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Last modified
7/17/2007 2:36:53 PM
Creation date
6/2/2006 8:30:57 AM
Metadata
Fields
Template:
Planning Files
Planning Files - Planning File #
3600
Planning Files - Type
Planning-Other
Project Name
Roselawn Cemetery
Status
Non-Active
Additional Information
MN Court of Appeals
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<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />. hearing <br /> <br /> <br /> <br /> <br />emISSIOn. As the district court found, "While [Jackson's] background in the area <br /> <br />pollution <br /> <br />control is significant, she did not claim any expertise in the health science, and . . . [she] <br /> <br />deferred to the Minnesota Department of Health as to matters relating to the impact of pollutants <br /> <br />on health." But it is also uncontested that the crematorium will emit furans, dioxins, hydrogen <br /> <br />chloride, radioactive particles, and other pollutants. The residents provided information based on <br /> <br />scientific reports regarding the emission of these pollutants. <br /> <br />Roselawn has not pointed to any unrebutted infonl1ation that was before the city council <br /> <br />showing that emission of these other pollutants will not negatively affect the general public <br /> <br />health, safety, or welfare. Jackson herself stated that the Minnesota Pollution Control Agency <br /> <br />has "no responsibility for regulating radioactive materiaL" The city council is not required to <br /> <br />ignore neighborhood concems in making its decision, nor does it bear the responsibility of <br /> <br />showing that the concems are unfounded. See Swanson v. City of Bloomington, 421 N.W.2d <br /> <br />307, 313 (Minn. 1988) (stating neighborhood feelings may be taken into account); see also <br /> <br />Minn. Stat. 9 462.3595, subd. 1 (placing burden on applicant). <br /> <br />Roselawn's failure to meet its burden under Minn. Stat. S 462.3595, subd. 1, IS best <br /> <br />summed up by the concems of Councilmember Maschka who stated: <br /> <br />I'm stil1 troubled with the issues that everything that we've seen, even when Miss <br />Jackson was up here, she wasn't definitive, nobody seems to be able to be <br />definitive on this stuff. They seem to say, we think, and that's fine, I mean, it <br />appears highly unlikely, but if you've got mercury poisoning, you don't really care <br />whether it was highly unlikely. . . . We don't have certainty. The only certainty we <br />have here, we have ceIiain unknowns and it appears to me based on everything <br />that we've seen that the ceIiainty is not a pleasant thing. <br /> <br />A municipality's denial of a conditional use perrnit requires both a factual detem1ination <br /> <br />about the proposed use and an exercise in discretion in deterrnining whether to peImit the use. <br /> <br />http://www.coUlis.state.mn.us/opinions/coa/current/opa040672-1123.htm <br /> <br />11/2312004 <br />
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