DNR-87-007-AK
6-2000-1385-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF NATURAL RESOURCES
In the Matter of the Application FINDINGS OF FACT,
of the City of Brooklyn Park to CONCLUSIONS,
Extend 73rd Avenue-North Across RECOMMENDATION
a Wetland between Boone Avenue AND MEMORANDUM
and Highway 169
The above-entitled matter came on for hearing on May 6, 1987, in Brooklyn
Park, before Allan W. Klein, Administrative Law Judge.
Appearing on behalf of the Applicant, the City of Brooklyn Park, was
Curtis A. Pearson, of the firm of Wurst, Pearson, Larson, Underwood & Mertz,
Attorneys at Law, 1100 First Bank Place West, Minneapolis, Minnesota 55402.
Appearing on behalf of Intervenor Northland Development Company was
Christopher L. Dietzen, of the firm of Larkin, Hoffman, Daly & Lindgren, Ltd.,
Attorneys at Law, 1500 Northwestern Financial Center, 7900 Xerxes Avenue
South, Bloomington, Minnesota 55431. Appearing on behalf of the Department of
Natural Resources were Special Assistant Attorneys General A. W. Clapp III and
Tibor M. Gallo, Suite 200, 520 Lafayette Road, St. Paul, Minnesota 55155.
The record closed on August 25, 1987.
Notice is hereby given that, pursuant to Minn. Stat. 14.61 the final
decision of the Commissioner of Natural Resources shall not be made until this
Report has been made available to the parties to the proceeding for at least
ten days, and an opportunity has been afforded to each party adversely
affected to file exceptions and present argument to the Commissioner.
Exceptions to this Report, if any, shall be filed with Joseph Alexander,
Commissioner of Natural Resources, 500 Lafayette Road, St. Paul, Minnesota
55155.
STATEMENT OF ISSUES
Should the Commissioner grant a permit to the City allowing it to
construct a road across a wetland? Does the public need for the road rule out
the no-build alternative? Is there a feasible and practical alternative to
the project having less environmental impact?
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
Description of the Area
1. The City of Brooklyn Park is a "second tier" suburban city, located
in Hennepin County, in the northwestern quadrant of the metropolitan area.
While the City is quite large, this proceeding focused upon the southwest
corner of the City, which contains the intersections of County Road 18 (a
north-south major arterial), I-94/694 (a major east-west interstate freeway)
and Highway 169 (a southeast-northwest minor arterial street). These can be
seen, along with other routes of interest, on the attached Figure 1, taken
from Ex. 48.
2. There is a wetland in the general area marked "Project Location" on
the figure. Seventy-third Avenue North is in existence from Boone Avenue to
the western edge of the wetland. There is no road across the wetland at the
present time. Seventy-Third Avenue North resumes east of the wetland. The
proposed project would cross the wetland, connecting the western edge with the
eastern edge, so that it would be possible to drive from Boone Avenue to
Highway 169 directly on 73rd, without having to go north to Brooklyn Boulevard
or south to I-94.
3. The land identified as the "study area" in the figure consists of
approximately 600 acres. Approximately 380 acres are currently being used,
predominantly for office and office/distribution purposes. Other uses include
industrial, a city park, and residential. Approximately 220 acres are idle or
vacant, and are expected to be developed at some undetermined time in the
future.
4. The western half of the study area, the portion west of Shingle
Creek, is dominated by the Northland Industrial Park. It is owned by
Northland Development Company, which owns approximately 400 acres of the
600-acre total. All of Northland's holdings are to the west of Shingle Creek,
on both sides of Boone Avenue.
5. The Northland Park Project began with some early land purchases in
1969, followed by additional purchases in 1975 and 1976. It represents a
"master plan office park", whereby the developer (Northland Development
Company) assembles a large tract of land, creates a master plan for its usage,
and then develops it consistent with the master plan. This results in greater
uniformity of architecture, landscaping, and uses than would likely occur if a
variety of different owners developed the land on a parcel-by-parcel basis.
In theory, the master plan allows development to a higher and better use than
would occur without it. The parties stipulated that the Northland project was
a "good industrial park". It can be seen in aerial photographs, Exs. 73-77.
6. Northland does not own any land to the east of Shingle Creek, and
that land is not subject to Northland's master plan. The land to the east of
the creek is much less developed than the Northland parcel. It contains a
diverse mix of heavy and light industry, including a concrete plant, a
mini-storage building, a truck repair operation, a cable television office,
and a lawn fertilizer operation.
7. It is proposed that a portion of the land east of Shingle Creek be
the site of a waste transfer station as part of a much larger Hennepin County
Resource Recovery Project. This would be known as the Brooklyn Park East
transfer station. This transfer station would be located just north of I-94
at approximately 70th Street, to the east of Shingle Creek but to the west of
Winnetka.
Description of the Wetland
8. The wetland which would be crossed by the proposed roadway is
approximately 120 acres in size. It is a Type III wetland (shallow freshwater
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marsh). It is oriented in a north-South direction, and 73rd Avenue North is
at approximately its center point. The proposed extension of 73rd Avenue
North would, therefore, approximately bisect it.
9. The wetland is bordered by Shingle Creek. Shingle Creek flows in a
generally northerly and easterly direction to its mouth at the Mississippi
River. Shingle Creek serves as the inflow and outflow of the marsh area. A
beaver dam on Shingle Creek near the northwest corner of the wetland is
effectively blocking the creek at present, and as of April, 1987, there was no
flow downstream from the dam. This has created higher than normal water
levels in the wetland.
10. The marsh is generally a cattail monotype with reedgrass and reed
canary grass along its borders. Borders also include larger plants such as
willows, aspen, and box elder.
11. The marsh has supported Canadian geese, mallards, woodducks,
pheasants, beaver, muskrat, raccoon, rabbits, fox, skunk and mice. As noted
earlier, an colony of beaver is active in the area. The wetland area provides
a natural corridor for deer using the habitat up and dowr the drainage.
Nesting habitat is provided for waterfowl, such as geese, mallards and
woodducks.
12. The creek has no significant fishery value, other than to support
minnows and carp. Even that support is dependent upon a continuation of the
high waters resulting from beaver dams; if the dams are removed, the stream
would have little or no value because it would be extremely shallow and
seasonally intermittent in this area. Ex. 82.
13. In addition to supporting plant life and wildlife, the wetland also
acts as a natural sponge to help regulate surface water levels. It is part of
a flood control reservoir system. In addition, it acts as a natural filter
for water which percolates down to subsurface levels.
Procedural History of the Road Project and DNR Permit Applications
14. In 1971, Bather, Ringrose, Wosfeld, Inc. prepared a "Transportation
Plan for Brooklyn Park". Ex. 50. That plan contemplated a collector street
crossing the wetland, connecting Boone Avenue on the west and Highway 169 on
the east. The street was originally referred to as 71st Avenue North, but
appears to be at approximately the location that is now 73rd Avenue North.
Regardless of the exact location, it was the conceptual predecessor of what is
now proposed as 73rd Avenue North.
15. In late 1977 or early 1978, Northland Development Company (through
Steubner Properties) and Equity Life Insurance Society petitioned the City to
construct a portion of the 73rd Avenue North roadway. The portion which they
requested ran from Boone Avenue to the western edge of the Shingle Creek
wetland, approximately 1,000 feet. This would allow access to land lying
between Boone Avenue and Shingle Creek in the area of 73rd Avenue North.
16. in March of 1978, a feasibility report was prepared, which concluded
that the proposed construction was feasible and consistent with the City's
transportation plan. The feasibility report noted that at such time as a need
is determined, the road could be extended across the wetland to Winnetka and
Highway 169. Ex. 7. The 1,000-foot roadway was built in 1978-79.
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17. In January of 1980, the City began exploring the continuation of 73rd
across the wetland. This was prompted by the availability of free fill
material, which was important because a major impediment to the construction
of the street was the high cost of fill for crossing the wetland. From the
spring of 1980, the City engaged in various soil investigations to determine
the difficulties which would be caused by the peat in the wetland.
18. On June 30, 1980, the City submitted an application for a permit to
work in public waters, which was assigned Department Identification
No. PA81-6009. During the remainder of 1980 and throughout 1981 and into
1982, the Department and the City worked on various issues raised by the
Application. This included resolving flood control issues and re-examining
the situation as the City's source of fill changed. Ultimately, in late 1981
or early 1982, the City placed the project "on hold". In July of 1982, the
Department wrote the City asking for certain technical data, stating that once
the data was supplied, the Department would issue the permit. The Department
stated that it understood that the project had been delayed indefinitely.
Ex. 42.
19. In October of 1983, the Department adopted amendments to its water
permit rules. One of the amendments changed the criteria applicable to
permits for road crossings.
20. During 1983 and 1984, the City took no action to further the
project. It was still "on hold". On November 13, 1984, the Department wrote
to the City, stating that it understood that the project was still
indefinitely delayed, and suggesting that since the rule had changed and the
new criteria would be applied to the Application, the City ought to withdraw
its application and then reapply when it was ready to proceed. The letter
stated that unless the City "advises otherwise" by December 3, 1984, the
Department would withdraw the Application. The City did not respond to the
letter, and the Department deemed the Application to have been withdrawn.
21. In 1985, there were no actions by the City to reactivate the permit.
However, during this time period (going back at least to August of 1984),
Hennepin County was focusing its search for a waste transfer site on what
became known as the "Brooklyn Park East" site. Despite the opposition of the
City and Northland Development (Ex. 48 and 113), the County ultimately
determined that the Brooklyn Park East site was the most appropriate site for
the transfer station.
22. In 1985, interest revived in the proposed crossing at 73rd Avenue
North. The City hired Barton-Aschman Associates to evaluate the impact of
building the road on traffic flows on I-94 (to the south) and Brooklyn
Boulevard (to the north).
23. In March of 1986, a new feasibility report on the proposed extension
was prepared, and in April of 1986, a public hearing was held before the City
Council. Northland appeared at that hearing and voiced its opposition to the
project. The City Council voted, unanimously, that the project should go
forward.
24. On June 6, 1986, the City's consulting engineer submitted to the
Department the technical data which the Department had requested back in July
of 1982. Ex. 20.
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25. The Department informed the City that a new Application would be
required, and on September 19, 1986, the City filed a new Application with the
Department. It was identified as P.A. No. 87-6087. Various correspondence
and meetings followed, and on January 9, 1987, the City supplied information
regarding the public need for the proposed roadway. Ex. 47.
26. In late January or early February, 1987, the Department determined
that a hearing would be appropriate prior to deciding whether or not to grant
the requested permit.
27. On February 25, the Commissioner issued the Order and Notice for
Hearing, setting the hearing for April 2.
28. The hearing was continued from time to time due to scheduling
conflicts. On April 22, 1987, a prehearing conference was held. At that time
it was discovered that Northland was not a formal party to the hearing.
Northland filed a formal Petition to Intervene, and the City filed a formal
objection to the Petition. At the start of the hearing, the Administrative
Law Judge announced that the Petition was granted. See Memorandum.
Description of Procosed_project
29. The proposed project is a two-lane road (one lane in each
direction). It would run in an east-west alignment, beginning at the
cul-de-sac on the western edge of the wetland, crossing the wetland, and
ending at the corner of 73rd Avenue North and Winnetka.
30. The roadway will be approximately 1100 feet in distance through the
wetland. Its width (including shoulders and, in some places, counter-
balancing berms) will vary from 120 feet to 160 feet wide. The road itself
will only be 46 feet curb to curb. A sidewalk will be constructed on the
north side (only) from Highway 169 across the wetland to Boone Avenue. The
roadway surfacing will be based on a nine-ton pavement design. A concrete
curb and gutter will be constructed, and low points along the roadway will
have shoulder drains to control the run-off from the street. Ex. 4.
31. The roadway will be built to conform to state aid design standards.
In 1978, when the first 1,000 feet of this road was built from Boone Avenue to
the western edge of Shingle Creek, state aid funds were used. This was done
because a total MSA route was designated from Boone Avenue to Highway 169, and
even further easterly to West Broadway (County Road 130). In 1983, the
segment of 73rd Avenue well east of the wetland, from Highway 169 to West
Broadway, was constructed.
32. In order to qualify as an MSA route, a road must terminate at either
(a) another MSA street; (b) a trunk highway; or (c) a county highway. If 73rd
is not completed as planned, the portion from Boone Avenue to the western edge
of Shingle Creek, which was built in 1978-79 with state aid funds, will not
qualify as a state aid road. It will be removed from the state aid system,
and the state aid monies which were expended for it (approximately $108,000)
will have to be repaid to the state aid fund.
33. The construction method proposed to be used is the "surcharge
method", which is required by virtue of the peat underlying parts of the
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roadbed. The surcharge method is a recognized, legitimate method of road
construction for use in difficult circumstances. It requires more time and
expense than ordinary construction methods. See generally, Ex. 23. When used
properly, however, it creates no unusual environmental damage. The City is
aware of the proper use of the method.
Impacts on Wetland and Wildlife
34. Construction of the road would have an adverse impact upon the
wetland. It would result in the destruction of between three and four acres
of marshland and habitat. It would disrupt travel lanes used by wildlife to
move up and down the narrow area. It would create problems of noise, air and
water pollution (although these were not quantified, they are the same as
those from any road). It will result in an increased number of road kills
and, in the case of deer or other large animals, an increased danger to human
travelers.
35. The character and use of the area will change because of increased
disturbances and an opening up of the center of toe wetland to dogs, cats and
other predators. While such predators now have access to the borders, they do
not have access to the center.
Public Need
36. At the present time, the freeway and arterial system serving the
study area is adequate to handle the existing level of development. Ex. 48,
p. 25 and Ex. 81, p. 3. Today, 73rd would be a convenience, but not a
necessity. The question of need for 73rd Avenue revolves around whether the
traffic system can function without it in the future, and if not, when is it
going to become a necessity.
37. Traffic in the study area has grown more rapidly than anticipated.
In 1971, when the City's transportation plan was put together, 73rd Avenue was
proposed as a collector street on the assumption that, by 1990, there would be
1,360 employees in the study area, and the road would carry 2,500 vehicles per
day. In fact, by 1987, the study area has current employment estimated to be
between 5,000 and 6,000 employees. Traffic on the incomplete segment of 73rd
Avenue between Boone and Shingle Creek is already 1,800 vehicles per day.
Similar growth has occurred in other parts of the study area. For example,
the 1971 transportation plan forecasted that Boone Avenue, just north of 73rd
Avenue, would be carrying 3,000 vehicles per day by 1990. However, today it
is already carrying approximately 8,000 vehicles per day. Ex. 48, p. 6.
Clearly, the 1971 plan did not foresee the growth which has occurred in this
area, particularly the rapid development of the Northland Industrial Park.
38. Theoretical city planning suggests that there be a "functional
classification" perspective employed in laying out streets and highways. The
recognized hierarchy of roadways ranges from interstate freeways, to major
arterials, to minor arterials, to collector streets, and finally, local
streets. Seventy-third Avenue North was planned as a collector street. The
Metropolitan Council's Metropolitan Development Guide/Policy Plan for
transportation recommends that collectors be spaced between major and minor
arterials, usually from one-quarter mile to one mile apart. If 73rd Avenue
were built as proposed, it would provide a collector street at a one-half mile
spacing between Brooklyn Boulevard on the north and I-94 on the south.
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39. I-94 is currently overloaded in the morning rush hour in the segment
from Highway 169 East across the Mississippi River, and extending well to the
east. There is a particular problem at the Mississippi River Bridge. At the
bridge, it is a problem of major congestion, but on either side of the bridge,
it is not as bad. It is anticipated, however, that by the year 2000, I-94
will suffer major congestion in the stretch of particular interest in this
hearing, from County Road 18 East to Brooklyn Boulevard. Ex. 47, Attachs. C
and D. The -Department of Transportation will restrict entry onto the freeway
and take whatever other steps are necessary to preserve the integrity of its
traffic flow. For example, Mn DOT plans to "meter" (stoplight) the eastbound
entrance ramps onto I-94 from both Boone Avenue and Highway 169 in 1988 or
1989. Mn DOT believes that I-94 is suffering severe congestion in the study
area in the eastbound direction in the morning rush hour, and severe congestion
in both directions in the evening rush hour.
40. The purpose of metering is to divert traffic away from the freeway.
The traffic most likely to be diverted is "short haul" trips which can most
readily use alternatives to the freeway. The Department and the Metropolitan
Council are both desirous of diverting short haul trips off of the freeway.
They both support the extension of 73rd Avenue North so that drivers who
desire to proceed southerly on Highway 169 from the area of Boone Avenue would
not use 1-94 to get from Boone Avenue to Highway 169, cut rather will use 73rd
Avenue to get to Highway 169.
41. On one afternoon in April of 1987, a study was made of all of the
cars which entered eastbound I-94 from southbound Boone Avenue, as well as all
the cars which entered southbound Highway 169 from eastbcund 1-94. This was
an attempt to quantify this "short haul" traffic which might be diverted by
the building of 73rd Avenue North. It was found that of the 337 cars which
entered eastbound I-94, 28 of them exited at southbound Highway 169. That is
only eight percent of those that entered at Boone, and a minuscule percentage
of all of the traffic traveling eastbound on I-94. Nonetheless, planners from
both the Mn DOT and the Metropolitan Council want to divert such short haul
traffic from I-94 to 73rd Avenue North.
42. Although all of the traffic experts agreed that there were no traffic
operational problems today, they disagreed as to when problems would emerge
and to what extent the construction of 73rd would alleviate those problems.
They did agree, at least, on the appropriate methodology to use in attempting
to determine the questions of when problems would develop, and to what extent
they would be alleviated by the construction of 73rd Avenue North.
43. An appropriate methodology for determining the capacity of a
transportation system is to (1) count existing traffic; (2) document present
land use; (3) estimate future planned use; (4) estimate traffic to be
generated from future land uses; (5) distribute the traffic along the most
logical routes; and finally, (6) conduct capacity analyses of key elements in
the transportation system to determine whether or not they can handle the
projected traffic flows. Both of the major traffic studies used in this
proceeding (Ex. 48, advanced by the City, and Ex. 81, advanced by Northland)
agreed on this basic methodology. There were, however, two major
disagreements between the two. These disagreements result in different
scenarios in future traffic flows. The two differences are in the area of
(1) future land use, and (2) the number of trips that would be generated by
certain of the land uses.
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44 There are ten intersections which were identifiec as "critical
intersections", and adopted by both of the studies as appropriate measurement
points to evaluate the capacity of the transportation system to handle future
traffic. These are identified in Figure 3 of Exhibit 48, and include such
intersections as the Boone Avenue/I-94 eastbound ramps, the Highway 169/1-94
eastbound ramps, and the intersection of Brooklyn Boulevard and Highway 169 in
the northeast corner of the study area. To illustrate the differences that
arise-from the differing estimates of land use and trips generated by that
land use, one of the studies estimates that if 73rd Avenue is not built, by
the year 2010, there will be seven of the ten intersections which are over
capacity. That can be contrasted with the estimate of the other study, which
project that only two of the intersections will be over capacity. Similarly,
the estimates of over capacity intersections if 73rd Avenue is built vary from
four to two. In order words, one study projects that building 73rd Avenue
will make a difference in protecting three intersections from going over
capacity, while the other study projects that the building of 73rd Avenue
won't make any difference and that there will be two intersections over
capacity regardless of whether 73rd Avenue North is built.
45. Traffic volume projections depend upon the number of square feet
projected to be built by the target date, and the traffic generated by that
volume of development (measured in terms of tr i Ds per 1,000 square feet) .
Estimates of the total number of square feet present in the s tudy area at
"build out" varied from 5,204,431 (Northland/BRW--Ex. 81, Table I and Ex. 79)
to 5,673,167 (City/SRF--Ex. 48, Table 2, as amended, and Ex. 79). The
differences can be seen from Table 1, below.
TABLE I - SQUARE FOOTAGE OF DEVELOPMENT IN STUDY AREA
AT BUILD-OUT
SRF NDC
Existing Development 2,647,167 2,474,431
Future Development 3,026,000 2,730,000
5,673.167 5,204,431
46. In terms of existing square footage, it is found that the SRF number
is more accurate than the NDC number because the SRF number is based upon the
assessor's records (the taxpayer would have an interest in keeping the number
as low as possible), the Honeywell Building (which is 200,000 square feet, not
150,000) and because the appropriate figure to use throughout is the gross
square footage figure, not the net square footage. Finally, one parcel
(Site #39) is a bankrupt health club. NDC elected to treat that as equivalent
to zero square feet. It is found that within the time frame of importance to
this project, the building will be occupied and generating traffic.
47. In terms of estimating future square footage, it must be understood
that developers in general, and Northland in particular, will develop their
properties so as to maximize their long-term financial return. Northland
admits as much when it states (in Ex. 98):
Northland Development Company intends to develop the
remaining acres of Northland parkland in accordance with
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the master plan. However, the master plan will be modified
if conditions in the marketplace dictate more valuable uses
of the land than presently shown.
48. There is currently a glut of office space in the Brooklyn Park/
Plymouth/Suburban Northwest area. One creditable market survey showed a
vacancy rate of 39 percent in December of 1986, as compared with 14 percent in
downtown Minneapolis and nine percent in downtown St. Paul. Vacancy rates,
however, fluctuate due to a variety of factors (the economy, tax laws,
interest rates, etc.), most of which are beyond the control of the developer.
The same study shows a fluctuation in the office vacancy index for overall
suburban locations which varied from 13 percent in July of 1984 to 24 percent
in July of 1986. Ex. 112, p. 1, fig. 2. The fact that there is a glut in
December of 1986 does not control the mix of uses that would be built in the
future. That mix is unpredictable at the present time. The best estimate
that can be made of that mix is to look at the mix that has evolved over the
past 15 years. North land has, from time to time, developed forecasts far
different from that contained in Ex. 81, and much closer to SRF'S. Ex. 90 and
92.
49. Once a square footage number is arrived at, then it is necessary to
select an appropriate trip generation figure. This figure varies, depending
upon the type of use. There is no disagreement that toe appropriate source
for such trip generation figures is Trip Generation, 3rd Edition-1982,
published by the Institute of Transportation Engineers. For many of the land
uses, there was no disagreement among the parties with regard to an
appropriate trip rate to use. For some of them, however, where the trip
generation manual did not specify a precise number, the parties disagreed as
to the appropriate number to use. The most important incident of this
disagreement was in the case of multi-use buildings, principally office/
distribution buildings.
50. The appropriate methodology to use in calculating a trip rate figure
for an area such as the Northland Industrial Park is to determine the traffic
generated by each type of use, determine the portion of the total that is
represented by that type of use, and then combine the traffic flows into a
total. The ITE trip generation manual puts it this way:
Category 130--Industrial Park. Industrial parks are areas
containing a number of industrial or related facilities.
They are characterized by a mix of manufacturing, service
and warehouse facilities with a wide variation in the
proportion of each type of use from one locatior to another.
Caution should be exercised when us ing average trip
generation rates found for industrial parks. The data
showed wide incons istenc i es . . . believed to be due to
differences in the mix of activities from one dark to
another.
It is recommended that traffic generation of i ndusurial
parks be forecast using rates for each type and amount of
act ivity, ie . , manufacturing, off ice, warehouse, light
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industrial, etc. The combined result of these calculations
should give a more realistic rate than the average indicated
herein. It is not believed that additional data sources
will improve validity of an average rate for all Industrial
parks.
51. The method described above is most closely akin to that used by SRF.
Of particular importance to the Northland situation is the ability of this
method to take into account the very substantial difference between traffic
volumes generated by an office building and traffic volumes generated by a
warehouse building. While it is possible to disagree about the percentages of
uses in each building, it is concluded that the SFR methodology is more
appropriate, and will yield a more accurate number, than the BRW methodology.
For reasons which will become apparent, it is not necessary to calculate a
precise number for purposes of this decision.
52. Once an appropriate trip generation number is arrived at, then it
becomes a mathematical exercise to multiply the square foot figure (for future
develosment) by tne trip generation rates, add the products together, add
those to the existing traffic counts, and arrive at a projected future total.
In doing this, it is vital that the gross square footage be used, rather than
the net rentable square footage. Again, this was a difference between the
figures used by SRF and the figures used by BRW. It is clear from the ITE
manual that the trip generation rates assume that they will be applied to
gross square footage, rather than net or rentable square footage. See copies
of ITE manual pages attached to Pearson letter of June 29 and Dietzen letter
of June 29.
53. The appropriate number for future square footage is found to be
3,026,000. This figure was derived on the assumption that future development
would mirror present development in terms of the ratio of land uses by type,
and average floor area ratios. It is based on gross area, rather than net
area. It is certain that actual square footage will vary from this estimate,
but that is to be expected. The question to be answered at this point is
whether 3.0 or 2.7 million is the more likely of the numbers. It is found
that 3.0 million is the more likely.
54. The most reasonable estimate of traffic patterns is that contained in
Ex. 48. If 73rd Avenue North is built, three out of the ten intersections
would be over capacity. However, if 73rd Avenue is not constructed, then six
out of the ten would operate over capacity. Ex. 48, p. 25.
55. Aside from the projections of intersection breakdown, there are some
other factors to be considered in evaluating the need for the road. Bell Cold
Storage operates two refrigerated and freezer-equipped warehouse facilities in
the Twin Cities area. They have a total combined square footage of 287,000
and a combined cubic feet capacity of 7.25 million. Together, they constitute
the largest public cold storage warehouse facility in the upper Midwest. In
1985, Bell constructed an 80,000 square foot facility at 71st Avenue and
Winnetka, on the east side of Shingle Creek. Bell alone handles 12,O0O trucks
per year, the vast majority of them semi-trailer trucks. TCI, a similar
operation housed in the Bell Cold Storage building, is visited by a total of
5000 trucks per year. Those two operations alone account for nearly 50 trucks
a day, 365 days a year. If the proposed Hennepin County transfer station is
located on the east side of Shingle Creek, as currently proposed, that will
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add an additional unknown number of trucks serving the east side of Shingle
Creek. One estimate places the number at 50 "packer" trucks and 250 small
garbage trucks per day. What is important about this is that today's
realistic access from this area onto I-94 is at Highway 169. The ramps
serving I-94 at Highway 169 are not only congested, but are an upgrade. That
means trucks entering the freeway will be going slower than if the ramps were
on a level grade, or a downgrade. On the other hand, the entrance ramps onto
I-94 from Boone Avenue are on a downgrade, which are much better for trucks
entering the freeway flow. A number of businesses on the east side of Shingle
Creek favor the road so that they may direct vehicles over to Boone Avenue and
enter the freeway from Boone rather than from Highway 169.
56. Another problem faced by Bell, TCI, Fraser Steel and other industries
east of Shingle Creek is the inadequate intersection of highway 169 and 73rd
Avenue North. This intersection will be improved regardless of whether or not
73rd Avenue North is extended over the wetland. Contracts have already been
let for the improvements. While this will alleviate SOME of their concerns,
it will not alleviate them all.
57. If 73rd Avenue North is not built, additional traffic "costs" will be
incurred by persons who would otherwise use it. These include vehicle time
and operating costs of $331,800 per year; extra fuel of 48,500 gallons per
-year; 37,600 pounds of carbon monoxide per year 4,000 pounds of hydrocarbons
per year; and, 6,900 pounds of nitrogen oxide. See Ex. 55.
58. A public hearing was held before the City Council on April 28, at
which time both proponents and opponents voiced their views to the Council
The Council voted, unanimously, to proceed. This position is endorsed by Mn
DOT and the Metropolitan Council.
Alternatives
59. A review of the aerial photographs, Exhibits 73 through 77,
demonstrates that the wetland is long and thin, running from north to south.
It is definitely wider in some areas than in others, particularly where there
have been encroachments which have narrowed it. But it is impossible to cross
from Boone Avenue to Highway 169 between I-94 and Brooklyn Boulevard without
crossing the wetland. Shingle Creek runs in a north-south alignment in the
study area, and the associated wetland runs the entire length of the study
area.
60. There are places, however, where the wetland area is significantly
narrower than it is at 73rd Avenue North. For example, there is a large
cement plant area on the east side of Shingle Creek at approximately 75th
Avenue North. Ex. 74 demonstrates the difference in width between the two
If, for example, a bridge were being considered there, the cost of the bridge
would be substantially less than a bridge at 73rd Avenue North. However,
there has been no detailed examination of such a crossing.
61. A bridge, either at the 73rd Avenue location or another location
involving less expense, is a feasible and prudent alternative. It would
definitely have less environmental impact.
62. There is no question but that a bridge at 73rd Avenue would be
substantially more expensive than a road crossing. A rough estimated cost is
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$5,107,000. This includes the cost of a bridge with pilings at approximately
$65 per square foot, a length of 1400 feet and a width of 46 feet. An
additional 22 percent is added for legal, engineering, and similar costs.
Nevertheless, the City's Director of Public Works opined that, in his opinion,
the need for a crossing was so strong that it warranted a bridge if that was
the only way the crossing could be achieved.
63. The expansion of Brooklyn Boulevard (which is currently two lanes in
either direction, and 52 feet wide) is a feasible and prudent alternative
having less environmental damage than the proposed project. It does have
significant difficulties, but they are not insurmountable. The most serious
problem arises from the existence of single-family homes facing Brooklyn
Boulevard. They are required to be set back at least 35 feet, but the record
does not disclose how far the actual setbacks are. Therefore, it is unclear
whether the widening would require merely an encroachment into the setback or
an actual taking of the homes. The encroachment would require a minimum
acquisition of 12 feet on each side, which would reduce tne 35-foot setback
minimum to 23 feet. In addition, near the creek there would be an additional
24 feet of slope cequired, for a total of 36 feet.
64. When Brooklyn Boulevard was or igina lly built , orji nary excavati on and
backfill methods were used. The same kind of methods could be used again, but
additional work might have to be done for culverts and other associated
facilities.
65. Brooklyn Boulevard is a county road, and would require county
approval of any widening plan.
66. Another problem (but again not insurmountable) is caused by a
railroad track which parallels Highway 169. The problem caused by the
railroad track is that of "stacking space" for cars waiting at the
intersection. It is not desirable to have cars waiting for a stoplight on a
railroad track. The track can be signalized, however, with a moving arm or
similar devices to prevent cars from getting caught on the track waiting for a
red light. It is a problem, but not insurmountable.
67. Alternatives to the south of I-94, such as Modern Road/68th Street
have problems because they go through a residential area. They are not
designed for high speed or high volume transport. The final problem with
Modern Road is that it ends at West Broadway, and does not provide a direct
route onto either I-94 or Highway 169. It is not a reasonable alternative.
68. A "wait and see" alternative is also feasible and prudent. There are
many unknowns regarding future traffic flows. The two primary traffic studies
were both conducted by able personnel, using up-to-date methods. Nevertheless,
their results were substantially at variance. The rate of future development
of Northland Park and the mix of land uses is dependent upon the economy,
competing developments-and a variety of other factors. The traffic that will
be generated can only be estimated at this time. If the City does not wish to
use one of the other alternatives presented above, but rather wants to go
ahead with the road crossing at 73rd Avenue North, then it is feasible and
prudent to require the City to wait until there can be greater certainty
regarding traffic flows and the necessity for the road crossing at 73rd.
PARAPHRASE OF APPLICABLE STATUTES AND RULES
Minn. Stat. 105.42, subd. 1 (1986) provides that it shall be unlawful
for any person, municipality or other political subdivision to change or
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diminish the course, current or cross section of any public waters by any
means, including filling or placing materials on the beds of public waters,
without a written permit from the Commissioner previously obtained.
Subdivision l(a) of that same statute provides that permits may be granted
only when the project involves a minimum of encroachment, change or damage to
the environment, particularly the ecology of the waterway.
Minn. Stat. 105.45 (1986) provides that if the Commissioner concludes
that the plans of the applicant are reasonable, practical, and will adequately
protect public safety and promote the public welfare, he shall grant the
permit. In all other cases, the Commissioner shall reject the application, or
require such modification of the plan as is deemed proper to protect the
public interest. In all permit applications, the applicant has the burden of
proving that the proposed project is reasonable, practical, and will
adequately protect public safety and promote the public welfare. In granting
a permit, the Commissioner may include terms and reservations regarding the
method of construction as appear reasonably necessary for the safety and
welfare of the people of the State.
Minn. Stat. 116D.04, subd. 6 (1986) provides that no permit for natural
resources management and development shall be granted where such permit is
likely to cause pollution, impairment or destruction of natural resources so
long as there is a prudent and feasible alternative consistent with the
reasonable requirements of the public health, safety, an, welfare and the
State's paramount concern for the protection of its natural resources from
pollution, impairment or destruction. Economic considerations alone shall not
justify such conduct.
Minn. Rules pt. 6115.0190, subp. 3, item F, provides that placement of
fill shall not be permitted to construct a roadway or to facilitate land
transportation across waters; however, where a project is proposed by a local
government agency and this provision would prevent or restrict the project, or
create a major conflict with other public purposes or interests, the
Commissioner may waive this provision provided: (1) there is no feasible and
practical alternative to the project that would have less environmental
impact; and (2) that the public need for the project rules out the no-build
alternative.
Based upon the foregoing Findings, the Administrative Law Judge makes the
following:
CONCLUSIONS
1. All relevant substantive and procedural requirements of law or rule
have been fulfilled. The Department and the Administrative Law Judge have
jurisdiction over this proceeding pursuant to Minn. Stat. 105.42, 105.44,
105.45 and 14.50.
2. That Minn. Stat. 105.45 provides that in all permit applications,
the applicant has the burden of proving that the proposed project is
reasonable, practical, and will adequately protect public safety and promote
the public welfare.
3. The proposed project does constitute the construction of a roadway
and the facilitation of land transportation across waters within the meaning
of Minn. Rule pt. 6115.0190, subp. 3(F).
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4. The prohibitions of Minn. Stat. 105.42, subds. I and l(a),
105.45, 116D.04, subd. 6, and Minn. Rules pt. 6115.0190, subp. 3. item F
apply to the City's permit application.
5. The City's proposal will not involve a "minimum of encroachment,
change, or damage to the environment, particularly the ecology of the
waterway" within the meaning of Minn. Stat. 105.42, subd. l(a).
6. The City's plan is not "reasonable, practical, [nor will it]
adequately protect the public safety and promote the public welfare" within
the meaning of Minn. Stat. 105.45.
7. The City' s proposed action is "likely to cause pc lluti on, impairment
or destruction of . . . natural resources" within the meaning of Minn. Stat.
116D.04, subd. 6 (1986). The requested permit is a "permit for natural
resources management and development".
8. There are "feasible and prudent alternatives Consistent with the
reasonable requirements of the public health, safety and welfare and the
State's paramount concern for the protection of its . . . natural resources
from pollution. impairment or destruction" within the Tearing of Minn. Stat.
116D.04, subd. 6 (1986).
9. The applicable rule constitutes a "environmental quality standard"
which would be violated by the City's proposal within the meaning of Minn.
Stat. 116B.02, subd. 5. In addition, the project would "materially
adversely affect the environment" within the meaning of that statute.
10. There are "feasible and practical alternatives to the project that
would have less environmental impact" within the meaning of Minn. Rule
pt. 6115.0190, subp. 3, item F. The public need for the project does not rule
out the no-build alternative within the meaning of that rule.
11. The Department's treatment of the 1980 Application does not estop it
from denying or modifying the 1986 Application.
12. Any of the foregoing Conclusions which are more appropriately labeled
Findings, or any of the foregoing Findings which are more appropriately
labeled Conclusions, are hereby adopted as such.
Based upon the foregoing, the Administrative Law Judge makes the following:
RECOMMENDATION
That the Commissioner of Natural Resources deny the permit application of
the City of Brooklyn Park to extend 73rd Avenue North across a wetland between
Boone Avenue and Highway 169.
Dated this 24th day of September, 1987.
ALLAN W. KLEIN
Administrative Law Judge
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NOTICE
Pursuant to Minn. Stat. 14.62, subd. 1, the agency is required to serve
its final decision upon each party and the Administrative Law Judge by first
class mai 1 .
Reported: Tape Recorded: 35 Tapes.
- MEMORANDUM
I.
The most difficult question is whether or not the over-capacity
intersections constitute "community disruption" reaching "extraordinary
magnitudes". Based upon the history of judicial interpretation of the
applicable laws and rule, I have concluded that it does rot meet the
standard. Reasonable people might, however, differ with that conclusion.
It should be noted at the outset that I have acceptec the City's
projection of future traffic volumes and the impact of that traffic on the
crucial intersections. However, I do not believe that this meets the level
necessary to rule out the no-build alternative; moreover, there are a number
of feasible and practical alternatives to the project that would have less
environmental impact. The City's preferred route must be rejected under
either one of those conclusions.
In the case of Urban Council on Mobility v. Minnesota DNR, 289 N.W.2d 729
(1980), the Supreme Court set forth a thorough and thoughtful analysis of the
law in this area. In that case, which also involved the routing of a freeway
over public waters, the court found that frustration of city planning, delays
in construction, condemnation of seven or eight homes, or substantial amounts
of money previously invested, do not render an alternative unacceptable. They
do not constitute "truly unusual factors" within the meaning of Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411, 91 S. Ct. 814, 821,
28 L.Ed.2d 136, 150 (1971).
Every reported case in Minnesota which I am aware of involving disputes
over the placement of a roadway across a wetland or lake has resulted in the
court's determining that the road should not be placed as originally proposed.
Freeborn County, by Tuveson v. Brvson, 297 Minn. 218, 210 N.W.2d 290 (1973)
and 309 Minn. 178, 243 N.W. 316 (1976) established the principle that the
historical right of a city or county to site a road without regard to the
impact on natural resources had been "drastically changed" by the adoption of
Chapter 116D and related environmental legislation. Then came Application of
City of White Bear Lake, 311 Minn. 146, 247 N.W.2d 901 (1976), where a highway
was proposed to encroach into Birch Lake and several adjacent wetlands. The
city argued that it ought to be allowed to build the highway despite the
Commissioner's objection because it had already spent substantial sums on
planning, designing, and land acquisition along the proposed route. The
Supreme Court rejected the argument, stating:
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The fact that the city has expended a substantial amount of
money in preparation for an environmentally damaging
project does not require that project's construction.
247 N.W. 906. The next case was People for Environmental Enlightenment and
Responsibility v. Minnesota Environmental Quality Council, 266 N.W.2d 858
(1978). That case involved the routing of a power line, rather than a highway,
but in language which is equally applicable, the court reaffirmed its
commitment to the Overton Park concept: "That truly extraordinary disruption
be demonstrated before a prudent and feasible alternative to an environmentally
destructive action would be refused."
In 1980 the court decided Urban Council on Mobility, supr Finally, and
most recently, the Court of Appeals decided Roach v. Commissioner of Natural
Resoures, 356 N.W.2d 432 (Minn. App. 1984). In that case, the court upheld
the Commissioner's decision to deny a permit to an individual who wanted to
construct a road out to an island. The court noted that it "extends to a
private road proposal the principles of public law and policy well-established
for public roads since enactment of modern legislation on environmental
protection and water resources management." The court went on to cite the
cases which I have cited above.
in summary, the legal standards to be applied to Brooklyn Park's proposal
are now well established and their validity is beyond question. The only
remaining question is a judgmental one: Do the facts brought out at the
hearing Justify the conclusion that there are prudent and feasible
alternatives, including not building a crossing at all. I have determined not
only that doing nothing would not cause "community disruption [of] extra-
ordinary magnitude", but also there are alternatives to the crossing at 73rd
that have fewer environmental consequences.
II.
The City has asked that I set forth the reasons for my granting
Northland's Petition to Intervene. The reasons fall into two basic
categories: a statute and a rule.
Minn. Stat. 116B.09, subd. 1 (1986) provides that any natural person
residing within the State or any corporation having employees residing in the
State "shall be permitted to intervene as a party" in any administrative
proceeding "upon the filing of a verified pleading asserting that the
proceeding . . . involves conduct that . . . is likely to cause pollution,
impairment, or destruction of the air, water, land or other natural resources
located within the State." While the Petition to Intervene is not verified,
it was signed by attorney Dietzen and was filed at a point in the proceeding
where all parties acknowledged that environmental protection was one of the
central issues--the Notice of Hearing made this obvious, as did the prehearing
conference. Therefore, I do not believe that the petition in any way was a
sham or artifice to allege a frivolous issue. The statute required its
approval.
The second reason for granting the petition was that it met the standards
contained in Minn. Rule pt. 1400.6200, subp. 1. The only problem with it was
its late filing, but the rule provides that "Timeliness will be determined by
the Judge in each case based on circumstances at the time of filing." It was
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obvious from the prehearing conference that the Department's failure to name
Northland in the Notice of and Order for Hearing was not intentional, but
rather was an oversight. Northland's attorney had timely filed a Notice of
Appearance (the form to be filed by parties) on the mistaken assumption that
he was already a party. The City negotiated discovery issues, scheduling
matters, and other matters for some time with Northland, and it was not until
just before the prehearing conference that it was discovered that Northland
was not, in fact, a party.
Based upon all the circumstances learned in the prehearing conference and
in the Petition and Objection, I determined that the standards set forth in
the rule had been satisfied and that the City was not prejudiced by
Northland's failure to file at an earlier date. Therefore, both the statute
and the rule supported the granting of the Petition.
III.
At the close of the hearing, the Department sought to elicit an opinion
from Ms. Body Boudreau, Area Hydrologist for the Metro Region, as to wnether
or not the permit ought to be granted. The City objected, claiming that she
was not qua I if ied to render the opini on (for reasons which will be discussed
more fully below). I sustained the objection, but granted the Department's
request that she be allowed to make her testimony the subject of an offer of
proof. This was done , and the testimony which she wou Id have given is in an
envelope, attached to a transmittal letter from Mr. Gallo dated July 17,
1987. The Department has asked that I specify the reasons for my ruling.
By the end of the hearing, it appeared that the ultimate issue would be
decided by the facts from the traffic studies and their application to the
law. Earlier in the hearing, Ms. Boudreau had testified that her duties as
area hydrologist involved permit application reviews, land use issues arising
out of shoreland and flood plain ordinances, coordination with watershed
districts, cities, counties, the corps of engineers, pollution control agency,
and other governmental bodies. In addition, she stated that she was involved
in public informational meetings and reviewing potential violations. She
further testified that she was not a registered professional engineer, nor was
she a traffic engineer. She stated that prior to determining whether or not
to hold a hearing, she had tried to compare the facts with the rule, and had
found it difficult to assess the traffic need "as a lay person". That was one
of the reasons for holding the hearing: to gather facts that could tip the
decision one way or another. She testified that the issues seemed to be
coming down to traffic issues, and she was not a traffic engineer.
At the end of the hearing, the Department attempted to have Ms. Boudreau
offer an opinion as to whether or not the permit ought to be granted. The
City objected on the basis of foundation. I sustained the objection because
it was clear from her earlier testimony that Ms. Boudreau did not have the
requisite experience to qualify as an expert on questions of whether or not
the alternatives were prudent and feasible, or on the question of whether or
not public need for the road prevented the no-build alternative. Minn. Rule
of Evidence 702 limits expert testimony. It provides:
If scientific, technical or other specialized knowledge
will assist the tryer of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
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expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise.
Emphasis added.
The long and the short of the matter is that Ms. Boudreau made no
pretensions about her abilities as a traffic engineer. I did not believe that
she was in a position to offer expert testimony.
Another reason for the objection was the length of the hearing. The
hearing had extended far longer than anyone had expected. It had been
difficult to schedule additional hearing days when all counsel could be
present. Indeed, counsel for the Department had to be switched in the middle
of the hearing. We were working very hard on that last day to finish up.
There was no lunch break taken. It was in the afternoon of the last day, at
the end of the hearing, that the Department proposed to call Ms. Boudreau. In
the course of entering his objection, counsel for the City pointed out that if
she were allowed to offer her opinion, he would be entitled to thoroughly
cross-examine her on the bases underlying it, and he believed that such cross-
examination would be lengthy. I had every reason to believe him. This
contributed to my ruling. However, the primary basis for the ruling was that
it was clear that Ms. Boudreau did not possess the expertise required to offer
opinion testimony on the traffic issues.
A.W.K.