Scope of property listed on National Register of Historic Places a matter of city council discretion

by Victoria Heldt

Relators v. City of Dundas, Rejoice! Lutheran Church
(Minnesota Court of Appeals, May 7, 2012)

The Church of the Holy Cross, located in the City of Dundas, is listed on the National Register of Historic Places.  It is described by the Minnesota Historical Society as a “gothic church of locally quarried stone built in 1868.”  In 1964 a parish hall was added to the church and in 1998 a handicapped entry was added to the parish hall.  The church was added to the Register in 1982 after the construction of the parish hall addition.  The application for inclusion of the church on the Register included the statement:  ““The parish hall attached to the south side of the vestry was added in 1964; the similarity in materials and scale make it a sympathetic addition to the building.”  The listing of the property in the Register is simply “Church of the Holy Cross (Episcopal).”  Rejoice! Lutheran Church purchased the Church of the Holy Cross in 2010 with plans to build “a worship and office facility while preserving the historic stone sanctuary and adjacent cemetery.”  The additional office, worship, and classroom space totaled just less than 12,000 square feet.

In August 2010 the church applied for a conditional use permit (CUP) in order to move forward with its plan.  It received the permit, but residents raised the question of whether an environmental assessment worksheet (EAW) was necessary to begin the construction.  John McCarthy, the city zoning administrator, determined no EAW was necessary.  A petition was started to request an EAW be completed and garnered 32 signatures.  The Environmental Quality Board (EQB) determined that the city was the appropriate governing body to make a decision regarding the need for an EAW.  McCarthy responded to the EQB that no decision could be made on the matter until the church filed for a building permit, which it did a few months later.

The requirements stating when an EAW is necessary are found within a body of rules pursuant to the Minnesota Environmental Policy Act (MEPA).  The rules state that an EAW is required for the “destruction, in whole or in part, or the moving of a property that is listed on the National Register of Historic Places.”  In preparation for the hearing, members of the City staff prepared a report for the city council concluding that an EAW was not required.   The city council then received input from Jonathan Reppe (attorney for Dundas residents) who asserted that the property listed on the Register included the parish hall, which was to undergo destruction.  He cited Linda Pate, a preservation specialist from the Historic Preservation Office, who shared that view.

The council also heard from John Klockeman, a member of the Rejoice! building-team committee and a licensed architect, who asserted that the project would not result in the destruction of any of the property listed on the Register.  He argued that the only modifications to be made were the removal of the handicapped entrance that was constructed in 1998 and the removal of some limestone from the parish hall to be used elsewhere in construction.  At the hearing, the council determined that no EAW was necessary since the project would not result in any “destruction, in whole or in part, of a property that is listed on the National Register of Historic Places.”

On appeal, the Court was to determine whether the city council’s decision was arbitrary or capricious, made under an erroneous theory of law, or unsupported by the evidence.  It had to decide whether the council “has taken a ‘hard look’ at the salient problems and has genuinely engaged in reasoned decision-making.”  Upon examining the record, the Court noted that the city council did indeed take the required “hard look” at the situation.  It received input from opponents and proponents, received advice from city staff and legal counsel, and heard comments from the public.  The relators argued that the decision was improper as a matter of law because the property is listed on the Register and will undergo partial destruction; however, the Court noted that “relators point to no authority suggesting that the determination of the scope of the property listed on the
Register is a legal determination, much less that the city erred in making that determination.”  Noting again that the scope of judicial review is simply whether the council “engaged in reasoned decision-making” it affirmed the city council’s decision.

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