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<br /> Larkin Hoffman 12/16/2009 10:43 PAGE 006/008 Fax Server
<br /> Mayor Bill Blesener
<br /> Shelly Boss, Council Member
<br /> John Keis, Council Member
<br /> Michael McGraw, Council Member
<br /> Rick Montour, Council Member
<br /> December 16, 2009
<br /> Page 5
<br /> 7030.0050, subp. 1. Accordingly, the state noise standazds are exceeded. The City's actions
<br /> thus violate Minnesota's noise statutes and rules.
<br /> Additionally, pursuant to federal law, "[w]hen noise abatement measures aze being considered,
<br /> every reasonable effort shall be made to obtain substantial noise reductions." 23 CFR § 772.11.
<br /> Moreover, "[t]he views of the impacted residents will be a major consideration in reaching a
<br /> decision on the reasonableness of abatement measures to be provided." Id. In light of the plan
<br /> identified in the BA to provide a noise wall for Quebec Apartments, and the conclusions reached
<br /> on the basis of that plan, and the City's express rejection of the noise wall, reasonable efforts to
<br /> obtain a noise reduction were not completed, in violation of the federal regulations. Further, the
<br /> City did not provide notice, much less an opportunity for Quebec to be heard, before it requested
<br /> that the noise wall not be constructed. In sum, the City did not consider the views of the
<br /> impacted residents when it acted, contrary to its duty under federal law.
<br /> The City also created and is liable for a nuisance by requesting the omission of the noise wall.
<br /> "Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to
<br /> the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a
<br /> nuisance." Minn. Stet. § 561.01; see also Schmidt v. Village of Mapleview, 293 Minn. 106, 108,
<br /> 196 N.W.2d 626, 628 (1972) (a nuisance is an infringement or interference with the free use of
<br /> properry). A "person whose property is injuriously affected or whose personal enjoyment is
<br /> lessened by the nuisance," may bring an action to have nuisance enjoined or abated and recover
<br /> damages from the entity creating the nuisance. Minn. Stet. § 561.01. Given that the Project
<br /> resulted in a significant level of noise on the Property exceeding the state noise standards, and
<br /> that the construction of the noise wall would have abated this nuisance, the City is liable for
<br /> nuisance per se and maybe ordered to construct the noise wall and pay damages to Quebec.
<br /> The City's decisions to approve the Project conditioned on the omission of the noise wall for
<br /> Quebec Apartments was also arbitrary, capricious and unreasonable because the decision was not
<br /> based upon any facts. When a city acts in a quasi judicial manner affecting specific properties, a
<br /> court will review the city's decision to ensure that it is not unsupported by substantial evidence,
<br /> or arbitrary and capricious. See Carl Bolander & Sons Co. v. City of
<br /> Minneapolis, 502 N.W.2d
<br /> 203, 207 {Minn. 1993); In re Quantification ofEnvtl. Costs, 578 N.W.2d 794, 799 (Minn. App.
<br /> 1998), review denied (Minn. Aug. 18, 1998). When the City decided to oppose the noise wall for
<br /> Quebec Apartments, it indicated a generalized belief that the Property might be redeveloped, but
<br /> no facts supporting the accuracy of this belief existed. Accordingly, the City's decision was
<br /> arbitrary, capricious, and unreasonable.
<br /> The City violated numerous of Quebec's constitutional rights. First, the City violated the equal
<br /> protection rights of Quebec when it decided to remove the wall from the Quebec parcel while at
<br /> the same time approving the construction of walls for all other residential properties. When the
<br /> government distinguishes between similarly situated classes, the classification must rationally
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