Courtroom is next stop in amphitheater wars
Posted: 2/1/02
by John Gessner
Staff Writer
The next arena in the Burnsville amphitheater wars will be a Dakota County courtroom, where amphitheater opponents will argue Feb. 22 that the city understated the facilityís capacity so it could get by with an incomplete environmental review.
The city of Bloomington and the Bloomington Amphitheater Coalition allege that the Burnsville City Council violated state environmental law by ordering an environmental assessment worksheet (EAW) for the project rather than a more extensive review called an environmental impact statement (EIS).
Opponents allege that Burnsville skirted state rules by stating that the outdoor concert venue will have a capacity of fewer than 20,000 people.
Minnesota Environmental Quality Board rules mandate that an EIS be done on any ìnew outdoor sports or entertainment facility designed for or expected to accommodate a peak attendance of 20,000 or more persons.î
Bloomington and the Bloomington Amphitheater Coalition (BAC) filed separate suits alleging the same violation of the Minnesota Environmental Policy Act (MEPA). The cases have been consolidated into a single claim that will be heard by Dakota County District Judge Thomas Murphy.
An environmental impact statement could delay the project for another year, said David Sasseville, an attorney representing the BAC and its Burnsville counterpart, Citizens Alliance for Responsible Ecology.
The project, which received Burnsville City Council approval in 2000, has already been delayed for more than a year by a Metropolitan Council review. The opposition-prompted review ended in December with a finding that the riverfront amphitheater west of I-35W wonít have metropolitan significance because it wonít cause noise pollution in Bloomington.
ìThe city of Bloomingtonís contention is that the environmental rules require the environmental impact statement because the facility is designed for or expected to accommodate 20,000 or more persons,î said Bloomington City Attorney David Ornstein.
Burnsville City Attorney Roger Knutson insists that developer Rose Wild LLC wonít be allowed to have more than 19,700 people on the site at any time. That includes fans, backstage workers and amphitheater employees, he said.
The 19,700 limit is stipulated in the City Council-approved planned unit development (PUD) that governs the amphitheaterís design and operation, Knutson said.
ìA PUD is everything,î he said. ìThatís the condition under which we approved the project. We have the most comprehensive regulations of any amphitheater probably anywhere in the nation.î
Opponents argue that the facility could hold up to 37,000 people.
ìThey could easily get to 25 (thousand),î Sasseville said. ìThere are other amphitheaters in other cities where theyíve got nominal peak capacity of 20,000 and frequently hit 23 to 25 with standing room only, not including behind-the-scenes people who donít pay to get in.î
Said Knutson, ìNo more than 19,700 are allowed on the site. That is the design.î
Said Ornstein, ìItís really a question not of what the PUD provides, but whether the record as a whole indicates that, in fact, it is designed for 20,000 or more.î
Murphy will be asked to decide whether the amphitheater does require an EIS and whether Burnsville acted appropriately in not ordering one.
ìWeíre going to win,î Knutson said.
Another
claim dropped
Citizen opponents have dropped a second lawsuit against Rose Wild and landowner R.B. McGowan Co. The suit, filed under the wide-ranging Minnesota Environmental Rights Act (MERA), alleged that the amphitheater would harm the environment in dozens of ways.
BAC President Brian Carlson said the suit could be resurrected.
ìWe want the developer to go through the process of an EIS because we think that will provide a lot more information,î Carlson said. ìThen weíll be able to evaluate the situation at that time. It didnít seem to make much sense to do the MERA lawsuit at the same time the other side is preparing an EIS.î
The Bloomington City Council will review all its legal options, including a possible MERA suit, Feb. 4, Ornstein said.
ìA lawsuit under the MERA law will be significantly more expensive than a lawsuit under MEPA, in part because youíre likely to have a full-blown trial and youíre going to need expert witnesses,î Ornstein said.
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