DDONE lawsuit is tossed out


“We’d like to be [operating] in 2013,” Minneapolis’ then Solid Waste and Recycling Division Director Susan Young said a year ago, about the city’s and Hennepin County’s proposal to replicate the county’s Bloomington hazardous waste recycling center and replace the city’s Southside transfer station, all at 27th and University avenues NE.

Ten months later, after spending more than $2 million to buy the property, city officials, in a court document, referred to the city’s communications about the project as “speculative discussions regarding a potential facility.”

Whatever the city’s position, the “speculative discussions” argument carried the day with Hennepin County District Court Judge Bruce Peterson, who dismissed a Northeast group’s lawsuit challenging the proposed facility.

The city argued—and Peterson agreed—that the lawsuit could not proceed because the city doesn’t really have a project that can be judged.

In its Memorandum of Law in Support of Motion to Dismiss, the city’s attorneys wrote, “The City readily acknowledges that there has been discussion about potentially locating a facility of some sort on the subject parcel; however, the scope and nature of any such proposal has not been decided.”

Therefore, they wrote, the lawsuit should be dismissed. Peterson agreed.

The plaintiffs in the lawsuit are a nonprofit corporation called Don’t Dump on Northeast (DDONE) and 19 area residents who are trying to stop City and Hennepin County plans to build the waste-handling facility.

They have argued that the property is zoned I-2, the city’s medium-intensity industrial zoning, and that the facility as the City and County have described it is a “waste transfer and disposal facility,” which is not allowed on a property with that zoning. The City argues that it will not be a “waste transfer and disposal facility,” but a “recycling facility,” which is allowed on a property with I-2 zoning.

City officials have said the facility would produce and handle some solid wastes that are not recyclable, and the plaintiffs said that means it will be a waste-transfer facility, and therefore not allowed in the I-2 zoning.

In November, 2010, the residents challenged the project in a letter to Minneapolis Zoning Administrator Steve Poor, who responded that the planned facilities are allowed in I-2 zoning. They appealed his decision to the City’s Zoning Board of Adjustment, and to the Minneapolis City Council, and both affirmed Poor’s determination.

Judge Peterson said in a Jan. 5 ruling that the case is important and needs to be decided, but not through an immediate lawsuit.

“This case raises significant political questions about where to locate an important public facility which may have some negative consequences to its neighbors, and a significant legal question about whether a prohibited use which is an inevitable byproduct of a permitted use therefore bars the permitted use. But the City of Minneapolis has not yet sought the site plan and zoning approval necessary for such a facility. By jumping the gun, Plaintiffs have deprived the City of an opportunity to develop a final plan for the facility and to present it in a form that is most politically acceptable and technologically effective. Plaintiffs are entitled to a thorough exploration of their concerns. However, now is not the time and this court is not the place.”

Peterson also cited a Minnesota law that allows judges to refuse to enter judgement in a case “where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

“In this situation,” Peterson wrote, “it is clear that no ruling of this Court at this point will terminate the nascent controversy. If the Court were to rule on the merits of this matter and find for the City, the City would still be obligated to follow the process for obtaining a conditional use permit and site use approval from the Planning Commission. If the Court were to consider the matter fully and rule on the merits in favor of the Plaintiffs, the City could simply make revisions to the hypothetical plan considered by the Zoning Administrator and submit a revised plan for approval by the Zoning Commission.

“…It appears advisable at this time to grant the City’s motion [to dismiss the lawsuit]. All parties will benefit from providing the City time and opportunity to thoughtfully develop a final proposal, the details of which may then be fully considered in the appropriate forum.”

When the City’s and County’s plans are finalized, they will have to go through several permitting processes, and the granting of some of those permits can be appealed through the courts.