Carl Bolander & Sons Co. v. City of Minneapolis

• Decision Date: 02 July 1993
• Docket Number: Nos. C4-91-2538,C7-92-48 and C9-92-116,s. C4-91-2538
• Citation: Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203 (Minn. 1993)
• Parties: CARL BOLANDER & SONS COMPANY, petitioner, Appellant, v. CITY OF MINNEAPOLIS, et al., Respondents, State of Minnesota, by its Attorney General, Hubert H. Humphrey, III, applicant for intervention, and Prospect Park and East River Road Improvement Association, Amicus Curiae.
• Court: Minnesota Supreme Court

Page 203

502 N.W.2d 203

CARL BOLANDER & SONS COMPANY, petitioner, Appellant, v.CITY OF MINNEAPOLIS, et al., RespondentsState of Minnesota, by its Attorney General, Hubert H Humphrey, III, applicant for intervention and Prospect Park and East River Road Improvement AssociationAmicus Curiae.

Nos. C4-91-2538, C7-92-48 and C9-92-116.

Supreme Court of Minnesota.

July 2, 1993.

Syllabus by the Court

1.An Environmental Assessment Worksheet is required by Minn.Stat. Sec. 116D.04, subd. 2a(c)(1992), whenever material evidence accompanies a petition by not less than 25 individuals that is submitted to a government agency before a project receives final approval and demonstrates that the project may have potential for significant environmental effects.

2.Since a local unit of government is charged with the implementation of a statewide-effective policy, and because the state is charged with the management of the public policy in a broader sense, the trial court should actively seek the participation of the state if no motion to intervene is offered or, alternatively, should liberally entertain a formal motion to intervene.

3.The trial court did not abuse its discretion when it denied injunctive relief for failure by the appellant to prove irreparable harm or to demonstrate that its legal remedy was inadequate.

Frank J. Walz, Timothy A. Sullivan, Caryn S. Glover, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Alan R. Mitchell, St. Paul, for respondent, State of Minnesota.

Robert J. Alfton, Corey M. Conover, Minneapolis, for City of Minneapolis.

Jack Cann, Minneapolis, for amicus curiae, Prospect Park and East River Road Imp. Ass'n.

Heard, considered, and decided by the court en banc.

KEITH, Chief Justice.

Carl Bolander & Sons Company(Bolander) appeal from a decision by the court of appeals which consolidated two actions from Hennepin County District Court.488 N.W.2d 804.In the first action, the court of appeals reversed a trial court judgment that Bolander did not have to complete an Environmental Assessment Worksheet (EAW) before receiving a license from the Minneapolis City Council to operate a concrete and asphalt recycling facility.The court of appeals also dismissed as moot the State of Minnesota's motion for intervention in this action as a matter of right.In the second action, the court of appeals affirmed a district court judgment denying Bolander's request for a temporary injunction against a concrete recycling facility operated by the City of Minneapolis.We affirm.

Bolander purchased a 17-acre parcel of property at the north end of Malcolm Avenue S.E. in the City of Minneapolis for use as a concrete and asphalt recycling yard.The company relocated to this new, larger site from its existing recycling facility in the City of St. Paul.The site was zoned for heavy industrial use, and a recycling yard is a permitted use under this existing zoning classification.Bolander states that the facility

[w]ould recycle concrete and asphalt for use by the construction industry.The yard would employ a portable crushing machine and a series of conveyor belts to carry materials to the crusher from piles of materials to be crushed, and from the crusher to piles of crushed or recycled materials.All of these activities would take place out-of-doors.Trucks would bring in the materials to be crushed and haul out the recycled materials, primarily for use in road construction.

The City of Minneapolis operates a similar facility on a part-time basis on a 25-acre site near the Bryn Mawr neighborhood.

On September 11, 1991, Bolander applied to the city for a license to operate the new recycling facility.Citizens living in the vicinity of the site and belonging to the Prospect Park and East River Road Improvement Association(PPERRIA) filed a timely petition with the Environmental Quality Board(EQB) requesting that an Environmental Assessment Worksheet (EAW) be prepared pursuant to Minn.Stat. Sec. 116D.04, subd. 2a(c)(1992), before the Minneapolis City Council granted Bolander the license.Pursuant to its rules, the EQB forwarded the PPERRIA petition to the City of Minneapolis as the responsible governmental unit to act on the petition.The appropriate committee of the city council held hearings on three separate dates in which both parties were represented and presented evidence.On November 11, 1991, following the recommendation of its committee, the city council ordered that an EAW be prepared for the project before a license would be granted.

Bolander filed suit against the City of Minneapolis on November 26, 1991, seeking an order requiring the city and its licensing officials to grant the license.On December 20, 1991, the district court ordered judgment, directing the city to issue Bolander a license without the necessity of preparing an EAW.On December 24, 1991, the State of Minnesota moved to intervene as of right to oppose Bolander's action for a license, pursuant to Minn.R.Civ.P. 24.01.The district court denied intervention.

On December 31, 1991, Bolander commenced a second action against the City of Minneapolis.In this action, Bolander sought to enjoin the city's operation of its own concrete and asphalt recycling facility on the grounds that the city's yard was unlicensed, it did not meet the city's own licensing requirements, and its operation was discriminatory in relation to the city's refusal to license Bolander's recycling yard.The district court denied temporary injunctive relief to Bolander and dismissed the action on January 14, 1992.

On appeal, we are asked to determine (1) whether Bolander is required to prepare an EAW for its proposed concrete recycling facility in the City of Minneapolis pursuant to Minn.Stat. Sec. 116D.04, subd. 2a(c)(1992);(2) whether the trial court erred by denying intervention as a matter of right to the State of Minnesota; and (3) whether the trial court erred in denying Bolander a temporary injunction against the concrete recycling facility operated by the City of Minneapolis.

I

In this case, we must consider whether or not the provisions of the Environmental Policy Act of Minn.Stat. Sec. 116D and the Environmental Rights Act, Minn.Stat. Sec. 116B are applicable to this licensing request.These statutes set out the framework for agencies and citizens of the state to protect, preserve and enhance our natural resources.

Minn.Stat. Sec. 116D.04, subd. 2a(c)(1992) provides:

An environmental assessment worksheet shall * * * be prepared for a proposed action whenever material evidence accompanying a petition by not less than 25 individuals submitted before the proposed project has received final approval by the appropriate governmental units, demonstrates that, because of the nature or location of a proposed action, there may be potential for significant environmental effects.

An EAW is defined as a brief document which is "designed to set out the basic facts necessary to determine whether an environmental impact statement is required for the proposed action."Minn.Stat. Sec. 116D.04, subd. 1a(c)(1992).Governmental action, in turn, means "activities including projects wholly or partially conducted, permitted, assisted, financed, regulated, or approved by units of government including the federal government."Minn.Stat. Sec. 116D.04, subd. 1a(d)(1992).

An EAW is not required for projects for which no governmental decisions are required for granting a license.If an EAW is required for a governmental action, however, a project may not be granted until a petition for an EAW is dismissed.Minn.Stat. Sec. 116D.04, subd. 2b(1992).

In this case, it is undisputed that the PPERRIA petition was signed by more than 25 individuals and was submitted to the city before the Bolander project had received the recycling yard license.

Bolander first argues that no governmental decisions are required for granting this license since the corporation has complied with all applicable licensing and zoning requirements and because the action to grant the license by the council is merely ministerial.SeeChanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340(Minn.1984).Bolander concludes that, as a matter of law, Minneapolis has no right to require an EAW before approving a license for a concrete recycling facility.

In Chanhassen, a neighborhood group opposed the construction of a fast-food restaurant with a drive-up window.This court ordered the authorization of a building permit, finding that such a restaurant was permitted under the zoning code of the City of Chanhassen and, therefore, was consistent with the public health, safety, and general welfare.Id. at 340.We further held that denial of a permit must be based on something more concrete than neighborhood opposition and general expressions of concern for public safety and welfare.Id. at 340.However, the holding in Chanhassen is not applicable to this case because the provisions of Minn.Stat. chapter 116D and the rules formulated thereunder, which form the basis for this appeal, were not raised in that case.These statutes must be considered in evaluating Bolander's claim.SeeMinnesota Pub. Interest Resource Group v. White Bear Rod & Gun Club, 257 N.W.2d 762, 783(Minn.1977)(stating that "the city * * * has no authority to issue a permit or grant a variance which allows pollution, impairment, or destruction of the environment within the meaning of" the environmental statutes).

Government action was required under Minn.Stat. chap. 116D when the petition was forwarded to the city by the EQB, and the license could not be granted by the city until the EAW petition was dismissed.Minn.Stat. Sec. 116D.04, subd. 2b(1)(1992).Clearly, granting a license is among the activities described as government action in Minn.Stat. Sec. 116D.04, subd. 1a(d)(1992).Bolander's argument that granting the license under these facts is merely a ministerial action not...