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Larkin Hoffman 12/16/2009 10:43 PAGE 005/008 Fax Server Mayor Bill Blesener Shelly Boss, Council Member John Keis, Council Member Michael McGraw, Council Member Rick Montour, Council Member December 16, 2009 Page 4 the Project. On January 30, 2008, Mr. Zinner appeared at a City Council meeting and gave a presentation requesting that the noise wall be restored to the Project and built. At this meeting, the reason given by the City for requesting the deletion was "aesthetics" because the wall would be a relatively short (535 feet), stand-alone section. The City olaimed that when it imposed the condition on its consent for the Project, it believed it was unlikely that MnDOT would delete the wall on account of environmental justice issues. The City also claimed at the meeting that it was never informed by MnDOT that the wall had been deleted consistent with its condition on its consent. The meeting concluded with the City Council directing the City Administrator to request MnDOT to reinstate the wall and pay for its construction. On Apri128, 2008, MnDOT responded to the City Administrator with a letter that summarized the findings that more than justified a noise wall for the Quebec Apartrnents based on MnDOT criteria and pointed out that it was the City that asked for deletion of this noise wall subject to environmental justice concerns. MnDOT additionally advised that, based on the EA, the FHWA found no environmental justice issues with the Project. Further, MnDOT asserted that it "has always adhered to the desires of any City in regards to noise walls as spelled out in their resolution" and that MnDOT is not about to change its pxior practice in this case. Finally, MnDOT disclosed that no federal or state money remained to pay for building a noise wall now. In conclusion, MnI70T commented that if the City decided to assist Quebec Apartments, "an earthen berm would be economical and provide some noise mitigation," without accounting for any practical or engineering coxusiderations-which would be considerable. The City's Violations of Law The City's approval of the Project conditioned on the removal of the planned noise wall in front of Quebec Apartments violated numerous laws and Quebec's rights. The City violated noise laws, created a nuisance, and rendered an arbitrary and unreasonable decision. The City also violated Quebec's constitutional rights to due process of law and equal protection, and its right to receive just compensation for the taking of its property. The construction of the Project without incorporating the wall was contrary to Minnesota and federal noise laws. Pursuant to Minnesota statute, when highways are constructed with federal funds, state noise standards do not apply only if "all reasonably available noise mitigation measures are employed to abate noise." Minn. Stat. § 116.07, subd. 2a. Given that the City requested that the noise wall not be constructed for Quebec Apartments, the available and feasible noise mitigation measures were not employed and the state noise standazds apply. The EA indicated that without noise mitigation measures, the Project would result in a noise level of 72 decibels at Quebec Apartments, while the proposed noise wall would result in a noise level of only 64 decibels. The State's noise pollution rules establish standards that sounds, within residential areas, must not exceed 65 decibels ten percent of the time for one hour ox 60 decibels fifty percent of the time for one hour during the daytime. Minn. R. 7030.0400, subp, 2;