Beruflich Dokumente
Kultur Dokumente
1
State of Minnesota, by Jackson Court File No. 32-CV-10-113
Preservation Alliance,
Plaintiff,
v. PLAINTIFF’S MEMORANDUM OF
LAW WITH PROPOSED FINDINGS
Jackson County, a political subdivision AND CONCLUSIONS
of the State of Minnesota,
Defendant.
INTRODUCTION
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
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
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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
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].
3
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
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
testimony.
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
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
factors should be considered in determining whether the row houses are historical
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resources,” as well as the conclusion of plaintiff’s expert who “testified that . . . the row
houses . . . would be eligible for nomination to the national register.” 285 N.W.2d at 88.
opinion, and the absence of any expert rebuttal, plaintiff did also demonstrate the first
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,
Supreme Court’s precedent expressly describing how the statutory criteria are to be
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
occupied by the Minneapolis Armory “was 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 after trial that the
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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
Because the county did not contest on appeal that a prima facie case had been
established, the Supreme Court identified “[t]he central issue in this case” as being
“whether 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
In its Archabal opinion, the Court reviewed its own MERA precedents,
concluding as follows: “We believe that these cases, taken together, establish an
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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.
7
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:
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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 available that 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 a
new 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.
9
Archabal, 495 N.W.2d at 426 (emphasis added).
There is no question that 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 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
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
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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
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.
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 with Mr. Kane, he presented nothing
substantive actually demonstrating that Mr. Kane was wrong, and Mr. Filippi conceded
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 the option 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
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$7 million.
The witnesses also addressed the issue of how the construction and remodeling
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
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
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
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decisive advantage.
Defendant also made an effort to suggest that the question of the county’s office
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 “extremely high standard” identified by the
Supreme Court in Archabal, 495 N.W.2d at 423, that it is subject to in seeking to prove
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the affirmative defense provided in §116B.04. Plaintiff submits that even if the county’s
satisfying the Archabal criteria. Specifically, did the county demonstrate “that no
alternative [is] available that [does] not itself create extreme hardship,” that “there are
truly unusual factors present,” or that “the cost of community disruption from the
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.
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,
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
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
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
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
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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
conjunction with the issue of whether to grant a temporary injunction, and which shows
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 “Court may grant . . . temporary
and permanent equitable relief” and that “[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, consistent with the purposes
served by MERA.
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
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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
It can further be inferred from the policy embodied in MERA that the need and
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
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
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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
extension of the experience 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.
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DATED: December 3, 2010
____________________________________
Mark R. Anfinson
Attorney for Plaintiff
Lake Calhoun Professional Building
3109 Hennepin Avenue South
Minneapolis, MN 55408
612-827-5611
Atty. Reg. No. 2744
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,
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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
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
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
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
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.
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For much of the time since, the building has been used for county offices and has been
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
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 various options.
10. The county board’s preference appears to be mainly derived from its view that
a new building would be somewhat more efficient for the office functions that it would
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
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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
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
to a remodeled high school building. But while Mr. Marcucci disagreed with Mr. Kane,
wrong. Mr. Filippi conceded that he had no professional expertise in the functionality of
14. There was also considerable testimony about the costs associated with the
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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
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
County’s case.
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–
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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
delayed by an injunction, the county would likely incur significant additional costs. But
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
determine if the weakness in the economy and in the construction industry particularly
might not moderate or eliminate cost increases that could otherwise occur.
416, 421-22 (Minn. 1993) described the basic requirements imposed on the parties in an
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action brought under the Minnesota Environmental Rights Act (MERA), Minn. Stat.,
ch. 116B:
25
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
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].
26
2. The Court in State by Powderly v. Erickson, 285 N.W.2d 84 (Minn. 1979) held
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 “indicat[ing] what factors should be considered in
3. Plaintiff Jackson Preservation Alliance has established a prima facie case under
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.
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 for inclusion
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,
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.
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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
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.
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 “was 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
7. Because the county did not contest on appeal that a prima facie case had been
established, the Supreme Court identified “[t]he central issue in th[e] case” as being
“whether the County can legally destroy a resource otherwise protected under MERA
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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
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
defense.
follows: “We believe that these cases, taken together, establish an extremely high
Specifically:
29
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.
30
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 “simply not
enough under MERA and our cases.” Id., at 426. “In order to establish an affirmative
defense under MERA, the County had to show that no alternative was available that did
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
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
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.
31