Friends of Tower Hill Park, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1111

Friends of Tower Hill Park,
Appellant,

vs.

Foxfire Properties, LLC, et al.,
Respondents,

Vermilion Enterprises, LLC, et al.,
Respondents.

Filed March 2, 2020
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CV-18-20111

Erik F. Hansen, Elizabeth M. Cadem, Martin C. Melang, Burns & Hansen, P.A.,
Minneapolis, Minnesota (for appellant)

Joseph J. Christensen, Kenneth J. Smith, Christensen & Laue, P.A., Edina, Minnesota (for
respondents Foxfire Properties, LLC, et al.)

Howard R. Roston, Emily A. Unger, Fredrikson & Byro n, P.A., Minneapolis, Minnesota
(for respondents Vermilion Enterprises, LLC, et al.)

Considered and decided by Johnson, Presiding Judge; Bjorkman, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges the dismissal of its action under the Minnesota Environmental
Rights Act (MERA), Minn. Stat. §§ 116B.01-.13 (2018), seeking declaratory and
injunctive relief regarding respondent-developers’ planned construction project. Appellant
argues that the district court erred by applying collateral estoppel based on prior municipal
proceedings regarding the project. We affirm.
FACTS
Respondents Vermilion Development and Vermilion Enterprises, LLC
(collectively, Vermilion) plan to construct a 14 -story mixed-use building (the project) on
University Avenue in Minneapolis, approximately one-half block away from the Prospect
Park Water Tower, which is commonly known as the Witch’s Hat Tower. Appellant
Friends of Tower Hill Park opposes the project, claiming it will impair views of and from
the tower.
The Witch’s Hat Tower was built in 1914 on the highest natural point in the Twin
Cities. It was designed to serve the dual purposes of observation deck and water tower,
though it has since ceased operation as a water tower. In 1997, the Witch’s Hat Tower was
placed on the National Register of Historic Places because of its association with the Twin
Cities’ early water system and its unique architecture.
In May 2018, Vermilion submitted a land -use applica tion to the City of
Minneapolis. Vermilion request ed rezoning, a conditional -use permit, variances, and
approval of the project’s site plan and plat. The city’s planning and economic development

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department (CPED) considered public comments and prepared findings on each aspect of
the application. In doing so, the CPED addressed the impact of the project on views of and
from the Witch’s Hat Tower:
The most significant landmark building affected by the
proposed development is the Witch’s Hat Tower in Tower Hill
Park, located ½ block from the proposed site. The tower is a
locally-designated historic landmark and is listed on the
National Register of Historic Places. The applicant has
provided documentation demonstrating the ways in which the
proposed development would obscure views to the tower from
the public realm. According to illustrations provided by the
applicant the most impacted view of the tower that would be
altered or obscured is along University Ave SE to the SE of the
site. Modeling indicates that this view would be equally
obscured by a 4 -story building, a height which would be
allowed by right [under existing zoning]. Significant views of
public spaces and notable buildings would not be obstructed
from the tower or from Tower Hill Park, most notably, the view
of Downtown Minneapolis.

The CPED recommended approving the project. The city’s planning commission adopted
the CPED’s findings and approved the project.
Trina Porte appeal ed the planning commission’s decision, as did Eric Amel and
Gayla Lindt, appellant’s founding member and vice chair. Both appeals argued that the
city needed to further analyze the project’s impact on views from and of the Witch’s Hat
Tower and possibly reject the project because of that impact . After a public hearing, the
city council substantially denied the appeals, adopting the CPED’s findings and approving
the project. The city council imposed several conditions to address concerns raised in the
appeals, including two re lated to the Witch’s Hat Tower: (1) Vermilion “shall work with
the property owners of directly adjacent property to implement screening and other

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measures to reduce the visual impact of the [project],” and (2) Vermilion “shall confer with
a historical consultant to identify and mitigate to the extent practical any potential impact
on nearby historic properties, including the Witch’ s Hat water tower. ” None of the
challengers appealed the land-use decision.
Approximately two weeks later, appellant filed a petition requesting that the city
prepare an environmental assessment worksheet (EAW) fo r the project. The petition
asserted that the project “ will cause serious adverse environmental effects to the natural
resources (including historic and esthetic resources) of Tower Hill Park and the Prospect
Park Water Tower, as defined in [MERA].” The city denied the EAW petition. Appellant
did not appeal that decision.
In December, appellant initiated this MERA action, seeking a declaration that “the
Witch’s Hat Tower and its viewshed are natural resources and cannot be impaired pursuant
to MERA” and an injunction prohibiting Vermilion from proceeding with the project. 1
Vermilion asserted collateral estoppel, pointing to the extensive public record of the city’s
proceedings, and moved to dismiss under Minn. R. Civ. P. 12.02(e). The district court
granted the motion and dismissed the action. This appeal follows.
D E C I S I O N
A district court may dismiss a complaint when the plaintiff fails to state a claim
upon which relief can be granted. Minn. R. Civ. P. 12.02(e). On appeal , we consider

1 Respondents Foxfire Properties, LLC, The Tower Hill Building, LLC, and 3350 Uni-Prop
LLC (the entities selling the underlying real estate to Vermilion) were dismissed from the
litigation by stipulation.

5
de novo whether the complaint sets forth a legally sufficient claim for relief , taking the
facts alleged in the complaint as true and draw ing inferences in favor of the nonmoving
party. Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 606 (Minn. 2014). We also
independently analyze statutory language, Caldas v. Affordable Granite & Stone, Inc., 820
N.W.2d 826, 836 (Minn. 2012), and whether collateral estoppel precludes litigation of a
claim, Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004).
Collateral estoppel is a common -law doctrine that bars “relitigation of previously
determined issues.” State by Friends of the Riverfront v. Minneapolis , 751 N.W.2d 586,
589 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008). The doctrine is based on
the principle that “a right, question or fact distinctly put in issue and directly determined
. . . cannot be disputed in a subsequent suit between the same parties or their privies.”
Hauschildt, 686 N.W.2d at 837 (quotation omitted). We do not apply the doctrine “rigidly”
but consider the substance, procedural safeguards , and parties involved in the prior and
current proceedings. Friends of the Riverfront, 751 N.W.2 d at 589. “[O]ur focus is on
whether the application would work an injustice.” Id.
Appellant challenges the district court’s determination that its MERA claim is
barred by collateral estoppel, arguing that (1) MERA precludes application of the doctrine
and (2) the city’s land-use and EAW proceedings do not justify application of the doctrine.
I. MERA does not preclude application of collateral estoppel based on the city’s
quasi-judicial administrative proceedings.

Appellant principally argues that MERA itself precludes application of collateral
estoppel based on a prior municipal proceeding because “[t]he broad language of Minn.

6
Stat. § 116B.12 makes clear that, whatever remedies a plaintiff may pursue elsewhere,
MERA claims are ultimately the province of the Minnesota Courts.” This argument is
unavailing for two reasons.
First, it is contrary to principles of statutory interpretation. “The goal of all statutory
interpretation is to ascertain and effectuate the intention of the legislature.” Caldas, 820
N.W.2d at 836. Absent ambiguity, we discern legislative intent from the plain language.
State Farm Mut. Auto. Ins. Co. v. Lennartson , 872 N.W.2d 524, 529 (Minn. 2015). And
unless that plain language expressly declares or necessarily implies an intent to abrogate
the common law, we presume the statute is consistent with the common law. Ly v. Nystrom,
615 N.W.2d 302, 314 (Minn. 2000) ; see also Urban v. Am. Legion Dep’t of Minn. , 723
N.W.2d 1, 5 (Minn. 2006) (stating presumption that statutes “creating new causes of
action” do not abrogate the common law).
Nothing in the plain language of Minn. Stat. § 116B.12 indicates the legislature
intended to abrogate collateral estoppel. The legislature enacted MERA in 1971 to
establish a new private right of action , empowering citizens to obtain declaratory or
injunctive relief to protect the state’s “natural resources” from “pollution, impairment, or
destruction.” State by Schaller v. C ounty of Blue Earth , 563 N.W.2d 260, 264 (Minn.
1997); see Minn. Stat. § 116B.03, subd. 1. In doing so, the legislature recognized that it
was not writing on a blank slate : “No existing civil or criminal remedy for any wrongful
action shall be excluded or impaired by [MERA]. The rights and remedies provided [in
MERA] shall be in addition to any administrative, regulatory, statutory, or commo n law
rights and remedies now or hereafter available.” Minn. Stat. § 116B.12.

7
We are not persuaded that this provision precludes application of collateral estoppel
based on administrative proceedings. It merely indicates that MERA is nonexclusive—
MERA do es not displace existing rights, and existing rights cannot substitute for the
MERA right to protect natural resources from pollution, impairment, or destruction. If an
administrative body fully and fairly considered a MERA claim , nothing in Minn. Stat.
§ 116B.12’s terms bars application of collateral estoppel to preclude its relitigation.
Second, appellant’s argument is contrary to existing caselaw. Our supreme court
has expressly held that collateral estoppel , like the related doctrine of res judicata, may
apply to administrative decisions made in a quasi-judicial capacity. Graham v. Special
Sch. Dist. No. 1 , 472 N.W.2d 114, 115 -16 (Minn. 1991) (citing McKee v. C ounty of
Ramsey, 245 N.W.2d 460, 462 n.1 (Minn. 1976)) . After Graham, Minnesota courts have
consistently applied collateral estoppel to bar litigation of issues previously addressed in a
quasi-judicial proceeding. E.g., Villareal v. Indep. Sch. Dist. No. 659 , 520 N.W.2d 735,
737 (Minn. 1994) (school board); Zander v. State, 703 N.W.2d 845, 854 (Minn. App. 2005)
(Minnesota Board of Water and Soil Resources) ; Cent. Baptist Theological Seminary v.
City of New Brighton, 487 N.W.2d 528, 532 (Minn. App. 1992) (Minnesota Department of
Natural Resources) , review denied (Minn. Aug. 2 7, 1992). Indeed, we have applied
collateral estoppel in almost precisely the circumstance presented here —a city council ’s
quasi-judicial decision to approve a construction project over MERA -based objections.
Friends of the Riverfront, 751 N.W.2d at 592.
The nature of quasi-judicial decision -making protect s against concerns that
application of collateral estoppel will cause injustice . A quasi-judicial decision is the

8
functional equivalent of a court decision in terms of procedural safeguards, resolution of a
specific dispute, finality, and the availability of judicial review. See Graham, 472 N.W.2d
at 118-20 (analyzing procedural safeguards); Friends of the Riverfront, 751 N.W.2d at 590-
92 (same); see also Minn. Ctr. for Envtl. Advocacy v. Met. Council, 587 N.W.2d 838, 842
(Minn. 1999) (stating that a quasi -judicial decision involves investigation into a disputed
claim and weighing of evidentiary facts, application of those facts to a prescribed standard,
and a binding decision on the disputed claim); accord McKee, 245 N.W.2d at 462 n.1 (“One
factor which apparently influences the decision to accord administrative decisions
res judicata effect is the availability of judicial review.”).
These procedural safeguards distinguish the administrativ e decisions to which
collateral estoppel may apply from those that do not preclude subsequent MERA litigation.
As appellant asserts, we held in State by Fort Snelling State Park Ass’n v. Minneapolis
Park & Rec. Bd. that the appellant’s civil action under MERA “was authorized regardless
of administrative processes.” 673 N.W.2d 169, 177 (Minn. App. 2003), review denied
(Minn. Mar. 16, 2004). But we did so because, even though the prior administrative
process addressed the historic-preservation claim at issue in the MERA action, the process
“did not involve hearings or agencies acting in judicial or quasi-judicial capacities,” which
may provide a “basis for estoppel.” Id. Similarly, we held that “the broad language of
Minn. Stat. § 116B.12” means that a district court is not deprived of subject -matter
jurisdiction to address a drainage-based MERA claim simply because there is an alternative
administrative process available to address drainage issues. State ex rel. Swan Lake Area
Wildlife Ass’n, 711 N.W.2d 522, 525 (Minn. App. 2006) (citing Fort Snelling, 673 N.W.2d

9
at 177). In contrast, when an administrative agency actually considered and approved a
wetland-replacement plan through a quasi -judicial process that involved receipt of
evidence an d argument, we applied collateral estoppel to prevent the appellant from
relitigating MERA issues. Zander, 703 N.W.2d at 854-55.
Here, the parties do not dispute that the city acted in a quasi -judicial capacity in
approving Vermilion’s land -use application and denying appellant’s EAW petition. We
agree. See Interstate Power Co. v. Nobles Cty. Bd. of Comm’ rs, 617 N.W.2d 566, 574
(Minn. 2000) (stating that a decision on a land -use application regarding a particular
property is quasi -judicial); In re Envtl. Assessment Worksheet for 33rd Sale of State
Metallic Leases , 838 N.W.2d 212, 216 (Minn. App. 2013) (addressing review of final
decision whether to complete EAW), review denied (Minn. Nov. 26, 2013). Accordingly,
we are not persuaded that Minn. Stat. § 116B.12 precludes application of collateral
estoppel as a matter of law.
II. The district court did not err by concluding that the city’s prior proceedings
satisfy the elements of collateral estoppel.

Collateral estoppel may apply based on a prior quasi -judicial proceeding if (1) the
issues in the prior and current proceedings are “identical,” (2) the issue to be precluded was
“necessary to the [prior] adjudication and properly before the agency ,” (3) the prior
decision was a final determination subject to judicial review, (4) the estopped party was a
party or in privity with a party to the prior determination, and (5) “the estopped party was
given a full and fair opportunity to be heard on the adjudicated issue.” Graham, 472
N.W.2d at 116.

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Appellant argues that the circumstances of this case do not warrant application of
collateral estoppel . Appellant does not dispute the privity and full -and-fair-hearing
elements. But appellant contends (1) the issues addressed in the city’s land-use and EAW
proceedings are not identical to the issues in its MERA claim, (2) the issues in its MERA
claim were not “necessary” to the city’s decisions, and (3) the city’s decisions were not
final. We address each of these arguments in turn.
A. The city’s proce edings addressed t he same issue appellant presents in
this MERA action.

Collateral estoppel requires that the issues in the prior and current proceedings are
“identical.” Friends of the Riverfront, 751 N.W.2d at 589. “For collateral-estoppel
purposes, issues are identical when the issues presented by [the current] litigation are in
substance the same as those resolved in the previous litigation. ” All Finish Concrete, Inc.
v. Erickson, 899 N.W.2d 557, 567 (Minn. App. 2017) (quotation omitted).
A MERA claim presents two threshold issues. State by Powderly v. Erickson, 285
N.W.2d 84, 87 (Minn. 1979). The first is whether the claim implicates a “natural resource,”
which may be a “historical resource.” Friends to Restore St. Mary’ s, LLC v. Church of
Saint Mary, Melr ose, 934 N.W.2d 130, 13 4 (Minn. App. 2019) (quoting Minn. Stat.
§ 116B.02, subd. 4), review denied (Minn. Nov. 19, 2019). The second issue is whether
the defendant’s conduct will lead to “ the pollution, impairment, or destruction of that
resource.” Id. (quoting Minn. Stat. § 116B.04(b)). Resolution of this question turns on
whether the conduct in question will “materially adversely affect the environment.” Minn.
Stat. § 116B.02, subd. 5; see Schaller, 563 N.W.2d at 265 ( approving a five-factor

11
balancing test for assessing “material, adverse effect ” because “[a] lmost every human
activity has some kind of adverse impact on a natural resource ,” and MERA cannot
“prohibit[] virtually all human enterprise ” (quotation omitted)). A MERA plaintiff must
satisfy both of these elements to establish a prima facie case. Minn. Stat. § 116B.04(b).
The essence of appellant’s MERA claim is that (1) the Witch’s Hat Tower, including
its viewshed, is a historical resource , and (2) the project will impair that resource by
impeding views of and from the Witch’s Hat Tower. 2 The city largely accepted the
historical significance of the tower but extensively addressed the second —equally
dispositive—issue both in approving the land -use application an d in denying the EAW
petition.
Land-Use Proceeding
The record reflects that the city considered the likely effect of the project on views
of and from the Witch’s Hat Tower at every stage of the land -use proceeding. First, the
CPED made express findings regarding the project’s impact on the tower. It found that
most views would be unaffected, and that the project would not impair views of the tower
appreciably more than other structures permitted under existing zoning . And the CPED
found that the project would not impair views from the tower because the project would
not obstruct “[s]ignificant views of public spaces and notable buildings . . . most notably,
the view of Downtown Minneapolis.” The planning commission considered and adopted
these findings in approving the project.

2 Appellant does not contend, and there is no evidence, that the project will otherwise
impair or destroy the Witch’s Hat Tower.

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Second, the two appeals raised the MERA issue again. The appeals faulted the
planning commission for not further considering the impact of the project on the views of
and from the tower and urged the city council to consider the project’s impact on “views
of the Witch’s Hat within its immediate vicinity and . . . how the water tower is perceived
within the urban sky line” and the tower’s “viewshed. ” The Amel -Lindt appeal cited
MERA as a reason for considering these impacts. The planning commission conducted a
public hearing at which Porte, Amel, and Lindt had an opportunity to present their
arguments regarding the project’s impact on views of and from the Witch’s Hat Tower .
And the city council considered those arguments , ultimat ely acknowledging that some
“screening” measures are warranted but accepting the CPED’s finding that the project will
have minimal visual impact on the neighboring tower.
Appellant contends the city’s analysis of the project’s impact on Witch’s Hat Tower
views cannot preclude its MERA action because the city ’s written decision did not
expressly reference MERA and the concept of “material, adverse effect.” We are not
persuaded. The city expressly addressed the very factual issue that is the basis for
appellant’s MERA claim—whether the project impairs views of and from the tower. See
Graham, 472 N.W.2d at 116 -17 (holding former teacher’s defamation claim collaterally
estopped because previous quasi -judicial decision addressed the same underlying factua l
issue regarding the teacher’s conduct). We discern no meaningful distinction between the
city’s determination that the project will have no more than minimal impact on such views,
particularly with the conditions it imposed to mitigate that impact, and a determination that
the project will have no material, adverse effect on the viewshed.

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EAW Proceeding
The EAW petition raised three issues but focused principally on appellant’s MERA
claim. The petition expressly invoked MERA. It cited Schaller’s five-factor test for
assessing the “material, adverse effect” standard, stating: “We are petitioning for an EAW
to determine if [the project] ‘materially and adversely affects the environment’ as described
by these five factors.” And the petition highlighted impairment of “views from and of the
historic Tower” as the central concern.
In evaluating the petition, the city was charged with considering whether, “because
of the nature or location of [the project] , there may be potent ial for significant
environmental effects.” Minn. Stat. § 116D.04, subd. 2a(e) (2018); M inn. R. 4410.1100,
subp. 6 (2019 ). Environmental effects are considered broadly, including effects on
“artifacts or natural features of historic, geologic, or aesthetic significance.” See Minn. R.
4410.0200, subp. 23 (2019) (defining “environment”). The city applied the EAW standard
and found no potential for significant environmental effects, rejecting appellant’s argument
that the project will materially, adversely affect views from and of the tower —the same
issue appellant presents in its MERA action.
B. The issue of the project’s effect on views from and of the tower was
properly before the city.

A quasi-judicial decision precludes relitigation of an issue only if the issue was
“necessary to the agency adjudication and properly before the agency .” Graham, 472
N.W.2d at 116 (citing United States v. Utah Const r. & Min. Co. , 384 U.S. 394, 86 S. Ct.
1545 (1966)). Even if the agency did not have jurisdiction to decide the precise legal claim

14
to be precluded, collateral estoppel may apply if a controlling issue was presented to the
agency and within its purview to decide. Id. at 117; see also Cent. Baptist, 487 N.W.2d at
532 (concluding that this requirement was satisfied when “considerations” that were
“critical” to the prior quasi-judicial decision and were also “critical” to the current claim).
The issues appellant raises in its MERA claim were properly before the city in both
the land-use proceeding and the EAW proceeding.
Land-Use Proceeding
As discussed above, the city repeatedly addressed the project’s impact on vi ews of
and from the Witch’s Hat Tower. It was required to, and did, consider such impacts as part
of its standard land-use analysis. See Minneapolis, Minn., Code of Ordinances (MCO)
§§ 525.340 (requiring consideration of whether proposed use will be “injurious to the use
and enjoyment of other property in the vicinity ” before issuing a conditional -use permit),
548.110 (requiring considerati on of “[p]reservation of views of landmark buildings,
significant open spaces or water bodies” before issuing conditional -use permit to increase
maximum height) (2018). Accordingly, the project’s impact on the Witch’s Hat Tower,
including the viewshed, was both properly before the city and necessary to its appraisal of
Vermilion’s application. And the appeals again asked the city to consider the issue,
pointing to city policy and state law, including MERA. That appellant disagrees with the
city’s finding that the expected impact of the project on views of and from the Witch’s Hat

15
Tower would be minimal, does not change the fact that the issue was properly presented
and actually decided.3
EAW Proceeding
The city was required to grant an EAW in response to appellant’s petition if (1) the
project was not exempt and (2) “because of the nature or location of a proposed project,
the project may have the potential for significant environmental effects .” Minn. R.
4410.1000, subp. 3.B (2019). The EAW petition therefore properly presented both of those
issues to the cit y, and the city decided both. Appellant is correct that t he city could have
denied the petition based solely on a determination that the project was exempt because all
governmental decisions had been made. See Minn. R. 4410.4600, subp. 2.B (201 9). But
since a failure on either factor would have required the city to deny the petition, both factors
were properly before the city to decide.
C. The city rendered final decisions on the merits.

Collateral estoppel applies only if the prior quasi -judicial decision was final and
subject to judicial review. Friends of the Riverfront, 751 N.W.2d at 589. The finality

3 Appellant also suggests that it faced a catch-22, in which it was required to “participate”
in the administrative proceedings to “exhaust administrative remedies ” but risked losing
its MERA claim to collateral estoppel if it did so. We disagree. Appellant was not required
to present its MERA claim in the land-use proceeding to exhaust administrative remedies
because a MERA claim is not an administrative remedy. Compare Zaluckyj v. Rice Creek
Watershed Dist., 639 N.W.2d 70, 76 (Minn. App. 2002) (affirming denial of mandamus
petition regarding ditch repair because petitioners failed to exhaust administrative ditch-
repair remedies), review denied (Minn. Apr. 16, 2002), with Swan Lake, 711 N.W.2d at
525 (recognizing that administrative process regarding drainage is distinct from and need
not be used before a MERA action). Appellant elected to present its MERA claim in the
land-use proceeding and in the EAW proceeding, and elected not to appeal either decision.

16
factor is necessary for the quasi-judicial decision to be the equivalent of a court decision,
making application of the preclusive doctrine fair and equitable. See In re Application of
N. States Power Co., 440 N.W.2d 138, 142 (Minn. App. 1989).
Land-Use Proceeding
Appellant argues that the city’s land-use decision was not final because the approval
was contingent on ongoing conditions. We disagree. When a city’s governing body —
here, the Minneapolis City Council—makes a quasi-judicial decision regarding a land-use
matter, it is subject to judicial review in district court. See Minn. Stat. § 462.361, subd. 1
(2018). Appellant cites no authority for the proposition that attaching conditions to the
decision alters that result , and we discern none . To the contrary, the city’s ordinances
expressly contemplate that the city will is sue land-use decisions that include conditions.
See MCO §§ 525.350 (permitting the city to impose conditions and require guarantees as
“reasonable and necessary to protect the public inter est” when issuing a conditional -use
permit), .510 (same for a varia nce) (2018). Appellant could have challenged the city’s
approval of the project, including the conditions it attached to that approval , in district
court. See Minn. Stat. § 462.361, subd. 1. But appellant declined to do so.
EAW Proceeding
Regarding the EAW decision, appellant argues that the city’s denial of the petition
“ultimately rests on its zoning decisions,” and therefore is also not final. This conditional
argument is unavailing because the city’s land-use decision was final. But it also fails on
its own merit because denial of an EAW petition is a final appealable decision, regardless
of the reason for the decision. Minn. Stat. § 116D.04, subd. 10 (2018).

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In sum, appellant has not demonstrated that the district court erred in appl ying
collateral estoppel to dismiss this MERA action.
Affirmed.