2004 Wetland Exemption Request Legal BackgroundPotter Wetland Exemption Request
Legal Background
Minnesota statutes and rules require the City to enforce the Wetland
Conservation Act of 1991 (WCA)as the Local Governing Unit (LGU). This
includes making determinations regarding whether the filling of wetlands will be
allowed and whether the proposed replacement of wetlands is acceptable.
Usually, these decisions are made in summary fashion by the City Council based
on the recommendation of the Technical Evaluation Panel (TEP). In most of these
cases the applicant is a developer who is developing property and usually the
developer is in agreement with the TEP's recommendations.
The issue before the City Council is different from most wetland issues in
that it is alleged that Mike Potter has filled wetlands without a permit. If true, this
would be a violation of the wetland laws and would require mitigation by Mr.
Potter at a ratio up to 4 to 1 (replace 4-acres of wetland for every 1 acre filled
without a permit), and can subject Mr. Potter to criminal prosecution.
In response, Mr. Potter has filed for an exemption determination under the
applicable rules. The particular exemption applied. for appears to have been
intended to allow those property owners who already had plat approval or who
already installed infrastructure prior to the enactment of the WCA in 1991 to fill
the wetlands necessary to develop their plat without having to replace the wetlands
as generally required by the WCA.
As the LGU, the City Council has to make the initial determination as to
whether Mr. Potter qualifies for the exemption. The TEP has ev~.luated the
evidence available to it and has determined recommended to the City Council that
the City deny the exemption on the grounds that Mr. Potter does not qualify for the
exemption.
We have reviewed these same materials, as well as other relevant materials
we were able to find, and have prepared a staff report summarizing the evidence
and recommending findings to the City Council. Our recommendations are just
that-recommendations. We provide these as an aid to the City Council and not
as binding facts upon the City Council. The City Council is charged with making
findings in this case and is free to disregard or modify any of our
recommendations as it sees fit, or add new findings not included in our
recommendations. We anticipate that the City will hear from Mr. Patter and his
attorney, and expect that Mr. Potter's attorney (Jack Perry) will have alternative
findings for the City to adopt based on Mr. Perry's August 2°d request that the City
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not decide this issue until Mr. Perry has had a chance to submit additional
evidence and findings to the City.
We have included Mr. Perry's August 30`'' submission in the Council
packet in its entirety, and have included other documents that we believe rE;levant
as attachments to our report. Because the issue requires the City to decide the
facts as they occurred over the past 15 years, and because the records are not
always complete, we will not be able to answer all the questions the Counc;il may
have, as we have many unanswered questions ourselves. The Council will simply
need to make the best determination it can from the evidence available.
In order to find that the exemption is granted, the City Council must find
that:
1. A preliminary or final plat approval has been granted within the
five years prior to July 1, 1991; and
2. Is still valid; and
3. The plat has remained active since its approval.
If the Council does not find these three items, it cannot grant the exemption.
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Potter Wetland Exemption Request
Summary Of Relevant Facts
It appears that the Applicant did receive preliminary plat approval on June 5, 1989
as the Frankfort Township Planning and Zoning Commission public hearing
minutes from May 23, 1989 and the Frankfort Town Board minutes dated June 5,
1989 both contain approvals of the Applicant's preliminary plat application for
Potter's Commercial Park.
The Applicant has submitted with his application a document entitled Final Plat
Approval for Potter's Commercial Park, dated December 4, 1989, apparently
bearing signatures of the Town Board Chairman and Town Board Clerk. The
document provides that "The Town Board of Frankfort Township, Wright County,
Minnesota, does hereby recommend approval of the above-named plat to the
Wright County Board of Commissioners." The document in question pursuant to
its own terms is only a recommendation to the County Board for approval and thus
does not in it of itself constitute a final plat approval. The applicable County
Subdivision Ordinance requires County Board approval of final plat applications.
State law requires that all final plats in townships be approved by the County
Board in which the plat is located. The Applicant has not submitted any
documentation or evidence to establish that the Wright County Board of
Commissioners ever gave final plat approval to Potter's Commercial Park or that a
final plat was ever recorded. City Staff could find no plat entitled "Potters
Commercial Park" recorded at the Wright County Recorder's Office.
The minutes of the Frankfort Town Board for December 4, 1989, the date on
which the purported final plat approval recommendation occurred, does not reflect
any Board action related to an approval of Potters Commercial Park. Mr. Potter is
only referenced in the minutes, related to a drainage issue on the Potter
Commercial Park property.
There is evidence in the record related to actions taken by either the Township or
the Applicant, which are not consistent with final approval being granted on
December 4, 1989. There is a letter from the Frankfort Town .Clerk dated October
9, 1990, advising Applicant that pursuant to the Township's subdivision
ordinance, his preliminary plat had expired and that he would be required to
resubmit preliminary plat approval to the Planning and Zoning Commission. The
minutes- of the Frankfort Town Board of November 5, 1990, which is about a
month after the notice letter state that the Applicant requested reinstatement of
preliminary plat approval for Potter's Commercial Park. After that there is a letter
from the Township Engineer dated June 12, 1991, to the Planning and Zoning
Commission of Frankfort Township indicating that the Applicant had submitted a
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revised grading and drainage plan and a screening plan. The letter also contains a
plat approval recommendation contingent on certain conditions. No evidence has
been presented to show that the Frankfort Town Board actually granted final plat
approval after this submission.
As to the continued validity of any final plat approval, Frankfort Township
adopted a Subdivision Ordinance on August 17, 1992, which would have voided
the alleged final plat approval of December 4, 1989 due to the Applicant's failure
to record the final plat within one hundred and twenty (120) days after its
adoption.
In addition Section A-300.3 (e)(7) of the City of Albertville's Subdivision
Ordinance, which has a similar provision would have voided any other purported
valid final plat approvals received from the Town Board or by operation of law
two years and 121 days after the annexation of the property into the City of
Albertville. That annexation occurred well over two years and 121 days ago (the
annexation occurred in approximately 1996).
There are also a number of facts in the record tending to establish that the
preliminary plat approval is no longer valid. Pursuant to the Frankfort Township
Subdivision Ordinance in effect at the time of the preliminary plat approval, the
Applicant's preliminary plat expired six months after the June 5, 1989. Again
there is that letter of October 9, 1990 from the Township notifying the applicant of
the expired approval.
There is some evidence in the November 5, 1990 minutes of the Town Board that
the Applicant may have received a two year extension of his preliminary plat
approval but even that extension would have expired on June 5, 1991 due to the
Applicant's failure to finalize his plat.
The evidence submitted by the Applicant as to whether the project has remained
active is lengthy and speaks for itself. The City Council must apply their own
understanding of what is the common usage of the term "active" and apply it to
the evidence.
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STAFF REPORT
Potter Wetland Exemption Request
Prepared by the City Attorney
September 2, 2004
I. Issues for City Council Determination:
1. Do the provisions of Minnesota Statutes § 15.99, by operation of law,
automatically approve the exemption application in this case.
2. Did the applicant receive preliminary or final plat approval for the
project in question within five years before July 1, 1991?
3. If so, is the approval still valid?
4. If so, has the project remained "active"?
II. Burden of Proof The landowner applying for exemption is responsible for
submitting the proof necessary to show qualification for the particular exemption
claimed, including proof of the requisite property rights to do the activity.
Minnesota Rules Section 8420.0250 Subpart 1 (2003)
III. Decision Standard: The local government unit decision shall be based on the
exemptions standards in part 8420.0122. Minnesota Rules Section 8420.0250
Subpart 1 (2003). The exemption standard at issue in this proceeding is found in
Minnesota Rules Section 8420.0122 Subpart 8 (2003), which provides:
Subp. 8. Approved development. A replacement plan for wetlands is not
required for development projects and ditch improvement projects in the
state that have received preliminary or final plat approval or have
infrastructure that has been installed or has local site plan approval,
conditional use permits, or similar official approval by a governing body
or government agency, within five years before July 1, 1991. As used in
this subpart, ""infrastructure" means public water facilities, storm water and
sanitary sewer piping, outfalls, inlets, culverts, bridges, and any other work
defined specifically by a local government unit as constituting a capital
improvement to a parcel within the context of an approved development
plan.
Subdividers who obtained preliminary plat approval in the specified time
period, and other project developers with one of the listed approvals timely
obtained, provided approval has not expired and the project remains
active, may drain and fill wetlands, to the extent documented by the
approval, without replacement. Those elements of the project that can be
carried out without changing the approved plan and without draining or
filling must be done in that manner. If wetlands can be avoided within the
terms of the approved plan, they must be avoided.
For county, joint county, and watershed district ditch projects, this
exemption applies to projects that received final approval in the specified
time period. (emphasis added)
IV Does Minnesota Statutes § 15.99 by operation of law, automatically approve
the exemption application in this case?
1. The exemption determination in this case is subject to the requirements of
Minnesota Statutes § 15.99 (the 60-day rule) pursuant to Minnesota Rule
8420.0210. The applicant is alleging that his application for exemption has
been approved by operation of law pursuant to the provision of Minnesota
Statute § 15.99. This law requires the City to make a decision on an
application within 60 days of its submission. The 60 days does not start to
run if the application is incomplete and the City sends a letter to the
applicant within 15 days of receiving the application informing the
applicant that additional information is needed. The City can also extend
the 60 day deadline by an additiona160 days if it sends notice of the
extension before the expiration of the initia160-day period.
2. The applicant relies on the following facts to support his argument that 60
days has passed without a City decision:
a. The completed application was received at the office of SEH in St.
Paul, the City of Albertville's representative on the TEP, on June 25,
2004.
b. The City did not issue a written notice to the applicant indicating
that the application was still incomplete.
c. Pursuant to § 15.99, the City had 60 days from June 25, 2004, to
either approve or deny the application. That 60-day time period
expired on August 24, 2004.
d. The City, by a letter dated August 26, 2004, attempted to extend the
60-day deadline by 60 days. However, that letter was sent two days
after the time period within which the City could extend under
Minnesota Statute § 15.99 had expired.
3. Given these facts, it would appear that the 60-day time period had run.
However, Mr. Jack Perry, the attorney for the applicant had requested at the
August 2, 2004 City Council meeting that the City Council not act on the
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exemption issue until Mr. Perry could submit proposed findings for the City
Council to consider. Mr. Perry made no submission until August 30, 2004,
after the 60-day time period had run, and in fact raised the § 15.99 issue in
the submission. An argument could be made under these circumstances
that the applicant should be estopped from raising the § 15.99 issue because
he, through his legal counsel, asked for an extension of time within which
to file submissions and then waited until after the expiration of the 60 day
period to make his submission.
4. Staff Recommendation. There is no recorded case law similar to these
facts, and thus it is hard to predict how a court would rule on this issue. It
is possible that a court would find for the applicant and deem the exemption
granted. The City Council needs to make a determination as to whether it
believes the exemption is granted under § 15.99. However, because this is a
question of law, the City's determination will carry little or no weight if this
issue is ultimately litigated in a court of law. Staff cannot predict how a
court would rule on this issue, and thus cannot make a recommendation to
the City, other than to advise the City that regardless of its decision on the
§ 15.99 issue, the City Council should also make findings regarding the
remaining issues addressed here in the event a court rules that the 60-day
deadline had been waived by the applicant.
V. Did the applicant receive preliminary.plat approval for the project in question
within 5 years before July 1, 1991?
A. Evidence submitted by applicant:
Applicant states in his application for Certificate of No Loss or
Exemption that he received preliminary plat approval from the
Frankfort Town Board. See Exhibit 7.
2. The applicant also attached a letter dated June 5, 1989, from the
Township Engineer to Frankfort Township which contains
comments to the proposed preliminary plat of Potter's Commercial
Park and contains a recommendation of approval subject to said
comments. Appendix B to Exhibit 7.
B. Technical Evaluation Panel (TEP) evaluation of evidence submitted by
applicant:
1. None.
C. Staff analysis of evidence submitted by applicant:
The Frankfort Township Planning and Zoning public hearing
minutes from May 23, 1989 (attached Exhibit 8) state:
Cyr made a motion to recommend to the Town Board approval to
rezone the property from A-2 to B-1 and grant preliminary plat
approval on Potter's Commercial Park, contingent on the
following: (1) Township engineer approves all plans. (2)
Screening must meet the requirements of the new Screening
Ordinance. (3) The development must meet all Township
ordinances. Jeff Zachman seconded the motion. All voted aye.
2. The Frankfort Town Board minutes dated June 5, 1989 (Exhibit 9)
show the approval of Potter's Commercial Park preliminary plat by
the Town Board contingent upon compliance with the
recommendations listed in Ratikka's letter of June 5, 1989, and
based on the recommendations made at the public hearing before the
Planning and Zoning Commission on May 23, 1989.
3. Staff conclusion. Based on the evidence stated above, staff would
recommend a finding that the weight of the evidence supports the
conclusion that the applicant received preliminary plat approval on
June 5, 1989.
VI. If the Citv Council finds the applicant did receive preliminary plat approval
for the protect m question with 5 years before July 1 1991 is that approval still
valid?
A. Evidence submitted by applicant:
1. Mr. Potter states in his application for Certificate of No Loss or
Exemption that his preliminary plat approval is still valid (Exhibit 7,
page 3).
2. The applicant also attached a letter dated June 5, 1989, from the
Township Engineer to Frankfort Township which contains
comments to the proposed preliminary plat Potter's Commercial
Park and contains a recommendation of approval subject to said
comments. Appendix B to Exhibit 7.
B. Technical Evaluation Panel (TEP) evaluation of evidence submitted by
applicant:
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None.
C. Staff analysis of evidence submitted by applicant:
1. As noted above, the Frankfort Town Board minutes indicates that the
applicant received from the Town Board preliminary plat approval
for Potter's Commercial Park on June 5, 1989 (Exhibit 9). Section
124.1A, lb, of the Frankfort Township Subdivision Ordinance in
effect at the time of the purported preliminary plat approval provided
in relevant part:
The approval of the preliminary plat does not constitute an
acceptance of the subdivision, but is deemed to be an authorization
to proceed with final plat. The approval of the preliminary plat
shall be effective for a period of six (6) months, unless an
extension is granted by the Planning Commission. The
subdivider may file a final plat limited to such portion of the
preliminary plat which he proposed to record and develop at, the
time, provided that such portion must conform to all requirements of
this ordinance. If some portion of the final plat has not been
submitted for approval within this period, a preliminary plat
must again be submitted to the Planning Commission for
approval. (Emphasis added). (Exhibit 12)
2. Also, as noted above, there is a letter in the Township file dated October
9, 1990, from the Frankfort Township Clerk addressed to Mike
Potter concerning the status of the Potter's Commercial Park
preliminary plat (Exhibit 4). The letter states:
"After reviewing your file, it is brought to our attention there has
been a considerable amount of time lapse since your preliminary
plat approval. According to our ordinance Section 124.1, a
preliminary plat approval shall be effective for a period of six (6)
months, unless an extension is granted. I have not found any
reference to an extension. Mr. Potter, according to our records,
your preliminary approval was granted on June 5, 1989. In order
to have a final plat approval, you must resubmit your preliminary
plat to the Planning and Zoning Commission. Then, preliminary
approval from the Town Board.
Please take the proper procedures before any more work is done
on your plat."
The date of the Township notice letter concerning the preliminary
plat status is just over 16 months after the purported preliminary plat
approval. The letter specifically states that the Clerk had found no
record of an extension between the time of approval and the date of
the notice letter. By operation of the ordinance, six months after
June S, 1989, the preliminary plat approval was no longer valid.
3. The issue of the expiration of the preliminary plat by operation of the
ordinance is somewhat muddled by the minutes of the Frankfort Town
Board of November 5, 1990 (Exhibit 5). The minutes in relevant part
state the following:
"Mike Potter requested reinstatement of preliminary plat
approval for Potter's Commercial Park. He explained that he
was unaware of a time limit on his approval. Goodrich
explained that State law states a plat must be finalized within
2 years. Potter has until June 5, 1991, to finalize his plat. If
the plat is not finalized by that date, his preliminary plat
approval will expire and he must reapply." See minutes of
the Frankfort Town Board, November 5, 1990. (Exhibit 5).
The relevant portion of Exhibit 5 contains no discussion of the
expiration of the six month time period under the applicable
subdivision ordinance. The section also does not reflect any direct
action of the Board such as a resolution approving an extension or
"reinstatement" of the preliminary plat. It should also be noted that
Section 124.1A, lb states that extension of the six month time period
is to be granted by the Planning Commission, not the Town Board.
Arguably, the minutes could be interpreted by the City Council as a
two-year extension of the preliminary plat approval. However, even
with such an interpretation, the preliminary plat approval would
have expired based on the applicant's failure to finalize his plat by
June 5, 1991.
4. Staff conclusion. Based on the evidence stated above, staff would.
recommend a finding that the weight of the evidence supports the
conclusion that the applicant has failed to establish that any preliminary
plat approval received within five years before July 1, 1991, is still
valid.
VII. Did the applicant receive final lp at approval for the project in question within
five years before July 1, 1991?
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A. Evidence submitted by applicant:
1. Document entitled Final Plat Approval for Potter's Commercial
Park, dated December 4, 1989, bearing signatures of the Town
Board Chairman and Town Board Clerk. (Exhibit 1)
B. Technical Evaluation Panel (TEP) evaluation of evidence submitted by
applicant:
1. None.
C. City staff analysis of evidence submitted by applicant:
1. Exhibit l as submitted by the applicant by its own terms does not
establish the existence of final plat approval. The exhibit
specifically states, "The Town Board of Frankfort Township, Wright
County, Minnesota, does hereby recommend approval of the above-
named plat to the Wright County Board of Commissioners." See
Exhibit 1 (emphasis added). The document in question is only a
recommendation to the County Board for approval and thus does not
in and of itself constitute a final plat approval. Section 124.3 3 of
the Wright County Subdivision Ordinance which has been in effect
from January 3, 1980 to the present requires County Board approval
of final plat applications (Exhibit 2), as does Minnesota Statutes
§505.09. See also §394.33 subdivision 1, Haverhill Township v.
County of Olmstead, 674 N.W. 2d, 781 (Minn. Ct. App. 2004).
2. The applicant has not submitted any documentation or evidence to
establish that the Wright County Board of Commissioners ever gave
final plat approval to Potter's Commercial Park, and Mr. Perry
indicated via phone to the City Attorney that all available
information regarding final plat approval has been submitted. City
staff reviewed the Wright County Board minutes from December 5,
1989 through March 27, 1990 and found no mention of Potter's
Commercial Park, although other plats from Frankfort Township
were approved by the County Board during this time period.
3. The applicant has not submitted any evidence that a final plat was
ever recorded. No plat entitled "Potters Commercial Park" has been
recorded at the Wright County Recorder's Office.
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4. The applicant has not submitted any evidence of the relevant plat
bearing the signatures of any of the governmental officials required
by statute and ordinance for recording.
S. City staff conducted a limited review of the Frankfort Township
Board minutes from June 5, 1989 through the end of the 1989
calendar year and found no motion by the Frankfort Township Board
ever approving the final plat. The minutes of the Frankfort Town
Board on December 4, 1989, the date on which the purported final
plat approval recommendation occurred, does not reflect any Board
action related to an approval of Potters Commercial Park. (Exhibit
3). Mr. Potter is referenced in the minutes, related to a drainage
issue on the Potter Commercial Park property.
6. The Township file contains a letter from the Frankfort Town Clerk
dated October 9, 1990, (Exhibit 4) advising Mr. Potter that pursuant
to the Township's subdivision ordinance, his preliminary plat had
expired and that he would be required to resubmit preliminary plat
approval to the Planning and Zoning Commission. This letter is
dated over 16 months after Exhibit 1 purported to recommend final
plat approval.
7. The minutes of the Frankfort Town Board of November 5, 1990,
state the following:
"Mike Potter requested reinstatement of preliminary plat
approval for Potter's Commercial Park. He explained that he
was unaware of a time limit on his approval. Goodrich
explained that State law states a plat must be finalized within
2 years. Potter has until June 5, 1991, to finalize his plat. If
the plat is not finalized by that date, his preliminary plat
approval will expire and he must reapply." See minutes of
the Frankfort Town Board, November 5, 1990. (Exhibit 5).
8. The fact that the applicant is requesting an extension of his
preliminary plat approval would tend to indicate that final plat
approval had not been granted. If the applicant had received a final
plat approval on December 4, 1989, as Exhibit 1 purports to state,
the applicant would have no need to request an extension of his
preliminary plat approval on November 5, 1990 for the same plat.
9. The file contains a letter from the Township Engineer dated June 12,
1991, to the Planning and Zoning Commission of Frankfort
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Township indicating that the applicant had submitted a revised
grading and drainage plan and a screening plan (Exhibit 6) for
Potter's Commercial Park. The letter also contains a plat approval
recommendation contingent on certain conditions. The action of the
applicant in submitting revised grading and drainage plans and the
inclusion by the Township Engineer of conditions of plat approval
are generally inconsistent with the applicant having received a
recommendation for final plat approval on December 4, 1989.
10. Staff Conclusion. Based on the evidence stated above, staff would
recommend a finding that the weight of the evidence supports the
conclusion that the applicant has failed to establish that he received
final plat approval.
VIII. If the City Council determines that the applicant received final plat
~proval, is that approval still valid?
A. Evidence submitted by applicant:
1. Document entitled Final Plat Approval for Potter's Commercial
Park, dated December 4, 1989, bearing signatures of the Town
Board Chairman and Town Clerk (Exhibit 1).
B. Technical Evaluation Panel (TEP) evaluation of evidence submitted by
applicant.
1. None.
C. City staff analysis of evidence submitted by applicant:
1. As noted above, what purports to be a final plat approval for Potter's
Commercial Park is dated December 4, 1989. On August 17, 1992,
Frankfort Township passed Ordinance 92-08-O1, titled An Ordinance
Establishing Planning Regulations for the Laying Out of Streets, Alleys
and Other Public Ground and the Subdivision of Plats Within Frankfort
Township, Minnesota (Exhibit 10). Section 701.12 of the 1992 Zoning
Ordinance states as follows:
It is the responsibility of the subdivider to file the plat and any
developer agreements with the appropriate County offices. The
subdivider shall record the final plat and developer's agreement
in the Office of the County Recorder within one hundred and
twenty (120) days after approval by the Town Board. Any plat
9
not recorded within the prescribed period shall be void (Exhibit
10, page 33).
Minnesota Statute 462.358, subdivision 3c allows a Township or
City to apply new ordinances to approved final plats beginning two
years after final plat approval was granted. Even assuming that the
applicant received plat approval in December, 1989, that approval
would have lapsed 120 days after the adoption of the new
subdivision ordinance on August 17, 1992 as the final plat was not
recorded within the required 120 days.
It should also be noted that pursuant to Section A-300.3.(e).(7) of the
City of Albertville's Subdivision Ordinance, the applicant is required
to record the plat within 120 days, or the approved final plat is
deemed void. (Exhibit 11) As a result, any other purported final plat
approvals received from the Town Board or by operation of law
would no longer be valid as more than two years and 120 days has
elapsed since the annexation of the property in question into the City
of Albertville. The property in question was annexed to the City
sometime around 1996, many years after any final plat approval can
arguably be claimed to have occurred.
2. Staff conclusion. Based on the evidence stated above, staff would
recommend a finding that the weight of the evidence supports the
conclusion that the applicant has failed to establish that any final plat
approval he received within 5 years before July 1, 1991, is still valid.
IX. Has the plat remained "active" since the applicant received qualifying
preliminary or final plat ap rp oval?
A. Evidence submitted by applicant:
1. The evidence submitted by the applicant to establish that the project
remains "active" is found in Exhibit 13.
B. Technical Evaluation Panel (TEP) evaluation of evidence submitted by
applicant:
1. The findings of the Technical Evaluation Panel (TEP) as to whether the
project has remained "active" are summarized in a letter to the City
Council dated July 13, 2004. That letter is attached as Exhibit 14.
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2. The TEP panel after consultation with the City Engineer determined that
the evidence of activity submitted by the Applicant did not constitute
the installation of "infrastructure" as that term is used in Minnesota
Rules Section 8420.0122 Subpart 8.
C. City staff analysis of evidence submitted by applicant:
In reviewing the evidence submitted by the applicant concerning
whether the project has remained "active," the City Council must
consider what is meant by the term "active." Unfortunately, the
applicable section of the Administrative Rules does not define the term
"active." Staff is unaware of any case law or administrative proceeding
defining or construing "active" as that term is used in subpart 8 of
section 8420.0122.
2. Generally, words and phrases in statutes or rules are construed
according to the rules of grammar and according to their common and
approved usage Courts will sometimes look to dictionary definitions to
establish the common usage of a word. Attached is the definition for
both "active" and "action" as found in the Merriam Webster Online
Dictionary (Exhibit 15). Given the common nature of the word
"active," dictionary definitions are not particularly helpful. Staff would
suggest, given the context of how the word is used within the
exemption, that the City Council, in evaluating the evidence of activity
submitted by the applicant, consider the following:
a. What percentage or how much of the work authorized by the
governmental approval has occurred since that approval was
granted.
b. Whether there are any unexplained extended periods of
inactivity.
c. Were there periods of time where activity could not be performed
due to external factors (high water, etc.) not in the control of the
applicant.
d. The nature, extent and scope of the work performed.
3. The TEP in their findings of fact concluded that the project has not
remained active. The TEP reasoned that the wetland filling activities
engaged in by the applicant from 1994 until the cease and desist order
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was issued in April of 2003 should not be considered as activity, as the
applicant's U.S. Army Corps of Engineers Section 404 permit to fill
wetlands expired in 1993. Since that time the Applicant has not
obtained new permits In other words, they found that none of the work
done between 1994 and 2003 which required a U.S. Army Corps of
Engineers Section 404 permit should be considered in the determination
of whether or not the project was "active" as that work was done
without the appropriate Army Corps permit. The TEP relied on section
8420.0115, subpart C to support that interpretation. The relevant
section provides:
A person conducting an activity in a wetland under an
exemption in part 8420.0122 (the part of the Rules at
issue here) shall ensure that:
***
C. The activity is conducted in compliance with all
other applicable federal, state, and local requirements,
including best management practices as listed in part
8420.0112, and water resource protection requirements
established under Minnesota Statutes chapter 103H.
The TEP's interpretation of the term "active" to include the
requirements of 8420.0115 is not based on any statutory or case law of
which staff is aware. The TEP interpretation given the existence of
8420.0115 does make some common sense, in that it would prevent a
person from establishing the existence of the exemption in question by
"illegal" (unpermitted) activity. A Court could choose to read the
exemption section together with 8420.0115 in order to prevent what
could be considered an absurd result. That being that the exemption is
established by "illegal" (unpermitted) activity.
4. There are, however, a number of competing factors that must be
considered. Section 8420.0115 does not address the effect of a violation
of its terms on the existence of the exclusion. Certainly if there is a
violation of the Corps permitting requirements in this case, the applicant
presumably would be subject to any penalties provided under the federal
statutes and rules. In addition, the exemption language on which the
City Council is directed to make its exemption determination does not
reference section 8420.0115. In other words, if the rules intended to
prohibit unpermitted activity from counting toward an exemption, the
rules could have explicitly stated such. They do not.
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5. Staff Conclusion: The City Council should evaluate the evidence
submitted by the applicant to determine whether the plat has remained
"active" in light of that word's common and approved usage. In doing
so, the City Council may choose to consider the staff's suggestions
found in Paragraph 1, a through c, of this section. As to the legal
question of whether section 8420.0115 should be read
together with section 8420.0122, subpart 8, as suggested by the TEP,
staff believes that a court would likely read these two sections
independently of each other, meaning that activity that may have been
undertaken without a required federal permit would not affect the
existence of the exemption. However, because no court has decided this
issue, Staff's belief is more of an educated guess than a legal opinion.
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