This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Donald Stelzner, et al.,



Minnehaha Creek Watershed District,


Minneapolis Chain of Lakes Clean Water

Partnership, a partnership which includes

the City of Minneapolis, the City of St. Louis

Park, Hennepin County, the Minneapolis

Park and Recreation Board and the Minnehaha

Creek Watershed District,


Minneapolis Park and Recreation Board,


City of Minneapolis, et al.,


Minnesota Environmental Quality Board,


The Bakken,


Filed November 18, 1997


Norton, Judge

Hennepin County District Court

File No. AP97-07390

Richard I. Diamond, Diamond, Liszt & Grady, P.A., 9855 West 78th Street, Suite 210, Eden Prairie, MN 55344 (for Appellants)

Louis N. Smith, Waverley Eby Booth, Smith Parker, P.L.L.P., 808 Colwell Building, 123 North Third Street, Minneapolis, MN 55401 (for Respondent Minnehaha Creek Watershed District)

Corey Conover, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for Respondent City of Minneapolis)

Roger N. Knutson, Campbell, Knutson, Scott & Fuchs, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for Respondent City of St. Louis Park)

Deonne Parker, Assistant Hennepin County Attorney, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for Respondent County of Hennepin)

Allen D. Barnard, Ann E. Walther, Best & Flanagan, 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for Respondent Minneapolis Park and Recreation Board)

Hubert H. Humphrey III, Attorney General, Alan R. Mitchell, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for Respondent Minnesota Environmental Quality Board)

Jerome B. Pederson, Todd Wind, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent The Bakken)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Norton, Judge.



In challenging summary judgment and dismissal of their complaint, appellants allege the district court abused its discretion, deprived appellants of due process, and committed legal errors. The district court did not err and acted within its authority in dismissing appellants' complaint. We affirm.


Appellants Donald and Donna Stelzner commenced two lawsuits due to two projects near their residence along West Calhoun Parkway in Minneapolis. In the first lawsuit, appellants sought to enjoin respondent The Bakken from proceeding with its expansion plans. The Bakken, a library and museum, had announced plans to build a sedimentation pond, a parking lot, and a 12,000-square foot educational wing on their existing building. The Stelzners filed a complaint on April 25, 1997, seeking a temporary restraining order (TRO) against The Bakken and a writ of mandamus against the City of Minneapolis (the city) to prevent issuance of a building permit. The Stelzners allege that The Bakken's expansion plans violated zoning laws, were a public nuisance, violated the Minnesota Environmental Rights Act, and constituted inverse condemnation of the Stelzners' property. The district court denied the Stelzners' request for a TRO. That decision is presently on appeal before another panel.

Simultaneously, the Stelzners and 36 of their neighbors filed a petition for an environmental assessment worksheet (EAW) on The Bakken project, requesting that the city not be the responsible governmental unit (RGU) to determine whether an EAW was needed, because the city allegedly was biased. Despite the objections, the Environmental Quality Board (EQB) determined that the city was the appropriate RGU to determine the need for an EAW on The Bakken project because "the city has the greatest responsibility for approving the project as a whole." The Minneapolis Planning Department thereafter issued findings of fact and a record of decision recommending that The Bakken project had no "potential for significant environmental effects" and that the city should not require an EAW.

In the second lawsuit, the Stelzners sought to enjoin the other respondents in this appeal from proceeding on a project to build a series of natural wetland filtration ponds in an area owned by respondent Minneapolis Park and Recreation Board near Lake Calhoun in Minneapolis (the public project). The Stelzners alleged that the Minnehaha Creek Watershed District (MCWD) erred in determining that an environmental impact statement (EIS) was unnecessary on the public project; sought a mandatory injunction compelling enforcement of the Minnesota Environmental Policy Act (MEPA); sought a writ of mandamus compelling the city to enforce its zoning code; sought enforcement of the Minnesota Environmental Rights Act (MERA); sought a permanent injunction on the basis that the public project is a nuisance under common law and Minn. Stat. § 561.01; sought the withdrawal of MCWD as the RGU due to alleged conflicts of interest; and alleged that, by participating in the Minneapolis Chain of Lakes Clean Water Partnership, the Minneapolis Park and Recreation Board is violating its statutory purpose by allowing park land to be used for non-park purposes.

The Stelzners later amended the second complaint to include claims against The Bakken. They alleged that the EQB's appointment of the city as the RGU on The Bakken project violated due process. Consequently, they alleged that the city should be removed as the RGU for The Bakken project and replaced by the EQB or another agency with no conflict of interest. The Stelzners also filed an amended motion for a TRO and temporary injunction, seeking to enjoin the city from proceeding as the RGU in The Bakken project. Following a hearing, the district court issued an order enjoining the city from issuing a final building permit to The Bakken until an accelerated hearing took place on June 12, 1997, to address issues relating to both The Bakken case and the public project.

The Stelzners and an environmental scientist, Donald R. Hickman, had the opportunity to testify at the city zoning and planning committee about the need for an EAW on The Bakken project. The committee voted unanimously to accept the planning department's recommendation that an EAW was not required. The city council also unanimously adopted the planning department's recommendation. The Stelzners suggest that this council meeting was tainted because The Bakken project was listed as number 14 on the agenda and, allegedly, the council heard this matter out of order when Stelzner and his attorney were out of the room.

Following the city council's denial of the petition for an EAW, the Stelzners filed a motion in district court to vacate the city council's determination. They also requested a temporary injunction to prohibit the city from proceeding to grant The Bakken a permit for its project.

At the June 12, 1997, hearing, the parties addressed whether the city was able to make a fair and impartial decision as the RGU and whether the city council acted arbitrarily or capriciously when it denied the EAW. The Stelzners repeatedly objected to the district court's authority to proceed with the hearing without their consent. After the hearing, the district court denied the Stelzners' request to enjoin the city from issuing The Bakken a building permit and dismissed their complaints in their entirety against all of the respondents. The Stelzners filed a motion for a stay or injunction prohibiting the city from issuing The Bakken a final building permit pending appeal and filed a notice of appeal with this court. The district court granted the motion to stay pending appeal, if secured by a $1 million supersedeas bond. In this appeal, the Stelzners challenge the district court's jurisdiction at the June 12 hearing, allege the district court abused its discretion in approving the city as an RGU, raise due process claims, and challenge the summary judgments in favor of respondents.


1. June 12, 1997, hearing

The dispositive query for many issues in this appeal is whether the Stelzners consented to the hearing on June 12, 1997. Although they argue to the contrary, the record reveals that they did consent to this hearing.

When the court asked the parties if they could resolve the RGU issue in The Bakken case in a hearing on June 12, 1997, none of the parties objected. Later, out of concern for the parties' interests, the district court suggested that it would be more efficient to consolidate the remaining issues in the June 12 hearing, including the dispositive summary judgment motions for the public project. When the district court asked the Stelzners whether they agreed to present their arguments against the summary judgment motions on June 12th, their attorney responded:

The Bakken project is smaller, the concerns are somewhat smaller, the neighborhood feeling on The Bakken project may be somewhat different than it is on the public project. I'm not opposed to hearing both. In fact, I have been contending that these projects are linked and the court has phrased it more eloquently than I have. * * * I'm perfectly willing to have the same judge * * * consider the links between those two projects and consider whether or not there should be any [EIS] on the public project. There are a lot of other issues but I'm willing to have that done.

(Emphasis added.) The court stated that it would hear all issues in the Stelzners' amended complaint against The Bakken and the public project at the June 12th hearing. After some discussion, the parties agreed to submit any briefs by June 10. This record shows they consented to the accelerated hearing and the consolidation of issues.

The Stelzners argue, however, that they consented to the hearing only because they thought they had no choice. We are not persuaded. Most notably, the Stelzners did not object for the record. Their motion to vacate the actions of the Minneapolis City Council, set a trial date, and have time for discovery was untimely, given that they unequivocally consented to the hearing the week before.

In addition, at the June 4th hearing, the Stelzners expressly consented to the district court's review of the city council's potential denial of the EAW on The Bakken project. Thus, the district court had jurisdiction to review the denial of the petition and the review was properly treated as if it had been raised in the pleadings. See Minn. R. Civ. P. 15.02 ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.").

The district court did not abuse its discretion when it consolidated issues and scheduled an accelerated hearing, nor did the court err in concluding that the Stelzners consented to the accelerated June 12th hearing.[1]

2. City of Minneapolis as RGU

The Stelzners argue that the district court abused its discretion when it found the environmental quality board's (EQB) decision to appoint the City of Minneapolis as the responsible governmental unit (RGU) was appropriate in law and fact, supported by the record, and not arbitrary and capricious. In reviewing actions of a governmental body, our focus is on the governmental body's proceedings, not the district court's findings. Carl Bolander & Sons v. Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993). The issue is whether the governmental body's determination was arbitrary, capricious, or unreasonable. Id.

According to Minn. R. 4410.1100, subp. 5, the EQB is to designate an RGU "pursuant to part 4410.0500." Under Minn. R. 4410.0500, subpt. 5, the appropriate RGU is the "governmental unit with the greatest responsibility for supervising or approving the project as a whole."

The Stelzners allege that numerous factors show that the city was not a fair and impartial RGU to determine the need for an EAW on The Bakken project. See Goldberg v. Kelly, 397 U.S. 254, 271, 90 S. Ct. 1011, 1022 (1970) (due process requires decision by impartial official). For example, the Stelzners argue that the city is biased because it is a defendant in the pending appellate case regarding enforcement of a zoning ordinance against The Bakken; the city is an adverse party because it is bound to support the public project; and the city has accepted money from The Bakken for the final building permit. We disagree.

The Stelzners have failed to raise specific allegations of bias or prejudice to demonstrate that the city was unable to make a proper EAW decision. Undoubtedly, the city has some interest in The Bakken project; it is a library, museum, and educational facility that may benefit the city culturally, financially, and otherwise. This interest in the project, however, does not necessarily constitute bias or prejudice. Moreover, Minn. R. 4410.0500 anticipates the RGU will have an interest in the project. See id., subpt. 5 (RGU is governmental entity with greatest authority for supervising or approving project). The record demonstrates that the EQB followed this rule in selecting the city, because it found the city to have the greatest authority over the project.

Furthermore, the record shows that the city's EAW determination was not biased. In reaching its decision that an EAW was not necessary for The Bakken project, the Minneapolis City Council made extensive findings of fact regarding the intrusion of the shoreline of Lake Calhoun, wetland encroachment, the proposed treatment basin of The Bakken project, other pollutants the project will cause, and nuisances resulting from The Bakken's expanded operation. Based on these detailed findings, the city concluded that The Bakken project "does not have the potential for significant environmental effects."

Given this record, the district court did not abuse its discretion in finding that the EQB's designation of the city as the RGU was not arbitrary, capricious, or unreasonable.

3. Due process

The Stelzners allege that the district court erred in concluding that their due process rights were not violated by the city's designation and performance as the RGU. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)).

The Stelzners were given ample opportunity to participate meaningfully at the EAW hearings. They argue that the city violated their due process rights in failing to make an adequate tape recording of the June 4 city council meeting and in making only a conclusory written record. We disagree. No rule requires the city council to audiotape its proceedings. Furthermore, the minutes of the planning and zoning committee on June 5th were virtually a transcript of the proceedings. The Stelzners also argue that they were not afforded a fair hearing at the June 6th city council meeting because they were not allowed to present testimony from their damages expert on the Stelzner property. Again, we disagree. The city council rules do not allow testimony to be taken at the meetings of the full council, but only in the meetings of the standing committees. The Stelzners had ample opportunity to present testimony at the May 27th and June 5th planning committee meetings. Under these circumstances, the district court did not err in determining that the Stelzners' due process rights were met.

4. Summary judgments

The Stelzners argue that the district court erred in granting summary judgment in favor of respondents in this case. In reviewing an appeal from summary judgment, the court focuses on two questions: (1) whether any genuine issues of material fact exist, and (2) whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted: in this case, the Stelzners. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

When the Minnehaha Creek Watershed District (MCWD), the city, and the Park Board moved for summary judgment and dismissal of claims, they supported their motions with facts and law. For example, the MCWD, which was the RGU on the public project, argued that its decision denying the need for an EIS on the public project was not arbitrary or capricious because it made its decision based on a full evaluation of the environmental factors set forth in Minn. R. 4410.1700, subpt. 7 (1996). The Park Board argued, among other things, that the Stelzners had not set forth a prima facie case under the Minnesota Environmental Rights Act (MERA) at Minn. Stat. § 116B.01-.13 (1996). The city also argued it complied with the zoning code.

Yet, the Stelzners did not present any facts to create material issues for trial. See Minn. R. Civ. P. 56.05 (providing that adverse party "may not rest upon the mere averments," but must "present specific facts" showing genuine issue for trial); Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (summary judgment is proper when nonmoving party fails to indicate that genuine issues of fact exist).

The Stelzners argued solely in support of their motion for injunctive relief and did not present facts to oppose the various motions for summary judgment. Here on appeal, the Stelzners again challenge summary judgment with the general statement in their brief, "Several of the Motions were without merit and/or raised genuine issues of material fact." Under these circumstances, with no specific demonstration of fact issues or legal error, we must conclude that all summary judgments were proper.


[1] We note that, even if the Stelzners did not consent to the hearing, the district court acted within its discretion in holding the hearing pursuant to Minn. R. Gen. Prac. 115.07 and Minn. R. Civ. P. 56.03.