6-7600-14535-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE METROPOLITAN SIGNIFICANCE REVIEW COMMITTEE OF

THE METROPOLITAN COUNCIL

 

In the Matter of the Metropolitan Significance Review of the Proposed Black Dog Amphitheater Project

FINDINGS OF FACT, CONCLUSIONS, RECOMMENDATION AND MEMORANDUM

 

The above-entitled matter came on for hearing on November 19 in the Metropolitan Council chambers in St. Paul before Allan W. Klein, Administrative Law Judge.  The hearing continued on November 20 and 21. There were as also public hearing sessions at the Oak Grove Middle School Auditorium in Bloomington on November 20 from 4-6 and 7-10 p.m.  The record includes all comments sent to the Administrative Law Judge that were postmarked by November 21, 2001. The record closed on December 4, upon receipt of briefs from the parties.  The members of the Metropolitan Council’s Significance Review Committee, Marc Hugunin, Chair; Roberta Megard; Phil Riveness; Carolyn Rodriguez; and Roger Williams, were present at the hearings.  The Committee appointed the Administrative Law Judge to conduct the hearings and issue this report pursuant to Minnesota Rules Part 5800.0100.

            Brian T. Carlson, Attorney, 2289 Overlook Drive, Bloomington, Minnesota 55431-3956, appeared on behalf of two citizens’ groups, Bloomington Amphitheater Coalition and Citizens Alliance for Responsible Ecology (jointly referred to as “the Citizens”).

            David R. Ornstein, City Attorney, 2215 Old Shakopee Road, Bloomington, Minnesota 55431-3097, appeared on behalf of the City of Bloomington (“Bloomington”).

            Roger N. Knutson, Attorney, Campbell Knutson, P.A., 317 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, Minnesota 55121, appeared on behalf of the City of Burnsville (“Burnsville”).

            Charles K. Dayton, Byron E. Starns and Lisa Pritchard Bayley, Attorneys, Leonard, Street & Deinard, P.A., Suite 2300, 150 South Fifth Street, Minneapolis, Minnesota 55402, appeared on behalf of Rose Wild, L.L.C. (“Rose Wild” or “the Developer”). 

NOTICE

            This Report is a recommendation, not a final decision.  The Metropolitan Council will make the final decision after a review of the record, including the decision reached by the Metropolitan Significance Review Committee.  Both the Committee and the Council may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations.  Under Minn. Stat. § 14.61, the final decision of the Council shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Council.  Parties should contact Lynn Belgea, Associate General Counsel, Metropolitan Council, 230 East Fifth Street, St. Paul, Minnesota 55101-1633, to ascertain the procedure for filing exceptions or presenting argument.

 

STATEMENT OF ISSUE

Whether the proposed Black Dog Amphitheater is of metropolitan significance.  In order to be of metropolitan significance, the Amphitheater must be found to have a substantial adverse physical effect on existing or proposed land use or development in the City of Bloomington with respect to noise pollution.

            Based upon the foregoing files and proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

 

Metropolitan Significance Review Procedural History

 

1.                 The Metropolitan Council erdered a metropolitan significance review of the proposed Black Dog Amphitheater in Burnsville on August 30, 2000, pursuant to the Metropolitan Significance Act (Minn. Stat. Section 473.173).[1]  The Act, together with the metropolitan significance rules (Minn. Rules Chapter 5800), provides for the identification and review of matters alleged to be of metropolitan significance.

 

2.                 The purpose of a metropolitan significance review is to ensure that the total effect of a proposed matter of metropolitan significance is considered and that the orderly and economic development of the Metropolitan area is promoted.  A metropolitan significance review is not to decide whether a proposed project is “good” or “bad.”  The Metropolitan Council is not to empowered to substitute its judgment for local planning or zoning bodies.  The Council can only act where a proposed project is of metropolitan significance.[2]

 

3.                 The review of the proposed Black Dog Amphitheater was initiated by a citizen petition, submitted on August 16, 2000, containing 6,644 signatures of persons residing in the Twin Cities Metropolitan Area.  The Petitioners included two citizen groups: Bloomington Amphitheater Coalition (BAC) and Citizens Alliance for Responsible Ecology (CARE).   In addition to the petition, BAC and CARE submitted a request that the Metropolitan Council commence a metropolitan significance review of the regional system, public finance and intercommunity aspects of the proposed Amphitheater.

 

4.                 The City of Bloomington is also a Petitioner.  The City of Bloomington, on August 16, 2000, submitted a resolution and an information submission requesting that the Metropolitan Council commence a metropolitan significance review of the intercommunity impacts of the proposed amphitheater.

 

5.                 The First Vice-Chair of the Metropolitan Council, acting in place of the Chair of the Metropolitan Council, determined that regional system issues raised by the citizen petition metropolitan significance request were exempt from metropolitan significance review because the proposed amphitheater is contained in and consistent with the City of Burnsville's local comprehensive plan reviewed by the Metropolitan Council on December 15, 1999.[3]

 

6.                 The First Vice-Chair made a preliminary finding that the Petitioners’ information submissions set forth arguable claims that existing and planned use in the adjacent city of Bloomington may be affected by the proposed Black Dog Amphitheater and that the matter was not exempt from review for intercommunity effects within the meaning of Minn. Rules Part 5800.0050.

 

7.                 The Petitioners’ requests alleged that the Black Dog Amphitheater operation would produce substantial noise that would compromise the quality of life experienced by residents and people using public parks and open spaces in Bloomington.  The First Vice-Chair identified the issue of noise impact on existing and planned land uses in the City of Bloomington as a legitimate issue for metropolitan significance review.

 

8.                 The First Vice-Chair determined that, in assessing whether the proposed project was of metropolitan significance, the Council would consider: the comprehensive plans and zoning ordinances of Bloomington and Burnsville; appropriate local and state standards for noise; the environmental assessment worksheet (EAW) prepared for the proposed project; other noise and acoustical studies related to the proposed project; design of and noise mitigation plans for the amphitheater; and recognized standards for land use compatibility and for noise generation and mitigation by this and similar outside amphitheater venues.[4]

 

9.                 The Council appointed a Metropolitan Significance Review Committee, consisting of Marc Hugunin, Metropolitan Council District 12, Chair; Phil Riveness, Metropolitan Council District 5; Carolyn Rodriguez, Metropolitan Council District 15; Roger Williams, Metropolitan Council District 11; and Roberta Megard, Member, Housing and Land Use Advisory Committee.[5]

 

10.             Although the First Vice-Chair ordered the commencement of a metropolitan significance review of the proposed Black Dog Amphitheater project on August 30, 2000, it was also ordered that the metropolitan significance review be suspended for 30 days to allow the parties to resolve their differences through mediation.[6]

 

11.             In September 2000, the parties began mediation.  Mediation continued by mutual consent of the parties until October 2, 2001, when an impasse was declared.

 

12.             The metropolitan significance statute provides that the Council must complete its review and make its determination within 90 days from the date of commencement unless the parties agree in writing to an extension.  The parties agreed in writing to extend the time period to October 3, 2001, and therefore, the 90-day period ends on January 2, 2002.

 

Applicable Rules and Statutes

 

13.             The Metropolitan Council has the power to review proposed matters of metropolitan significance for consistency with and effect upon metropolitan system plans, and their adverse effects on other local governmental units.[7]  A matter is one of “metropolitan significance” if it meets any of the criteria listed in the rules governing the metropolitan significance review.[8]

 

14.             Minn. Rules Part 5800.0040 provides criteria to find metropolitan significance.  In relevant part, it provides:

 

Subpart 4.  Proposed project affecting a local governmental unit.  A proposed project affecting a local governmental unit has metropolitan significance if it: . . . [M]ay have a substantial physical effect on a local governmental unit other than the local unit in which the proposed project is located.  More specifically, a proposed project may be of metropolitan significance if it adversely affects existing or proposed land use or development in another local governmental unit with respect to . . . noise pollution.

 

15.             Minn. Rule Part 5800.0020, subp. 35 defines "substantial" as follows: "Substantial is a relative term.  It imports a considerable amount or value in opposition to that which is inconsequential or small, something serious as opposed to trivial, something essential, material or fundamental."

 

16.             The term “noise pollution” is not defined in the metropolitan significance review rules, but it is defined in state law governing the Pollution Control Agency.  As discussed more fully below, the Council may look to the MPCA rules and to other criteria to determine whether a given sound level constitutes “noise pollution” for purposes of determining metropolitan significance.

 

Black Dog Amphitheater Project

 

17.             The proposed Black Dog Amphitheater would be an outdoor entertainment facility, occupying a portion of a 160-acre property in northern Burnsville owned by R.B. McGowan and formerly used as the Freeway landfill and as a stone quarry.  The Amphitheater itself would be located in the bottom of the old stone quarry, with parking located on the top of the adjacent former landfill.  Between the Amphitheater and the Minnesota River, a levy will be built that will be higher than the sound source.[9]

 

18.             The 160-acre site is located south of the Minnesota River and west of I-35W in an area that has been used for over 30 years for limestone mining, two large landfills, and extensive heavy industrial and commercial uses.  A portion of the Minnesota Valley National Wildlife Refuge and Recreation Area is located east of I-35W on both sides of the Minnesota River.  North of the river and west of I-35W in Bloomington is parkland and open space that rises from the river to near the top of the bluffs.  The top of the bluffs primarily contains single-family residences.[10]

 

19.             The facility would be owned and operated by Rose Wild L.L.C., a joint venture of the Minnesota Wild Hockey Team and Rose Presents.

 

20.             The Amphitheater is proposed to have a maximum seating capacity of 19,500 people with 7200 seats under a canopy structure and the remaining 12,300 seats on a sloped lawn-seating area.  The maximum total occupancy of the site including staff, performers, crew and audience will be limited to 20,000 people.

 

21.             Average Amphitheater attendance is expected to be 11,000 people.  Peak attendance is expected at approximately four to six events per season.[11]

 

22.             The Amphitheater is proposed to operate from May 15 to September 15, hosting between 25 and 35 events per season.[12]  It is expected to host a full range of musical performances, and may host other entertainment and community events.

 

City of Burnsville Planning Process

 

23.             The City of Burnsville is also a party to this metropolitan significance review, having approved the Planned Unit Development (PUD) which governs the project.

 

24.             The City of Burnsville’s 2000 Comprehensive Plan provided as a redevelopment policy the enhancement of Burnsville’s unique geographical location, especially its proximity to the Minnesota River, and the proper development and future use of the riverfront area to maximize the potential for riverfront and gateway development, consistent with approved landfill closure plans.[13]

 

25.             The City of Burnsville’s 2000 Comprehensive Plan provided as an environmental goal that the City preserve, enhance and restore the Minnesota River Valley as a natural area and for public use with compatible private amenities, such as the proposed amphitheater.[14]

 

26.             In 2000, the City of Burnsville prepared an Environmental Assessment Worksheet (EAW) to evaluate the effects of the proposed Amphitheater.  The EAW noted that in order to prevent violations of state noise standards in residential areas around the site, a number of design and operational mitigation measures would be required of the facility.[15] 

 

27.             As part of the EAW process, sound studies were prepared by experts retained by Rose Wild, and the studies were critiqued by experts retained by the City of Bloomington.  As a result of the recommendations in the EAW, the orientation and location of the proposed facility were changed. The orientation was rotated 25 degrees, more parallel to the river valley, to direct the sound from the concert stage and from the audience downriver.  The site of the facility has been moved 1000 feet south of its previous site.[16]  Both of these changes were made to reduce the potential for noise impact from the facility on the City of Bloomington.  The changes also diminish the value of the EAW sound studies as tools to predict noise impacts from the proposed Amphitheater’s new location and revised orientation.

 

28.             The City of Burnsville approved a Planned Unit Development for the facility in 1988 and again in 2000 (revised). The PUD is an agreement between the City of Burnsville and Rose Wild that, among other things, imposes acoustical design controls recommended in the EAW.

 

29.             The acoustical design controls in the PUD allegedly[17] include a requirement that concrete sound walls be erected at the back and sides of the stage, with sound insulation applied to the stage side surface, and acoustical insulation of at least NRC .85 (absorbing 85% of the sound) built into the main roof structure for sound absorption of stage speakers.  A sound barrier must be erected at the rear of the lawn seating area.  Wall panels are to be installed to further mitigate sound.  The roof speakers must be mounted just below the roof canopy and spread evenly across the canopy to provide an even distribution of sound to the lawn seating audience. The stage speakers will be located at front stage left and right, directed downward toward the audience below the roof.

 

30.             The 2000 PUD also apparently[18] requires operational controls in order to mitigate sound.  A “governor” which controls the decibel level at the central mixing booth will be installed and used.[19] Sound monitors will be located at key locations around the perimeter of the lawn seating or around the perimeter of the site. Rose Wild is limited on the speaker fly height, the maximum noise level, and event duration.  Further operational controls include a complaint hot line (with follow-up) and advanced disclosure of the event schedule.[20]

 

31.             The 2000 PUD provides that the first five events in the first year and the first two events in each subsequent year shall be considered part of a commissioning process.  During those events, the City Manager may, but is not required to, waive penalties for noise violations.  In other instances, the penalties for violations of the state noise standards[21] are as follows:

 

1^st Violation each calendar year: $5,000

2^nd Violation each calendar year: $10,000

3^rd Violation each calendar year: $25,000 and mandatory PUD review.[22]

 

32.             The PUD runs with the land, and Rose Wild and Burnsville have agreed that it will be binding on any successors to Rose Wild, L.L.C.[23] 

 

33.             In addition to the 2000 PUD enforcement mechanisms, if at any time the sound from the facility exceeds the applicable state noise standard, Rose Wild is subject to MPCA penalties.[24]  However, there is only one person who staffs MPCA’s noise program.  That person has statewide responsibility and must deal with 300-500 complaints each year.[25]  He can only offer “a limited amount of monitoring assistance.”[26] 

 

Metropolitan Sound Study Report and Recommended Design and Operational Changes

 

34.             During the mediation process, a sound study report was commissioned by the mediating parties and the Metropolitan Council.  The report, dated April 2001, was jointly authored by Harris Miller Miller & Hanson, Inc. (Bloomington-retained expert); Shen Milsom & Wilke/Paoletti Inc. (Rose Wild-retained expert); and Cavanaugh Tocci Associates, Inc. (a neutral expert agreed upon by all parties).[27]  These three firms are recognized nationally for their expertise in acoustics and each of them has been involved with noise issues at outdoor amphitheaters.  The three were able to agree on a report.  The Administrative Law Judge accepts their report as the most credible predictor of noise impacts from the proposed Amphitheater.

 

35.             The Report acknowledges that there are varying standards used around the country to regulate noise, and varying ways of measuring and describing noise levels.  The Report focuses on two different standards: The MPCA's noise rule, and William Cavanaugh's “audibility criteria.”  The MPCA rule is the only standard currently in force in the Burnsville/Bloomington area.  However, it is not adequate to predict community annoyance in response to some musical events, such as a rock concert.  A rock concert often contains rhythms and other repetitive elements which are perceived by humans despite the fact that the concert's measured sound level is no louder than the existing (ambient) sounds from nearby freeways, industries, or other more constant sound sources.  In addition, Cavanaugh’s criteria recognizes that the same level of concert sound will be more noticeable if the listener hears it in a quiet meadow, far removed from other noise, than if the listener hears it while standing next to a busy freeway.  This is a limitation of the MPCA rule. To overcome this limitation of traditional governmental noise standards (including the MPCA rule), Cavanaugh has developed an alternative, which is labeled “audibility criteria.”

 

36.             On November 10, 11 and 12, 2000, the consultants conducted tests of noise levels at eight locations near the proposed amphitheater site.  Four were in Bloomington, and four were in Burnsville.  The consultants measured existing (ambient) noise levels at each site over a period of 46 continuous hours.  The consultants also measured noise levels at four of the neighborhood sites (two in Bloomington and two in Burnsville) while a yachting cannon was fired off at the amphitheater site.   In addition to these "actual" tests, the consultants used a computational model to predict what the sound level at all eight sites would be under some specific assumptions about the design and operation of the amphitheater.

 

37.             Based on the results of the ambient measurements, the cannon shots, and the computer model, the consultants created a list of design changes and operational controls that would have to be adopted by the facility in order to minimize its impact on the community.  They were designed to make the facility "rarely audible" or inaudible in most places, most of the time, under most conditions.  But these changes would not meet the Citizens’ goal of making the facility inaudible at any time anywhere in Bloomington under any circumstances.[28]  The consultants found that goal to be not realistic, or even achievable, for an outdoor music facility in this location.

 

38.             The MPCA rule limits the amount of noise at residential property to 65 dBa L10 and 60 dBA L50 during the daytime, and 55 dBA L10 and 50 dBA L50 at night.  "Night" is defined as the hours from 10:00 p.m. to 7:00 a.m.  These limits are outdoors limits.  There are no separate limits for sound levels inside a residence.

 

39.             With regard to the MPCA rule, the consultants concluded that if their recommended design changes and operational controls were adopted, the concert sounds would not violate the MPCA rule.  However, under "worst case" conditions, consisting of a capacity crowd, the show playing at the loudest levels permitted by the Burnsville PUD, the wind from the south and a temperature inversion, "crowd-only" noise may occasionally exceed the MPCA noise limits for some residences on the bluff to the north and northeast of the proposed Amphitheater.   One of the difficulties presented by crowd noise is that it can not be "turned down" by turning a volume control.  The concert music can be “turned down,” or even automatically limited, but the crowd noise can not.

 

40.             The Cavanaugh audibility criteria are based upon a comparison between the maximum levels of intrusive concert sound and the lowest continuous existing (non-concert) ambient sounds.  They recognize that intuitive fact that the same level of concert sound will be more noticeable if the listener hears it in a quiet meadow, far removed from other noise, than if the listener hears it while standing next to a busy freeway.  Cavanaugh's experience with amphitheaters has included meaningful experience gauging citizen reaction to various sound levels.  This experience has lead him to create his Evaluation Criteria for Outdoor Concert Sound as follows:

 

L1 - L90, Difference, in dBA            Expected Community Response to Concert

(L1, Concert Sound Minus

L90, Community Sound).

 

Less than 5 dBA                              Rarely audible; minimal community response

 

5 to 15 dBA                                     Sometimes audible; moderate community response

 

Greater than 15 dBA                       Generally audible; severe community response

 

41.             With regard to the “audibility criteria,” the consultants initially found that if their design changes and operational controls were adopted, the "worst-case" total concert and crowd sounds[29] would only "rarely" be heard in Bloomington or Burnsville, except for one site (site 2, located at 11024 Glen Wilding Lane in Bloomington), where the sounds would be heard "sometimes" if the background (ambient) sound levels were low.  However, after the Citizens noted that these initial findings were based on non-summer wind conditions and the absence of a temperature inversion, the consultants agreed that their projected sound levels used in the audibility criteria could, under "worst worst-case" conditions, be increased by 5 to 10 dBA above the initial "worst-case" estimates.  This additional sound would change some of their conclusions.  At site 2 in Bloomington, the sounds would be "generally" audible on quiet nights (low ambient levels) and "sometimes" audible on normal nights.  At site 3, on Hopkins Circle in Bloomington, the sounds would be "sometimes" audible on all nights.  At site 4, on Queens Circle in Bloomington, the sound would become "sometimes" audible on quiet nights, but remain at "rarely" audible on normal nights.  All other sites would remain at "rarely" audible.

 

42.             Part of the reason that the consultants separated concert noise from crowd noise was that prediction of crowd noise levels is complex, and subject to many variables including crowd size, loudness of cheering, the direction the individuals in the crowd are facing, the atmospheric conditions surrounding the crowd at the time of cheering, the distance between the receptor and the crowd, and the topography surrounding the crowd.[30]   It is also somewhat less controllable by the facility operator.  But for purposes of both the MPCA rule and the audibility criteria, it doesn't matter if a violation (or a change in audibility) is caused by crowd noise or concert noise or results from a combination of the two.  Both tests are "receptor based" in the sense that they measure the sound levels when they reach the receptor.  In the case of the MPCA rule, if the sound level exceeds the allowable level, it is a violation. In the case of the audibility criteria, if the sound level exceeds the specified level, it changes the predicted audibility.

 

43.             Given the changes that can result from making various assumptions about wind direction and temperature inversions, it is important to attempt to get some idea of how often these meteorological conditions would occur. The consultants noted that they did not expect the increases of 5 to 10 dBA due to “worst-worst” case conditions to occur on a regular basis.[31]  Bruce Watson, consulting meteorologist, calculated the likelihood of an inversion reaching the top of the bluff during concert times when the wind was from the critical southeast sector for purposes analyzing crowd noise impacts (discussed below).  Watson’s data demonstrates the relative infrequency of inversions reaching the top of the bluff before 11:00 p.m. when the wind is from the southeast sector, which would only occur about 6.3 hours during a full season of potential concert hours. If, in fact, capacity crowds are only present for about 10% of the concerts, the likelihood of the "worst-worst" case occurring is in the neighborhood of .63 hours per year.

 

44.             While Watson’s calculations are directed at crowd noise and thus limited to southeast winds, they nevertheless indicate the infrequency of an inversion reaching the top of the bluff before 11:00 p.m. during concert hours. On other evenings when an inversion existed but did not reach the top of the bluff before the end of the concert, the inversion would tend to reduce the sound levels reaching the residents on the bluff.[32]  All of the consultants, including Watson, based their calculations on concerts ending at 11:00 p.m.  If that did not, in fact, occur and the concerts extended later into the night, then both the audibility criteria findings and the foregoing Watson-based findings would have to be revised to reflect increased sound levels to the residents and increased community reaction.[33]

 

45.             The most commonly voiced criticism of the Report is that it does not include any actual data gathered in a summertime sound test.  However, the Consultants agree that a summer sound test would not provide any useful information, and that they have the experience to extrapolate the findings to make them appropriate for other times of the year. [34]  Many of the residents who testified at the public hearing are not convinced of that, and for that reason alone, a summer sound test would be desirable.  But in terms of negating the legitimacy of the 2001 Sound Study, the Administrative Law Judge finds that a summer test is not necessary in order to accept the findings of the Study.

 

46.             Based on their findings, the three consultants recommended certain design changes and operational controls to be implemented by Rose Wild.[35] The consultants concluded that if the recommendations are implemented, potential impact at the homes on the bluff would be “minimal.”[36]  The design changes and operational controls include the following:

 

a.                 The amphitheater should be oriented with its main centerline axis approximately 55 degrees from North, placing the centerline approximately parallel to the Minnesota River.[37]

b.                 The amphitheater design should provide maximum enclosure of the concert stage and fixed seating at the roof, backstage and sidewalls, as well as free standing barrier walls to break line-of-sight to all residential receptors.[38]

c.                  An eight-foot high sound barrier should be provided continuously across the entire rear lawn seating area.[39]  Rose Wild’s current design includes a 10-foot sound barrier.[40]

d.                 Sound absorbing finish should be applied to the underside of the entire pavilion canopy roof (minimum NRC = 0.85), with additional sound absorbing finish provided at the concert stage ceiling and upper roof fascia interior at the rear cross aisle.[41]  Permanent “house” controlled loudspeakers should cover the lawn seating areas, designed for maximum directional control of the amplified sound to the lawn seating area.  No supplementary loudspeaker coverage of the lawn by touring shows should be permitted.

e.                 A “state of the art” concert sound management and monitoring system should be installed to assure that all scheduled concerts conform to the sound level limits of the report.[42]

f.                    Representatives of the communities of Burnsville and Bloomington should have opportunities during the final facility design stage and construction to review and comment on the design elements of the amphitheater design that affect sound emissions.[43]

g.                 Rose Wild should develop a “pro-active community relations plan,” including, for example, neighbor response hot lines, preferential hiring of local residents, informational meetings with neighboring community groups during construction, and use of the facility for local community events such as high school graduations.[44]

h.                  Once the facility is completed, Rose Wild should provide objective documentation of the complete project (“as-built” documentation).[45]

 

47.     The Sound Study also suggested providing upper level “private” box seats forming an architectural rear wall the full width of the rear lawn seating area.[46]  Rose Wild indicated that it would "consider" this suggestion, but would not commit to adopting it.

 

48.             Rose Wild has agreed to implement the design changes, with the exception of the private box suggestion noted above. Rose Wild has also agreed to implement all of the operational controls.[47]  Finally, Rose Wild has agreed to have the consultants involved in the final design process and consider their recommendations for further mitigation if needed.[48]

 

The Minnesota Valley National Wildlife Refuge           

 

49.             The Administrative Law Judge ruled during a prehearing conference and again at the start of the hearing, that the focus of the hearing was on the effects of noise on people, as opposed to animal or plant life.[49]  To the extent that a nexus could be shown between people’s use of property and the effect of noise on wildlife, then those noise effects would also be within the proper scope of the hearing.[50]

 

50.             The Minnesota Valley National Wildlife Refuge consists of a string of eight "management units" strung out along the Minnesota River from Fort Snelling to Jordan.  The Refuge is authorized to acquire 14,000 acres, and currently owns, or has management agreements covering, approximately 12,000 of those acres.[51]

 

51.             Approximately 250,000 persons visit the Refuge each year.  They come to fish, hunt, photograph wildlife, and to observe the 226 bird species that use the Refuge to feed, nest or just to pass through during migrations.  While there is no precise count of the number of persons who visit the Refuge for the purpose of birdwatching or animal watching, it is clear from the speakers at the public hearings and the prefiled testimony that a substantial number of persons do use the Refuge for those purposes.  In addition, there are many persons who use the Refuge as a place to “get away from it all.”[52] 

 

52.             Birdwatchers often rely on a bird's call to alert them to the presence of a bird, and help them locate the bird, especially in dense woods where visibility is reduced.  The presence of noise from the Amphitheater would interfere with their ability to hear birds calling.[53]

 

53.             Many of the Refuge's visitors come there during the late afternoon and early evening hours.  This happens to be the time when many species of wildlife are most apt to be seen by visitors, especially those species that hide in secluded habitats during the day and then come out to feed, move about and initiate their territorial and breeding vocalizations.  For these reasons, the Refuge Management conducts several interpretive programs during the late afternoon and early evening.[54]

 

54.             The U.S. Fish and Wildlife Service does not support the Amphitheater proposal.  The Service does not believe the proposal is in the best long-term interest of the Refuge's visitors.  It believes that the proposal will degrade the quality of a visitor's experience in the Refuge.[55]

 

55.             The Refuge will be severely impacted by the forthcoming North-South Airport runway.  An in-depth study conducted in conjunction with the development of the runway project determined that the “educational use” of the refuge will be so affected that it will be totally “taken” and the Refuge has been compensated for that impact with $25 million to buy additional land elsewhere along the river.  The current Refuge units affected by the runway will remain open for public use, including birdwatching, but as a result of the runway, the Service will not be developing any more birdwatching facilities and stations there.[56]

 

Other Matters

 

56.             On September 9, 2001, the Citizens conducted a “sound protest.”[57]  They had been frustrated in their attempts to have a scientifically valid sound test performed during summer months from the Amphitheater site itself, so they decided to do their own "test" in protest.  They admit that it is not a valid scientific study.[58]  It was not performed from the Amphitheater site, nor did it attempt to compensate for many of the various design changes and operational controls in the PUD, let alone those ultimately agreed to by Rose Wild.  It did, however, have the effect of galvanizing public opposition to the proposed Amphitheater by Bloomington residents, and it was discussed by most of the speakers at the public hearing, most of whom found the resulting noise levels to be “outrageous,” “terrible,” and “totally unacceptable.”

 

57.             The Citizens did not disclose the detailed results of the demonstration until it was too late for any other party to meaningfully cross-examine anyone about them, or to prepare rebuttal to them.[59]  Because the demonstration was not a valid replication of the levels to be produced by the Amphitheater as proposed, and because the results were not prefiled along with Twaites' testimony as they ought to have been, they are not given any weight in this Report.

                       

58.     Some public speakers urged that the Amphitheater be required to obtain a noise variance from the MPCA.  A variance from the MPCA noise standards would allow the facility to operate above state noise standards. There is no reason to apply for a variance if a facility does not intend to violate the state noise standard; conversely, without a variance, a facility simply can never violate the state noise rule.[60]  Rose Wild has not applied for a variance, and the City of Burnsville has indicated that it would oppose Rose Wild’s application should Rose Wild do so.[61]

 

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

 

1.                  The Metropolitan Significance Review Committee and the Administrative Law Judge have jurisdiction in this matter based on Minn. Stat. § 473.173 and Minn. Rules part 5800.

 

2.                  The Notice of and Order for Hearing was proper in all respects and the hearing was conducted in conformance with the Rules of the Office of Administrative Hearings and the Metropolitan Council.

 

3.                  The proposed Amphitheater will not cause a substantial physical adverse effect on existing or proposed land use or development in Bloomington due to noise pollution so long as the requirements of the PUD, as amended by the commitments made by Rose Wild during the hearing, are followed.

 

4.                  If the requirements of the PUD, as amended by the commitments made by Rose Wild at the hearing, are followed, the proposed Amphitheater does not have metropolitan significance.  However, if the requirements of the PUD, as amended by the commitments made by Rose Wild at the hearing, are not followed then the proposed Amphitheater may have metropolitan significance, depending on the deviation.

 

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

 

            That the Metropolitan Significance Review Committee review this Report and the entire record in this matter, and determine the most appropriate method for assuring that if the proposed Amphitheater is to proceed, the requirements of the PUD and the commitments made by Rose Wild during the hearing are followed.

 

Dated this

10th

day of

December

2001.

 

                       

/s/ Allan W. Klein

ALLAN W. KLEIN

Administrative Law Judge

 

Reported:  Transcripts Prepared

NOTICE

 

Pursuant to Minn. Stat. § 14.62, subd. 1, the Council is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

 

MEMORANDUM

 

I.

 

            Most of the citizens at the public hearing, and even some of the participants in the evidentiary hearing, seemed to exaggerate the very limited role assigned to the Metropolitan Council in this matter.  The Council members can not decide if this proposal is “good” or “bad.”  They can not decide whether they would vote for or against it as if they were the Burnsville City Council or the Bloomington City Council.  Instead, the Council's role is much more limited.  The Council's role is only to determine if the proposal has “metropolitan significance,” which means whether it may have a substantial physical effect on Bloomington, in terms of the impact of noise on the existing or potential land use in Bloomington.  There are other legal actions, proceeding in other forums, where many of the broader questions of "good" or "bad" are more relevant than they are before the Council.  In making the Findings, Conclusions and Recommendation which he has made, the Administrative Law Judge has tried to stick to the issues relevant to the Council's authority.

 

II.

           

The Committee and the Council can consider Cavanaugh’s audibility criteria as well as the MPCA's sound rules when assessing the impact of the noise on Bloomington residents.

 

            The reference to "noise pollution" in the Council's rule does not contain any cross-reference to the MPCA rule, and a limited review of the legislative history of the Council's rule does not reveal any intent to incorporate the MPCA's rule. 

 

            There may be other circumstances, in other forums, applying statutes and rules other than the Council's rule, where the MPCA's rule might indeed preempt the consideration of Cavanaugh's criteria.  But those circumstances are not present here.  Here, we have the Committee and the Council applying the Council's rule in a Council decision. 

 

The Council is free to consider all of the evidence in the record.  The Cavanaugh standard was disclosed early in the mediation process, and has been subjected to extensive discussion and analysis by both Rose Wild and the Citizens, and the City of Bloomington to a lesser degree.  The record shows that it has advantages, in comparison to the MPCA rule, for this particular application.  The Committee and the Council are free to use it to assist them in evaluating the impact of noise on Bloomington's residential land use.

 

III.

 

Most of the citizens who spoke at the public hearing thought that the sound protest of September 9 was, in fact, a true demonstration of the sound levels they would have to endure if the project were built.  For the reasons noted in the Findings, the event was not a valid demonstration of sound levels from the Amphitheater.  But in addition to their scientific invalidity, the Administrative Law Judge is concerned with the manner in which the Citizens’ leaders withheld data about the event in order to avoid the scrutiny of cross-examination and rebuttal.

 

            The demonstration occurred on September 9, 2001.  On September 13, Jim Uttley of the Council staff sent an e-mail to a representative of the Citizens, asking questions about the demonstration (i.e. how loud was it at the source, was the volume varied, where were the speakers pointing, what kind of equipment was used, etc.).  On September 19, Joe Artmann replied that the Citizens would discuss Uttley's request for data at their next board meeting, but that since the demonstration was privately financed, detailed information would not be released "until such time as the situation warrants it."  On September 20, Uttley again requested information about the test, but his questions went unanswered.

 

On November 13, when expert testimony was prefiled, Thomas Twaites prefiled substantial testimony, including answers to many of Uttley's questions.  But Twaites did not include any data about the actual results of the demonstration. On the first day of the hearing, November 19, the Citizens distributed a Hearing Memorandum with thirteen attachments.  Although the demonstration is discussed in the Memorandum, there is no data about the results.

 

            Finally, the next evening at the public hearing, a two-page document entitled "Sound Demonstration Data and Explanation" was introduced by one of persons active in the Citizens’ groups.[62]  That is the first time that the detailed results were made available to the Judge or the parties.  Given the tight schedule remaining (only one half day, with witnesses already scheduled), there was no way to subject the data to the kind of examination and rebuttal that they ought to have if they were to be given any weight.  For that reason, and because the data do not reflect a scientifically reliable portrayal of the sound levels to be produced by the Amphitheater, they have been given no weight.

 

IV.

 

The Citizens have requested that the Council delay the project until the Proposers have prepared an Environmental Impact Statement (EIS).  The City of Burnsville replies that the City did prepare an Environmental Assessment Worksheet (EAW) and decided that an EIS was unnecessary.  More importantly, the City points out that there is a statutory procedure for challenging the decision not to prepare an EIS, and the Citizens are following that procedure in District Court.  Under the circumstances, the Administrative Law Judge believes the Council should defer to the District Court on this issue.

 

V.

 

One issue which the Committee may want to address is the question of the number of events to be held at the facility, and how many of them will involve substantial lawn crowds.  As far as the Administrative Law Judge can determine, there

is nothing in the PUD requirements or Rose Wild's commitments that addresses these questions.  The EAW Record of Decision refers to "between 25 and 35 events … with approximately four peak events per year."[63] Rose Wild's Preliminary Statement states there will be 25-35 performances in a season with only four to six events having more than 15,000 attendees.[64]  The 2001 Sound Study assumed 30 events and “approximately six (6) are expected to be in the loudest category.”[65]  When Bruce Watson was computing the likelihood of wind and temperature conditions occurring during the concert season, he referred to “40 concert nights.”[66]   But Mark McGowan testified there would be “70-90 nights.”[67]  In a subsequent letter, he stated that "Modern Amphitheaters need 70-80 shows per season … to stay open."[68]

 

            To the extent that the Committee is relying on a limited number of peak capacity events to determine whether noise impacts will be substantial, it may want to address this matter.