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2004-08-30 Exemption InformationBRIGGS AND MORGAN 2200 IDS CENTER 80 SOUTH EIGHTH STREET MINNEAPOLIS, MINNESOTA 55402 TELEPHONE (612) 977-8400 FACSIMILE (612) 977-8650 PROFESSIONAL ASSOCIATION WRITER'S DIRF,CT DIAL (612) 977-8497 WRITER'S E-MAIL August 30, 2004 VIA MESSENGER Mike Couri Albertville City Attorney 5975 Main Avenue N.E. P.O. Box 9 Albertville, MN 55301 jperry@briggs.com Re: Potter's Minn. R. 8420.0122, subp. 8 "approved development" exemption Dear Mike: This letter, sent on behalf of Mike Potter, should facilitate the City of Albertville's (City) review and approval of Potter's application for a Minn. R. 8420.0122, subp. 8 "approved development" exemption from the 1991 Wetland Conservation Act (WCA). City's approval of Potter's Minn. R. 8420.0122, subp. 8 "approved development" exemption application is procedurally and substantially compelled. A. STATUTORY DEADLINES FOR DECIDING THE EXEMPTION Minn. R. 8420.0210 provides that "the local government decision [on a Minn. R. 8420.0122 exemption application] must be made in compliance with Minnesota Statutes, Section 15.99." Ex. 5 (emphasis added). Section 15.99, subd. 2 "automatically approves" of applications which are neither approved nor denied within 60 days of their submission. See, e.g., Duluth Landfill Services v. City of Duluth, 609 N.W.2d 278, 282 (Minn. Ct. App.) ("[a]bsent a denial within the statutory time limit and simultaneous, written reasons for the denial, the permit application is approved"), review denied (Minn. July 25, 2000). And, while §15.99, subd. 3(f) allows fora 60-day extension of this deadline, "[a] proper extension of the 60-day review deadline requires four things: (1) written notice of the extension, (2) given before expiration of the deadline, (3) stating the reasons for the extension, and (4) indicating the anticipated length of the extension." Duluth Landfill Services v. City of Duluth, 2000 WL 1015893 at *2 (Minn. Ct. App.) (landfill permit automatically approved because city failed to substantially comply with these requirements by only giving "an oral notice" of the extension and "no reason for the extension"), review denied (Minn. Oct. 17, 2001). SAINT PAUL OFFICE ~ FIRST NATIONAL BANK BUILDING ~ WWW.BRIGGS.COM MEMBER - LEX MUNDI, A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS BRIGGS AND MORGAN Mike Couri August 30, 2004 Page 2 Pursuant to Minn. R. 8420.0210, there is absolutely no question that § 15.99's deadlines apply to this exemption determination. Indeed, the Minnesota Board of Water and Soil Resources' (BWSR) The Minnesota Wetland Conservation Act Manual: A Comprehensive Implementation Guide to Minnesota's Wetland Law (Wetlands Manual) provides three pages of direction on how to apply this statutory deadline. Ex. 6 at 1-3. The Wetland Manual's three "don'ts" are highly instructive: Don't assume that Section 15.99 will be interpreted leniently. The courts stringently apply subdivision 2 of Section 15.99 to require a decision within 60 days, unless there is an exception stated in Section 15.99. Don't assume it's OK to enact a blanket extension to give you an automatic 60-day extension on all requests. You have the right to extend the response date by an additional 60 days, but this must be done in writing on a case-by-case basis after the request is received. See American Tower, L.P. v. City of Grant, 636 N.W.2d 309 (Minn. Ct. App. 2001). Don't assume that you have an extension just because you have a verbal understanding with the applicant. Subdivision 3(f) of Section 15.99 requires a written notice of extension prior to the end of the initial period. If the extension will be more than 60 days, you must have the applicant's agreement in writing. Id. at 3 (emphasis in original). Indeed, by letter dated August 26, 2004 and received on August 27, 2004, City attempted to extend the 60-day deadline by 60 days, thereby acknowledging the applicability of the statutory deadline. Ex. 10. B. THREE SUBSTANTIVE REQUIREMENTS FOR THE MINN. R. 8420.0122, SUBP. 8 "APPROVED DEVELOPMENT" EXEMPTION Minn. R. 8420.0122, subp. 8 provides an exemption from the WCA requirements for "approved developments." Ex. 5. An "approved development" is defined as "development projects in the state that [ 1 ] have received preliminary or final plat approval or [2] have infrastructure that has been installed or [3] 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." (Brackets & emphasis added). And, "project developers with one of the listed approvals timely obtained, provided [1] approval has not expired and [2] the project remains active, may drain and fill wetlands, to the extent documented by the approval, without replacement." Id. In other words, to be an exempt "approved development" requires three components: (1) a prior local approval of the development "before July 1, 1991," (2) the "approval has not expired," and (3) "the project remains active." Id. (the "approval" refers to the local plat or site plan approval). BWSR's Wetlands Manual contains the exact same three requirements. Ex. 6 at 17. BRIGGS AND MORGAN Mike Couri August 30, 2004 Page 3 C. BACKGROUND FACTS Per City's WCA technical evaluation panel (TEP) representative, Todd Udvig of Short Elliot Hendrickson, Inc. (SEH), Potter's application for Certificate of No Loss or Exemption (Ex. 1) was received on February 12, 2004. Ex. 2. As authorized by § 15.99, City, through SEH, tolled the 60-day deadline until a "complete" application was submitted -that is, until "additional documentation (i. e., dated approved plats) [was] submitted." Ex. 2. SEH clarified that "[f]urther consideration of [Potter's] application will not occur until this documentation is received." Id. A May 14, 2004 meeting between Potter and SEH was held for the stated purpose of discussing what was specifically needed to make the application "complete." At this May 14 meeting, SEH's Udvig expressed his preliminary opinion that the plat and site plan approvals being shown to him (and which were ultimately submitted on June 25, 2004) satisfied the first criterion. Udvig also represented that Potter's description of what he intended to (and eventually did on June 25) submit regarding his subsequent work on the project would satisfy the requirement that the project "remain active." Udvig made no suggestion that this criterion required that Potter's Army Corps of Engineers' permit (if one was needed) remained valid. Udvig cautioned Potter, to the contrary, that TEP would probably require compliance with the Army Corps of Engineers' requirements as a condition to its recommendation for approval of the exemption. BWSR's Jim Haertel similarly "agreed with [Potter's] interpretation [of Minn. R. 8420.0422, subp. 8 that] the approvals required for the exemption do not include Army Corps of Engineers permits." Ex. 7. And, Assistant Wright County Attorney Tom Zins expressed to TEP members his concern about whether he could "win" a criminal conviction against Potter for violation of WCA in light of his exemption application. Ex. 8. Consistent with what was agreed to on May 14, Potter submitted via messenger at 12:50 p.m. on June 25 the agreed to "additional documentation." Exhs. 3 & 11.1 Potter's June 25 supplemental submission included his project's preliminary and final plat approvals, as well as his local site plan approval, and considerable documentation of his continued work on the project. Id. Fifteen days passed without City notifying Potter that his application was incomplete, thereby giving City under § 15.99 until 60 days after June 25 (or August 24) to either extend the deadline for up to 60 days pursuant to § 15.99, subd. 3(f) or approve or deny the application. Because of the ongoing criminal prosecution against Potter for his alleged non- compliance with WCA, Potter's due process rights were (and are) heightened. Nevertheless, TEP met on July 12, 2004 to discuss Potter's application without Potter or his legal and 1 TEP's August 12, 2004 recommendation to City fatally misstated that these submissions were delivered on June 28, 2004. Ex. 4 ¶ 5. BRIGGS AND MORGAN Mike Couri August 30, 2004 Page 4 environmental consultants. Ex. 4. Potter and his consultants were absent because TEP never notified the applicant that the panel was addressing the application. TEP recommended to City that the exemption be denied. Id. Despite its recommendation, TEP conceded that the first two requirements had been met. Id. ¶ 6. TEP found that Potter had received plat and site plan approvals, and it was unaware of any expiration of those approvals. Id. But, with regard to the third and final requirement, TEP "determined that the project had not remained active since the applicant did not have the necessary government approvals to fill wetlands and had not had these approvals since 1993." Id. ¶ 5 (emphasis added). Stated otherwise, TEP read into the subpart 8 "approved development" exemption an unstated requirement that the required Army Corps of Engineers permit, if any, must remain valid in order for the project to "remain[] active." Id. TEP did not explain the statutory or other basis for its strained construction of the exemption. Id. Potter's application came before the City Council on August 2, 2004. Potter and its legal and environmental consultants were present and prepared for the hearing. But, even though all three TEP members attended the clandestine July 12 meeting, none bothered to show up or explain his/her absence, thereby causing City to table the matter until August 16, 2004. On August 16, 2004, City approved on its consent agenda without city council discussion a postponement of its review of Potter's application until September 7, 2004. The consent agenda item included no reason for the delay, and the consent agenda item was never sent to Potter. City implicitly recognized that its August 16 consent agenda delay did not constitute an extension under § 15.99, subd. 3(f), as it sent on August 26, 2004 a letter purporting to extend the deadline under § 15.99, subd. 3(f). Ex. 10. But, apparently relying on TEP's misstatement that Potter's complete submissions were delivered on June 28 rather than June 25, City's letter was sent two days after the 60-day deadline had already expired. D. COMPELLED APPROVAL 1. Statutory approval under ~ 15.99, subd. 2 City obviously did not approve or deny Potter's Minn. R. 8420.0122, subp. 8 "approved development" exemption request within the statutory deadline of August 24. City's August 26 extension letter was sent two days too late. And, unlike Duluth in Demolition Landfill Services, 2000 WL 1015093 at *2, City's August 16 consent agenda delay did not even try to extend the deadline per § 15.99, subd. 3(f). Not surprisingly, then, City's consent agenda postponement failed at least two of the four requirements for extending the 60-day deadline under § 15.99, subd. 3(f). Indeed, City failed to comply with the same two requirements namely, (1) no BRIGGS AND MORGAN Mike Couri August 30, 2004 Page 5 written notice to Potter, and (2) no stated reason for the extension. Accordingly, like Duluth, City automatically approved the application on August 23. The only difference between this case and the automatically approved landfill permit application before Duluth in Demolition Landfill Services, 2000 WL 1015093 at *2, is that Duluth had no one to blame for its fatal tardiness but itself. In contrast, City can and should blame its TEP representatives who are supposed to advise City on such regulations but elected not to even show up on August 2, and then fatally misstated by three days when Potter's complete submissions were made. As a result, City's August 26 extension letter was two days late, and City's consent agenda delay was woefully inadequate. 2. Satisfaction of the three substantive requirements There is no dispute regarding Potter's satisfaction of the first two requirements for the subpart 8 exemption for the "approved development." Ex. 4 ¶ 6. The only issue remaining is Potter's satisfaction of the third requirement, which is whether his project "remained active." Id. ¶ 5. Even more narrowly, the sole question is whether Potter was required to keep his Corps of Engineers' permit valid in order for his project to "remain active." In answering this question, TEP's recommendation is entitled to no deference. Pursuant to Minn. R. 8420.0210, City is only to "seek the advice of the technical panel" on issues "of wetland size or type." Whether a project needs a Corps of Engineers permit to "remain active" is a statutory construction issue for which TEP has no expertise. And, pursuant to TEP and BWSR's responses to Potter's Government Data Practices Act requests, subpart 8's "approved development" exemption has never before been applied. Hence, TEP has no relevant expertise or experience upon which City should defer. In addition, the rules of statutory compliance contravene TEP's interpretation of subpart 8's "approved development" exemption. Minn. R. 8420.0210 expressly mandates that "[t]he local government unit decision shall be based on the exemption standards in part 8420.0122." Minn. R. 8420.0115 adds that "[a]n activity is exempt if it qualifies for any one of the exemptions, even though it may be indicated as not exempt under another exemption." As agreed to by both BWSR's Haertel and - at least initially SEH's Udvig, there is nothing in Minn. R. 8420.0122, subp. 8 that requires that the Corps of Engineers' permit be maintained. This is determinative. Moreover, where, as here, the legislature has shown the ability to require for other like WCA exemptions a valid Corps of Engineers' permit (see, e.g., Minn. R. 8420.0122, subps. 1(E), 1(F), 3(A) & 4(B)), the legislature's failure to impose such a requirement for this "approved development" exemption is presumed to be intentional. And, TEP's reliance on the last paragraph of Minn. R. 8420.0115 is wholly misplaced. In addition to Minn. R. 8420.0210's mandate that the exemptions be determined based on Minn. R. 8420.0122, Minn. R. 8420.0115's BRIGGS ANV MORGAN Mike Couri August 30, 2004 Page 6 last paragraph presupposes the existence of an exemption, as it addresses "activity in a wetland under an exemption in part 8420.0122." (Emphasis added). A provision, such as Minn. R. 8420.0115, which presupposes the existence of an exemption cannot itself be a prerequisite to an exemption. Based upon the above, Potter looks forward to City's approval of his exemption request and the resulting dismissal of its criminal prosecution against Potter for his purported failure to procure this exemption. Sincerely, _v.~) /2--~. f Jack Y. Perry JYP/kg Enclosures cc: M. Potter T. Larson A. Brewer i 6aozzz~s