may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
by Rochester Historic
Preservation Committee, et al.,
City of Rochester, et al.,
Filed September 2, 1997
Dissenting, Crippen, Judge
Olmsted County District Court
File No. C6962503
Terry L. Adkins, Rochester City Attorney, Thomas M. Canan, Assistant City Attorney, 201 Fourth Street SE, Room 247, Rochester, MN 55904 (for Respondents)
Considered and decided by Willis, Presiding Judge, Crippen Judge, and Holtan, Judge.[*]
Appellant Rochester Historic Preservation Committee challenges the district court's determination that the bathhouse at Soldiers Memorial Field is not a historic resource entitled to protection under the Minnesota Environmental Rights Act. We affirm.
Appellant Rochester Historic Preservation Committee (RHPC), on behalf of the State of Minnesota, brought an action under the Minnesota Environmental Rights Act (MERA) against respondents City of Rochester, the Rochester Park and Recreation Department, and Rochester Sand and Gravel, Inc., seeking to prevent the proposed demolition on the ground that the bathhouse is a historic resource entitled to protection under the MERA. The district court rejected RHPC's claim, and this appeal followed.
The plaintiff in an MERA action must show that the defendant's conduct has caused or is likely to cause the pollution, impairment, or destruction of "[a] natural resource located within the state." Minn. Stat. § 116B.04 (1996). The supreme court has described the plaintiff's burden as "proving (1) the existence of a protectable natural resource, and (2) the pollution, impairment, or destruction of that resource." State by Powderly v. Erickson, 285 N.W.2d 84, 87 (Minn. 1979).
Because it is undisputed that the city proposes to demolish the Soldiers Memorial Field bathhouse, the only issue before us is whether the bathhouse is a protectible natural resource. The MERA defines natural resources to include "all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources." Minn. Stat. § 116B.02, subd. 4 (1996). The MERA does not define "historical resources," but in Powderly, the supreme court identified factors to be taken into account in determining whether a building is subject to protection under the MERA, looking principally to the criteria used for inclusion on the National Register of Historic Places:
The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and:
(1) That are associated with events that have made a significant contribution to the broad patterns of our history; or
(2) That are associated with the lives of persons significant in our past; or
(3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
(4) That have yielded, or may be likely to yield, information important in prehistory or history.
Powderly, 285 N.W.2d at 88 (quoting 36 C.F.R. § 800.10(a), currently at 36 C.F.R. § 60.4 (1996)).
The district court applied the Powderly factors as follows:
(1) Association with Historic Events. The district court found that President Franklin Roosevelt spoke at Soldier's Memorial Park in 1934, but noted that the president's appearance was not connected in any way with the bathhouse structure. The court also found that the bathhouse is not listed on the National Register of Historic Places, nor is it on any state or local historic register or list, and the court determined that while it has been an important community resource, the bathhouse is not part of the broad patterns of Rochester's history. The district court's findings on this factor are not clearly erroneous.
(2) Association with the Lives of Significant Persons. The district court found that the first wing of the bathhouse was designed by Harold Crawford, an architect who designed many buildings in Rochester and surrounding communities, and that Dr. E. S. Judd, a prominent local citizen, donated money for its construction. But the court also found that the first wing of the building later was modified to conform with a larger addition built in 1936 to the design of another, less significant architect. The district court determined that the association of the building with the lives of significant persons was not strong. The court's findings on this factor are not clearly erroneous.
(3) Distinctive Characteristics. The district court found that the Soldier's Memorial Field bathhouse is an unusual example of bathhouses of the period, but determined this factor to be of limited weight. While the record supports the finding that the bathhouse is unusual for its period, we conclude that a building that is "unusual" is not the same thing as a building that embodies "the distinctive characteristics of a type, period, or method of construction" within the meaning of Powderly and that RHPC did not establish that the bathhouse meets any of the criteria of this factor.
(4) Yielding Information Important in Prehistory or History. There is nothing in the record to show that the bathhouse has yielded, or may be likely to yield, information important in prehistory or history. It therefore was not clear error for the district court to determine that this factor was not relevant to its decision.
RHPC did not present evidence sufficient to show that the Soldier's Memorial Field bathhouse is a protectible historical resource within the meaning of the MERA. The dissent relies heavily on usage of the bathhouse in concluding that it is protectible. As the district court noted, if usage were controlling, every school and public auditorium would be a historic place. The district court did not err in concluding that the city is not required to preserve and protect the bathhouse.
CRIPPEN, Judge (dissenting)
1. Standard of review
In an earlier Environmental Rights Act case, the Minnesota Supreme Court determined that the appellate courts must defer to the trial court in its findings of fact. Archabal v. County of Hennepin, 495 N.W.2d 416, 420, 421 (Minn. 1993). But Archabal does not determine that application of the Powderly criteria to the facts of the case involves findings of fact. See State by Powderly v. Erickson, 285 N.W.2d 84, 88 (Minn. 1979) (reciting four standards for determination of whether buildings are "historical resources"). To the contrary, Archabal treats as trial court "conclusions" its application of the factors entering into a comparable determination of whether there is no "feasible and prudent alternative" to the destruction of a natural resource. Archabal, 495 N.W.2d at 423-26. We are to review conclusions of law in an Environmental Protection Act case without deference to the trial court. Id. at 420.
2. Powderly criteria
In my opinion, the appellant committee succeeded in showing that the bathhouse at Soldiers Memorial Field is a unique building that constitutes an important historical asset. The evidence shows a building that is representative of a unique community resource in its era and yet atypical in the sense that it is a well-designed, solid and attractive structure, somewhat in contrast to the 'make-do' concrete block or frame building that many of us might associate with bathhouse facilities at a local community park.
This bathhouse is associated with countless historic "events," primary recreational activities of most Americans who grew up in the first half of this century. The community bathhouse gave way to the sterile design of the outdoor swimming pool that only now is taking on some more colorful characteristics of the public playground. The municipal bathhouse extended to the whole community a special form of recreation that was theretofore enjoyed only by the privileged; the persons associated with the building are significant in their numbers and diversity. The Soldiers Field bathhouse is unique among these facilities for the fact that it remains solidly in place long after many of its counterparts have disappeared. It has artistic, architectural value: It is a significant entity, distinguished and distinguishable. Its preservation will yield continuing information about a society that was once ours.
I respectfully dissent. This historical resource should be preserved. Because of the broad standard of appellate review that must be employed in this case, the matter will best be resolved if it is considered en banc by the Minnesota Supreme Court.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.