2004-09-07 Proposed Finidngs of FactCITY OF ALBERTVILLE
City Council
Proposed Findings of Fact
& Decision
Minnesota Wetland Conservation Act
Application for Certificate of Exemption
Applicant's Name: Michael Potter
Request: The Applicant is seeking a Wetland Conservation Act Certificate of
Exemption for the development of a piece of property referred to as "Potter's
Commercial Park" located within the City of Albertville. The purpose of this
exemption is to allow the landowner to drain or fill wetlands without an approved
wetland mitigation plan.
City Council Meeting Date: September 7, 2004
Findings of Fact: Based on the review of the application and evidence received,
the City Council now makes the following findings of fact and decision:
A. The staff report, dated September 2, 2004, prepared by the City Attorney is
incorporated herein, except as maybe specifically modified by this
document.
B. Applicant submitted a Minnesota Wetland Conservation Act Application
for Certificate of Exemption dated February 2, 2004 seeking a certification
of an exemption pursuant to Minnesota Rules 8420.0122 Subpart 8.
C. The Technical Evaluation Panel (TEP) determined that the application was
incomplete and sent written notice of the deficiency to the Applicant within
15 days of the submission of the application.
D. The Applicant supplemented his application by delivering a copy of the
required materials to the office of the City's TEP representative on June 25,
2004.
E. The TEP met and evaluated the application and supplemental materials and
provided the City Council with its findings and recommendation to deny
certification.
F. The Applicant, through his legal counsel appearing before the City Council
at its August 2, 2004 meeting, requested an extension of time to file
proposed findings and arguments related to the exemption application.
G. Based on the Applicant's submissions the question of whether or not he is
entitled to an exemption certification pursuant to the relevant provisions of
Minnesota Rules 8420.0122 Subpart 8, will require the City Council to
determine if the Applicant submitted sufficient information to establish that
he received preliminary or final plat approval for Potter's Commercial Park
within five years before July 1, 1991, that the approval is .still valid and that
the project has remained "active".
H. 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.
I. There is sufficient evidence in the record to establish that the Applicant did
receive preliminary plat approval for Potter's Commercial Park from the
Frankfort Town Board on June 5, 1989, which is within five years before
July 1, 1991.
J. Pursuant to Section 124.1 Alb of Ordinance 87-2, 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 S, 1989
date of approval
K. In a letter dated October 9, 1990, from the Frankfort Township Clerk the
Applicant was notified of the expiration of his preliminary plat approval
and was advised that he must resubmit his preliminary plat to the Planning
and Zoning Commission.
L. The Frankfort Planning Commission did not authorize an extension of the
six month expiration period a Potter's Commercial Park preliminary plat as
permitted by the Frankfort Subdivision Ordinance. Any extension of the
preliminary plat that is evidenced by the Frankfort Town Board minutes of
November 5, 1990 expired on June 5, 1991 due to the Applicant's failure to
finalize his plat.
M. The applicant failed to submit sufficient evidence to establish that the
preliminary plat approval he received for Potter's Commercial Park from
the Frankfort Town Board on June 5, 1989 is still valid.
N. The Applicant submitted 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. This
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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 and of itself constitute a final plat
approval. The applicable Wright County Subdivision Ordinance requires
County Board approval of final plat applications.
O. 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. The "Potters Commercial Park" plat is not recorded at the Wright
County Recorder's Office.
P. 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 final plat. Mr. Potter is only referenced in the minutes, related to a
drainage issue on the Potter Commercial Park property.
Q. The Township file contains a letter from the Frankfort Town Clerk dated
October 9, 1990, 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 the
purported final plat approval.
R. The minutes of the Frankfort Town Board of November 5, 1990, state that
Mike Potter requested reinstatement of preliminary plat approval for
Potter's Commercial Park. If the Applicant had received final plat approval
on December 4, 1989 there would be no reason for him to seek
reinstatement of preliminary plat approval on November 5, 1990.
S. There is a letter from the Township Engineer dated June 12, 1991, to the
Planning and Zoning Commission of Frankfort Township indicating that
the Developer had submitted a revised grading and drainage plan and a
screening plan. 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 the conditions of plat approval are inconsistent with the
applicant having received a final plat approval on December 4, 1989 from
the Frankfort Township Board.
T. Based on these facts the Applicant has failed to establish that he received
final plat approval for Potter's Commercial Park within five years before
July 1, 1991.
U. The Frankfort Township Subdivision Ordinance 92-08-01 approved on
August 17, 1992 voided the alleged final plat approval of December 4,
1989 due to the Applicant's failure to record the final plat in the Office of
the County Recorder within one hundred and twenty (120) days after
adoption of the new ordinance by the Township.
V. Section A-300.3(e)(7) of the City of Albertville's Subdivision Ordinance,
requires the applicant to record the final plat within 120 days, or the
approved final plat is deemed void. 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.
W. The applicant failed to submit sufficient evidence to establish the continued
validity of any Frankfort Town Board final plat approval for Potter's
Commercial Park.
X. The Applicant (did/did not) [ONE ALTERNATIVE MUST BE
CHOSEN] submit sufficient evidence to establish that the project has
remained "active" as that term is used in Minnesota Rules 8420.0122
Subpart 8.
Decision: Based on the foregoing information and applicable ordinances,
statutes and administrative rules, the City Council DENIES the exemption
certification pursuant to Minnesota Rules Section 8420.0210 based on the
following:
1. There is sufficient evidence in the record to establish that the Applicant
did receive preliminary plat approval for Potter's Commercial Park from
the Frankfort Town Board on June 5, 1989, which is within five years
before July 1, 1991.
2. The applicant failed to submit sufficient evidence to establish that the
preliminary plat approval he received for Potter's Commercial Park
from the Frankfort Town Board on June 5, 1989 is still valid.
3. The applicant failed to submit sufficient evidence to establish that he
received a final plat approval for Potter's Commercial Park within five
years before July 1, 1991.
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4. The applicant failed to submit sufficient evidence to establish the
continued validity of any alleged Frankfort Town Board final plat
approval for Potter's Commercial Park.
5. The Applicant (did /did not) [ONE ALTERNATIVE MUST BE
CHOSEN] submit sufficient evidence to establish that the project has
remained "active" as that term is used in Minnesota Rules 8420.0122
Subpart 8.
6. As the Applicant has no valid preliminary or final plat approval for
Potter's Commercial Park he has failed to establish the necessary
criteria for a certification of exemption under Minnesota Rules
8420.0122 Subpart 8.
Adopted by the Albertville City Council this 7th day of September 2004.
City of Albertville
By:
Don Peterson, Mayor
Attest:
By:
Bridget Miller, City Clerk
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