In re: Determination of Need for Environmental Impact Statement for Pavilion Estates Subdivision

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1276

In re: Determination of Need for Environmental Impact Statement for
Pavilion Estates Subdivision

Filed June 6, 2022
Affirmed
Kirk, Judge*

Rochester Township
Resolution No. 2021 09 01

James P. Peters, Law Offices of James P. Peters, PLLC, Glenwood, Minnesota (for relators
Save the Rookery, Linda Burns, Jonathan Char nin, Lynn Cornell, Pa tricia Hrabe, Vera
Kenderian, Zain Kenderian, Amy Laack, Anna Matetic, Michael Melford, Peggy Menzel,
Viki Morris, Brett Ostby, Tim Parkin, Colleen Penrose, Kavita Prasad, Julie Roenigk, and
Leal Segura)

Paul D. Reuvers, Andrew A. Wolf, Iver son Reuvers, Bloomington, Minnesota (for
respondent Rochester Township)

Daniel J. Heuel, Cheyenne M. Wendt, O’Brien & Wolf, L.L.P., Rochester, Minnesota (for
respondent International Properties, LLC)

Steve Connelly, Byron, Minnesota (pro se respondent)

Considered and decided by Bjorkman, Pr esiding Judge; Frisch, Judge; and Kirk,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
KIRK, Judge
In this certiorari appeal, relators challe nge respondent Rochester Township’s (the
township) negative declaration on the need for an environmental- impact statement in
relation to a residential-development projec t proposed by respondent International
Properties, LLC. Because we determine the township’s declaration was not based on errors
of law and was not arbitrary, capricious, or unsupported by substantial evidence, we affirm.
FACTS
The dispute in this matter relates to property owned by respondent Steve Connelly
in Rochester Township, Olmste d County that is composed of 28.9 acres of primarily
undeveloped woodland. The land was historically used for fenced woodland pasture, but
has for the past 40 years been used for recreational purposes.
In June 2020, Connelly entered into a purchase agreement to sell the property to
respondent International Properties (IP) for $1,400,000. Connelly and IP entered into this
agreement contingent upon the granting of certain zoning changes which would allow for
the construction of “ten single-family home s on large lots,” colle ctively known as the
Pavilion Estates development.
As part of the initial development effort s, IP and Connelly applied to Olmsted
County and the township for approval of a General Development Plan (development plan)
and an amendment to the county land-use plan to allow for the development of the property
into Pavilion Estates. IP and Connelly also applied to the county for a change in the
designation of the property to “potential suburban,” which would allow for the reduced lot
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size needed to accommodate th e 10 planned lots. The develo pment plan identifies the
construction of a new road, Pavilion Lane SW, construction of which would—relevant to
the matters raised on appeal—result in the removal of a number of trees containing Great
Blue Heron nests.1
Following IP and Connelly’s various applic ations, a public hearing on the proposed
development was held by the Rochester To wnship Planning Commission (planning
commission). In advance of the hearing, the planning commission proposed granting the
applications but requiring the creation of a “wildlife corridor” consisting of a “perpetual
easement along the entire length of the easterly side of the property.” However, shortly
thereafter, the township received a letter requesting that the town “not allow Mr. Connelly’s
subdivision, as proposed, to be built.” The letter indicated concerns with, among other
things, the fact that the land in question was “home to incredible wildlife, including dozens
of herons and bald eagles.”
Subsequently, in April 2021, the Minn esota Environmental Quality Board (EQB)
informed the town ship that it had received a petiti on for an environmental-assessment
worksheet (EAW). In that petition, seven separate potential environmental concerns were
noted with relation to the proj ect, including: (1) potential fo r loss of a Great Blue Heron
rookery on the property, (2) potential for loss of wetlands, (3) potential for impacts to rare,
endangered, and threatened mussel species, (4) potential for impacts to hydrology,

1 Great Blue Herons are migrat ory birds that, in Minnesota, return each summer to breed
in colonies where they build large nests at the tops of trees.
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(5) potential impacts on flooding and flood mitigation projects, (6) potential for impact to
surface water quality, and (7) potential loss of mature forest and contiguous forest canopy.
In May 2021, town staff notified the pl anning commission that IP and Connelly
had—in response to the public petition—volunt arily agreed to comp lete an EAW. The
township subsequently issued a resolution indicating that, if Olmsted County were to
approve the project, an EAW into the potential environmental impacts raised by the public
petition would be warranted. Th e resolution indicated that an EAW would allow for
investigation of those potential environmenta l impacts as well as potential mitigation
measures and the potential need for additional study beyond an EAW.
Respondents submitted and made availabl e an initial EAW on July 19, 2021. The
EAW described the proposed development as “a 28.9-acre . . . 10-lot suburban subdivision
[that would] have a private ro ad, two private wells, and indi vidual septic systems.” The
EAW provided a brief timeline of the projec t’s planning, specifically noting the seven
potential environmental impacts raised in the public petition.
Most importantly to the i ssues on appeal, the EAW di scussed the potential impact
on “[f]ish, wildlife, plant communities, and se nsitive ecological resources.” According to
the EAW, the Minnesota Department of Natural Resources (DNR) completed a Minnesota
Biological Survey for Olmsted County in 1997, which identified the existence of the “8th
Street Suburban Great Blue Heron Rookery ,” which the EAW indicated was “located
roughly a half-mile to the east of the Connelly property.” The EAW indicated that the 1997
biological survey and Minnesota’s later Wild life Action Plan in 2015 came to similar
conclusions regarding the herons—that “the area did not meet its criteria for protection as
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a significant local ecological resource” and “did not indicate that the Great Blue Heron
rookeries along the ridge warranted a priority conservation area designation,” respectively.
The EAW noted that numerous observations and studies of the rookeries had been
undertaken in recent years, several of which were attached to the EAW. These observations
generally substantiate the claims that a nu mber of Great Blue Heron nests exist on the
Connelly property, as well as other nearby properties.
The EAW additionally stated that while “lot design [would] largely preserve[] 56%
of the woodlands from destruct ion . . . some additional habitat fragmentation is likely to
occur as roads are constructed, and homes are constructed on the lots.” However, the EAW
stated that the EAW petition had “made unsubstantiated claims of the size and significance
of the Great Blue Heron Rookery.” It stated that “activity surveys of the colony during the
breeding season suggest that breeding activity in 2021 was likely limited to a small number
of pairs,” and that “[i]t is common for [Great Blue Heron] to build a new nest every year,
and the observed number of nests appears to reflect the accumulation of old nests after
years of new nest building.” The EAW also, not ing the existence of the nearby 8th Street
Rookery, stated that “the Connelly [Great Blue Heron] rookery is not unique, even within
the immediate vicinity of the Connelly prop erty.” The EAW also generally minimized
public concerns regarding the potential impact of the project on nearby wetlands, a species
of endangered mussel, hydrology and a nearby downstream restoration project, flooding,
surface water turbidity, and the loss of contiguous forest canopy.
Subsequent to the release and publication of the EAW, the township accepted public
comments for 30 days, from July 2021 to August 2021. The township received numerous
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comments from members of the public. The townsh ip also received comments from the
Minnesota Pollution Control Agency (MPCA), State Hist orical Preservation Office
(SHPO), and DNR. The MPCA indicated pot ential concerns with the amount of
deforestation and the potential impact on nearby water resources. The SHPO recommended
“that a Phase I archaeological survey be co mpleted.” The DNR indicated that there were
some potential permitting issues regarding water, the EAW had been filed before a Natural
History response could be obtained, there were some concerns regarding shallow bedrock
as it related to septic system s, and there were concerns re garding the amount of planned
deforestation. The DNR also noted the Great Blue Heron rookery, and indicated that while
the property was
currently mapped as a Minnes ota Biological Survey (MBS)
site below the threshold for biodiversity significance . . . even
sites that do not meet the hi gher MBS ranking standards may
include areas of conservation value at the local level, such as
habitat for native plants and animals, corridors for animal
movement, buffers surrounding higher-quality natural areas,
areas with high potential for re storation of native habitat, or
open space.

The DNR indicated that “[t]he removal of over 17 acres of remnant forest would be a loss
of habitat and a significant impact to local wildlife.”
Near the end of the public-comment pe riod, the township held another public
hearing to discuss the proposed development. The board heard comments from numerous
members of the public. The majority of those speaking indicated that they were opposed to
the project, and voiced concerns over damage which could be done to the natural habitat,
including the Great Blue Heron rookery.
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In September 2021, in re sponse to public and stat e-agency comments, IP and
Connelly submitted an amended EAW. Though the amended EAW was largely similar to
the original, it did contain notable modifications, including a change to the project’s tree-
clearing plan. The new plan re duces the total amount of cl earing from 17.6 acres to 5.94
acres. The amended EAW also contained deta iled responses to all of the comments,
including those comments from the public a nd those from state agencies. These detailed
responses are preceded by a short summary of common comments and the applicants’
responses to those comments, including the argu ment that there had been “a great deal of
reliance on erroneous informa tion and unsupported claims by so-called experts and the
advocacy groups about the Great Blue Herons,” a “theme that claimed personal values as
the public interest that peop le believe should take priority over property rights or the
existing laws and regulations,” and “[a] failu re to recognize the presence of upland
rookeries nearby, in abutting counties and over much of Minnesota.” In responding to the
more detailed state-agency comments, in particular those from the DNR, the amended
EAW relied in large part on the plan to reduce the total amount of clearing, as well as their
agreement to not clear trees during certain months to avoid disturbing certain bird species,
including the Great Blue Heron.
Two days after the release of the respo ndents’ amended EAW, Rochester Township
issued a negative declaration on the need for an environmental-impact statement (EIS) for
the Pavilion Estates development. This declaration was acco mpanied by a staff report on
the EAW process that outlined the proposed project and potential environmental impacts,
and ultimately concluded that “[t]he anticipated environmental effects of this project are
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found to be the same as th ose experienced with any de velopment. No significant
environmental impacts are anticipated fro m the proposed development which would
warrant the preparation of an environmenta l impact statement.” The staff report also
recommended that the townsh ip adopt the amended EAW’s responses to the public
comments and that those responses be incorporated by reference. However, the staff report
also provided its own responses to the public and state-agency comments.
In its resolution adopting the negative declaration, the township largely mirrored the
staff report. The resolution found that “[ n]o significant environmental impacts are
anticipated from the proposed development which would warra nt the preparation of an
environmental impact statement.” The resolution indicated that the township had received
comments from both the public and state ag encies regarding “domestic water, septic
treatment and wastewater management, stor mwater and erosion control management,
including the design, permitting, construction, and maintenance of stormwater facilities,”
as well as comments regarding potential harm and mitigation efforts to protect the natural
habitat and several species, most notably the Great Blue Heron. Regarding the Great Blue
Heron rookery, the township found:
The EAW and public comments i nvestigated the Great Blue
Heron, a migratory bird that is not threatened or endangered.
The EAW investigated [the] rook ery in detail and noted that
the Great Blue Herons nest in multiple areas in Rochester
Township and made clear the fact that the birds can freely pick
and choose sites that are most suitable for their colonial nesting
habits and for proximity to thei r primary feeding areas. With
the mitigation for avoiding dist urbances of active nests as
required by the Migratory Bird Treaty Act, there are no
significant environmental effects of developing Pavilion
Estates.
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The township also found that “[t]he EAW, as amended to address the lesser impact on land
cover and tree removal adequately identifie s that there will not be any significant
environmental effects.” Also, of import to the issues raised on appeal, the township
ordered—likely in response to the SHPO’s request for a Phase I Archaeological Survey—
that “[i]f at any time human remains are encountered on the property, development should
stop, and a burial site assessment should be completed.”
Relators appeal this declaration by way of petition for a writ of certiorari.
DECISION
On appeal, relators argue th at the township e rred in issuing a negative declaration
on the need for an EIS. Relators request that this court reverse that determination and
remand for the township to prep are an EIS. Relators make th ree arguments in support of
this request.
Before taking any governme ntal action—broadly defined as “activities, including
projects wholly or partially conducted, pe rmitted, assisted, financed, regulated, or
approved by units of govern ment,” Minn. Stat. § 116D. 04, subd. 1a(d) (2020)—the
township as the responsible governmental un it (RGU) must determine whether “there is
potential for significant environmental effect s” resulting from that action. Minn. Stat.
§ 116D.04, subd. 2a(a) (2020). The RGU shall, if there is such potential, order the
preparation of an EIS. Id.; see also Minn. R. 4410.1700, subp. 1 (2021); In re Env’t Impact
Statement, 849 N.W.2d 71, 75 (Minn. App. 20 14) (setting forth and applying the
significant-environmental-effects analysis). In determining whether a project may result in
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“significant environmental effects,” the RGU mu st consider four factors: (1) the “type,
extent, and reversibility of environmental eff ects”; (2) the “cumulative potential effects”
of related or anticipated future projects; (3) “the extent to which the environmental effects
are subject to mitigation by on going public regulator y authority”; and (4) “the extent to
which environmental effects can be anticipated and controlled as a result of other available
environmental studies undertaken by public ag encies or the project proposer, including
other EISs.” Minn. R. 4410.1700, subp. 7 (2021).
The first step in any such determination is the preparation of an EAW, which is “a
brief document which is designed to set out the basic facts necessary to determine whether
an environmental impact statement is re quired for a proposed action.” Minn. Stat.
§ 116D.04, subd. 1a(c) (2020). Once an EAW has been prepared, the public may comment
on the EAW for 30 days. Mi nn. R. 4410.1600 (2021). Fo llowing the public-comment
period, the RGU “shall” make a determination as to the need for an EIS within 30 days.
Minn. R. 4410.1700 , subp. 2(A) (2021). The RGU’s options at this step are: (1) make a
negative declaration as to the need for an EIS, (2) make a positive declaration as to the
need for an EIS, or (3) “postpone the decision on the need for an EIS, for not more than 30
days or such other period of time as agreed upon by the RGU and proposer, in order to
obtain [additional information].” See generally id. , subps. 2a-3 (2021). The RGU’s
declaration as to the need for an EIS is appealable directly to this court by way of petition
for a writ of certiorari. Minn. Stat. § 116D.04, subd. 10 (2020).
On appeal, the relator has the burden of proving the RGU’s findings are unsupported
by the evidence as a whole. Env’t Impact Statement , 849 N.W.2d at 75 (citing Citizens
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Advocating Responsible Dev. v. K andiyohi Cnty. Bd. of Comm’rs (CARD) , 713 N.W.2d
817, 833 (Minn. 2006)). Appellate courts “acc ord substantial deference to the agency’s
decision.” CARD, 713 N.W.2d at 832. However, this court may nevertheless reverse if the
RGU’s determination “reflect[s] an error of law, the findings are arbitrary and capricious,
or the findings are unsupported by substantial evidence.” Id.; Minn. Stat. § 14.69 (2020).
This court reviews alleged errors of law de novo. ITW Food Equip. Grp. LLC v.
Minn. Plumbing Bd. , 933 N.W.2d 523, 531 (Minn. A pp. 2019). The RGU’s decision is
arbitrary and capricious if the agency
(a) relied on factors the legislature never intended it to
consider, (b) entirely failed to consider an important aspect of
the problem, (c) offered an explanation for the decision that
runs counter to the evidence, or (d) rend ered a decision so
implausible that it could not be ascribed to a difference in view
or the result of agency expertise.

Env’t Impact Statement , 849 N.W.2d at 76. “Substantial evidence consists of: (1) such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
(2) more than a scintilla of ev idence; (3) more than ‘some ev idence’; (4) more than ‘any
evidence’; and (5) evidence co nsidered in its entirety.” CARD, 713 N.W.2d at 832
(quotation omitted). In other words, substantial evidence consists of relevant evidence that
a reasonable mind might accept as adequate to support a conclusion. Id.
Relators make three arguments in favor of reversal. First, they argue the township’s
negative declaration is affected by various e rrors of law. Second, they argue that the
declaration demonstrates that the township “failed to engage in reasoned decisionmaking.”
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Third, they argue that the declaration “was arbitrary, capricious , and unsupported by
substantial evidence.” Each argument is addressed in turn.
I. The township’s declaration was not affected by errors of law.
Relators argue the township’s declaration wa s affected by errors of law. They take
issue with (1) the town ship’s failure to distribute, pu blish, and take public comments on
the amended EAW, (2) the county’s approval of several zoning measures during the
pendency of environmental review, (3) the township’s failure to address the EAW’s non-
compliance with applicable land-use regulati on and improper deferral of mitigation, and
(4) IP and Connelly’s failure to obtain certain document s from SHPO and DNR prior to
the township’s declaration as to the need for an EIS. We disagree with each assertion.
1. Lack of Publishing of and Pu blic Comment on the Amended EAW

Relators argue that the township erred by “fail[ing] to distribute, publish notice of
availability, and take public comment on the amended EAW” and by “basing the negative
declaration on the amended EAW without recei ving or giving consid eration to public
comments on the substantial new material [in the EAW].” In support of this argument,
relators cite to the Minnesota Rules relevant to preparation and publication of EAWs. In
relevant part, those rules state that th e RGU must, after approving an EAW for
completeness, distribute that EAW to a number of listed governmental entities and publish
notice of the availability of the EAW to the general public. Minn. R. 4410.1500 (2021).
However, while the rules clearly require the initial EAW to be published and made
available for public comment, they are also clear: the RG U shall “base its decision
regarding the need for an EIS on the information gathered during the EAW process and the
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comments received on the EAW.” Minn. R. 4410.1700, subp. 3. In this case, the additional
information contained within the amende d EAW was merely additional “information
gathered during the EAW process,” id., and did nothing to abrogate the township’s duty to
issue a declaration as to the need for an EIS following the conc lusion of the public-
comment period on the first EAW. The rules do not require a second comment period be
opened if the applicant submits additional information, and indeed state that such a step is
available only if there is “[i]nsufficient in formation.” Minn. R. 4410.1700, subp. 2a. This
is true even if such “additional information” is presented as an amended EAW. Given the
township’s determination that there was sufficient informa tion upon which to make a
determination (which relators do not challenge), the township was therefore obliged to
issue a declaration on the need for an EIS, Minn. R. 4410.1700 (2021), which it did.2
2. Olmsted County’s Approvals
Relators also argue that the township committed reversable error by violating the
“prohibition rule” when “Olmsted County illegally approved the [application] without the
information . . . that the EAW would provide, in violation of Minn. Stat. § 116D.04, subd.
2b [(2020)] and Minn. R. 4410.3100.” However, the county is not a party to this appeal,
and its decision to amend the county-use plan or make other approvals is irrelevant to the

2 Relators’ reply brief refere nces Minn. R. 4410.1000, subp. 5 (2021), as allegedly
requiring a second official EAW (and therefor e a second public-comment period) due to
there being “a substantial change . . . in the proposed project.” However, rule 4410.1000,
subpart 5, applies only if su ch substantial change occurs “after a negative declaration has
been issued but before the proposed project has received all approvals.” In this case, while
there were changes to planned forest clea ring in the amended EAW, the amended EAW
and this change were made prior to the township’s negative declaration. Thus, rule
4410.1000, subpart 5, is inapplicable.
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validity of the township’s negative declaration on the need for an EIS. While relators cite
to In re Winona Cnty. Mun. Solid Waste Incinerator, 442 N.W.2d 344 (Minn. App. 1989),
rev’d, 449 N.W.2d 441 (Minn. 19 90), in support of their position, the decision being
appealed in that matter was the simultaneous denial of a request for a supplemental EIS
and granting of a permit for a garbage incinerator by the same agency—the MPCA. Id. at
347. The actions relators point to here were taken by a separate governmental body (the
county) that is not a party to this matter, a nd the decisions of which are wholly separate
from the decision being appealed—the township’s negative declaration on the need for an
EIS. Whether the county erred by approving the amendment to their plan is outside the
scope of this appeal.
3. Township’s Land-Use Determin ations and Deferral of Mitigation

Relators also argue that the amended EA W failed “to describe non-compliance with
applicable land[-]use regulatio ns and improperly deferred m itigation.” Specifically, they
argue that “the EAW and amended EAW fail to address noncompliance with [c]ounty and
[t]ownship official controls, fail to addre ss the consequences of noncompliance, and
mislead by stating that the project complies with all land use controls.”
However, as noted by respondents, the ques tion at issue in determining the need for
an EIS is not whether the proposed project co mplied with land-use regulations but rather
whether “there is potential for significant environmental effects” resulting from that action.
Minn. Stat. § 116D.04, subd. 2a(a). That being sa id, it is also true that relators tie this
alleged non-compliance to potential environmental effects; relators note that “[c]omments
raised specific concerns regarding details on road width, slope, and runoff, including going
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through the heart of the rookery and destroying nesting trees,” “concerns about destruction
of the [Great Blue Heron] rookery because of the location of the road directly beneath,”
“concerns about the number and sizes of lots disturbing the [Great Blue Heron] rookery,”
“[c]oncerns . . . for the amount of impervious surface of the 10 lots,” “the effects of climate
change, rainfall events, and runoff,” and “cu mulative impacts and proposed inadequate
forms of mitigation.”
Regardless, while relators pose this as an error of law—whereby the failure to
describe non-compliance with land-use regulations resulted in the process being invalid as
a matter of law—the real questi on this presents is one of fact: whether the environmental
impacts caused by the alleged non-compliance in the plan as proposed would be such that
an EIS was required. Indeed, th is is merely a restatement of the various issues of fact
discussed below related to whether the township’s negative declaration on the need for an
EIS was “arbitrary, capricious, [or] unsupported by substantial evidence.” Because there
was no error of law, the township did not err as a matter of law.
4. Failure to Obtain Certain Documents
Finally, relators argue that the township “act ed willfully and without deliberate
process when [it] failed to ob tain necessary information from state agencies in rushing to
approve the project.” Relators take issue with the township’s failure to obtain and include
with the EAW two separate documents—letters regarding (1) a “phase I archaeological
survey” from the SHPO3 and (2) a “Natural Heritage letter” from the DNR describing “any

3 While relators also argue that th e record does not include even a letter from the SHPO
regarding the need for a survey , as the township correctly notes, this is incorrect. The
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rare features, such as stat e-listed species, native plant co mmunities, or other sensitive
ecological resources on or within close proximity to the site.”
However, Minn. R. 4410.1200 (2021) sets forth the information and documents
required to be in an EAW. These include ge neral factual and procedural details of the
project, known governmental approvals that will be required to pr oceed, and, most
importantly, “major issues sections identifying potential environmental impacts and issues
that may require further investigation be fore the project is commenced, including
identification of cumulative po tential effects.” However, nothing in that rule—nor any
other—requires the two documents noted to be absent by relators. That does not mean that
their absence is irrelevant, however. Rather, as with the previous issue, this is an issue of
fact—i.e., whether the absence of those two documents rendered the record produced
during the EAW process insufficient to suppor t the township’s finding as to the potential
for significant environmental effects. However, as to relators’ argument that the township’s
issuance of a negative declaration without these documents was an error of law subject to
de novo review, we disagree.
In sum, the township’s negative declaration was not affected by errors of law.
II. The township engaged in reasoned decision-making.
Relators also argue the township’s order demonstrates that they “failed to take a
hard look at the salient issues and to engage in reasoned decision making.” Specifically, by
(1) failing to “make accurate and reflective responses to comments and findings,”

administrative record contains a letter from the SHPO indicating their desire to conduct a
phase I archaeological survey—it is the survey itself which was not completed.
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(2) supporting the project before receiving the applications, and (3) “demonstrat[ing]
unacceptable bias in the quasi-judicial process.”
At the outset, while relators cite to Pope Cnty. Mothers v. Minn. Pollution Control
Agency, 594 N.W.2d 233 (Minn. App. 1999), for the proposition that this court reverses
agency environmental decisions when they “reflect a combination of danger signals that
suggest the agency has not taken a hard look at the salient issues and has failed to engage
in reasoned decision-making,” Pope County merely applies this “danger signals” language
to articulate one situation in which it could be determined that an agency decision was
“unreasonable, arbitrary or capricious.” Id. at 236. Stated more completely, therefore, we
must “determine whether the [RGU] has taken a ‘hard look’ at the problems involved, and
whether it has ‘genuinely engaged in reasoned deci sion-making.’” CARD, 713 N.W.2d
817, 832 (citation omitted). However, the ques tion of whether the agency “[took] a hard
look” at the relevant problems is subject to the general standard of review of agency
decisions. Id. “Agency decisions are reversed when they reflect an error of law, the findings
are arbitrary and capricious, or the findings are unsupported by substantial evidence.” Id.
1. Failure to Make Accurate and Re flective Responses to Comments and
Findings

Relators first argue that the township “failed to make accurate and reflective
responses to comments and findings and inst ead accepted and adopted the applicants’
[submissions] without demonstrating a reflective analysis of and a deliberate judgment as
to the applicants’ submissions.” Relators note that while IP and Connelly “prepared and
submitted to [the township] detailed response s to comments,” the to wnship thereafter
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“included the prepackaged findings” from IP and Connelly without deliberation or other
independent findings. Relators argue that th is violates the requirement that “[t]he
record . . . include specific responses to all substantive and timely comments on the EAW”
and that the RGU “compare the impacts that may be reasonably expected to occur from the
project with the criteria in [the rules].” Minn. R. 4410.1700, subps. 4, 6 (2021).
The township disagrees with relators’ cont ention that it failed to “take a hard look”
at the public comments. While the township acknowledges that IP and Connelly provided
their own responses to the public comments, th ey also point out that “[t]he applicants’
decision to provide detailed responses to co mments and submit proposed findings to the
Town . . . does not change the reality the Town engaged in this effort as well.”
Indeed, the record does reflec t that the staff report prepared in conjunction with the
township’s negative declaration included subs tantial responses to public and agency
comments, including on the issues of the Great Blue Heron rookery, greenhouse-gas
emissions, water use, and more. The township ’s determination, wh ile also adopting the
responses provided by IP and Connelly, explicitly stated that it was making its
determination “based on the complete staff report,” thereby incorporating those responses.
Moreover, the caselaw cited to by the township, In re Valley Branch Watershed Dist., 781
N.W.2d 417 (Minn. App. 2010 ), supports the proposition th at a governmental unit may
rely on findings made by staff or a committee. Id. at 424 (noting ab ility of regulatory
agency to “review[] and rely[] on . . . staff and committee findings”).
The township’s declaration reflects th e township’s own res ponse to the public
comments. The township’s declaration repeatedly mentions those comments in the context
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of land-use regulation, development, regul atory issues, mitigation efforts, potential
endangered species, water, the cumulative effects of suburban development, land cover and
deforestation, and the impact on the Great Blue Heron rookery. The township’s declaration
then explains how the EAW addresses these concerns and why the project will not create
significant environmental effect.
Looking at all the above, the township properly noted and responded to public
comment, as required.
2. Support of the Project Be fore Receiving Application
Relators also argue that the township erred by supporting the Pavilion Estates
development before receiving the application. Relators point to a letter from the township
to the county based on a Ja nuary 2021 meeting at which the township board members
apparently voiced support for land-use changes related to the project. This, according to
relators, constitutes “pre-approval” of the pr oject, demonstrating that the decision to
approve was “based and made on incomplete information.”
However, this is again insufficient ground s for reversal. The January 2021 letter
merely indicates that the town board indicated support for IP and Connelly’s land-use plan
and development plan. As discussed above, the issues of land use and zoning are separate
and distinct from the issue relevant to th e EIS-declaration process—whether there is
potential for “significant environmental effe cts.” As the township notes, though the
township did voice support for the land-use and zoning changes, “[t]he Town did not
prejudge the EIS decision” and “[r]elators ca n point to no evidence the Town reached a
conclusion on the Project’s potential for sign ificant environmental effects before issuing
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its ultimate decision.” Relators cite no caselaw supporting the proposition that a township’s
initial support for land-use changes results in invalidation of any future determinations
they make as to potential environmental impacts, and we are aware of none.
3. “Unacceptable Bias in the Quasi-Judicial Process”
Citing Rochester City Lines, Co . v. City of Rochester , 868 N.W.2d 655 (Minn.
2015), relators argue that the township was unacceptabl y biased in favor of the
development. Relators cite to numerous public comments, including comments from the
Sierra Club and several members of the pub lic, all of which accu sed the township of
varying degrees of bias and partiality during the environmental-review process.
However, it should be noted that th e facts and procedural posture of Rochester City
Lines were vastly different from the instant matte r. In that case, a transit-service provider
challenged the City of Roches ter’s bidding process by wh ich the city had accepted a
competing contractor’s bid. Id. at 657. In relevant part, the provider argued that “numerous
irregularities in the bidding process suggest th at the City’s decision to award the bus-
service contract to [the provider’s competitor] was arbitrary, capricious, or unreasonable.”
Id. at 665. Because the district court had gran ted summary judgment to the city on this
claim, the issue before the supreme court was “whether genuine issues of material fact
exist[ed] and the district court correctly applied the [law].” Id., (citing DLH, Inc. v. Russ,
566 N.W.2d 60, 70 (Minn. 1997)). In examining this question, the supreme court concluded
that two alleged irregularities, relating to apparent favoritism towards the competitor
during the bidding process and apparent guidance from the c ity to act aver sely to the
provider, “raise[d] the specter of pervasive bias against [the provider], even if . . . there
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[we]re other legitimate explanations for the City’s actions.” Id. Given the summary-
judgment standard of review, the supreme court reversed and remanded. Id.
In this way, the holding of Rochester City Lines is of limited value here. Whereas
on a motion from summary judgment the question is “whether genuine issues of material
fact exist” and the district court must “view the evidence in the light most favorable to the
nonmoving party,” id. at 661, 664, on appeal here from the township’s determination as to
the need for an EIS we defer to the township’s decision absent a compelling reason to do
otherwise. CARD, 713 N.W.2d at 832. Likewise, whereas in Rochester City Lines it was
sufficient for the provider to merely “raise[] the specter of pervasive bias,” 868 N.W.2d. at
665, relators provide no support for application of that standard here.
Moreover, the evidence of bias presented in Rochester City Lines appears much
more compelling than that provided he re—whereas the evidence provided in that case
indicated actual evid ence of potential bias, id., relators here provide nothing more than
comments from the public alleging bias. Relators provide no concrete evidence
demonstrating bias on the part of the township and provide no support for the proposition
that mere allegations of bias by members of the public result in a determination which is
arbitrary and capricious. These allegations are insufficient to support reversal.
III. The township’s determin ation was not arbitrary, ca pricious, or unsupported
by substantial evidence.

Finally, relators argue the township’s de termination must be reversed as it was
“arbitrary, capricious, and unsupported by s ubstantial evidence.” They argue that
substantial evidence in the re cord demonstrates that the project “has the potential for
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significant environmental effects” and that the township “did not take a hard look at” the
salient facts. Relators’ arguments on this issue can be divided into three rough categories.
First, environmental effects to the Great Bl ue Heron rookery and potential fragmentation
of wildlife habitation. Second, contributions based on greenhouse-gas emissions. Third,
the lack of the DNR Natural Heritage letter and SHPO archaeological survey.
1. Impacts on Great Blue Heron Rook ery, Fragmentation and Deforestation
Relators argue that the township erred wh en it discounted “[s]ubstantial evidence in
the record, including the comments of leading experts, not[ing] that the [Great Blue Heron]
rookery is unique in Minnesota and rises to the level of a protected scientific natural area.”
Relators also argue, as a separate but related issue, that the township erred when it “failed
to take a hard look at the significant effects from fragmentation of the wildlife corridor that
the project would cause.”
At the outset, we note that the township did provide analysis of the impact on the
Great Blue Heron rookery, taking into acco unt both the public comments as well as the
EAW and the other information gathered during the EAW pr ocess. Furthermore, while
relators argue that the townsh ip’s determination was arbitrar y and capricious, the record
does not support this assertion. The township clearly noted the issue of the Great Blue
Heron rookery in its negative declaration and made a plausible decision which was
reasonably based on the evidence. Apart from disagreement betw een the township’s
ultimate declaration and numerous public comm ents, relators point to no rationale for a
finding that the declaration was arbitrary an d capricious, and provide no law supporting
such a result.
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Moreover, there is substan tial evidence in th e record supporti ng the township’s
determination. The township points to the following as evidence substantially supporting
the township’s determination:
The great blue heron is a mi gratory bird . . . . The great
blue heron is not threatened or endangered . . . . As part of the
EAW process, the Applicant studied the Section 6 Rookery [on
the Connelly property] in detail . . . . These studies noted the
great blue heron nests in multiple areas in Rochester
Township
. . . . These studies also made clear the great blue
heron freely picks and chooses si tes deemed suitable for their
colonial nesting habits and fo r proximity to their primary
feeding areas.

There is also additional evidence in the record supporting the determination. The Blueline
study provided in the EAW described the Great Blue Heron as a “very common and
virtually ubiquitous species” in Olmsted Coun ty as well as the entirety of Minnesota and
all of North America. Indeed, the Blueline study, while providing maps showing extensive
Great Blue Heron distribution throughout Olmsted County, also noted that “apparent gaps
in the distribution shown in [the maps] are more likely to represent gaps in birdwatching
effort than gaps in the actual distribution of [G reat Blue Heron] .” (Emphasis added.)
DNR’s 2015 Wildlife Action Plan additionally concluded that the herons and the rookery
“did not meet its criteria for protection as a significant local ecological resource” and “did
not indicate that the Great Blue Heron rook eries along the ridge warranted a priority
conservation area designation.” There is also evidence in the re cord of DNR’s 1997
biological survey, which noted additional Great Blue Her on populations even in the
relatively close vicinity, including the “8th Street Suburban Great Blue Heron Rookery,”
which the EAW indicated was “located roughl y a half-mile to the east of the Connelly
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property.” Finally, the EAW also specifically noted that development would comply with
protection of actively nesting mi gratory birds, as required by the Migratory Bird Treaty
Act. All of these facts constitute additiona l evidence supporting the finding that some
disruption to the Great Blue Heron rookery on the Connelly propert y, while inevitable,
would not rise to the level of “significant environmental effects,” thus supporting the
township’s negative declaration.
Moreover, the amended EAW reflecting the change in plans by reducing the planned
deforestation from 17 acres to six acres runs directly counter to the concerns regarding tree
cover and reduces any environmental effects. The township specifically noted the changes
in the plan designed to “address the lesser impact on land cover and tree removal.” While
it is true that creation of the road and homes would inevitably lead to destruction of some
tree cover, this change specifically speaks to Rule 4410.1700’s requirement that a plan seek
“approved mitigation measures sp ecifically designed to address the cumulative potential
effect.” This mitigation, co mbined with the fact of th e Great Blue Heron being a
“ubiquitous” species throughout Minnesota, constitutes substantial evidence supporting the
township’s declaration.
It is true that there is conflict between some of the positions taken by the EAW and
the public comments. The public comments c ontain some (likely substantial) evidence
contradicting the EAW that could support a finding as to environmental effects contrary to
what the township ultimately determined. However, that is not the question on appeal. The
question is whether the township’s negative de termination as to the need for an EIS is
arbitrary, capricious, or unsupported by subs tantial evidence and we “accord substantial
25
deference to the agency's decision.” CARD, 713 N.W.2d at 832. Thus, we defer to the
township’s discretion.
2. Climate Change and Greenhouse-Gas Emissions
Relators also argue that the township “failed to address climate change and
greenhouse-gas emissions in the EAW.” Re lators’ argument, which acknowledges the
additional greenhouse-gas-related informatio n contained in the amended EAW, hinges
largely on their assertion that the township erred in considering that additional information.
As noted above, the township did not err in so doing, as the amended EAW was merely
considering “information gathered during the EAW process.” Minn. R. 4410.1700, subp. 3.
We nevertheless briefly address this issue.
The township found that “[t]he anticipated environmental effects of this project are
found to be the same as those experience d with any developmen t.” The township’s
determination could have more explicitly a nd thoroughly set forth its findings as to
greenhouse-gas emissions. Howeve r, the question presented to this court is whether the
township’s declaration—that there would be no significant environmental effects—fits the
narrow definition of arbitrary an d capricious or is unsupported by substantial evidence.
CARD, 713 N.W.2d at 832. So long as this standard is met, we defer to the RGU’s
determination. Id.
Looking at the record on appeal, includi ng the amended EAW, we conclude the
township’s determination here was thoroughly supported. For example, in response to
questions regarding “type, sources, quan tities, and compositions of any emissions”
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including “hazardous air polluta nts, criteria pollutants, a nd any greenhouse gases,” the
amended EAW states,
The ten residential units of th e proposed development would
be supplied with 60,000 BTU natural gas/liquid petroleum gas
furnaces or electric heating and cooling. This development will
not generate greenhouse emissi ons that warrant concern. Air
emissions from the residential heating units will yield carbon
dioxide, carbon monoxide, an d nitrogen oxides at a rate
comparable to other suburban homes of similar size.

The amended EAW also contained a section in which they the addressed “factors
considering climate change and greenhouse- gas emission,” which it stated, “deserve
mention.” In that section, the amended EAW again highlighted the reduction in planned
forest clearing from 17 to six acres, wh ich it indicated was “a positive measure of
greenhouse-gas sequestration.” It also noted th at furnaces in the homes would be “high-
efficiency,” that the homebui lders would be “encouraged to use techniques for well
insulated and tight building envelopes includ ing energy saving windows, doors, and air
circulation systems,” which it claimed would result in homes that would be “models of
energy efficiency and greenhouse-gas emi ssion.” Finally, the EAW noted the proposed
development’s proximity to the City of Roch ester (fewer than five miles) as another
“greenhouse-gas reduction factor,” reducing the amount of greenhouse gasses residents
would emit while commuting to and from the city. This record more than supports the
township’s determination on this issue.

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3. Lack of DNR Letter and SHPO Archaeological Survey
Finally, relators argue the lack of the SH PO phase I archaeological survey and DNR
Natural Heritage letter renders the township’s negative declaration arbitrary, capricious,
and unsupported by substantial evidence.
However, regarding the archaeological survey , the mitigation efforts set forth in the
amended EAW’s response to the SHPO letter and the s ubsequent provision in the
township’s negative declaration reasonably support the township’s implied conclusion that
such a survey is not necessary. The communication from the SHPO indicated that a phase
I study was appropriate to determine whether any protectible archaeological sites existed
on the property. In response, the amended EA W and resultant negative declaration state
the following mitigation efforts: “if at any time human remains” or “any historic items . . .
are uncovered, development should stop until further assessment is completed to determine
the nature of the find.” Mitigation efforts and their effectiveness are one criteria the RGU
is explicitly instructed to consider in determining the need for an EIS, and these mitigation
efforts directly address the concerns set forth by the SHPO in their communication calling
for an archaeological survey. Minn. R. 4410.1700, subp. 7( B)-(C). While relators argue
this provision is noth ing more than “voluntary complianc e during construction,” it is no
more voluntary than various ot her conditions, such as the reduc tion in forest clearing or
planting of flowers to protect endangered bees. Moreover, relators provide no caselaw
indicating that mitigation effo rts dependent on “voluntary co mpliance” are insufficient.
The mitigation efforts identifie d directly address the concer ns presented in the SHPO’s
letter, and the township’s determination is thus reasonably supported on this issue.
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Regarding the Natural Heritage letter, the communication from the DNR in response
to the EAW stated that the Natural Heritage Information Systems pr ocess was “the only
way to determine if the proposed project may im pact rare features that are protected by
Minnesota’s endangered species laws.” The DNR did indicate that there were certain other
rare features which could be noted without su ch a process, such as the Great Blue Heron
rookery, two state-listed birds of special conservation concern, and the rusty patched
bumblebee, but the DNR also indicated that it could not be dete rmined conclusively
whether other endangered species would be impacted by the construction.
At the outset, however, we conclude the to wnship’s determination on this issue was
not arbitrary and capricious, which, as not ed above, has a very narrow definition. Env’t
Impact Statement, 849 N.W.2d at 76. Furthermore, th e bar for substantial evidence when
reviewing an RGU’s declaration is particularly low and this court “accord[s] substantial
deference to the [RGU]’s decision.” CARD, 713 N.W.2d at 832. The township, while
admitting that it did not obtain DNR’s suggest ed review, relied on a study done of the
abutting property, whic h the township found to be su fficiently similar to permit its
application to the Connelly property.
On the record presented, we find this sufficient to clear the low hurdle needed to
establish that the determination was not arbitrary and capricious and that it was supported
by substantial evidence. While the township may not have had all of the evidence related
to the presence of endangered species on the property, in rely ing on the DNR’s own
suggestions, the survey of th e adjacent property, and the resultant mitigation efforts
contained in the amended EAW and the townsh ip’s own determination, it certainly had
29
more than “a scintilla of evidence” or “any evidence.” Id. Thus, the township’s conclusion
on this issue was supported by substantial evidence. Id.
Therefore, on balance, and given the highly deferential standard afforded an RGU’s
declarations, we affirm the township’s negative declaration on the need for an EIS.
Affirmed.