1. law, govt and politics

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Opus Woods Conservation
Association, a Minnesota
nonprofit corporation; and SFI
Ltd. Partnership 54, a Nebraska
limited partnership,
File No.
COMPLAINT
Plaintiffs,
v.
Metropolitan Council, a public
corporation and political
subdivision of the State of
Minnesota,
Defendant.
Plaintiffs Opus Woods Conservation Association and SFI Ltd. Partnership 54 for
their Complaint against Defendant Metropolitan Council, state as follows:
INTRODUCTION
1.
This is an action for declaratory and injunctive relief brought pursuant to
the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (“NEPA”); Section
4(f) of the Department of Transportation Act, 49 U.S.C. §303, (“Section 4(f)”); and the
Minnesota Light Rail Transit Statutes, § 473.3993, et seq.
2.
In this action, Opus Woods Conservation Association (“OWCA”) and SFI
Ltd. Partnership 54 (“SFI”) seek to compel the Metropolitan Council (“Met Council”) to
comply with federal and state laws in the performance of the environmental review
required for the Southwest Light Rail Transit (“SWLRT”) project.
3.
The current plan for the SWLRT calls for the light rail line to pass directly
through an environmentally sensitive, wooded parkland area in Minnetonka commonly
referred to as Opus Hill. The light rail line, as proposed, will severely impact this
parkland and open space area, its wooded hillside and public recreational bicycle and
pedestrian trail.
4.
Federal regulations under Section 4(f) prohibit the use of public parks,
recreational areas, wildlife/waterfowl refuges or significant historic sites from being used
for transportation uses (including light rail), unless there is no feasible and prudent
alternative.
5.
Met Council failed to evaluate the environmental impacts of the light rail
route on the Opus Hill area or to consider feasible and prudent alternatives as required by
NEPA and Section 4(f), including an alternative route called to Met Council’s attention
that would have avoided Opus Hill. The Opus Hill area was improperly excluded from
Section 4(f) review and consideration.
6.
Section 4(f) requires that the “potential use of land from a Section 4(f)
property shall be evaluated as early as practicable in the development of the action when
alternatives to the proposed action are under study.” See 23 C.F.R. § 774.9 (emphasis
added). The Alternatives Analysis, Scoping Documents, Scoping Decision and DEIS
(discussed generally below) all failed to include the Opus Hill area at issue in the Section
4(f) analysis.
7.
Met Council proceeded with the municipal consent process, thereby
limiting the available alternatives prior to the completion of the required environmental
2.
review—an environmental review which improperly neglected to include the necessary
Section 4(f) analysis of the Opus Hill area. This is a violation of both state and federal
law.
PARTIES
8.
Plaintiff Opus Woods Conservation Association (“OWCA”) is a Minnesota
nonprofit corporation. Individual members of OWCA represent property owners or
residents adjacent to the Opus Hill area of Minnetonka. Many of the residents frequently
use and enjoy the environmental resources in the Opus Hill area. OWCA is concerned
about the potential environmental impacts of the SWLRT project and the noncompliance
of the SWLRT approval process with state and federal laws. OWCA will be injured by
the environmental harm that will result if the SWLRT project moves forward without the
proper environmental review.
9.
Plaintiff SFI Ltd. Partnership 54 (“SFI”) is a Nebraska limited partnership
with its principal office address at 10040 Regency Circle, Suite 200, Omaha, Nebraska.
SFI is the owner of the Claremont Apartments, located at 10745 Smetana Road,
Minnetonka, which is immediately adjacent to, and east of, the Opus Hill area at issue.
SFI will be injured by the environmental harm that will result if the SWLRT project
moves forward without the proper environmental review.
10.
Defendant Metropolitan Council (“Met Council”) is a public corporation
and a political subdivision of the State of Minnesota created pursuant to Minn. Stat.
§§473.123, et seq. It is the regional policy-making body, planning agency, and transit
services provider for the Twin Cities metropolitan region with its principal offices in St.
3.
Paul, Minnesota. Id. Met Council is the entity responsible for planning, designing,
acquiring, constructing and equipping the SWLRT pursuant to the Minnesota Light Rail
Transit Statutes.
JURISDICTION AND VENUE
11.
The Court has jurisdiction over the subject matter of this action pursuant to
11 U.S.C. § 1331, because the claims under NEPA and Section 4(f) regulations arise
under the laws of the United States.
12.
The Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a),
over the claims under Minn. Stat. § 473.3993, because these claims are so related to the
claims under NEPA and Section 4(f) that they form part of the same case or controversy
under Article III of the United States Constitution.
13.
In addition, the Court has the power to declare the rights and legal relations
of the parties pursuant to 28 U.S.C. § 2201 et seq. There exists between Plaintiffs and
Met Council an actual, justiciable controversy for which Plaintiffs are entitled to have a
declaration of rights.
14.
Venue in this District is proper under 28 U.S.C. § 1391(b)(2), because a
substantial part of the events giving rise to the claim occurred in Minnesota.
15.
The Court has personal jurisdiction over Met Council because it is a
political subdivision of the State of Minnesota and is located in St. Paul, Minnesota.
4.
EVENTS GIVING RISE TO VIOLATIONS OF LAW
A.
The Opus Hill Property and SWLRT Project.
16.
The Opus Hill property at issue consists of land owned, in part, by the City
of Minnetonka (the “City”) that is subject to certain covenants and restrictions that were
established when the property was transferred from Opus Corporation to the City
(described below), as well as land owned by Opus Corporation with a public easement in
favor of the City for use as a public recreational trail. The property is approximately 49acres of open space that consists of wooded areas, wetlands and trails. The City’s
comprehensive plan classifies the land as “open space” and the trails located therein are
identified as part of the City’s Parks, Open Space and Trails Plan.
17.
A portion of the subject property was transferred from Opus Corporation to
the City in 1978, subject to certain restrictive covenants, which include the restriction that
the property only be used for “parkland and open space purposes.”
18.
The Opus Hill property, as described above, is an environmentally-sensitive
parkland and wooded area that includes a popular bicycle and pedestrian trail.
19.
The property is located directly west of the Claremont Apartments, a 330-
unit apartment building and the home to approximately 600 residents.
20.
The proposed light rail line is to be “double-railed” as it passes within 90
feet of the apartment units, cutting into the hillside and removing 50 percent of the
existing vegetation that comprises the wooded conservation area. Over 200 trains per day
are projected to pass back and forth through this quiet and secluded nature corridor.
5.
21.
The SWLRT project itself is proposed to run from downtown Minneapolis
for approximately 16 miles through the cities of St. Louis Park, Hopkins, Minnetonka and
Eden Prairie.
B.
The SWLRT Environmental Review Process.
Overview of the Review Process
22.
For major governmental actions that create a potential for significant
environmental effects, NEPA requires a thorough environmental review before the
project can be approved.
23.
The SWLRT is a major governmental action that has the potential to cause
significant environmental effects, and accordingly, an environmental impact statement
(“EIS”) pursuant to NEPA regulations is required for the project.
24.
The EIS requirements begin with a process that engages the public and
affected groups in determining the scope of the environmental review of the proposed
project (“Scoping Process”). The purpose of the Scoping Process is to obtain public
input on the project purpose, to identify issues associated with the proposed project that
will require detailed analysis, and to identify reasonable alternatives to the proposed
project, which will be assessed in order to compare their respective environmental
impacts to those of the proposed project.
25.
The Scoping Process culminates in a decision by the responsible
governmental unit (“RGU”) setting forth the potential environmental impacts and
reasonable alternatives to be addressed in detail through the EIS process (the “Scoping
Decision”).
6.
26.
Following the Scoping Process is the preparation of a draft environmental
impact statement (“DEIS”)—a document prepared by the project sponsor and circulated
for public review and comment. The DEIS documents the potential social, economic and
environmental benefits and impacts of the proposed project, as well as any proposed
measures to mitigate adverse impacts and reasonable alternatives to the project (as set
forth in the Scoping Decision).
27.
After public input has been received and further review performed, a final
environmental impact statement (“FEIS”), which includes additional detail and analysis,
is prepared. Finally, the RGU must deem adequate the environmental analysis in the
FEIS, and the federal lead agency must issue a record of decision regarding the
environmental analysis, which authorizes the state agency to proceed with the project.
28.
Pursuant to federal NEPA regulations, no action that may (1) have an
adverse environmental impact or (2) limit the choice of reasonable alternatives for the
project, may be taken until a full environmental review has been undertaken and the lead
federal agency has issued a record of decision regarding the environmental analysis. 40
C.F.R. § 1506.1(a).
The Scoping Process.
29.
A Scoping Process for the SWLRT project was performed in fall 2008 by
the Hennepin County Regional Railroad Authority, which was responsible for conducting
the first portion of the environmental review. The results of the Scoping Process were
included in a Scoping Summary Report dated January 2009.
7.
30.
The Scoping Summary Report summarizes the scoping process and
addresses the steps required for conducting the DEIS. This report states that, “at a
minimum, the following topics will be included: . . . Potential impacts to publicly held
lands, open space and parklands, and off-road Trails,” as well as “[i]mpacts to and
proposed mitigation to designated parks, open space, sanctuaries, and other eligible
properties under Section 4(f).” See Scoping Summary Report at 16. There are no
specific properties addressed; rather the document only refers to the general need and
legal obligation to perform the appropriate Section 4(f) inquiries.
31.
The Hennepin County Regional Railroad Authority unanimously voted to
accept the SWLRT Scoping Summary Report on January 27, 2009, as its Scoping
Decision.
The DEIS and Locally Preferred Alternative.
32.
Hennepin County Regional Railroad Authority moved forward with the
required environmental analysis based upon the Scoping Summary Report, and a DEIS
was drafted and released to the public in October 2012.
33.
Chapter 7 of the DEIS addresses Section 4(f) properties and the impact that
the “locally preferred alternative” route for the SWLRT may have on such properties.
The only property included as a potentially impacted Section 4(f) property in “Segment
3” (which is the area that includes the wooded Opus Hill property), is land in the Nine
Mile Creek Conservation Area. The Opus Hill dedicated parkland and conservation area
is not identified.
8.
34.
The Locally Preferred Alternatives Report (the “LPA Report”) identifies
alignment “3A” as the “locally preferred alternative.” The report identifies fifteen
Section 4(f) properties in alignment 3A, and only one of those properties, Cedar Lake
Parkway, is specifically identified for potential use under the project. The Opus Hill
dedicated parkland and conservation area is not identified as a Section 4(f) property.
35.
“Technical Memorandum 9,” part of the LPA Report and analysis, sets out
the methodology used in analyzing Section 4(f) properties, which was to “[i]dentify and
document parks and public lands within 0.25 mile of the corridor.” See Technical
Memorandum 9 at 45. The document provides “a list of the publicly owned parks, open
spaces, and recreation areas located in the vicinity of the Southwest LRT.” The
memorandum identifies the Eden Prairie Off Leash Area, Nine Mile Creek and Purgatory
Creek Park. It does not include any reference to the Opus Hill parkland and conservation
area.
36.
After completion of the DEIS, responsibility for the environmental review
process, including completion of the FEIS, was transferred from the Hennepin County
Regional Railroad Authority to Met Council.
37.
In July 2013, Met Council and the Federal Transit Administration (FTA)
gave notice that they intended to publish a Supplemental Draft Environmental Impact
Statement (“SDEIS”), which would evaluate potential environmental impacts resulting
from changes in the proposed design that were not documented in the DEIS.
Requests to Include Opus Hill in Section 4(f) Analysis and Proposed Alternative
9.
38.
SFI, the owner of the Claremont Apartments, by letter dated August 12,
2013, provided comments and concerns to Met Council and the SWLRT Project Office in
conjunction with the DEIS and the SDEIS, regarding the failure to include the Opus Hill
property in the Section 4(f) analysis. SFI specifically requested that the Opus Hill area be
included in the Section 4(f) analysis with the SDEIS and FEIS.
39.
In a meeting in the SWLRT Project Office held on June 10, 2014, SFI
further proposed an alternative route around the Claremont Apartments which would
protect and preserve the wooded nature area of Opus Hill, as well as the public
recreational trail. This proposed alternative was rejected by the City and Met Council.
40.
Met Council informed SFI that the SDEIS would not include an analysis of
the Opus Hill area pursuant to Section 4(f).
C.
The Municipal Consent Process
41.
“Municipal consent” by the county and the affected cities is required by
Minnesota Statute § 473.3994, which states that each city and county in which a light rail
transit route is proposed to be located must hold a public hearing and vote to approve or
disapprove the physical design component of the preliminary design plans for the project.
Failure to approve or disapprove of the plans within 45 days after the public hearing
qualifies as approval under the statute, unless an extension of time is granted by the
Metropolitan Council. Id., subd. 3. As defined by statute, the preliminary design plans
must include a DEIS for the light rail transit facilities proposed. Minn. Stat. § 473.3993,
subd. 2.
10.
42.
On June 2, 2014, the City held the required public hearing on the proposed
SWLRT. At no time during the hearing, or at any time before or after the hearing, has
the Opus Hill area been included in EIS documents for analysis under Section 4(f).
43.
The City gave municipal approval to the preliminary design plan on June
23, 2014.
44.
By August 28, 2014, all five local governments had approved the
preliminary SWLRT plans.
45.
Upon information and belief, Met Council will ask the FTA for permission
to move forward with the SWLRT project even though the environmental review is
incomplete and does not include the Opus Hill project in the Section 4(f) analysis.
COUNT I
VIOLATION OF NEPA REGULATIONS
(DECLARATORY AND INJUNCTIVE RELIEF)
46.
Plaintiffs restate and reallege all foregoing paragraphs as if fully stated
47.
NEPA requires that for every major federal action significantly affecting
herein.
the quality of the human environment, a detailed statement be issued that analyzes
(a)
The environmental impact of the proposed action;
(b)
Any adverse environmental effects which cannot be avoided should
the proposal be implemented;
(c)
Alternatives to the proposed action;
(d)
The relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-term
productivity; and
11.
(e)
Any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented.
42 U.S.C. § 4332(C).
48.
Federal NEPA regulations limit the actions that may be taken during the
pendency of an environmental review. Until the lead federal agency issues a record of
decision (after the issuance of a FEIS), no action concerning a proposal shall be taken
which would “(1) Have an adverse environmental impact; or (2) Limit the choice of
reasonable alternatives.” 40 C.F.R. § 1506.1(a).
49.
Federal NEPA regulations also require that if a federal agency is
considering an application from a non-federal entity, and the agency becomes aware that
the applicant is about to take an action that would have an adverse environmental impact
or limit the choice of reasonable alternatives, the agency must promptly notify the
applicant that the agency will take appropriate action to insure that the objectives and
procedures of NEPA are achieved. 40 C.F.R. § 1506.1(b).
50.
Met Council is both the governmental unit that will carry out the proposed
SWLRT project and the RGU that will make decisions about the adequacy of the
environmental review for the SWLRT project.
51.
By the following actions, Met Council has violated and continues to violate
40 C.F.R. § 1506.1(a) by limiting the choice of reasonable alternatives for the SWLRT
project before the issuance of a record of decision on the environmental review:
(a)
Selecting a particular SWLRT design, which impacts the Opus Hill
area to the exclusion of alternative routes, prior to the issuance of a
record of decision on the FEIS and without conducting the necessary
12.
Section 4(f) analysis to determine impacts on, and feasible
alternatives to, using Opus Hill for a light rail transit route; and
(b)
52.
Initiating the municipal consent process on a particular SWLRT
design, which impacts the Opus Hill area to the exclusion of
alternative routes, prior to the issuance of a record of decision on the
FEIS and without conducting the necessary Section 4(f) analysis on
the Opus Hill area.
OWCA and SFI are injured by these violations of federal regulations
because they live, work or own property near the Opus Hill area of Minnetonka and/or
frequently use and enjoy the environmental resources in this area. Accordingly, they will
be injured by the environmental harm that will result if the SWLRT project moves
forward without the required environmental review.
53.
OWCA and SFI are entitled to a declaratory judgment that Met Council has
violated and continues to violate NEPA regulation 40 C.F.R. § 1506.1 by, among other
things, undertaking the municipal consent process based on a preliminary design plan that
completely omits any Section 4(f) analysis of the Opus Hill area; accordingly, the
municipal consent obtained for the SWLRT design is null and void.
54.
OWCA and SFI are also entitled to a declaratory judgment that Met
Council must comply with 40 C.F.R. § 1506.1, by not limiting the choice of reasonable
alternatives for the SWLRT design, including approval of design plans through the
municipal consent process, before a record of decision on the FEIS is issued.
55.
To preserve the integrity of their federal remedies, OWCA and SFI are
further entitled to an injunction ordering Met Council not to take any further action that
would limit the choice of reasonable alternatives on the SWLRT project—including the
13.
approval of design plans through the municipal consent process—before the record of
decision is issued.
COUNT II
VIOLATION OF SECTION 4(F)
OF THE DEPARTMENT OF TRANSPORTATION ACT
(DECLARATORY AND INJUNCTIVE RELIEF)
56.
Plaintiffs restate and reallege all foregoing paragraphs as if fully stated
57.
The Department of Transportation Act explicitly declares that “[i]t is the
herein.
policy of the United States Government that special effort should be made to preserve the
natural beauty of the countryside and public park and recreation lands, wildlife and
waterfowl refuges, and historic sites.” 49 U.S.C. § 303(a) (“Section 4(f)”).
58.
To implement that policy, Section 4(f) imposes substantive restrictions on
federal decisionmaking:
[t]he Secretary [of Transportation] may approve a
transportation program or project . . . requiring the use of
publicly owned land of a public park, recreation area, . . . only
if – (1) there is no prudent and feasible alternatives to using
that land; and (2) the program or project includes all possible
planning to minimize harm to the park, recreation area . . . .”
49 U.S.C. § 303(b) (emphasis added).
59.
The SWLRT project is a transportation project within the meaning of
Section 4(f).
60.
Federal regulatory requirements of Section 4(f) require prompt analysis of
public park and recreation areas: “The potential use of land from a Section 4(f) property
14.
shall be evaluated as early as practicable in the development of the action when
alternatives to the proposed action are under study.” 23 C.F.R. § 774.9 (emphasis added).
61.
Moreover, a Section 4(f) evaluation “shall include sufficient supporting
documentation to demonstrate why there is no feasible and prudent avoidance alternative
and shall summarize the results of all possible planning to minimize harm to the Section
4(f) property.” 23 C.F.R. § 774.7 (a) (emphasis added).
62.
Section 4(f) regulations specify that Section 4(f) evaluations must address
both “direct” and “constructive” uses of Section 4(f) resources. “Constructive use” is
defined as follows:
A constructive use occurs when the transportation project
does not incorporate land from a Section 4(f) property, but the
project’s proximity impacts are so severe that the protected
activities, features, or attributes that qualify the property for
protection under Section 4(f) are substantially impaired.
Substantial impairment occurs only when the protected
activities, features, or attributes of the property are
substantially diminished.
23 C.F.R. §774.15(a).
63.
The Section 4(f) regulations further provide that “constructive use” occurs
when “the location of a proposed transportation facility [is] in such proximity that it
obstructs or eliminates the primary views of an architecturally significant historical
building, or substantially detracts from the setting of a Section 4(f) property which
derives its value in substantial part due to its setting.” 23 C.F.R. § 774.15 (e)(2).
64.
The Opus Hill property at issue consists of Section 4(f) land; namely, (a)
land owned by the City of Minnetonka that is subject to certain covenants restricting its
15.
use to “parkland and open space”; and (b) land owned by Opus Corporation that is
subject to a dedicated public easement in favor of the City for use as a public recreational
trail. The property is an approximately 49-acre open space that consists of wooded areas,
wetlands and trails. The City’s comprehensive plan classifies the land as “open space”
and the trails located therein are identified as part of the City’s Parks, Open Space and
Trails Plan.
65.
OWCA and SFI are injured by these violations of federal regulations
because they live, work or own property near the Opus Hill area, and/or frequently use
and enjoy the environmental resources in this area. Accordingly, they will be injured by
the environmental harm that will result if the SWLRT project moves forward without the
required environmental review.
66.
The Opus Hill area was improperly excluded from Section 4(f) review and
consideration, thus limiting the choice of reasonable alternatives to routing the SWLRT
through an area protected by Section 4(f) and failing to consider “all possible planning to
minimize harm”, in violation of Section 4(f).
67.
OWCA and SFI are entitled to a declaratory judgment stating that Met
Council has violated and continues to violate NEPA and Section 4(f) by failing to
consider and evaluate the recreation and nature area that is Opus Hill.
68.
OWCA and SFI are also entitled to a declaratory judgment stating that Met
Council must comply with NEPA and Section 4(f) by conducting a Section 4(f)
evaluation and analysis of the Opus Hill property, including both direct and constructive
uses of Section 4(f) resources.
16.
69.
OWCA and SFI are further entitled to an injunction ordering Met Council
not to take any further action that would limit the choice of reasonable alternatives on the
SWLRT project—including the approval of design plans through the municipal consent
process—until the Section 4(f) analysis is completed.
COUNT III
VIOLATION OF MUNICIPAL CONSENT STATUTE
MINNESOTA STATUTE § 473.3994
(DECLARATORY AND INJUNCTIVE RELIEF)
70.
Plaintiffs restate and reallege all foregoing paragraphs as if fully stated
71.
Minnesota statutes require a municipal consent process under which cities
herein.
and counties in which a light rail transit route is proposed to be located must hold a
public hearing at which they must review and approve or disapprove the physical design
component of the preliminary design plans for the light rail transit project. Minn. Stat.
§ 473.3994, subd. 3.
72.
The same statutes define “preliminary design plan” to include a DEIS for
the light rail transit facilities proposed. Minn. Stat. § 473.3993, subd. 2.
73.
In violation of the municipal consent requirement, Met Council has carried
out the municipal consent process before a DEIS for the SWLRT facilities, including the
currently-pending supplemental DEIS process, has been released.
74.
In violation of the municipal consent requirement, Met Council is engaging
in a DEIS and supplemental DEIS process that completely omits any Section 4(f)
17.
analysis of the Opus Hill area in the City, thus limiting the choices for reasonable
alternatives that may not impact a Section 4(f) area and failing to analyze “all possible
planning to minimize harm to the park, recreation area ….” Id.
75.
Accordingly, the physical design component of the preliminary design
plans has been approved without having a DEIS for the proposed plan available for
consideration and comment at each municipality’s public hearings. Members of the
public have been unable to comment on the SWLRT facilities proposed in light of the
environmental analysis for the proposed facilities, and members of each municipality’s
city council have been unable to consider the DEIS in making their decisions to approve
or disapprove the proposed plans.
76.
OWCA and SFI are injured by these violations of federal regulations
because they are members who live, work, or own property near and/or frequently use
and enjoy the environmental resources in, the Opus Hill area of the City. Accordingly,
they will be injured if the SWLRT project moves forward without the required
environmental review, which must precede the municipal consent process.
77.
OWCA and SFI are also injured because its members were unable to fully
participate in the public hearings on municipal consent on account of the unavailability of
a DEIS for the proposed design.
78.
OWCA and SFI are further injured because the DEIS that has yet to be
completed will not include any Section 4(f) analysis of the Opus Hill area,
notwithstanding that it is a public park and recreation area that is subject under NEPA
18.
and Section 4(f) to scrutiny for prudent and feasible alternatives and to minimize harm to
the park and recreation area.
79.
OWCA and SFI are entitled to a declaratory judgment stating that Met
Council’s actions violated Minnesota Statutes § 473.3994, subd. 4, and, accordingly, the
municipal consent obtained for the SWLRT design is null and void.
80.
OWCA and SFI are further entitled to an injunction ordering the Met
Council to defer resubmission of the SWLRT project plans for approval by Hennepin
County and the Cities of Minneapolis, St. Louis Park, Hopkins, Minnetonka, and Eden
Prairie until after the completion of a fully comprehensive SDEIS that includes Section
4(f) analysis of Opus Hill, the completion of the FEIS, and the issuance of the record of
decision.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Opus Woods Conservation Association and SFI Ltd.
Partnership 54 pray for judgment as follows:
1.
Declaratory judgment declaring the following:
(a)
Metropolitan Council’s actions have violated and remain in violation
of NEPA regulation 40 C.F.R. § 1506.1 by, among other things,
undertaking the municipal consent process before the issuance of the
record of decision on the FEIS and accordingly, the municipal
consent obtained for the SWLRT design is null and void.
(b)
Metropolitan Council must comply with 40 C.F.R. § 1506.1 by not
allowing the limitation of the choice of reasonable alternatives for
the SWLRT design, including through the municipal consent
process, before a record of decision is issued.
(c)
Metropolitan Council’s actions have violated and remain in violation
of Section 4(f) because it has failed and refused to perform the
19.
required Section 4(f) review and analysis of the Opus Hill property.
2.
3.
(d)
Metropolitan Council’s actions have violated and remain in violation
of the municipal consent statute, Minnesota Statutes § 473.3994,
subd. 3, and accordingly, the municipal consent obtained for the
SWLRT design is null and void.
(e)
Metropolitan Council must comply with the municipal consent
process set forth in Minnesota Statutes § 473.3994.
An injunction ordering the following:
(a)
Metropolitan Council is ordered not to take any further action that
would limit the choice of reasonable alternatives on the SWLRT
project—including the approval of design plans through the
municipal consent process—before the record of decision is issued.
(b)
Metropolitan Council is ordered not to take any further action that
would prejudice the ultimate decision on the SWLRT project—
including the approval of the design plans through the municipal
consent process—before the FEIS has been completed and deemed
adequate.
(c)
Metropolitan Council is ordered to defer resubmission of the
SWLRT project plans for approval by Hennepin County and the
Cities of Minneapolis, St. Louis Park, Hopkins, Minnetonka, and
Eden Prairie until after the completion of the SDEIS, the completion
of the FEIS, and the issuance of the record of decision.
Awarding Plaintiffs their costs, disbursements and such other and further
relief as this Court may deem just and equitable under the circumstances.
20.
Dated: March 30, 2015
s/ Gary A. Van Cleve
Gary A. Van Cleve (156310)
Rob A. Stefonowicz (297161)
Larkin Hoffman Daly & Lindgren Ltd.
8300 Norman Center Drive, Suite 1000
Minneapolis, Minnesota 55437-1060
(952) 835-3800
Attorneys for Plaintiffs
4847-4014-8258, v. 2
21.