $318,000.00, depending on which alternative you ' take. I mean that's 333% in one case and about 250 -260% in the other case increase in terms of overall project cost. And I think that's something we really have to look at. I keep getting told on other issues that we have no money for these types of things but yikes, it seems like we just credit a few hundred thousand dollars here but I'm told on other things we can't do that. And I guess I'd like to understand why all of a sudden we have instead of $120,000.00, $400,000.00 of city money or money to go towards this project. I guess I really want to get into this issue a little bit more other than just have it glanced through on a consent agenda. Todd Gerhardt: ...why there was a dollar change on that. Basically it came from the bridge itself. When we r put the proposal together over to the ISTEA application we were hoping that we would get by with using what is sort of a pre -fab type bridge that Paul had looked at and some of the consultants had felt it was appropriate for how this area would lay out. And MnDot again would not consider that. So from that we had to go into more of a beefed up bridge with concrete decking and the I -beams and so that's the difference in those dollars. Councilman Senn: Well with that increased cost, all I can tell you is that I for one as a council person would like an opportunity to consider the decision as to whether this project should even go forward or not, federal money or no federal money. It's considerably different than what we, you know the premise we entered it on. By 300% in local money. Don Ashworth: There is no question but the cost of this structure has continued to increase. ti Councilman Senn: And we have a lot of other priorities that aren't being met in this city. The fact, just by the 46 1 ' City Council Meeting - February 14, 1994 Mail plan and the park plans and everything else, higher priorities than this. $400,000.00 could go a long way in solving some of those priorities versus building a bridge, which ... a little bit to nowhere at this point because I'm not sure what trail it even hooks into. Acting Mayor Mason: Well at those Vision 2000 meetings Mark a whole lot of people thought that bridge to connect the north side and south side of Chanhassen was pretty important. Now I do not, I do not begrudge what you're saying about the money but there were a whole lot of people that want a connection between and over Highway 5 in this city. Councilman Senn: At this time is the question. Is this the appropriate time is what I said. It more or less comes back to right now in terms of priorities. What should the priorities be? What should go fast in line in terms of the priorities? And 2002 isn't all done either and there were also a lot of other people there with varying opinions on a lot of different things. ' Councilwoman Dockendorf. But if we wait 5 years or 10 years, it's going to cost twice as much if you don't have the ISTEA funds for it. Councilman Wing: And I'd like to see more than one going in downtown area. I think we're fortunate to get this one. The only thing that stopped me here, precipitates the same discussion and it may be foolish because we have to discuss this but design was taken to the HRA. They approved this and then it was taken to the HRA and then went to Planning and back. I don't care what, with all due respect. I don't care what the HRA things of any design. If they're going to build it and fund it, that's wonderful but I'd like to see those decisions kind of out here with the Planning Commission and then, I just. I get lost on how these big projects occur and frankly, every time I talk to anybody on these issues that somebody gets upset about. Whether it's West 78th Street or anything else I say look it. I've only got a several million dollar budget and I'm just the elected official. If you really want to have some input into this city, go to the BRA. Talk to them. Work with them because that's where all the big projects are and I don't feel the HRA or the Council members on the HRA are ' communicating with the rest of us very well in presenting issues and making sure we're all involved. And then these things happen and we get to this point and we're sort of stunned and. Acting Mayor Mason: I think Dick, from now on when you say HRA, when you say that. If you don't preface it with HRA and City Center and I'm going to call you on it because HRA's purview is not Carver Beach. It's not Minnewashta. It's not. Councilman Wing: Oh I concur with that. I'm talking the central business district. Acting Mayor Mason: Well alright but then I think, you know it sounds to me like what we need to do is have some sort of work session and establish a flow chart, whatever you want to call it. Because these arguments keep coming up and nothing's getting done with it. But again we're off task and dog gone it, let's get on task. We're on item 3(d) I believe. Councilman Senn: Don, where's the funding for this? Is this funding through the Economic Development District or through the downtown district? Don Ashworth: Downtown district. Councilman Senn: Okay. And which district was amended with the new boundaries? The downtown district or 47 City Council Meeting - February 14, 1994 i the economic development district? I Don Ashworth: The downtown district. Councilman Wing: Well I'm going to move, I'm going to be comfortable supporting this. I'm assuming Mike you're comfortable with this. You haven't spoken but this is not a new issue. It has been discussed. The cost. Ile ... been discussed. I was aware of that. I have some comments on the design. It's I think too late. I think' it's been said and done and approved and I think we have to move on it. But there's a crux problem here that really, really troubles me deeply and I think we, as you suggested, simply have to get together on that item. So I'm going to move approval of 3(d). Acting Mayor Mason: I'll second it. It's been moved and seconded Any more discussion? Councilwoman Dockendorf. Just a comment that I don't like how we got here but I do like the design. That's , why I'll approve it. Councilman Wing moved, Acting Mayor Mason seconded to approve the Pedestrian Bridge across Highway 5 as presented. All voted in favor, except Councilman Senn who opposed, and the motion carried with a vote of 3 to 1. Acting Mayor Mason: Do you want to say why Mark, or I think we have a pretty good idea why. Okay 30) is your's also. L. CITY CODE AMENDMENT TO REZONE 42 ACRES FROM A -2. AGRICULTURAL ESTATE TO j OI, OFFICE AND INSTITUTIONAL, CHANHASSEN ELEMENTARY SCHOOL SITE TH S AND GALPIN BOULEVARD, FINAL READING. Councilman Senn: On 30). This is the rezoning now that we talked about at the last meeting but weren't considering at the last meeting. or what? Don Ashworth: 1 -24. City Council approved first reading of the rezoning of the school site. Exlubit A will be attached prior to publication. Second and final reading is recommended Acting Mayor Mason: We approved that. What we didn't approve was the site plan review, which we then did approve at the work session. Councilman Senn: Okay. 'Then this is the second and final Wading them of the rezoning? Acting Mayor Mason: That's correct. Don Ashworth: Right. It requires two readings on a rezoning. Councilman Senn: Okay. Alright. And then the site plan though. Don Ashworth: You approved that Councilman Senn: We approved that now at the work session with some modifications. 48 1 r i 1 D CITY OF CKANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 TO: Housing and Redevelopment Authority FROM: Todd Gerhardt, Assistant Executive Director qf,.. DATE: October 13, 1994 SUBJ: Update on Project Costs for the Pedestrian Bridge At your last HRA meeting, staff was asked to give a financial update on the funds expended to date for the construction of the pedestrian bridge. Listed below you will find the dollars expended and estimated project costs: Construction Lx Expended_ Estimated Items to Date ' Project Costs Embankment (Trails, Landscaping) $ 20,000 $ 120,000 Construction .,, 0 515000 Design (Design, Plans, Specs) 51,756 `Y 93,500 Planning 11215 15,000 Grant Application 3,400`' 3,400 Photo Image/Model 8,386 8,386 Land _87,000 : ~,� 87,000 Legal _- ._ .._ .wr_.. .3,166 _4,000 "4 Total`' $184,923 $ 726,286 ISTEA Contribution -280,000 Total Contribution from the HRA .Y `X $ 566,286 MEMORANDUM 11