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INFORMATION #4 07-22-2002DRAFT Reply to Minneapolis Peter K. Beck 612 343-5374 peter, beck~gpmlaw.com July 22, 2002 William C. Griffith, Jr. Larkin, Hoffman, Daly & Lindgren, Ltd. 1500 Wells Fargo Plaza 7900 Xerxes Avenue South Bloomington, MN 55431-1128 Re~ Tollefson Development, Inc. Twin Lake Crossing Dear Bill: This letter is in response to your letter of July 15, 2002, asserting that the application of Tollefson Development, Inc. ("Tollefson") for approval of the Twin Lakes Crossing project (the "Development") has been approved by operation of law. We believe that a careful review of the facts regarding this Development does not lead to such a conclusion. Tollefson's applications for approval of the Development were filed with the City on April 30, 2002. The applications were heard by the Elk River Planning Commission on May 28, 2002. The Planning Commission recommended denial of the proposed rezoning for the Development, finding that the e~:isting zoning of the property is consistent with the City's comprehensive plan and that there is no compelling reason for changing the existing zoning. This recommendation was forwarded to the Elk River City Council for final action by the Council. The Council hears and decides planning applications on the third Monday of each month. Tollefson's applications were, therefore, scheduled for hearing and action by the City Council on June 17, 2002. Because the Development as proposed involved significant filling of wetlands, the Development was also reviewed by the City of Elk River Technical Evaluation Panel ("TEP") on May 30, 2002. Tollefson and its consultant were present at this meeting. The TEP found that the Development as proposed violated the State Wetland Conservation Act, due to excessive filling of wetlands, and recommended a number of changes to the Development, including the relocation of roads and the elimination of some lots. Tollefson indicated that revised plans would be prepared and submitted for review by the TEP, and a second meeting of the TEP was scheduled for June 13, 2002 to review the revised plans. This meeting was scheduled so that TEP review could be completed prior to City Council review and action on the Development on June 17, 2002. However, no revised plans were submitted and Tollefson did not show up for the June 13, William C. Griffith, Jr. July 22, 2002 Page 2 DRAFT 2002 TEP meeting. The TEP therefore recommended denial of the Development to the City Council. On June 14 and 17, 2002, city staff had conversations with Tollefson regarding the recommendations of denial from the Planning Commission and the TEP and the upcoming City Council meeting on the evening of June 17, 2002. Tollefson was advised that the Development could go ahead to the City Council with recommendations of denial · from the Planning Commission, TEP and staff; or the Development could be continued to the Council's next planning agenda, on July 15, 2002, to allow for the submission of revised plans to address the Planning Commission and TEP issues. Tollefson indicated it preferred the matter be continued, and was advised that such a request would have to be made in writing. The enclosed letter from Tollefson was received by fax during the day on June 17, 2002. In its letter, Tollefson indicates that it is "in the process of finishing up the revisions to our plans for Twin Lakes Crossing", and requests that the City "please continue consideration of our pending request for rezoning and preliminary plat approval to the next earliest possible date with the city council." In response to this request, the City Council opened the public hearing on the development at its regular meeting on June 17, 2002, and continued the public hearing to its next planning agenda on July 15, 2002. City staff continued to discuss the Development with Tollefson following the June 17, 2002 City Council meeting, and advised Tollefson that its request for a continuance had been granted and that the Development had been continued to the next planning agenda on July 15, 2002. In addition, the written minutes of the June 17, 2002 Council meeting specifically state that the public hearing on the' Development is continued to July 15, 2002. (See enclosed copy of page 7 of the minutes of the June 17, 2002 Elk River City Council meeting.) These written minutes were distributed to the public and approved by the City Council at its June 24, 2002 meeting, prior to the expiration of 60 days from April 30, 2002. In your letter of July 15, 2002, you state that the Development has been approved by operation of law because the City Council did not act on it, "at the next meeting, June 24, 2002". However, Tollefson did not request that consideration be continued to the next City Council meeting. Tollefson requested that consideration be continued to the "next earliest possible date with the city council". Tollefson was advised prior to making this request that the next date for City Council consideration of planning items was July 15, 2002, and that this was the date the item would be continued to. Following the granting of its request for a continuance, Tollefson was advised of the continuance and the date to which the Development had been continued. This information was also published in the written minutes of the City Council. All of this occurred within the sixty-day period mandated by Minnesota Statutes, Section 15.99. William C. Griffith, Jr. July 22, 2002 Page 3 DRAFT The procedure of the Elk River City Council is to consider planning items on the third Monday of each month. Although the City Council had two regular meetings between June 17 and July 15, 2002, pursuant to the Council's procedures, no planning items were scheduled for either of these meetings. (See enclosed agendas for the June 24, 2002 and July 8, 2002 City Council meetings.) All planning items arising from the Planning Commission's June meetings, and all planning items continued from the City Council's June planning agenda, were scheduled for the City Council's July planning agenda, on July 15, 2002. This included not only Tollefson's Development, but also four other planning items tabled or continued from the Council's June 17, 2002 planning agenda to the July 15, 2002 planning agenda. (See Items No. 3.2, 3.3, 3.4 and 6.7 on the June 17, 2002 agenda, a copy of which is enclosed.) We do not believe that Tollefson has the right to determine, after the fact, what the "next earliest pOssible date" was for City Council consideration of the Development. Tollefson made a request that the City continue consideration of his Development to the "next earliest possible date with the city council". The City Council determined what that date was, continued consideration to that date, and advised Tollefson of the continuance and the new date for consideration, all within the 60 days mandated by Minnesota Statutes, Section 15.99. We believe the facts set forth above are more than enough to comply with the requirements of Minnesota Statutes, Section 15.99. However, there are additional facts in this matter which make it clear that July 15, 2002 was the earliest possible meeting at which the City Council could have considered the Development. Tollefson's June 17, 2002 letter requested continuance of the Development because it was "in the process of finishing.~up the revisions to our pl .ans for Twin Lakes Crossing". The revised grading plan for the Development was not received by the City until July 8, 2002. This plan was immediately submitted to the TEP and was reviewed by the TEP in a meeting held on July 11, 2002. The revised plan and TEP's comments were then submitted to the City Council for action at the previously scheduled continued hearing on July 15, 2002. Even if the City Council did not have the right to determine that July 15, 2002 was "the next earliest possible date" for the City Council to consider the Development, in fact, July 15, 2002 turned out to be the earliest possible council meeting following submission by Tollefson of the revised plans referred to in its letter requesting a continuance at which the Development could be considered. We do not believe that Minnesota Statutes, Section 15.99 requires that this Development be approved as of June 24, 2002, before Tollefson had even submitted the revised plans that Tollefson itself requested a continuance to have time to prepare. William C. Griffith, Jr. July 22, 2002 Page 4 DRAFT Tollefson requested that consideration of its Development be continued to the next earliest possible date with the City Council so that it could finish up revisions to its plans. The Development was acted on by TEP and the City Council within one week of receipt by the City of the revised plans. This is clearly the earliest possible date on which the City Council could have acted on the Development. Because the Elk River City Council granted the applicant's request for a continuance, determined that the next earliest possible date for consideration by the City Council was July 15, 2002, continued the Development to that date and advised Tollefson that it had done so, all within 60 days of the application date; and because July 15, 2002 was, in any event, the earliest possible date following submission by Tollefson of revised plans on which the City Council could act on the Development, Minnesota Statutes, Section 15.99 has been complied with. As you know, the City Council will consider the preliminary plat for the Development on its August planning agenda, August 19, 2002. Very truly yours, GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. By: PKB :ch Enclosures CC: Mayor Stephanie Klinzing Council Members John Dietz Paul Motin Louise Kuester Dan Tveite City Administrator Pat Klaers Director of Planning Michele McPherson Peter K. Beck GP:906930 vl