Resource Center Closing Argument: Jackson Preservation Alliance

8/8/2019 Resource Center Closing Argument: Jackson Preservation Alliance

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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF JACKSON FIFTH JUDICIAL DISTRICT

Case Type: Other

State of Minnesota, by Jackson

Preservation Alliance,

Plaintiff,

v.

Jackson County, a political subdivision

of the State of Minnesota,

Defendant.

Court File No. 32-CV-10-113

PLAINTIFF¶S MEMORANDUM OFLAW WITH PROPOSED FINDINGS

AND CONCLUSIONS

INTRODUCTION

Plaintiff Jackson Preservation Alliance submits this Memorandum together with

proposed Findings of Fact and Conclusions of Law in order to summarize the evidence

presented at the hearing conducted on November 30, 2010, and to discuss the relationship

of that evidence to the governing law.

A. GOVERNING LAW

The Supreme Court in State by Archabal v. County of Hennepin, 495 N.W.2d 416,

421-22 (Minn. 1993) detailed the basic requirements imposed on the parties in an action

brought under the Minnesota Environmental Rights Act (MERA):

Minn. Stat. section 116B.04 sets forth the burden of proof the various parties must bear in bringing an action under MERA. First, the plaintiff

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must make a prima facie showing . . . . In [State by] Powderly [v.

Erickson, 285 N.W.2d 84 (Minn. 1979], this court set out the requirements

for such a prima facie showing. First, the plaintiff must show the existenceof a protectable natural resource, and second, the pollution, impairment, or

destruction of that resource.* * *

The defendant may attempt to rebut the plaintiff¶s prima facie case with a

showing of contrary evidence or, as in this case, offer an affirmative

defense [citing section 116B.04].

Here, plaintiff has clearly established a prima facie case. There is no dispute that

Jackson County intends to demolish the 1938 high school building, thus satisfying the

second element of the prima facie case as described in Archabal .

Based on the evidence presented on November 30, the first element has also been

demonstrated. Plaintiff¶s expert Rolf Anderson stated that he was confident that the

building does qualify for inclusion on the National Register of Historic Places, and that a

nomination for the building would be approved. Mr. Anderson¶s opinion was credible,

being supported by his special expertise in New Deal-era properties, his preparation of

National Register nominations for many such properties in Minnesota, and the fact that

overall he has drafted more than 50 National Register nominations, none of which have

ever been rejected. Furthermore, defendant offered no expert rebuttal of Anderson¶s

testimony.

The high school building¶s National Register eligibility is important in this

context, because the Supreme Court in State by Powderly v. Erickson, 285 N.W.2d 84

(Minn. 1979) made this one of the benchmarks for determining whether a property



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qualifies as ³a protectable natural resource´ under MERA. In Powderly, the Court

determined that buildings not currently on the National Register were nonetheless

protected by MERA where they appeared to be eligible; the Court specifically cited the

National Register criteria (described in Mr. Anderson¶s testimony) as ³indicat[ing] what

factors should be considered in determining whether the row houses are historical

resources,´ as well as the conclusion of plaintiff¶s expert who ³testified that . . . the row

houses . . . would be eligible for nomination to the national register.´ 285 N.W.2d at 88.

Therefore, based on the analysis in Powderly, the credibility of Anderson¶s

opinion, and the absence of any expert rebuttal, plaintiff did also demonstrate the first

element of its prima facie case.

Once a prima facie case has been presented, the defendant may both seek to rebut

that case, and to offer the affirmative defense described in §116B.04. As noted,

defendant made relatively little effort to rebut the substance of Mr. Anderson¶s testimony,

and at the evidentiary hearing defendant focused on seeking to establish an affirmative

defense. However, if the evidence offered by defendant is assessed by reference to the

Supreme Court¶s precedent expressly describing how the statutory criteria are to be

applied, it is clear that defendant¶s evidence was not sufficient.

The Court¶s Archabal opinion, in particular, has direct and unmistakable parallels

to the present action. At issue in Archabal was Hennepin County¶s urgent need for a new

jail. After an extended evaluation process, the county board concluded that the block



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occupied by the Minneapolis Armory ³was the best site.´ 495 N.W.2d at 424. The

county already owned the site, and its plan for the new jail required that the Armory be

demolished. Shortly after the county made its final decision, an action was commenced

under MERA to enjoin the demolition, premised on the fact that the Armory was listed on

the National Register of Historic Places. The district court concluded af ter trial that the

plaintiff had presented a prima facie case, but determined that there was no feasible or

prudent alternative to the county¶s plan, and therefore that the county had established the

statutory affirmative defense. The plaintiff then appealed, which went directly to the

Supreme Court on accelerated review. Id ., at 427.

Because the county did not contest on appeal that a prima facie case had been

established, the Supreme Court identified ³[t]he central issue in this case´ as being

³whether the County can legally destroy a resource otherwise protected under MERA

because there are no feasible and prudent alternatives to its destruction. ́Id ., at 421. The

Court then thoroughly analyzed the statutory criteria found in §116B.04, what they mean,

and how they are to be applied. After doing so, it concluded that Hennepin County had

not established its affirmative defense. If the Supreme Court¶s interpretation of the

statute is applied to the evidence presented by defendant in the present case, it is evident

that Jackson County also fell short.

In its Archabal opinion, the Court reviewed its own MERA precedents,

concluding as follows: ³We believe that these cases, taken together, establish an



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extremely high standard for defendants to meet in establishing an affirmative defense.´

Id ., at 423. Specifically:

In deciding whether defendants have established an affirmative defense

under MERA, the trial court is not to engage in wide-ranging balancing of

compensable against non-compensable impairments. Rather, protection of

natural resources is to be given paramount consideration, and those

resources should not be polluted or destroyed unless there are truly unusual

factors present in the case or the cost of community disruption from thealternative reaches an extraordinary magnitude.

495 N.W.2d at 422, quoting Powderly, 285 N.W.2d at 88 (emphasis in original).

Applying this standard, the Court in Archabal rejected exactly the sorts of

concerns and considerations that Jackson County offered at the evidentiary hearing on

November 30:

It may well be true that the use of the Armory site may be more convenient,

indeed may be more efficient, than alternative, more remote sites, but that is

simply not enough under MERA and our cases.

* * *

In order to establish an affirmative defense under MERA, the County had

to show that no alternative was availablethat did not itself create extreme

hardship. This it failed to do.

* * *

We fully realize that this may be an unpopular result given the need for anew jail and the lack of any foreseeable redevelopment for a building in

some stage of deterioration. However,the potency of this rule of law, as

enunciated in MERA and our previous cases, is vital to the protection of

our natural resources.

Archabal , 495 N.W.2d at 426 (emphasis added).



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B. THE EVIDENCE PRESENTED ON NOVEMBER 30

AND ITS RELATION TO THE GOVERNING LAW.

There is no question that the Jackson County board and some county staff

members have a strong preference for the plan that wouldrequire demolition of the 1938

high school building, and that the board has spent a fair amount of time exploring various

options in order to address its facility needs. But based on the actual evidence presented

to the Court at the hearing on November 30, it is clear that the county¶s position comes

nowhere close to satisfying the legal standard that applies in this case. When that

evidence is sorted through, at best it shows that the county board¶s preference is derived

from its view that a new building would be somewhat more efficient for the purpose it

would serve and more attractive to the workers who would use it. Even this conclusion is

subject to a measure of skepticism given the testimony of plaintiff¶s witness David Kane,

whose experience with the restoration of older buildings was at least as extensive as that

of any witness offered by defendant (including with respect to the specific context of

human services departments), and who testified that the high school building could be

remodeled to serve the county¶s needs in a manner that would not be materially more

difficult than the construction of a new building.

The county administrator spoke at some length about concerns with respect to

issues such as privacy, security, parking, air quality, and other factors. However, on

cross-examination, she was unable to explain why all of these considerations could not be

adequately addressed in a remodeled high school building, and conceded that she had no



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expertise in the professional criteria used in designing government office facilities. In

contrast, Mr. Kane (who does have such expertise) stated emphatically that these

considerations could be properly dealt with in a restored high school building, and

referred to other projects that he had worked onwhere this had occurred.

The county¶s architect (Mr. Marcucci) and construction manager (Mr. Filippi) also

contended that the functionality of a new building would be superior to a remodeled high

school building. But while Mr. Marcucci disagreed withMr. Kane, he presented nothing

substantive actually demonstrating that Mr. Kane was wrong, and Mr. Filippi conceded

that he had no professional expertise regarding the functionality of government office

space.

There was also considerable testimony about the costs associated with the various

building options. In the course of the testimony, it became evident that there is in fact

considerable uncertainty with respect to the cost projections and how they were

developed. What is clear, however, is that theoption of building new cannot be justified

on the basis of a significant advantage in terms of its cost ±indeed, just the opposite. Near

the end of her testimony on cross-examination, the county administrator stated that the

projected cost of the new construction (which is planned in three phases) will total around

$9 million, while fully remodeling the high school building would come to about seven

$7 million.

The witnesses also addressed the issue of how the construction and remodeling



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might be accomplished. The county indicated that it intended to construct the new

facility in three phases, with the first being a building of 10,000 square feet at a cost of

$2.5 million. The county administrator acknowledged that two more phases would

follow. Plaintiff¶s expert David Kane stated that the high school building could be

remodeled in phases as well, that the cost of doing so would be comparable to that of new

construction, that he had done this on other projects, and that it was an entirely viable

alternative to new construction. While defendant¶s witnesses sought to disparage this

approach, they did little more than disagree with Mr. Kane, offering no concrete

examples of why remodeling was clearly less attractive than new construction±in

particular, though defendant¶s architect and construction manager both spoke darkly

about added structural and system costs involved in remodeling, when Mr. Fillipi was

pressed on cross-examination to provide specific figures regarding these supposed costs,

he could not do so. Furthermore, as Mr. Kane noted, there can be distinct cost savings

with adaptive reuse of a building like the high school, because the entire structure itself

already exists.

Finally, with respect to the third major consideration used in comparing the

advantages of new construction versus adaptive reuse±which is how much time would be

required to complete the project±no witness suggested that either option provided a

decisive advantage.

Defendant also made an effort to suggest that the question of the county¶s office



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space needs had been deliberated for years, and that plaintiff waited until the last minute

before commencing its MERA action. However, even if relevant, this argument is hardly

supported by the facts. Alliance president Cathy Buxengard testified that she and others

had been involved in seeking to avoid demolition for years. She described how a citizen

petition drive more that two years ago (in 2008) had stopped a previous county board

proposal to demolish the 1938 building, and that a county-wide referendum was held in

May, 2010 on the issue of whether to issue bonds for the cost of demolition and new

construction±which was soundly defeated. The key point here is that, as Ms. Buxengard

noted, county residents who supported preservation of the high school building had good

reason to believe±first in 2008, and again in the Spring of 2010±that the threat of

demolition had been avoided, and thus that there was no need to commence litigation.

It is also relevant that when plaintiff did conclude that it had no other options but

to commence legal action, it did so in September, 2010, well before the county had

entered into any legal agreements for demolition of the old school or construction of a

new building.

The question then becomes whether the evidence presented by the county on

November 30 was sufficient to satisfy the ³extremely high standard´ identified by the

Supreme Court in Archabal , 495 N.W.2d at 423, that it is subject to in seeking to prove

the affirmative defense provided in §116B.04. Plaintiff submits that even if the county¶s

evidence is accepted at face value±without considering any of the concessions made on



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cross-examination or the testimony of David Kane±that evidence comes nowhere close to

satisfying the Archabal criteria. Specifically, did the county demonstrate ³that no

alternative [is] available that [does] not itself create extreme hardship,´ that ³there are

truly unusual factors present,´ or that ³the cost of community disruption from the

alternative reaches an extraordinary magnitude?´ The answer to these questions is self-

evident, given what the county offered. And if the testimony of Mr. Kane is also

considered, there can be no doubt about the ultimate conclusion on the merits that is

required by Archabal .

C. FACTORS TO BE CONSIDERED IN ASSESSING

A REQUEST FOR A TEMPORARY INJUNCTION.

The immediate issue before the Court is, of course, plaintiff¶s motion for a

temporary injunction. In assessing such a motion, the Court uses the factors described in

Dahlberg Bros., Inc. v. Ford Motor Co., 137 N.W.2d 314, 321-22 (Minn. 1965).

These same factors were briefed by the parties and examined by the Court in conjunction

with the temporary restraining order issued on November 5, 2010. Plaintiff will therefore

not repeat its legal argument here with respect to application of the Dahlberg factors.

Plaintiff does submit that, based on the evidence offered at the November 30 hearing,

nothing was presented that would diminish the extent to which those factors, on balance,

continue to favor plaintiff and to support the issuance of a temporary injunction. In

particular, for the reasons described above, there is plainly a substantial and indeed

increased likelihood that plaintiff will prevail on the merits.



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Should the Court decide to issue a temporary injunction, it must of course consider

the issue of a bond. The amount of that bond is left to the broad discretion of the trial

court, even if Minn. R. Civ. P. 65.03 is considered in isolation.

As described above, the testimony of the county¶s construction manager about the

potential costs the county might incur if demolition and construction were delayed

appeared distinctly speculative, and Mr. Fillipi acknowledged that he had very limited

experience in comparable situations. Furthermore, if this Court were to impose a

substantially increased security requirement, it would effectively destroy plaintiff¶s

ability to pursue this action. Plaintiff Jackson Alliance is a nonprofit citizens¶

organization of modest means and limited resources, as Ms. Buxengard testified. The

Alliance had difficulty posting the initial bond in the amount of $25,000. It simply could

not raise significant additional amounts of cash or cover the premium along with

collateral requirements that would be necessary in order to obtain such a bond.

Therefore, imposition of such a requirement would in this case, ±and in virtually every

other action that could arise under the citizen-enforcement procedures of MERA±render

the legislative policy almost entirely ineffective. Rarely if ever would average citizens be

able to obtain temporary injunctive relief in the face of a large bond, and thus in most

such cases, the natural resource to be protected would be destroyed long before the Court

could hear the case on the merits. The perversity of such an outcome is accentuated in an

action such as the present one, where the Court has taken extensive, sworn testimony in



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conjunction with the issue of whether to grant a temporary injunction, and which shows

that plaintiff has a very strong prospect of prevailing on the merits.

The Legislature appears to have considered this type of situation when it enacted

MERA, and when it placed much of the Act¶s enforcement mechanism in the hands of

private citizens. Minn. Stat. § 116B.07 states that the ³Court may grant . . . temporary

and permanent equitable relief´ and that ³[w]hen the court grants temporary equitable

relief, it may require the plaintiff to post a bond sufficient to indemnify the defendant for

damages suffered because of the temporary relief, if permanent relief is not granted.´

(Emphasis added.) If the Legislature had intended Rule 65.03 to apply inflexibly in this

type of action, there was no need to separately address the issue of a bond, or leave to the

trial court the option as to whether a bond is to be imposed. From this express

modification of Rule 65.03, it is reasonable to infer that the Legislature wanted individual

courts to exercise discretion in imposing bond requirements, consistentwith the purposes

served by MERA.

This conclusion is explicitly supported by the decision of the Court of Appeals in

State by Drabik v. Martz, 451 N.W.2d 893 (Minn. App. 1990), where private citizens

brought suit under MERA to enjoin the construction of a large radio tower near the

Boundary Waters canoe area. Despite the fact that the defendant was a private party, and

was faced with significant construction delays and expenses relating to a project that was

already set to move forward, the Court of Appeals sustained the trial court¶s imposition



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of a temporary injunction bond in the amount of only $1,000.

It can further be inferred from the policy embodied in MERA that the need and

justification for security is least significant in cases where±as here±the defendant is a

governmental body and thus expressly subject to state and federal statutes that encourage

governmental entities to take the lead in preserving natural and historic resources.

Plaintiff therefore respectfully asks that the Court not impose a substantial bond or

other security at this time.

On the pages which follow are plaintiff¶s proposed Findings of Fact and

Conclusions of Law.

CONCLUSION

For the reasons described in this Memorandum, plaintiff asks that the Court issue a

temporary injunction preventing Jackson County from going forward with the demolition

of the 1938 Jackson high school building, pending further order of the Court.

POSTSCRIPT

The feeling one gets from working with the real documents is very close to

the feeling we get coming into a historic place. We feel something we cannot get

from reading books or seeing a film. You tread the floors that they actually tread,

with the light coming through the same windows in the same way. We can almost

transport ourselves to that other time. It is in our nature to want to go back, to

want to know what happened. Everything that can be done to make that voyage

possible is a worthy endeavor.

Why do we care, why do we bother with these places? Because they mean

so much. We need the past for our sense of who we are. We need the past for a

sense of our civic responsibility, how all these benefits and freedoms came to us,

and what it is our duty to protect. But we also need the past because it is an



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extension of the experi ence of being alive. Why should we limit ourselves to this

little bit of time that is allowed to us by our biological clocks when the whole

world of what has preceded us is available? Not just through books, but through

places.

David McCullough, ³The Power of Place,´

in National Parks, the magazine of the National Parks and Conservation

Association (Jan./Feb. 2002)

DATED: December 3, 2010

____________________________________ Mark R. Anfinson

Attorney for Plaintiff

Lake Calhoun Professional Building

3109 Hennepin Avenue SouthMinneapolis, MN 55408

612-827-5611

Atty. Reg. No. 2744



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[PROPOSED] FINDINGS OF FACT

1. In 1937 and 1938, the Jackson school district undertook the construction of a

new high school. A substantial portion of the funding for the school came from one of

the major New Deal-era relief programs created in response to the Depression,

specifically, the Public Works Administration (PWA).

2. From the time of its construction through the 1990s, the high school building

was the focus of educational activities in the Jackson area, as well the center of a diverse

range of community activities.

3. Plaintiff¶s expert Rolf Anderson testified that the high school building, though

not presently included on the National Register of Historic Places, would appear to be

qualified for inclusion. Specifically, Anderson stated that the school building appeared to

qualify under the National Register¶s Criterion A (association with events or activities

that have made a significant contribution to the broad patterns of history).

4. Anderson¶s credentials and experience show that he has considerable expertise

in applying the criteria that govern whether a particular property may be eligible for the

National Register. He has prepared many nominations for the National Register, and

specifically with respect to the historic significance of New Deal-era sites and properties

in Minnesota. He is the author of the National Register Multiple Property Documentation

Form titled ³Federal Relief Construction in Minnesota, 1933-1941.´



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5. Defendant Jackson County did not offer any witness, expert or otherwise, for

the purpose of attempting to rebut Anderson¶s conclusions with respect to the historic

significance of the 1938 high school building.

6. By around 2000, the school district no longer required use of the building,

having built a new high school. The 1938 building was sold to Jackson County in 2002.

For much of the time since, the building has been used for county offices and has been

called the County Resource Center.

7. Following a period of extended deliberation and debate, the Jackson County

board decided to construct a new county office building on the site of the 1938 high

school building. This plan would require demolition of the high school building.

8. Final adoption of the county¶s plan in July, 2010 prompted the formation of

Jackson Preservation Alliance, the plaintiff in this action. Plaintiff commenced the action

in September under the Minnesota Environmental Rights Act (MERA), Minn. Stat., ch

116B. MERA establishes a framework for the protection of natural resources in the state,

which are defined to include historical resources. Plaintiff seeks injunctive and other

relief with respect to the proposed demolition.

9. The Jackson County board and some county staff members have a strong

preference for the plan that would require demolition of the 1938 high school building,

and that the board has spent a fair amount of time exploring variousoptions.

10. The county board¶s preference appears to be mainly derived from its view that



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a new building would be somewhat more efficient for the office functions that it would

serve, and attractive to the workers who would use it.

11. Plaintiff also offered as an expert witness architect David Kane of Rochester,

whose experience with the restoration of older buildings was at least as extensive as that

of any witness presented by defendant (including in the specific context of human

services departments). Mr. Kane testified that the 1938 high school building could be

remodeled to serve the county¶s needs in a manner that would not be materially more

difficult or expensive than the construction of a new building, and that it was entirely

possible that the adaptive reuse option would be more effective and economical.

12. County administrator Janice Fransen testified about concerns with respect to

issues such as privacy, security, parking, air quality, and other factors, and that in her

view these concerns could be better dealt with by constructing a new building. However,

on cross-examination, she was unable to explain why all of these considerations could not

be adequately addressed in a remodeled high school building, and conceded that she had

no expertise in the professional criteria used in designing government office facilities. In

contrast, Mr. Kane (who does have such expertise) stated emphatically that these

considerations could be properly dealt with in a restored high school building, and

referred to other projects that he had worked on where this had occurred.

13. The county¶s architect (Nick Marcucci) and construction manager (Pete

Filippi) also contended that the functionality of a new office building would be superior



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to a remodeled high school building. But while Mr. Marcucci disagreed with Mr. Kane,

he presented no specific substantive demonstration establishing that Mr. Kane was

wrong. Mr. Filippi conceded that he had no professional expertise in the functionality of

government office space.

14. There was also considerable testimony about the costs associated with the

various building options. That testimony, indicated that there is much uncertainty with

respect to those costs and how they were developed. However, it is clear that the new

building option cannot be justified on the basis of any significant advantage in terms of

its cost±in fact, the opposite would appear to be true. Near the end of her testimony on

cross-examination, the county administrator stated that the projected cost of the new

construction (which is planned in three phases) will total about $9 million, while fully

remodeling the high school building would come to about $7 million.

15. The witnesses also addressed the issue of how the construction or adaptive

reuse might be accomplished. The county indicated that it intended to construct the new

facility in three phases, with the first being a building of 10,000 square feet at a cost of

$2.5 million. The county administrator acknowledged that two more phases would

follow in order to fully meet the county¶s space needs. Plaintiff¶s expert David Kane

stated that the high school building could be remodeled in phases as well, that the cost of

doing so would be comparable to that of new construction, that he had done this in other

projects, and that it was an entirely viable alternative to new construction in Jackson



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County¶s case.

16. Defendant¶s witnesses sought to disparage the approach suggested by Mr.

Kane. However, they did little more than disagree with Mr. Kane and offered no

concrete examples of why remodeling was clearly less attractive than new construction±

in particular, though defendant¶s architect and construction manager both referred to

added structural and system costs that might be involved in a phased remodeling, on

cross-examination Mr. Fillipi said that he could not provide specific figures regarding

what these supposed costs might actually amount to. Furthermore, as Mr. Kane noted,

there can be distinct cost savings with the adaptive reuse of a building like the high

school, because the entire structure itself already exists. In addition, he noted the

environmental benefits that come from reuse, including the avoidance of landfilling.

17. With respect to a third major consideration used in comparing the advantages

of new construction versus adaptive reuse (in addition to functionality and cost) ±which is

the amount of time that would be required to complete the project ±no witness suggested

that either option provided a decisive advantage.

18. Defendant¶s construction manager Mr. Fillipi testified that if construction is

delayed by an injunction, the county would likely incur significant additional costs. But

he acknowledged that his projections were speculative±for example, when asked on

cross-examination about how many previous projects he had been involved in where re-

bidding was required, he stated there were only three. He also conceded that he could not



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determine if the weakness in the economy and in the construction industry particularly

might not moderate or eliminate cost increases that could otherwise occur.

[PROPOSED] CONCLUSIONS OF LAW

1. The Supreme Court inState by Archabal v. County of Hennepin, 495 N.W.2d

416, 421-22 (Minn. 1993) described the basic requirements imposed on the parties in an

action brought under the Minnesota Environmental Rights Act (MERA), Minn. Stat.,

ch. 116B:

Minn. Stat. section 116B.04 sets forth the burden of proof the various

parties must bear in bringing an action under MERA. First, theplaintiff

must make a prima facie showing . . . . In [State by] Powderly [v.

Erickson, 285 N.W.2d 84 (Minn. 1979], this court set out the requirements

for such a prima facie showing. First, the plaintiff must show the existence

of a protectable natural resource, and second, the pollution, impairment, or

destruction of that resource.

* * *

The defendant may attempt to rebut the plaintiff¶s prima facie case with a

showing of contrary evidence or, as in this case, offer an affirmative

defense [citing section 116B.04].

2. The Court inState by Powderly v. Erickson, 285 N.W.2d 84 (Minn. 1979) held

that a key consideration in determining whether an historic property qualifies as ³a

protectable natural resource´ under MERA relates to its eligibility for listing on the

National Register of Historic Places, even if not currently listed. The Court specifically

cited the National Register criteria as ³indicat[ing] what factors should be considered in

determining whether [particular properties] are historical resources.´ Id ., at 88.

3. Plaintiff Jackson Preservation Alliance has established a prima facie case under



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MERA. There is no dispute that the county¶s plan calls for the demolition of the 1938

high school building, thus satisfying the second element of its prima case.

4. Based on the evidence presented at the hearing conducted by the Court on

November 30, the first element has also been established. Plaintiff¶s expert Rolf

Anderson stated that he was confident that the 1938 building does qualify forinclusion

on the National Register of Historic Places, and that a nomination for the building would

be approved. Anderson¶s opinion was credible, being supported by his special expertise

in New Deal-era properties, his preparation of National Register nominations for many

such properties in Minnesota, and the fact that overall he has drafted more than 50

National Register nominations, none of which have ever been rejected. Furthermore,

defendant offered no expert rebuttal of Anderson¶s testimony. Theref ore, based on the

analysis in Powderly, the credibility of Anderson¶s opinion, and the absence of any

expert rebuttal, plaintiff did demonstrate the first element of its prima facie case as well.

5. As noted, once a prima facie case has been presented, the defendant may seek

to rebut that case, and to prove the affirmative defense described in §116B.04. At the

evidentiary hearing on November 30, defendant Jackson County focused on seeking to

establish an affirmative defense. However, if the evidence offered by defendant is

assessed in light of Supreme Court precedent which expressly describes how the statutory

criteria are to be applied, it is clear that defendant¶s evidence was not sufficient to

accomplish this.



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6. The Court¶s opinion in Archabal is instructive with respect to the present

action. At issue in Archabal was Hennepin County¶s urgent need for a new jail. After an

extended evaluation process, the county board concluded that the block occupied by the

Minneapolis Armory ³was the best site.´ 495 N.W.2d at 424. The county already owned

the site, and its plan for the new jail required that the Armory be demolished.

Shortly after the county made its final decision, an action was commenced under MERA

to enjoin the demolition, premised on the fact that the Armory was listed on the National

Register of Historic Places. The district court concluded that plaintiff had presented a

prima facie case, but ruled for the defendant based on its finding that there was no

feasible or prudent alternative to the county¶s plan. Plaintiff then appealed.

7. Because the county did not contest on appeal that a prima facie case had been

established, the Supreme Court identified ³[t]he central issue in th[e] case´ as being

³whether the County can legally destroy aresource otherwise protected under MERA

because there are no feasible and prudent alternatives to its destruction. ́Id ., at 421. The

Court then thoroughly analyzed the statutory criteria found in §116B.04, what they mean,

and how they are to be applied. In doing so, it concluded that Hennepin County had not

established its affirmative defense.

8. Applying the Supreme Court¶s interpretation of the statute to the evidence

presented by defendant Jackson County in the present case, this Court concludes that

defendant has failed to demonstrate a likelihood that it could establish the affirmative



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defense.

9. In Archabal , the Court, in reviewing its own MERA precedents, concluded as

follows: ³We believe that these cases, taken together, establishan extremely high

standard for defendants to meet in establishing an affirmative defense. ́Id ., at 423.

Specifically:

In deciding whether defendants have established an affirmative defense

under MERA, the trial court is not to engage in wide-ranging balancing of compensable against non-compensable impairments. Rather, protection of

natural resources is to be given paramount consideration, and those

resources should not be polluted or destroyed unless there are truly unusual

factors present in the case or the cost of community disruption from the

alternative reaches an extraordinary magnitude.

495 N.W.2d at 422, quoting Powderly, 285 N.W.2d at 88 (emphasis in original).

10. Employing this standard, the Court in Archabal rejected what are essentially

the same sorts of concerns and considerations that Jackson County offered at the

evidentiary hearing on November 30, which the Supreme Court held were ³simply not

enough under MERA and our cases.´ Id ., at 426. ³In order to establish an affirmative

defense under MERA, the County had to show that no alternative was available that did

not itself create extreme hardship. This it failed to do. ́Id .

11. Based on the foregoing analysis, the Court believes that there is a substantial

likelihood that plaintiff will prevail on the merits in this action. Nothing the Court heard

at the November 30 evidentiary hearing would materially alter its analysis of the other

factors to be considered in ruling on a motion for a temporary injunction as described in



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Dahlberg Bros., Inc. v. Ford Motor Co., 137 N.W.2d 314, 321-22 (Minn. 1965), and

incorporated into the Court¶s temporary restraining order, dated November 5, 2010.

12. Accordingly, the Court grants plaintiff¶s motion for a temporary injunction

preventing defendant Jackson County from demolishing or materially impairing the 1938

high school building, subject to further order of this Court.

13. The Court concludes that the bond previously imposed in the amount of

$25,000 is adequate in light of the evidence presented at the hearing on November 30.Said bond shall be continued while the temporary injunction remains in effect.

Resource Center Closing Argument: Jackson Preservation Alliance

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