LAW OFFICE OF CHRISTOPHER

I. Was it proper to permit intervention under Rule 24, Minn. R. Civ. P. by a group of citizens in Sunfish Lake, known as Power Line Task Force, Inc., who are vitally effected by the proposed replacement of a single-circuit electric transmission line with a new and more intensive double-circuit power line?

The Trial Court held in the affirmative, allowing the group to intervene under Rule 24 of the Minnesota Rules of Civil Procedure.

Appellants maintain that the decision of the Trial Court was correct. Norman v. Refsland, 383 N.W.2d 673, 678 (Minn. 1986); Costley v. Caromin House, Inc., 313 N.W.2d 21, 28-29 (Minn. 1981); Snyder’s Drug Stores, Inc., v. Minn. State Bd. of Pharmacy, 221 N.W.2d 162, 166 (Minn. 1974); BE & K Constr. Co. v. Peterson, 464 N.W.2d 756 (Minn. Ct. App. 1991).

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II. Did the Trial Court err in dismissing this lawsuit with prejudice, over the objection of the Intevenor, without providing terms or conditions that are “proper” to protect the right of Intevenor to appeal from an earlier mandamus decision entered by the Court?

The Trial Court held in the negative, ordering that the lawsuit be dismissed with prejudice and without providing any terms or conditions to permit the Intevenor to appeal from the earlier decision.

Appellant maintains that the decision of the Trial Court dismissing the case with prejudice was erroneous. Lang v. William Bros Boiler & Mfg. Co., 85 N.W.2d 412 (Minn. 1957); Muirhead v. Johnson, 46 N.W.2d 502 (Minn. 1951); Lombardo v. Seydow-Weber, 529 N.W.2d 702 (Minn. Ct. App. 1995); Erickson v. Bennett, 409 N.W.2d 884 (Minn. Ct. App. 1987).

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III. Did the Trial Court err in directing the City of Sunfish Lake to furnish a Conditional Use Permit (CUP) to allow replacement of an existing power line with a different, more intensive transmission line?

The Trial Court ruled in the affirmative, holding that the decision by the City Council of Sunfish Lake to deny a CUP was arbitrary, capricious, and unreasonable and ordered the City to grant the application.

Appellant maintains that the decision by the Trial Court was erroneous and should be reversed. Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566 (Minn. 2000); Honn v. City of Coon Rapids, 313 N.W.2d 409 (Minn. 1981); State v. Larson Transfer & Storage, Inc., 246 N.W.2d 176 (Minn. 1976); Beck v. City of St. Paul, 231 N.W.2d 919 (Minn. 1975).

STATEMENT OF THE CASE

This is an appeal from a determination by the Dakota County District Court, the Honorable Rex Stacey, concerning an effort by Northern States Power Company d/b/a Xcel Energy (“Xcel”) to replace a single-circuit electric power line with a new more intensive double-circuit transmission structure running through the City of Sunfish Lake. After its application for a Conditional Use Permit (CUP) to replace the line was denied by the City, Xcel sued the City seeking Mandamus directing it to grant the application.

The City initially opposed the lawsuit. It was joined by the Power Line Task Force, Inc. (“Task Force”), an organization consisting of residents effected by Xcel’s proposal, as well as two individual homeowners, who sought to intervene in the action. The Trial Court allowed them to intervene under Rule 24 of the Minnesota Rules of Civil Procedure.

The Trial Court, on a motion for Partial Summary Judgment by Xcel, ordered the City by Mandamus to issue the CUP for replacement of the power line. The Intervenors intended to appeal, but in the meantime, Xcel and the City without involvement of the Intervenors, entered into a Settlement Agreement. Under the Agreement, the City granted the CUP, and the City and Xcel, without the participation of the Intevenors, stipulated to a proposed Court order dismissing the lawsuit with prejudice.

The Intervenors, who were not signatories to the settlement or stipulation, opposed dismissal of the lawsuit with prejudice. The Court, without notice to Intervenors, signed the order requested by the City and Xcel to dismiss the lawsuit with prejudice. Rule 41.01(b) Minn. R. Civ. P. states that a lawsuit may not be dismissed with prejudice unless all parties agree or the Court does so upon terms and conditions that are “proper.” After signing its Order, it conducted a hearing at which Intervenors requested that the matter not be dismissed with prejudice without protecting their right to appeal from the prior Mandamus ruling.

The Trial Court adhered to its prior ruling and ordered the lawsuit dismissed with prejudice without any other terms or conditions. Judgment was then entered dismissing the lawsuit with prejudice.

The Task Force brought two related appeals. The present appeal challenges: dismissal of the lawsuit with prejudice without “proper” terms to protect the rights of the Intervenor. A separate appeal, C0-02-1285, contested the Mandamus ruling of the Trial Court. A Panel of this Court, on September 3, 2002, dismissed C0-02-1285, but expressly reserved the issues raised in that proceeding to be reviewed in this appeal.

STATEMENT OF THE FACTS

A. The Power Line Proposal

This case concerns the attempted replacement by Xcel of an existing single circuit power line with a new double-circuit structure bearing a different, more intensive power line running through the community of Sunfish Lake.

In the late 1990’s, Xcel announced a project seeking to build a new double-circuit of 115 kV transmission line covering a distance of 14.76 miles from the Red Rock Substation in Newport to the Wilson Substation in Bloomington. App. p.15 (Finding 9), passing within 50 feet of about 208 housing units, including apartments, including several homes in Sunfish Lake. App. p.25 (Finding 53). [1] About 1.24 miles would run through Sunfish Lake. App. p.16 (Findings 7-8). The new line would have the capacity to carry up to 1600 amps of current in each circuit, double the current load. App. pp.2, 6 (Findings 9, 25). The utility sought to locate this new transmission line along the 50-foot easement currently used by Xcel for a single-circuit 115 kV transmission line originally constructed in 1923, is narrower than the customary 100-foot easements. App. p.16 (Finding 6).

The existing line, supported by wooden H-frame structures ranging from 51 – 85 feet high, is part of Xcel’s transmission grid delivering electric power to customers throughout the Twin Cities metropolitan area. App. p.17 (Findings 10-11). Xcel sought to replace that line with steel structures supporting double-circuit lines ranging from 80-110 feet high. App. p.17 (Finding 12). In addition to the greater height, the proposed double circuit would have concrete foundations drilled into the ground at a depth in excess of 30 ft, in lieu of the current wooden poles that are embedded without permanent foundations. Id.

The Minnesota Public Utilities Commission (“PUC”) earlier had declined a request by a group of citizens to remove the existing single-circuit power line. See In the matter of the Complaint regarding the safety of Northern States Power Company’s transmission lines in the Southeast Metro Area, Docket No. E-002/C-99-902, 2000 WL 772434 (Minn. P.U.C.) It noted that five of the six effected communities through which the new power line would pass (Newport, South St. Paul, Inver Grove Heights, Mendota Heights, Bloomington, and Sunfish Lake) must approve the specific proposals for running the line through their respective communities. Id., at 5. The PUC, determined that permit proceedings in those communities would provide “more appropriate and wide-ranging forums for exploring the issues this line poses, including but not limited to health-related concerns.” Id.

The Minnesota Environmental Quality Board (“MEQB”) also declined to require the submission of an Environmental Impact Statement in conjunction with the proposed project. App. p.8. The MEQB could have declared itself the “Responsible Government Unit” and passed upon the merits of Xcel’s application, but chose not to do so, nor did it reach a judgment on whether a Statement was needed. Stating that it was not the “responsible governmental authority to make that determination,” the agency agreed with the PUC that the project is “subject to local control, including Conditional Use Permits.” Id., ¶ 34, p.5.

Xcel then sought approval from the various communities through which the replacement line would run, including Sunfish Lake. Xcel filed an application with Sunfish Lake on November 13, 2001, for a Conditional Use Permit, a site plan approval, and minor variances, collectively referred to as “CUP,” as required by the City’s Zoning Code. App. pp.9-10 (Application) and City Code § 1224.05. The application was filed 3 ½ months after new legislation went into effect, August 1, 2001, requiring approval by both the PUC and MEQB for a power transmission line with capacity of 100 kV and more than 10 miles in length. Minn. Stat. § 216B.243 subd.2 (2002 Supp.) and Minn. Stat. § 216B.2421 subd.2(3) (2002 Supp.) (Certificate of Need required from PUC); Minn. Stat. § 116C.57 subd.2 (2002 Supp.) and Minn. Stat. § 116C.52 subd.4 (2002 Supp.) (Route permit required from MEQB).

B. The Sunfish Lake Proceedings

Although the existing line is “grandfathered” as a non-conforming use, the proposed double circuit replacement requires a CUP and site approval under the City’s Zoning Code, City Code § 1224.05. The criteria for granting or denying the CUP include the protection of the public health, safety, and welfare, the health effects, impact on surrounding properties and need for the project. City Code, §§ 1204 and 1224.

The City has a multi-step process to replace or reconstruct a transmission line. First, a CUP has to be obtained for the project as a whole and its route, if approved, the site and building plan approval must be obtained. City Code § 1224.05. In addition to seeking a CUP, Xcel also sought a minor variance from the City’s requirement that poles be 60 ft from houses and conductors be at least 37.5 ft from homes, although the 50-foot width of the easement would remain unchanged. App. p.17 (Finding 16).

Under the Sunfish Lake Zoning Code, when an application is made for a CUP for a transmission line, the City Counsel is to consider other potential routes in addition to that proposed by the applicant. City Code § 1224.05 (F) and (G). Scrutiny of the project consists of public hearings before the Planning Commission, which makes a recommendation of the City Council for approval or denial. Following public hearings, the council makes a decision. If the application is approved, the council next addresses a proposal for site specific construction details, known as the site and building plan stage; if the CUP is not granted, no further action is taken.

Three of the effected communities, including Sunfish Lake, established an unofficial group known as the “Mayors Steering Committee,” which gathered facts relevant to the proposal, although it was not authorized to reach any decision or make any recommendations. As part of the process, Xcel paid $130,000 to a consultant it had procured for the Steering Committee, Commonwealth Associates, Inc. (CAI), with which it has a relationship dating back to the 1970’s. CAI’s mandate was limited to developing information useful to the committee and was specifically precluded from making recommendations. CAI, which was paid by Xcel, did not examine the need for the proposed double-circuit line nor Xcel’s forecast regarding additional electricity demand. It simply accepted the information provided by Xcel without any critical analysis and summarized it for the Steering Committee. CAI also did not provide any expertise regarding potential health consequences of exposure to Electromagnetic Fields (EMF), which forms the basis for health concerns regarding the new power line.

C. The Health Concerns

Significant health issues pertained to the replacement power line upon those living nearby. Power frequency magnetic fields arise from electric currents. They are part of the electromagnetic field (EMF) associated with every power line. The intensity of a magnetic field is a function of the amperage going through the line. The greater the current transmitted, the greater is the magnetic field intensity. The intensity of a magnetic field varies with the distance from the source. App. p.19 (Finding 23.)

The proposed line would carry a great deal of current, up to 1600 amps in each of its two circuits. App. pp.16,20 (Findings 9, 24-25). It would pass within 30 feet of houses, much closer than Xcel’s own practice for new lines according to Xcel’s own estimates, and would expose the residents of adjacent homes to magnetic fields more than 40 times more intense than the average residential fields in the United States.

Health hazards posed by power lines have been of concern since 1971. [2] The issue is not one of “junk” science. It has been treated seriously by the established scientific community, physicians, and national and international health organizations. The adverse health effects from exposure to EMF include increased likelihood of child leukemia, ameotrophic lateral sclerosis (ALS or Lou Gehrig’s Disease), neurological disorders, breast cancer, and miscarriages, among other afflictions, especially among those already susceptible to those diseases. App. pp.25-26 (Findings 55 – 60).

Debate existed for many years within the scientific community regarding the relationship between EMF and those diseases. There were inconsistencies in the epidemiological research: some studies found a linkage and others did not. But in 2000, in three independent studies, scientists reexamined earlier investigations and concluded that a link exists between EMF and a heightened risk of contracting serious diseases. App. p.28 (Finding 70). As a result, credible and strong scientific data shows that exposure to heightened EMF is epidemiologically linked with an enhanced risk of contracting serious disease, a view shared by many officials and leading government authorities, including some who have modified their earlier doubts regarding the existence of this linkage. [3]

The double-circuit line proposed by Xcel initially would reduce EMF in comparison to the existing single-circuit line. App. p.22 (Finding 34). But opponents of Xcel’s plan, supported by independent experts, submitted substantial information that the new power line would, based upon future demand, result in an increase in amps and EMF that could endanger the health of those living near the site. App. p.25 (Findings 54 – 55). Some of this testimony was furnished by Dr. Martin Blank, a Microbiologist and Professor of Physiology at Columbia University, who discussed his own and others' research documenting the harmful effects of EMF-emissions with special emphasis on micro-biological impacts, App. p.38, and Dr. Magda Havas, a Canadian scientist with expertise in the biological effects of EMF emmissions on human health. App. p.38.

Their views, along with voluminous supporting documents, were provided to the Steering Committee and were part of the record used by the Sunfish Lake City Council in evaluating Xcel’s request for a CUP. App. pp.35-44. Documentation also was submitted from MSB, an independent engineering consulting firm, casting doubt upon Xcel’s projections concerning the intensity of power line usage and resulting EMF. App. p.38. Four practicing physicians (a surgeon, OB/GYN, radiologist, and general practitioner) also testified about potential health effects resulting from increased future exposure to EMF from the proposed new line.

Xcel submitted testimony of one health-related consultant and a mid-level official from the Minnesota Department of Public Health. In contrast, Jan Malcolm, the Commissioner of the State Department of Public Health, wrote that “[f]rom a public health standpoint, I am concerned about the level of magnetic field exposure (EMF) to which certain residents are now and will continue to be subject,” noting that Xcel’s project was anticipated to generate much greater exposure levels than those in the MEQB studies.

D. Denial of The CUP

The Mayoral Steering Committee did not adopt any report nor issue conclusions or recommendations of its own. The Sunfish Lake Planning Commission held three lengthy hearings in December, 2001 and January, 2002, consuming about ten hours, and received more than 100 documents, comprising in excess of 2,000 pages, along with live testimony, forming the voluminous administrative record in this case. App. p.43. During the proceeding, Xcel orally stated, without supporting documentation, that it would defer its 14-plus mile project and limit the proposal to a 6.36 segment running from the Red Rock Substation in Newport to the Roger Substation in Mendota Heights. App. pp.29-30 (Findings 81, 82).

The City considered three available options: an above-ground double circuit 115 kV transmission line; a below-ground double circuit 115 kV transmission line; a below-ground double circuit transmission line; or denial of the project. App. p.18 (Finding 17). Xcel maintained that the project was necessary and that a below-ground line would be economically unfeasible, costing some $6.5 million, compared to $500,000 for an above-ground structure. App. p.23 (Findings 36-37).

Opposition to the project focused on several issues: diminution of the value of adjoining properties, adverse health effects due to increased exposure to EMF, and lack of need for the project. App. p.18 (Finding 18).

The City was guided through the process by its City attorney, who emphasized the importance of basing any action on facts in the record and drafted alternative proposed findings of fact, one supporting approval of the CUP and the other containing supporting denial, which were made available to Xcel members of public, including opponents of the project, who offered extensive comments to the alternate versions, which were modified as the process progressed. On January 29, 2002, the Planning Commission, following three lengthy hearings, recommended denial of the CUP by a vote of 4-0, with one abstention. The City Council conducted a public hearing and, after extensive deliberation, on February 5, 2002, denied the application by a vote of 4-1. App. p.34. The denial was accompanied by a Resolution consisting of extensive Findings and Conclusions supporting its decision. App. pp.15-44.

The Findings included a determination that the project “will cause a reduction in the market value” of homes in the vicinity of the power line. App. p.19 (Finding 22). In evaluating health concerns, the Council noted that several residents near the power line have “health problems” that may be aggravated by EMF exposure, App. pp.25-26 (Finding 58), that EMF exposure will increase over time, as demand for power rises and the increase will “have adverse health effects,” including a greater likelihood of child leukemia, ameotrophic lateral sclerosis (Lou Gehrig’s Disease), neurological disorders, breast cancer and miscarriages, among other matters, especially among those already susceptible to those afflictions. App. p.26 (Findings 59-60). The Council also determined that it was not reasonable to permit the “unjustified [health] risks . . . of constant and cumulative exposure to EMF,” that would result from the project. App. p.26 (Findings 62-63). The Council also found that Xcel had not “shown a demonstrated need” for the project based upon the lack of any certificate need from the PUC or determination from that agency that a Certificate of Need was not required. App. p.30 (Findings 86, 89).

The City made supporting Conclusions that the project “will cause a reduction of the market value” of homes in the area, App. p.33 (Conclusion F), that “credible” evidence exists of “adverse” health effects stemming from the project, App. p.33, (Conclusions D and E), and that there was no showing of a “need for the project” at the present time. App. p.34 (Conclusion H).

Coupled with its Findings and Conclusions, the Council identified a voluminous record of 109 items of testimony, reports, and other materials that constituted the record and support its determination, including appraisal materials concerning real estate values; numerous reports about adverse health effects from EMF, including testimony from two experts, Dr. Blank and Dr. Havas, and four local physicians, and numerous other data gathered during the process as well as from hearings from other nearby cities regarding efforts by Xcel to replace its power line in those communities, too. App. pp.35-44.

E. The Present Litigation

Xcel sued the City on February 26, 2002 and amended its Complaint on March 15, 2002. App. pp.45-80. It asserted a number of claims, revolving around its contention that the denial of the CUP was arbitrary, capricious, and unreasonable and should be overturned. The City opposed the lawsuit, as did a group of residents who formed the Task Force as a not-for-profit organization.[4]

Xcel brought a Motion for Partial Summary Judgment seeking Mandamus for issuance of a CUP. App. pp.81-82. The City made a cross-motion for summary judgment. App. p.96. The Task Force and two individual residents timely sought intervention as Defendants. App. pp.97-98. At a hearing on the cross-motions for Summary Judgment, the Court permitted them to intervene, over objection of Xcel. App. ____. Although granted the right to intervene, the Task Force was not allowed by the Court to make any argumentation or submit a brief at the hearing on the Motions. App. p.102 (Trial Court Memorandum, p.4).

On May 31, 2002, the Court ruled in favor of Xcel. It entered Partial Summary Judgment for Xcel and issued an order of Mandamus directing the City to issue the CUP, and did not pass upon the City’s cross-motion. App. pp.99-126.

In its ruling, the Court determined that the City’s denial of a CUP was arbitrary, capricious, and unreasonable. Paying homage to the “very fine efforts” of City officials, App. p.101 (Trial Court Memorandum, p.3), the Court reached the “inescapable conclusion” that the denial of the CUP was “unauthorized, unreasonable, arbitrary and capricious.” Addressing Xcel’s motion for Summary Judgment, the Court declared that the “underlying facts are not in dispute.” Id., p.105. It determined that Xcel had “established a need for the second (replacement) circuit,” which necessitated issuance of the CUP as a matter of law. Id., p.117. It also concluded that decline on property values for homes lying near the replacement line would be insubstantial and not entitled to “much weight,” Id., p.119 and that the evidence regarding potential adverse impact on health was unsubstantiated in the record. Id., pp.120-125.

The Court also determined that Xcel had established need for the replacement line circuit and that it did not need a Certificate of Need from the PUC nor a determination by the Commission waiving a certificate since the statutory requirement for a Certificate of Need, pursuant to Minn. Stat. §216B.242 subd.6, only applies to projects undertaken on or after August 1, 2001 and that Xcel had initially sought the permit prior to that date, which rendered the statute inapplicable. Id., pp.124-125. The Court reasoned that, even if a Certificate of Need was required, Xcel could apply for the Certificate of Need and obtain it prior to commencing construction, which made the certificate merely a condition, rather than a basis for denial. Id. pp.26-27.

The Court concluded that denial of the CUP was unreasonable because the City really wanted “removal of the [existing] line altogether.” Id. p.126. Thus, the Court granted Partial Summary Judgment in Xcel’s favor on two counts of the Complaint and issued an order of Mandamus directing that the CUP be granted.

F. Subsequent Settlement and Dismissal

The Task Force, as Intervenor, planned to appeal.[5] The City and Xcel then began discussions to resolve a case through issuance of a CUP. The Task Force objected, urging that the Mandamus order be appealed. The Council indicated it would appeal if the Task Force would post a bond of $135,000 to cover the City’s legal expenses. App. pp.127-129. The Task Force agreed and arranged for a letter of credit. App. p.130. The City recanted and, rather than appealing, on July 2, 2002, by a vote of 4-1, flip-flopped and entered into a settlement with Xcel July 2, 2002, which was explicitly predicated upon the Mandamus ruling of the Trial Court. App. pp.130,139.

In the settlement, the City agreed to furnish a CUP in exchange for minor consideration by Xcel, and the parties further agreed to stipulate to dismissal of the lawsuit with prejudice.[6] The Task Force, which was not included in discussions or a signatory to the arrangement, opposed the settlement because it believed that the Mandamus ruling that predicated the settlement was erroneous and should be appealed.

Xcel and the City presented the stipulation to the Trial Court, which entered an Order on July 15, 2002 dismissing the case with prejudice. The Task Force twice objected to the dismissal on grounds that it was not a signatory to the agreement and, therefore, under Rule 41.01(b) of the Minn. R. Civ. P., the case could not be dismissed without “proper” terms and conditions to protect its rights as an Intervenor. App. pp.146-147 and 162-163. A week after entering its dismissal Order, the Court conducted a brief hearing at which time counsel for the Intervenor expressed renewed opposition to the proposed dismissal unless it included “proper” terms to preserve the right of the Task Force to appeal from the Mandamus order. App. p.167 (Transcript). The Trial Court rejected the request, adhering to its pre-hearing order dismissing the case with prejudice. App. pp.179, and 199.[7]

The Task Force then brought this appeal, claiming that the Trial Court erred in dismissing the case with prejudice without providin

LAW OFFICE OF CHRISTOPHER

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