CC 2007 08 27CHANHASSEN CITY COUNCIL
REGULAR MEETING
AUGUST 27, 2007
Mayor Furlong called the meeting to order at 7:15 p.m.. The meeting was opened with the
Pledge to the Flag.
COUNCIL MEMBERS PRESENT:
Mayor Furlong, Councilman Litsey, Councilwoman
Ernst, Councilwoman Tjornhom, and Councilman Peterson
STAFF PRESENT:
Todd Gerhardt, Roger Knutson, Laurie Hokkanen, Kate Aanenson, Paul
Oehme, Greg Sticha, and Lori Haak
PUBLIC PRESENT FOR ALL ITEMS:
Debbie Larson Planning Commission
Chris Sones 8756 Flamingo Drive
PUBLIC ANNOUNCEMENTS: INVITATION TO DAVE HUFFMAN 5K RACE.
Mayor Furlong: Very good and thank you and welcome to everybody here in the council
chambers and those watching at home. We're glad that you joined us. At this time, without
objection we'll proceed with the agenda that was distributed with the council packets. I'd like to
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start by extending an invitation to all residents and friends, neighbors to join us for the 8
Annual Dave Huffman Memorial 5K Race. Dave Huffman was an active member in our city
and our community. Was on our Chanhassen Park and Recreation Commission. He died in
automobile accident in Illinois in 1998. For the last 8 years the city, with a number of local co-
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sponsors, have hosted the Dave Huffman 5K Memorial Run. The 8 Annual Run will be on
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Saturday, September 8 beginning at 9:00 a.m. and City Center Park just north of City Hall.
Registration information can be found on our city's web site. You can register the day of the race
as well beginning at 8:15 so feel free to come if you can. There are several age divisions ranging
from under 13 to over 60. Wheelchair division. There's a kids fun race. A lot of fun, good
activity. Proceeds from the race are going to be donated to a number of charitable organizations
including the Chanhassen Boy Scouts, Feed My Starving Children, and the Chanhassen Area
Chamber of Commerce for student scholarships. So I hope you can join me and a number of
other members from our city staff or Park and Rec Commission, a number of our local business
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sponsors as well for the 5K Dave Huffman Memorial Race on September 8. Look forward to
seeing you there.
CONSENT AGENDA:Councilwoman Ernst moved, Councilman Litsey seconded to
approve the following consent agenda items pursuant to the City Manager's
recommendations:
a. Approval of Minutes:
-City Council Work Session Minutes dated August 13, 2007
-City Council Summary and Verbatim Minutes dated August 13, 2007
City Council Meeting - August 27, 2007
Receive Commission Minutes:
-Planning Commission Summary and Verbatim Minutes dated August 7, 2007
-Park and Recreation Commission Summary and Verbatim Minutes dated July 24, 2007
Resolution #2007-54:
b. Lift Station No. 3 Improvements, Project 07-03: Approve
Construction Bid, Award Contract, and Approve Electrical Control Panel Quote.
d. Approve Signal Agreement with Carver County for Audubon Road/Bluff Creek
Boulevard, Project 06-05.
e. Table Street Name Change of a Portion of Great Plains to Paradise Lane, Project 04-06.
All voted in favor and the motion carried unanimously with a vote of 5 to 0.
LAW ENFORCEMENT/FIRE DEPARTMENT UPDATE.
Mayor Furlong: I see Chief Greg Geske is here. Good evening Chief.
Chief Greg Geske: Good evening. Beat the law enforcement here once I guess. Most of the
time they beat us there but.
Mayor Furlong: We'll note the date.
Chief Greg Geske: Just wanted to cover a couple things that went on. It's been rather slow
except for the storm season that we had here. Not much we hear about the watering ban
anymore now that we've had a lot of rain but we did participate in a month ago going out the
night of our training, we forewent training. Put off training that night. We went out and helped
educate the citizens about the pending water ban and it was a rather education thing going out to
the neighborhoods and stuff. We brought tattoo's with us and hats and everything else and made
it good and educating everybody out there so it went well for us and appreciate all the fire
fighters going out and doing that and getting the word out. It worked well for us. We did have,
with the storms we, and we didn't keep records but we did end up having 18 calls on the one day
that the storms, two storms went through so it was a busy season for us. Nothing real major the
day that the storms went through but we were kept busy both in the morning and the afternoon.
We participated in the Miracles of Mitch Triathlon and got a good turnout by our fire fighters
who participated and helped out with that. Also a great turnout for our National Night Out which
always seems to be a growing thing every year and Beth does a real good job with that and we
participate in that also. We did put a, our new fire engine we received earlier this month and
we're putting it into service. We've gone in training, sets of training like the fire fighters down at
our west station. We're putting that in service tonight so we're pretty excited about that and we're
pretty excited our replaced in 1981 vehicle now, parking off to the side with the new one and
we'll have that at the open house which I'll advertise more next month. Don't want to advertise
too early but we will have that at the open house, giving rides with it. We're pretty excited to
have that there also so we're starting planning for our open house that will be in October too so.
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City Council Meeting - August 27, 2007
Mayor Furlong: What's the date of the open house? Next month you'll have it?
Chief Greg Geske: Don't want to lead on too much here.
Mayor Furlong: That's right.
Chief Greg Geske: I think it's the second week.
Mayor Furlong: Second Sunday.
Chief Greg Geske: Yeah.
Todd Gerhardt: Chief, do you think we can get the new fire truck on display at our next council
meeting so that council members can take a look at it?
Chief Greg Geske: Sure.
Todd Gerhardt: Maybe you can put it out front here before our work session.
Chief Greg Geske: Yep. That would be in 2 weeks?
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Todd Gerhardt: Yeah. September 10.
Chief Greg Geske: Yeah, let me know what time you want it here. We can sure get it out and if
you guys want to see it and anybody who walks by can see it and like I say, we'll have it at the
open house too but be happy to bring it up for the council. That way we can kind of explain
what we purchased out there. You know it's quite a bit of money that you spent on that piece of
equipment but we plan on having it for 25 years.
Mayor Furlong: Okay. Other questions? Councilwoman Tjornhom.
Councilwoman Tjornhom: I got a call from Commissioner Mark Stengler and also spoke with
Hennepin County Sheriff Rich Stanek and he told me about your heroic efforts at the 35W bridge
and the dive team from Carver County and what an excellent job they did and so I want to thank
you too for your heroism in being such a professional and going down there and volunteering to
spend I think 12 hours.
Chief Greg Geske: Yeah, our dive team, we participate with the Carver County Sheriff's dive
team and I believe we had 4 or 5 people from Chanhassen. Members that went down there and
dove and they got down there at 7:00 in the morning and were there until 7:00 at night and they
appreciate the extra time that they put on outside of the fire department to train and that and to
participate in that so we also appreciate it.
Councilwoman Tjornhom: I know sending a thank you from Commissioner Stengland…so I
thank you all for coming and being so professional and answering the ultimate call.
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City Council Meeting - August 27, 2007
Chief Greg Geske: Thank you.
Councilman Litsey: Yeah, thank you very much. It was good.
Mayor Furlong: And I think in addition to responding to emergencies, we've had two examples
here this month between National Night Out and Miracles for Mitch by the volunteer fires also
get out for those events too and I wanted to thank you for that. That's a good connection with
residents and businesses and those that aren't residents that come to those events, especially
Miracles for Mitch. That's a regional draw now so thank you as well for, and please extend our
thanks back to the fire fighters and the department for all the time that they put in above and
beyond the calls and responding to the pages. We sincerely appreciate it. Thank you. I don't see
Sergeant Anderly here. We'll mark him as absent.
Todd Gerhardt: Mayor, he had a family commitment this evening so he will not be in
attendance. Any questions or concerns that the council may have on the report, I can get those
after the council meeting, that'd be fine.
Mayor Furlong: Okay. Any comments at this point or comments that you'd like to make or
follow up on. The one comment that I will make, that I'm sure Sergeant Anderly would have is
school is starting next week so we're going to have children out on the street corners, buses,
driving around. Stopping at the most inconvenient spots if you're in a hurry so please slow down
and look for children. We have a few school zones on some of our major roads. Kerber, Laredo.
On Coulter I believe and Kerber, so please look for those and be aware that we're going to have
young children out running around with lots of excitement beginning probably a week from
tomorrow I think for the elementary schools and I think some other schools are starting now so
please be aware of that. Very good. We'll move now to visitor presentations.
VISITOR PRESENTATIONS:
None.
PUBLIC HEARING: CONSIDER APPEALS OF WETLAND EXEMPTION
DETERMINATIONS, LOCATED AT THE SOUTHWEST CORNER OF LYMAN
BOULEVARD AND POWERS BOULEVARD, JEFF FOX AND RICHARD DORSEY.
Public Present:
Name Address
Brad Wozney BWSR, 520 Lafayette Road No, St. Paul
Kurt Deter St. Cloud
Rick Dorsey 1551 Lyman Boulevard
Jeff Fox 5270 Howards Point Road, Excelsior
Brent Miller 1200 Lyman Boulevard
Mayor Furlong: Let's start with the staff report and welcome back to Ms. Haak. Good evening.
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City Council Meeting - August 27, 2007
Lori Haak: Thank you Mayor and council members. It's my pleasure to be before you this
evening to discuss the Fox and Dorsey wetland appeals. As we discussed in our work session 2
weeks ago, there are a number of issues with this as is probably evidenced by the half of I guess
of your packet, or electronic space I guess in today's age. What we're doing, what staff is
recommending tonight is that the City Council hold a public hearing regarding this item.
Consider the testimony and the evidence that have been presented in front of you and adopt a
motion adopting the findings of fact that are laid out before you in the staff report in that packet.
As I believe all the council members are aware, there was a document that was provided by the
applicant, that was received by the City Council over the weekend. Staff did not get a copy of
that but was able to preliminarily review that but we really have not had a chance to review it
thoroughly or to provide comment or even draft revised recommendations in light of that
document so that document does request that the council table this item. Staff does want to alert
the council to the fact that we do have a deadline looming for the consideration of this appeal so
if the council would like to table this item, you would need to receive a letter, a written extension
before your action tabling the item. The City Attorney has briefly just scratched out a letter that
would extend the review date to October 1, 2007, if the applicant's attorney would like to sign it.
And then if the council does decide to table the item, staff does recommend that the item be
tabled to a specific date, so if you could give us all something to work for, whether it's 2 weeks
out or 4 weeks out. With that all being said, I would like to just begin to give you some more of
the background on this project. We delved into it just a little bit at the work session but for just
to begin, oops I'm sorry. Got ahead of myself there. The Fox and Dorsey parcels are located in
the southwest corner of Powers Boulevard and Lyman Boulevard in the city of Chanhassen.
They're both two large agricultural parcels that are abutted by the new Powers Boulevard and are
quite close to new Highway 212. As we discussed in the work session, there is a specific process
that has been followed to this date and number 6 and 7 are the future potential parts of the
process. We did have applications made for these exemptions. There are 5 basins that are
affected that decisions were made for. The staff decisions were then made. There was an appeal
filed by the applicants to the Minnesota Board of Water and Soil Resources and a representative
from BWSR is here this evening if you have questions specific to him. That's Brad Wozney.
The Board of Water and Soil Resources then repealed, or I'm sorry, remanded that decision, or
that appeal to this Chanhassen City Council. See I'm even tripping over the process here. So
that appeal was made. BWSR said there was a local appeal process was not completed so then
that came back to the city and that's where the council's decision will fall into this process. Then
from here, once the council has made that decision, any aggrieved party can appeal to the Board
of Water and Soil Resources and then the Board of Water and Soil Resources would make the
final decision. So we're kind of in 5 or potentially 7 steps in this process. Just by way of
orientation to the site. On the north, on the top of this map is Lyman Boulevard. The key
intersection you can see there is Powers Boulevard on the top part of the map there. The 4 basins
are, I mentioned earlier that there are 5. It's actually 5, quote, unquote basins that are covered by
this exemption because 1 basin, one of the basins spans two different properties so basin 1, that
is basin 1 on both the Dorsey and the Fox pieces, and so when it's indicated in the staff report, it
actually shows up as 2 different basins because there were 2 different exemptions that were
applied for on that one basin. Basin 2 is in this really right in the center of the Dorsey parcel.
Basin 3 is in the northwest corner and Basin 4 is in the southwest corner of that parcel. So really
the decisions to make, there is a change in rule that affects the staff report as it was presented
previously and I'll get to that at the end. But this first part of the staff report is written as if that
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City Council Meeting - August 27, 2007
change was not made, so I'll tell you what the decision was and why it was that way and then
explain to you how the change affects that decision. So the first, really the two decisions that
we're faced with is, are the exemption standards applied correctly, and that's with regard to the
wetland things. And then is the interpretation of the 10 year deed recording correct, and if that's
yes, the council should uphold staff's decisions and adopt the findings of fact in the staff report.
So the basin 1 is the one, is the basin that spans both properties and as I mentioned earlier there
are two different, and I apologize for the technical nature of this but we're going to get a little bit
into some wetland science here, and I'll try to be, I'll try to do an overview and keep it simple but
feel free to stop me if you're lost at any point. The request was an exemption under Subpart 1(a)
of the Agricultural Exemption. Generally speaking there are two bullet points. The area has to
be planted with annually seeded crops or has to be in crop rotation of pasture grass or legumes,
which is beans basically, 6 of 10 years before 1991. So that's the first criteria. And then the
second criteria is that it must be a Type I or a Type II wetland. And Type I and Type II wetlands
are the seasonally flooded areas that are really more, they usually look more like pasture or
grassy areas that are low lying areas that are again, 6 out of 10 years, so most years they're wet
but in those other 4 years they could look really dry and you could be able to get a crop out of
those. So that's the first exemption request on the Dorsey part of that basin, which is the west
part of that basin. For the Fox exemption they requested an exemption of Subpart B, which is a
little bit different. In order to fulfill those requirements for that exemption it has to be a bottom
land, hardwood Type I wetland which is more typically found in, well like riverene type systems
or those sorts of areas with hardwood forests. Type II, or either that or a Type II or a Type VI
wetland less than 2 acres in size, and a VI, Type VI wetland is like a scrub shrub. Something
with a lot of shrubby vegetation and more woody vegetation than this has, and again it has to be
less than 2 acres in size. And staff's decision was in both of these cases to deny those
applications or those exemptions. The aerial photography and the best professional judgment by
the TEP, Technical Evaluation Panel showed us that this was not a Type I or a II wetland, Type
II wetland and it was not seeded annually or in crop rotation of pasture grasses and legumes, so
that was the TEP's recommendation and staff's decision. And similarly with Fox, the Fox
exemption for this basin, we did find that it was not a Type I or II wetland or a Type VI wetland.
It was a Type III wetland it was not less than 2 acres in size. The whole basin altogether is 3.3
acres. And just to give you an idea, it might be best is council could take a look at this. See if I
can, okay. You're not even going to be able to see that pointer there. Alright, I apologize to
those of you who are at home but this area in here, we want to point it on it here. You can see it
on the monitors a little bit more. This is Basin 1. The property line, this is the Dorsey property.
This is the Fox property and this is the area that we're looking at with Basin 1 and normally I
wouldn't have included these photos but I think you can see, I think you'll be able to see the
change in vegetation. There is, if you look at aerial photos often, which those of us on the
Technical Evaluation Panel, aerial photos are a huge tool for us so we look at a lot of, a lot, a lot
of wetlands in these photos and this area here is really the area that is driving the typing
determination, and this is from 1981. There were some changes made to this basin after
December of 1988 that will show up in the last slide that I'll show you. It was excavated and that
made it wetter, well the contention of the Technical Evaluation Panel is that it was always wet so
it may have been wet, being a wetter wetland than Type II so that was what was driving our type
determination to go to a Type III. Type III, IV and V wetlands is the wettest types. Okay, so
that was 1981. This is 1988 and in this area, because of the shading of this photo it's difficult to
see but there is an area that appears to be open water in this area and there's definitely a change
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City Council Meeting - August 27, 2007
in vegetation in there, and so again this is before the alteration took place, and this is what was
driving the TEP's determination of the different type of basin other than a Type I or II because in
Type I and II, when these photos were taken, you wouldn't see standing water. And this is
1990, and here you can clearly see the open water area. I'm trying to find another area of open
water on the site to compare it to and unfortunately I can't see one right off the top of my head
there but this is what open water looks like. So yes, because this was excavated you would
expect to see a type change there. And there's some finer points of the deduction that would get
into you know the typing, you know even after that excavation took place. It still remains a Type
III, IV or V wetland and therefore not eligible for this exemption so are you understanding the
aerial photos to the best of your ability? Alright. So Basin 2 is the basin that is in the center of
the Dorsey parcel, and again exemption requests was Subpart 1(a) which is plant, annually
planted 6 of 10 years before 1991 and it has to be Type I or II wetland. That exemption was
approved by staff because the aerial was annually seeded with crops from '81 through '86 which
is 6 of the 10 years. It is a Type I wetland, and then at this time it was, at the time of the staff
decision it was subject to that 10 year deed restriction, and again I'll talk to you about that in a
little bit. Basin 3 is the wetland in the northwest corner of the Dorsey parcel. Again the same
exemption was requested. This request was denied because again it didn't meet one of those two
criteria. It was not planted with annually seeded crops or in a rotation of pasture grass and
legumes. And then Basin 4 is the basin in the southwest corner. Again the same exemption was
requested and that was approved by staff because it was annually seeded with crops 6 of 10 years
prior to 1991. It was a Type I or a II wetland, but once again with that approval at that time it
would have been subject to the 10 year deed restriction. So really the contested points, the heart
of the applicant's request or appeal are really that the activities are, the wetland basins themselves
are exempt. Not the activities, and both staff and the Technical Evaluation Panel and yeah, staff
and the Technical Evaluation Panel recognize that that's indeed the case in the Wetland
Conservation Act. It's the activities that are exempt. A basin in and of itself is not exempt until
an activity is proposed, and we can discuss that a little bit more later if you like. The exemptions
apply at the time of the application, not automatically with the passage of the Wetland
Conservation Act. That kind of goes with the previous one. It's not that automatically in 1991
all basins that were exempt under the rules were exempted and you could just go ahead and do as
you wish with those. It was that the applications must be processed in order for that exemption
to apply. And now we'll talk about this 10 year deed restriction that I've been mentioning this
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evening. Up until June, what was it? August 1. Up until August 1 the Wetland Conservation
Act had a provision that said that if you drained, excavated or filled a wetland under one of the
ag exemptions that there was a 10 year deed recording, deed restriction that should be placed on
the property. So what that would mean is, if you went out to your property and filled 5 acres of
wetland that was exempt under this exemption, you wouldn't be able to then develop that to a
higher use the following year, or something like that. So it was intended to be, and interpreted to
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be that type of restriction. As of August 1 this provision is no longer in the Wetland
Conservation Act. And some of the other exemptions have changed since then, which makes
this even a little bit more complicated. But this restriction does no longer exist within the
Wetland Conservation Act. Neither the Technical Evaluation Panel nor the local government
unit, which is the City of Chanhassen were aware of the proposed changes to the rule. The City
Code relies on the exemption language for the state rules so we don't have a similar provision
within our ordinance that talks about this, so it's not that the state took it out so now we can back
up and just use the city rule. We don't have anything similar because we relied on those
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City Council Meeting - August 27, 2007
provisions in the state rule. And staff just wanted to highlight that the TEP recommendation may
have been different in light of that rule change so I can't, I can't tell you what that discussion
would have been, but it's possible that that could have been different had we known about this
change when we were making our recommendation as a TEP. So just in summary, there are 3
basin exemption requests that were denied by staff and 2 that were approved. It's Basins 1 on
both properties were denied. Basin 3 was denied and Basins 2 and 4 were approved. So once
again the staff recommendation is to hold a public hearing to consider the testimony and the
evidence that are presented in front of you, and to adopt a motion adopting, sorry for the spelling.
Easily changed. Of the Findings of Fact as included in the staff report. And once again the
council does need to have an extension in hand prior to council action if you wish to table this
item. And with that I would be happy to take any questions you might have.
Mayor Furlong: Thank you. Questions for staff at this time.
Councilman Peterson: Couple probably. Lori, what's staff's interpretation of the crops? You
know you look at the pasture. You look at, I'm trying to in my mind. I was raised on baling hay
and alfalfa. You don't seed alfalfa every year. You hopefully never have to, and I'm assuming
that the act, you know there are a lot of farmers that have always had alfalfa that don't seed so as
I read your summary, it looked as though to qualify under that Act you had to seed every year.
That doesn't make sense to me, so help me understand that.
Lori Haak: Right, and we did, we went by the letter of the rule. I mean that's what we can do.
That's how it's been interpreted by the Board of Water and Soil Resources and local government
units throughout the state is, you know it has to be seeded and 6 of 10 years. So you could get
you know in some of those years you could get something like that. But, and in addition we did
see some of the photographs that appeared in the packet that was distributed by the applicant
over the weekend, and we had seen some of those in the past and what we can tell you is that
based on those photos and the aerial photos, it appears that there wasn't, especially on Basin 1,
one of the photos shows clearly that it's reed canary grass, which is not a, it can be used as
pasture but it's not an annually seeded grass so you know in combination you know of reviewing
the aerial photos plus the other photos plus again a strict interpretation of the rule.
Councilman Peterson: Second question. You know it sounded by your description that in area 1
that that's probably the most pronounced visually, that you could see water and it was an easier
for you to determine that it was wetland. And in 3 which is the other one of contrast, did you
ever see water in any of the photos there or not? Describe that, describe 3 to me as it relates to 1.
Lori Haak: Sure, just one clarification on that. The water, the open water in Basin 1 isn't so
much about whether or not it's wetland. It's the type of wetland that it is so. I just wanted to
make sure we were all on the same page there. Type III is, you know it's, it's a wetland. You
know it's difficult to describe in.
Councilman Peterson: I wasn't asking for defining Type III…
Lori Haak: Sure.
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City Council Meeting - August 27, 2007
Councilman Peterson: At area 3, how that differs from area 1 because I think they are, even by
your description they're different types.
Lori Haak: Yep.
Councilman Peterson: So maybe I interrupted you when you were still trying to answer my
question.
Lori Haak: No, that's okay. While Basin 1 does have that deep part, and that is really what the
crux of the matter is for that basin. Again the basin is the correct type, or that was the TEP and
the staff's decision. It was the correct type but it wasn't, there wasn't the evidence of the annual
seeding in 6 of the 10 years. So that's what drilled the decision on Basin 3 is not the typing of
the wetland, but rather the evidence that was presented regarding that wetland.
Councilman Peterson: Okay. Thank you.
Mayor Furlong: Other questions at this time?
Councilwoman Ernst: Just a question that might be, probably to Brad. I'm not sure but does the
state have the same interpretation as what the city does on this issue?
Brad Wozney: Chair and Councilwoman Ernst. I'm one member of the Technical Evaluation
Panel so we had a unanimous TEP decision so thus far using the old rules, we had a unanimous
decision. But there's a little bit of question as to how it applies to the new rules.
Councilwoman Ernst: Well there's a little bit of question as to, can you tell me what that is?
Brad Wozney: Yeah. It has to do with this 10 year deed recording that was mentioned earlier
and in addition whether it even, whether the, all the basins qualified for an ag exemption. I
believe it was Basin 2 that you know could come into question again applying the new rule.
Mayor Furlong: So to clarify that if I may. Basin 2 was approved. The exemption request was
approved for Basin 2, but it was also the TEP decision was also to include the 10 year deed
restriction as part of that approval. Are you saying that under the new rules that have eliminated
the 10 year deed restriction, that Basin 2 may not have met the standard for approval?
Brad Wozney: That's possible, yes.
Mayor Furlong: What changed there, because the, as I'm reading the exemption was approved
because it was annually seeded with crops from '81 to '86 and was a Type I wetland.
Brad Wozney: Under the new rule that Type I criteria is no longer present. That subpart is
entirely scrapped from the new rules.
Mayor Furlong: So there's no exemption available for a Type I wetland under the new rules?
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City Council Meeting - August 27, 2007
Brad Wozney: Except on pasture land.
Mayor Furlong: Exempt on pasture land.
Brad Wozney: So, yeah. Generally that provision from the old agricultural exemption has
moved to the drainage exemption and it's, I don't want to confuse you. Yeah we have, I mean
that's the confusion here is which rules we're applying or which rules your council and legal
counsel and city council decides to apply.
Mayor Furlong: Okay.
Councilman Litsey: Would the new rules change the decision on the denials? Or it may change
it, what I'm hearing is it may change it on the ones that were approved but not on the denials.
The denial part would still stand either way.
Brad Wozney: Likely.
Councilman Litsey: So it may become under the new rules more restrictive, or the chances of
denial would be greater for those that you approved.
Brad Wozney: That's possible.
Councilman Litsey: But not the other way around? Am I confusing? In other words the denials
probably stand either way?
Brad Wozney: I believe so.
Councilman Peterson: Well I don't think, I think we're putting you in an awkward spot. I don't
think he has to answer the question.
Councilman Litsey: No, I'm not asking if you can't but it doesn't sound, it sounds like other
criteria were applied to the denials that would stand either way regardless of the new rules.
However, the ones that were approved, that could change. And that's all I'm saying. I'm not
saying, you don’t even have to answer that but that's the way at least I'm hearing it if that's
correct.
Brad Wozney: And I am not an attorney by any stretch of the imagination but I don't know what
component of was appealed of the decision. It sounds as though it might just be a component of
the decision say for that 10 year deed restriction.
Councilman Litsey: Okay. I understand it's a very tough, we're all trying to get our arms around,
or wade through it. No pun intended.
Mayor Furlong: Let me go back to Councilwoman Ernst because she was in questions when I
interrupted.
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City Council Meeting - August 27, 2007
Councilwoman Ernst: And that's fine. No, but I just wanted to say that I wouldn't want to form
an opinion based on a would or could but maybe should or is and so before I would form an
opinion on it I would want to get more specifics on it.
Mayor Furlong: Other questions for staff at this time? Councilman Peterson.
Councilman Peterson: Can I just go back and clarify, because I had, and I don't want to page
through 40 pages of staff reports. Walk me through again of the 4 that we, the 4 wetlands we've
got, what types you guys have determined them to be again just to, you may have already done
that, and now I'm locked out but.
Lori Haak: Alright. Okay again this is Basin 1. Basin 2. Basin 3, Basin 4. Basin 1 is a Type III
wetland with a Type II fringe and is 3.3 acres total. About 2 acres of the property, the Dorsey
property. Site 2 is here. It's a Type I wetland. Approximately .96 acres. Type III, or I'm sorry,
Site 3 is a Type II. 0.39 acres approximately. And Site 4, a Type II, .17 acres on the Dorsey
parcel and that's about 1.3 acres total, and that includes some down on the Fox property.
Different Fox actually. And then.
Councilman Peterson: How much for.
Lori Haak: And then some over on the west side.
Councilman Peterson: How much is below, what's the total wetland area?
Lori Haak: The total wetland area of that basin is 1.34 acres.
Councilman Peterson: And only 0.17 acres is on the Dorsey property?
Lori Haak: Correct. And those are outlined in the TEP Findings of Fact.
Councilman Peterson: What'd you say the total acreage of the first basin is?
Lori Haak: 3.3 acres total. About 2.0 on the Dorsey property and about 1.3 on the Fox property.
Mayor Furlong: Councilman Peterson, still any?
Councilman Peterson: No, that was my questions.
Mayor Furlong: Since we're talking about wetland type. You said Basin 1 was Type III with
Type II fringes. How does this, looking at the exemption request, how does, is there a partial
exemption option or how is the wetland graded?
Lori Haak: No.
Mayor Furlong: And what if you have multiple types within the wetland exemption area? Or
request for exemption.
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City Council Meeting - August 27, 2007
Lori Haak: The direction that we've gotten from the State in the past, and other LGU's have
gotten as well, is that the deepest portion drives the hydrology of that basin so it's typed you
know unless you have a 500 acre basin that's Type II with a 500 square foot Type III in the
center, in which case you go more to a prevailing type, but in cases like this where you've got
almost equal parts of both, you would use the deepest part to make that determination.
Mayor Furlong: The deepest portion unless it is, it is overly weighted to determine…
Lori Haak: Right.
Mayor Furlong: And then use that same type classification across the entire wetland?
Lori Haak: Right. Which is why in the rules it doesn't say you know for a Type II/III and for a
Type III/VI something else or you know. It doesn't break it down to that extent. I believe in the
packet too it does have generalized descriptions of the wetland types and it talks a little bit about
kind of prevailing vegetation and that sort of thing. And that's pulled directly from the
Minnesota Wetland Conservation Act.
Councilman Litsey: So if we delay this decision, then it goes back to yourself and to others to
take a look at applying the new standards? To see if that changes anything.
Lori Haak: That's definitely one option. I think in the short amount of time that we've had since
you know, become accustomed to these new rules, we've had limited discussions to that end.
But certainly staff would rely heavily on, directive staff being legal counsel to discuss in that.
And also additional conversations with other folks at the Board of Water and Soil Resources in
order to get them to assist us in this.
Councilman Litsey: Because I agree with Councilwoman Ernst that I'd like to have a more, well
it's possible that our definition of where we're heading with this applying new standards.
Mayor Furlong: A couple more questions, or at least one more at this time and then there may be
some others after we get into the public hearing this evening. The exemption, and I'm looking at
the staff reports now. To allow one is for the activities in the wetland. And you said that's
different than, there's an activities exemption, not a surveyed wetland exemption. Is the
exemption specific to agricultural activities? For these types of activities or is it, so another type
of activity in a development would not, they would not be exempted for?
Lori Haak: That's correct. The exemptions that exist in the Wetland Conservation Act are
broken up into different categories. There's exemptions for subculture. For harvesting trees.
There's exemptions for drainage. Ditch law kind of comes into wetland law a little bit. There's
exemptions for boy, what are some of the other ones? Brad, can you help me out? I hit drainage
and subculture and the agricultural exemptions but there's at least 8 different categories of
exemptions and so those are the types of activities that are exempted under the Act.
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City Council Meeting - August 27, 2007
Mayor Furlong: Okay. So the exemption, if approved, would be specific to the activity of
agriculture? Agriculture activities really. Second question. The two requirements as I see it,
and were in the report is that the wetland that was planted annually with seeded crops, which I
think is pretty clear to me. Second question from a description or definition standpoint. It says
within a crop rotation seeding of pasture grass or legumes, so I guess my question is, crop
rotation seeding is, seems to be the key as the alternative to annually seeding crops. How did the
TEP committee define that crop rotation seeding? What would meet that criteria?
Lori Haak: Sure. Well again we looked at the patterns that are left on the aerial photography
really, that's really our best tool when it comes down to this. We again rely on it heavily and so
when you've looked at a bunch of aerial photos over you know a decade or so you start to notice
signatures in the ways that the crops are planted and if you're seeing those more often than not,
those are the types of indicators that we would use to make those determinations so again.
Mayor Furlong: I guess my question is to Councilman Peterson's question earlier with alfalfa I
think was his example that you don't annually seed alfalfa. What, in terms of crop rotation
seeding, define for us what that practice would be? Or how the committee interpreted that part
of the definition. Is it alternating different types of crops over a period of years or is it a different
type of practice?
Lori Haak: And again you would see it in 6 of those 10 years and that's the other.
Mayor Furlong: And I'm trying to get my arms around what it is. What is a crop, how do you
define? I can understand annually seeded crops. You seed it annually every year. What is the
crop rotation seeding? Define that for me.
Lori Haak: It's going to be the, you know it's going to be a seeding that's going to look very
similar to that. The annually seeded. If you're in a crop rotation you know typically what you
see is, you see the corn. You see the soybeans.
Mayor Furlong: You see multiple types.
Lori Haak: Right.
Mayor Furlong: Or different types over the years of plantings.
Lori Haak: Exactly.
Mayor Furlong: Of annual plantings.
Lori Haak: Right.
Mayor Furlong: Okay.
Councilman Peterson: You know for example what I was struggling with is let's say you have an
alfalfa field that doesn't have, it's all flat and 100% without any wetlands on it. And that, you
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City Council Meeting - August 27, 2007
keep it like that. You don't seed it for 10 years. What you're talking about is basically row crops
is that you can see that difference because you know it's going to be different types. The rows
are going to be different. There's a differentiation. What I'm confused with is, is that the seeding
aspect of it. But if there is an area that's not seeded or not growing at alfalfa every year, you
know that means there's something wet generally. Wet or dry, one of the two.
Mayor Furlong: But there could be you know a crop rotation. Not only are they different plants
but they're also, there are areas that would just be left without crops through the possible rotation
as well. Depending on what that rotation plan was.
Councilman Peterson: Yeah, most farmers don't leave…
Mayor Furlong: But to the extent that there are different crops there, pictures would show
different types of uses. With the rotation crop. And I just want, that was my thought. I just
wanted to clarify that there's still that seeding aspect associated with it which Councilman
Peterson brought up.
Todd Gerhardt: Mayor, if I may add. I think Lori you know hit on the point. It should probably
say removal of a crop every year. Not the planting of a crop every year, and removal would be
cutting of hay, and I think from what Lori explained, tell me if I'm wrong Lori but you
mentioned that it didn't look as if it had been cut even, and it was canary grass, and.
Lori Haak: Well that was one of the basins that we can say that. That we've got a surficial shot
of the landscape. It's not just an aerial photo so that's where we can get into even better typing
with, now with our more progressive aerial photography we can get into you know reed canary
grasses and you can differentiate a little bit better between grasses species and things like that,
but with this, I believe it was from 1980 we had a shot from you know standing there, looking
out over this basin and so I can say that for the one basin and that doesn't mean it wasn't cut you
know a month or two before that because it's just one shot in time so I'd be hesitant to really kind
of make that blanket statement for all those wetlands but for that one at that point we can say
that.
Mayor Furlong: Did the staff look at, I mean the statements in here, for the ones denied is saying
that it was not annually seeded crop or the rotation. So for you looking at the requirement for the
exemption, which was seeded.
Lori Haak: Right. Well yeah.
Mayor Furlong: Annually seeded or in a crop rotation.
Lori Haak: Or in crop rotation for 10 years.
Mayor Furlong: Crop rotation seeding.
Lori Haak: Right.
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City Council Meeting - August 27, 2007
Mayor Furlong: Okay.
Councilman Litsey: But there was also a problem with the wetland classification too right?
Lori Haak: Right. For a number of the basins there was.
Councilman Litsey: So we actually have two factors that come into play.
Lori Haak: Correct. Right.
Mayor Furlong: Okay.
Councilman Peterson: Mr. Chair, I've got one more question.
Mayor Furlong: Certainly.
Councilman Peterson: Lori what's happen in a scenario that, let's say a person has a Type I
wetland. I call it a low area. And they go in and they deepen it and make a pond out of it and it's
now 5 feet deep. And now cattails grow and where it might have been exempt at one point in
time was self created into a Type III or IV or V. How is that interpreted? Is that a whole
different half hour discussion or?
Lori Haak: Yeah. There is an exempt, actually this is another category of the exemptions called
incidental wetland exemptions and it falls a little bit, it's a little less clear when you're excavating
an existing wetland, but if you have that alfalfa field that you were talking about before that has
no wetland on it whatsoever and you decided you wanted to dig the same pond 5 feet deep and
all of a sudden it got cattails there, then that would be eligible for one of these incidental wetland
exemptions. And again, like I said, the best I can say to your example is, it gets really tricky
once you're excavating an existing wetlands because it starts to talk more about, I believe the
language, do you have the rule Brad? I'm sorry I didn't bring the book down but the rules. The
rule says, for purposes um. Something to the effect, not intended to create a wetland. So for
example, and actually this is part of, thank you. This is actually part of the documentation that
the applicant submitted with the initial application as well as with the additional information that
was submitted. They do talk about the deepening and the expansion of the wet area in that Basin
1, and basically when the Technical Evaluation Panel looked at the application for that permit
that was acquired in 1987 or '88, the intent said pond but every staff report that was written, and
the recommendations of staff at that time were as if they were building it for a wildlife pond. It
was not ever, from staff's perspective, intended to be a storm water pond because there's really
no function of a storm water pond in that location. It seemed to be more of a habitat
improvement so that's why staff's recommendation was as it was and findings of such so.
Mayor Furlong: Okay. Are there any other questions at this time? If not what I'd like to do is
move on and begin our public hearing with inviting the applicants to come up as part of the
appeals process. To address the council.
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City Council Meeting - August 27, 2007
Kurt Deter: Thank you Mr. Mayor. Good evening council. My name is Kurt Deter. I practice
with the Rinke Noonan firm in St. Cloud. First of all definitely we will sign the extension to
allow for the review of all the information. If there's something I can sign tonight, I will
certainly do that. As you can see this is like reading the tax code and I will try and take some of
the blame for that. I was involved in 1991, Representative Marsh from Sauk Rapids was the lead
author of WCA and I was involved at that time and a number of meetings concerning a number
of the exemptions so I, sometimes I take the credit but I think in this case I'll take the blame for
some of the confusion, and in the fairness of Brad and Lori, it is a very difficult interpretation
and I've been on most of those wetland groups and WCA work groups trying to interpret these
rules. I want to make my comments fairly brief tonight because this is such a factually intensive
matter where Mr. Dorsey and possibly Mr. Fox will be providing the information to make the
record complete. As Lori, I'll just call you Lori if that's alright, that one of the reasons that this
was remanded to the council was to make a complete record because it is not a straight forward
situation. There's a number of basins. A number of issues on those basins. A number of factual
issues going back to prior to 1991, all of which have already stated are very fact intensive and
want to make a record of that. Mr. Dorsey has put a packet together, and again I apologize that it
wasn't here earlier but we're compiling information as we go and obviously that's another reason
for any extension that's needed. We want to make sure there's a complete review of all the
information submitted. The important points that I'd like to make is that in 1991 the passage of
WCA was very controversial and one of the main issues was the exemption for draining or filling
in agricultural areas that had been cropped 6 out of 10 years. And crop has a very broad
definition that you've seen in the rules and we've also attached the Carl Smith case out of
Hubbard County that our office handled. That was a very similar situation where it wasn't a row
crop situation, and we'd ask you to review that. I've also had extensive discussions with Jim
Haertel from BWSR and again he worked with us on this on a daily basis and we still have
discussions on it almost weekly basis of how all these different things fit together. So one of the
main things we wanted to accomplish tonight is to get a complete record in front of the council
and to give staff adequate time to review that information. I think first talking about Basins 2
and 4. Those exemptions were approved. We asked staff to review the 10 year requirement for a
number of reasons. One, under the new rules it's not required and secondly, the exemption is as
of 1991 is our position. Not as to the date of application. In other words if you had a cropping
history, the broad definition of cropping history in 1991, that exemption is there and there is not
a 10 year easement put on it, or requirement of the 10 year restriction from the date of
application. The tens of thousands of acres of farmland in Minnesota that are Type I and II that
clearly meet the 6 out of 10 or more than that, they simply can do their activity without the
restriction. So on 2 and 4 we've asked staff to review those. The exemption's been approved.
It's simply a matter of the 10 year restriction and we believe under the intent, both under the
original legislation and original rules, and under the new rules that that is not required. On
Basins 1 and 3, again those are fact intensive cases and I'm going to allow Mr. Dorsey with your
permission to go through that. He's spent a great deal of time going through a number of
historical documents and again, although, and I'm clearly not an expert on aerial photographs but
I reviewed a number of them. Aerial photographs are an important tool but they are not the end
all to what actually took place out there. Many times the landowner has information that is
different than what the aerial photo, because an aerial photo is a specific second in time and
depending on when that was taken, you can have a lot of different interpretations of what
actually happened during the whole growing season. So, and then finally before I turn it over to
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City Council Meeting - August 27, 2007
Mr. Dorsey, the question came up about, whether it's fringe Type II or if there's a spot of Type
III. Our position is, and my understanding of the rules, it's not the deepest point. It's the
predominant type of wetland within that wetland scheme and it's not that you take the deepest
and say then the entire wetland is that type, so for the record we want to make sure that that is
reviewed using what we believe is a proper interpretation. It's the predominant one. And then
Mr. Dorsey will go through that pond as far as the exemption was there in 1991. What he did,
he'll supply information to that, that it wasn't a Type III and the work that he did in that location
did not make it a Type III. And I'll be available for questions and maybe you want to go, I'll try
to answer some now but it may make more sense if Mr. Dorsey gives you the information so
you're seeing the whole picture if that's alright with the council.
Mayor Furlong: Okay.
Kurt Deter: Thank you.
Rick Dorsey: Good evening Mayor and members of the council. I'd like to first go through
some different things and you each have a copy of this booklet and it may be helpful for me to
have you go to a certain page in there if you can't see what I'm going to show you so…
Mayor Furlong: Do you have one for staff?
Kate Aanenson: No.
Rick Dorsey: We tried to get another copy.
Kate Aanenson: No.
Rick Dorsey: I have another one but I need it right now so.
Councilwoman Tjornhom: Craig and I can share.
Kate Aanenson: Thank you very much.
Rick Dorsey: I'd first like to start out with is why we're even considering looking into this
possibility and the first thing is about a year and a half ago we started looking at the issues
because there were things going on around us. The Fox's and myself, and we foresee that there's
going to be some safety problems in being able to farm this site as we go on into the future until
such time as some day it will become developed. The road started being built around us now.
I'm surrounded with roads having 10 to 12,000 cars per day going around it. Two of the fields in
the Fox's parcels are basically land locked where they cannot get access to them with farm
equipment and the fields that are broken up because of Powers and into smaller sizes as well.
With those concerns we looked at how can we take and make sure that the operations are safe for
the farm operator as well as for motorists going up and down the road because you do need
places for them to load grain. Unload grain. To load fertilizer. Load seed, etc.. So the process
we had was to try and combine these fields and in doing so, if you can follow that one up there.
Right now what we have is, here's Lyman Boulevard. Here's Powers. There's a tree line that's
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City Council Meeting - August 27, 2007
somewhat of a drop going into the Fox Family parcel and then there's a drainage ditch that comes
along here across the whole Jeff Fox property and Terri Fox property. I have one entrance
coming into our house and barn up here. There is an entrance down here…ditch so you can't get
access to the north side of the property. That's why the Fox Family piece used to access to plow.
Now they have to come in somewhere…but there'll be damage that will be done over time doing
that. As well as just trying to get grain trucks and semi's load up corn. You can't have it
bouncing over curbs and trying to go over hills. So what we are looking at is to open up the
center part of the area so it can be farmed and it will be more efficient as well for farming
purposes to be able to come around the tree line and then be able to access this site so the whole
thing could be reached and accessed from our driveway. So that's how it started out. We looked
at, from our standpoint, my own family's standpoint, there's a lot more information than you
were shared with so far tonight dealing with the Site #1. Site #1, why it looks the way it does
today. It didn't look like that in the time period in question, and that's what I wanted to show you
here. That with exemption 1(a), there's two time periods you're looking at. You're looking at
st
1991, January 1. If you look at this as a time line, I put a break there. Certain things happened
before January 1 and certain things after January 1, 1991 when the laws passed. Exemption 1(a)
which deals with existing, pre-existing land uses for the specific exemption I put forth for
activities that actually happened before the law was passed. So if the farmer had drain tile in, did
something, made an investment to make the land farmable more than half the time, 6 out of 10
years, that's what the laws, the intention of the law really is. It doesn't even have to be investing
into drain tile. It says just actually a wetland that was dry 6 out of 10 years would also be
exempt. So in order to pass the law on farming that is still considered one of the leading
industries in the state of Minnesota. Most of the land in the state of Minnesota and unless the
farmers got on board it would never have passed. The State created some covenants basically
with the land holders and if you had done certain things in the past you will be exempt from
regulation on those sites in the future. If certain criteria are met. What's the criteria? Well that
prior to 1991, if you've demonstrated 6 out of 10 years that the land was in farm production, that
the broad definition that's there, and there's another document called the SONAR which Brad can
tell you about. He told me about it. I read it. Gives the background information as to how a
group of people who made the rules that went with the statute interpreted these things, and there
was a lot of discussion from a lot of different perspectives. The question about is hay a crop.
Hay is considered a crop if it's introduced and it can be mechanically harvested, and that's right
out of the SONAR report. And that was looked at because certainly there are farmers out there
who do nothing but raise hay and they were not to be excluded from the law protecting their own
land. And while it was written the way it was, if you look at the real intention that's there, the
intention was not to take away land from farmers who had already invested in that land or were
making a living off of it. Going forward, the other side of the line is where the real…is allowed
to take place to prevent future loses of wetland. The past ones we looked at is having to be,
some of them giving up, and we're not talking about all of them but it was Type I's and II's which
were considered lower grade wetland. And going forward, they're still even exempt, or
exemptible I should say under certain conditions. So the break point is, looking before 1991. If
you put that line in the sand, if an activity had occurred and the activity is actually defined as
draining, filling or excavating. It's not farming or forestry. They look at different in the
definitions. So it was property that's been drain tiled or excavated prior to 1991 and for 6 out of
10 years it's been planted, in my case with hay 6 out of 10 years. Mechanically harvested and
introduced the seed at some point in time period, it would be classified as qualifying. The other
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City Council Meeting - August 27, 2007
exemption for example 1(b), which is on the Fox's property would deal with the today issue.
They looked at the land today, not historical land. Number 1(a), the only way you could look at
it in determining it's condition prior to 1991 and 6 out of 10 years prior to 1991, we're looking at
those years. We're not looking at today. We're looking at back then. What was the status and
the character of the land at that point in time? If it was such that it met the criteria of the law, it
was exempt from regulations of WCA. Certainly there's other wetland agencies that would have
a say in things and cities that…as well, however from the standpoint of WCA, that's what they
were looking at. So in a nutshell, the intent as best we can understand it is that if the legislature
trying to create the law and to protect future wetlands, that's negotiated and says if you used the
land more than half the time, if you're able to use the land more than half the time in a defined
period, and they picked out the 10 years prior to the law being passed, and you could pass
equipment over it and farm it with equipment and that land was something that they were willing
to negotiate away to get the law to pass. It would either suggest that improvements had to make
such as drain tiling or that in fact the land was not really, that high quality of a wetlands for 6 out
of 10 years more than half the time was dry enough to pass equipment on it. From the standpoint
of again, is hay acceptable? There has been a ruling that the LGU is actually in Cass County for
Carl Smith a year ago was over turned in favor of the land holder saying that hay is in fact an
acceptable crop as long as it's introduced and as long as that's mechanically harvested. I'd like to
go on and talk a little bit about the particulars of my property and the history that's there because
they do play an important part in making a decision on what is there and why we're looking at it
and feel that it deserves an exemption. First of all the, dealing with the question of what was the
status prior to 1991. Within the packet of information that you had and previously as well, we've
given most of this information to the TEP panel and sat down with them for better than an hour
and went over all this information back in February. We identified that this was pond wasn't out
there. It was in fact a farm field that was in grassland. You can see in this area right here, you
can actually see a piece of equipment there. Sitting in the field at that point in time. That picture
was taken in 1981. I'm not sure where, if anybody can say what species of grass is in there. I
certainly can't see it but I do know what I planted there and what I've harvested there. We sold
the grass out of that field for premium horse hay and there's a lot of blue grass mixed in with it
and in 1984, which I want to point out the area that truly is considered wetland in that time
period is no bigger than where that pond is. If you look at Exhibit L in your booklet, there's a
map of a survey that was done when the pond was excavated in 1989 and I guess one step before
that to say why it was excavated. We plant, or we harvested hay out of that field from, we
bought the land in 1979 and harvested it through 1986. In 1987 a neighbor had driven across the
ditch that drained the draintile...draintiles at this time. You don't put draintiles in to let… It was
in hay, which is an acceptable crop and there's a market for the crop. In that it was wetland. I'm
not disputing it was at some time wetland, but it was improved wetlands with draintile in it
which made it farmable. And we could take a crop off. That's not to say that there's certainly
not times in the year, right after a spring melt or after a large rain that you get puddling on it, but
that's what would be expected for the draintile to work. It has to percolate through the soil and
be absorbed into the tile and then flow out through the tile. So you can even get burn marks in
the field from a field that has draintile because it's still too wet or in some places can be too dry.
The picture that you saw at the very beginning in the staff report, on 7-18-81, it was actually
1979 picture just for the record. The wetland here, what I was going to say in 1987 the farmer
who started renting it. I had rented it for a number of years before that and another picture is on
Exhibit I. The tractor. Very good farming practices. We contoured the hill with grass and
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City Council Meeting - August 27, 2007
alfalfa. That lower ground is recommended to us to leave in grass as well because it was part of
the drainage system that enters the ditch and that if we didn't do it, even though it was draintiled
in that area, we're apt to have wash outs and would fill up the ditch in a matter of no time so why
it was stepped in grass was that reason. That's not an unacceptable practice in farming. Many
hayfields are probably generations old in some circumstances. The neighboring property in any
case drove over the ditch in 1987 continuously and collapsed the ditch. The draintile didn't have
anywhere for the water to flow and then it backed up and created in effect in a field that was
useful an incidental wetland in our minds. Started to puddle. That was the first signs of water
that we'd seen on it. The picture that you just saw was not, was a natural occurrence. That
draintile had been there since about 1963 and started to back up in 1987. Put grass and we
moved quickly on it in 1988 and put in a permit in probably July of '88 at which time we started
pursuing it and by December of '88, had it on the council meeting agenda to get it excavated to
try and contain water within the area. If you look at Exhibit M that's a wetland map, or excuse
me a soils map and you're going to see right here it says PM in there. A peak muck soil and if
you notice that, on that Exhibit L, the page before, the shape of the pond that's excavated was the
peak and muck shape. It was intentionally dug out at the shape of it to eliminate the peak muck
soil to help drain the field and to keep it available to be operated. The intention when we dug it
out was as a surface water pond, contrary to what it says in staff feels was our intention 20 years
ago to make that statement. We applied for a permit for a pond and if you look at Exhibit K
you'll see it says on the front page of it that the use purpose was for a pond. On our application,
if you look at the next page, 2 pages in which was the Planning Commission, or excuse me, the
letter that was sent out to the different agencies by the staff. It says the subject was a wetland
permit to create a pond in a Class II wetland. If you look at 2 pages beyond that, the Planning
Commission meeting. The planning...agenda says a wetland alteration permit to create a pond in
a Class B wetland. And there's also the Planning Commission agenda meeting, the last page of
that section and again it says a public hearing, wetland alteration permit…I think it says in here
where it says a pond. They only mentioned it a couple times for a staff member interjected the
term wildlife pond. At that point in time surface water management ponds were not a common
term for a pond. It wasn't used. That's something that's much newer and back at that time we
had ponds. We had stock ponds. You had wildlife ponds. The purpose was many times the
same thing. In our case it was in fact done intentionally because we had water backing up.
We're in the farming business. We own 40 acres. We're looking at maintaining the income
stream off the property. We did not have an intention of having it be strictly a wildlife pond.
Certainly animals can use it when it's a storm pond as well. We had to meet certain criteria to
make sure it was wildlife friendly. We had to have shallow edges so an animal didn't fall in and
drown. There was a suggestion that we have trees around it. At that point in time if you read the
Planning Commission meeting report I said I didn't want to have trees around it and there's a
reason for that. We're attempting to cut the grass around it. So anyway the pond was for it's
purpose was a storm water management pond. Again why now are we looking at it? It's the first
opportunity to move that water off the site as well. Inbetween the time period when this
happened and now there's nowhere to move it to. On the Holasek's property was where the new
storm water pond was. It was being flooded out and there was no interest in being neighbors of
flooding neighbor's property out so we maintained the storm water pond during that time period.
So from the standpoint of site number 1. I also included in the packet a report from Bonestroo
and Associates, environmental services company who has done work for the city of Chanhassen
and actually helped them to develop their wetland plan back in 1990. And they reviewed the site
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City Council Meeting - August 27, 2007
both in the time period back before 1991, which is the 10 years, and came to the conclusion that
they're the Type I, Type II wetland during that time period and that the pond was not natural
incidental, and that where earth was put in in the very last year of the time period which falling
in within the guidelines we already met the 6 of 10 years of cropping history for the property.
Additionally I got a report this morning and had another environmental service company review
the aerials to just see what they could see in those aerials. They said the aerials again as Mr.
Deter said are not the all inclusive or the only answer. You have to look at everything that's
there. However in their report they did find that there was agricultural activity on the property.
They picked out 5 specific years that they could see it and an additional year where they said
they couldn't tell for sure but there was no conclusion that it wasn't there either. So it's two
environmental service companies have reviewed the same information and disagree with the TEP
panel. The TEP panel is also, and I don't want to jump on them because there's new information.
I think if there was a public hearing and there's new information that's here that wasn't available
to them. The law changed. We've gotten more information because of issues they've raised in
defining it. So I do want to make that clear too that there is new information here that wasn't
there previously. In any case then looking at the site there was a survey that was done in 1988 as
well when the pond was dug. The city code at that time for 1986 was very specific and said that
in order to dig a pond you had to have a survey done identifying the exact boundaries of the
wetland, is the way it's worded. A survey was done. A copy of it's in your packet. It shows that
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the actual wetland at that point in time was about 6/10's of an acre. Not 2.2 acres. So when the
TEP panel is looking at this, we believe in fact that either they didn't look at what was the
information they had in the packet, or that they looked at the size of the current area that they're
looking at which is 2 acres when they said that my site has a 2 acre wetland on it. And we're
looking at the hayfield in which there was at one time a wetland and at the time period they're
looking at was draintiled. So that's where our disagreement comes in. I put an affidavit in the
packet as well. I farmed the ground. We did take the crops off of it. We did inner seed it. We
met the criteria and we were able to do that 6 years out of 10. So they didn't want to take my
affidavit very seriously I guess and felt the aerials, which two other companies said are not
totally conclusive in any way, to over rule what that saw. From the standpoint of the crops again
I've included in the packet a letter from Chris Grattis, the Director of the Minnesota Farm Bureau
Federation and his understanding and interpretation of what cropping is and that cropping would
be looked at in his eyes and they were instrumental of getting the laws being created. That was
to have a broad definition and not be restrictive. There's efforts when the rules were made to
make it restrictive and they were defeated and not put into the law. So from the standpoint of
site number 1, the other part of it is, I guess just to put into record, hay land is defined in
103(g).005 of Minnesota Statute. I mean hay land is an area that was mechanically harvested or
that was planted with annually seeded crops in a crop rotation seeding with grasses or legumes in
6 out of the last 10 years prior to 1991, January 1. Pasture definition, subpart 14(a) means an
area that was grazed by domestic livestock or that was planted with annually seeded crops in a
crop rotation, seeding of grasses or legumes in 6 of the last 10 years prior to 1991, January 1.
Basically it's…the difference between pasture and hay is one and they actually have taken
equipment into a field and take a crop off. Pasture which was in the definition is the lowest level
where animals are able to access it. I'd like to also just point out about that site, even in the
current state, it's a degraded wetland. At one point in time the activities that were performed on
it prior to 1991, was there draintiles and excavated. Had it not been for the water backing up
because the neighboring property lost the draintile, there'd still be draintile today and there
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City Council Meeting - August 27, 2007
wouldn't have been an excavation project there. So it would be no different then this area here
which is also draintiled up here in Site 2. There wouldn't have been a need to do it. We were in
the business of trying to get an income off the property. Currently it's typed as a Manage 3, the
lowest grade city wetland which by definition means wetlands that have been substantially
disturbed or have the lowest functions and values. From the standpoint of the way we believe it
is, we dug it as a storm water management pond. Part of the city code was, including water,
storm water ponds, basically just saying that they're created for specific purposes. Surface water
runoff retention and/or water quality improvement. …are not to be classified as wetlands even if
they take on wetland characteristics. Some other things to note, the water level in that pond has a
very terrific bounce in it meaning in the spring it will get very full and by the time late summer,
it gets virtually dry until we have we these last springs this year it was almost dry. Same thing
last year where we didn't have the drought last year. Because of that you don't get the vegetation
that you'd expect in a Type III wetland. There are no cattails. There are no spikes. You're not
seeing the type of vegetation that would make a Type III wetland. Even today, which is in the
report from Bonestroo and Associates, they don't view it as being a Type III wetland even today.
They view it as being an excavated pond and a Type I, Type II wetland. So we feel that this area
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at best was, when it was being looked at, at the time period of being evaluated, was a 6/10 of an
acre site. Equivalently about the size, actually not even as big as this circle within a 2 acre site or
about a fourth of this site. The evaluation that was done on it suggests that the 2 acre site was
looking at the whole thing. They were looking at crop activity around the edges as well. The
whole thing is a grass field which pictures show that to be the case. You're not going to have the
patterns of activity out here that reflect what's in here anyway. So the wrong area was being
looked at. As far as in the time period that was to be looked at in 1981 to 1990. Moving along
to Site 2. We're in agreement there other than the 10 year deed restriction. For the record in the
packet our position on a 10 year deed restriction, that it could not really apply or it's already been
expired and that the activity that was already done, which is what the application is for on that
site is the activity that was done before 1991. We're requesting a Certificate of Exemption for
the work that was done before 1991. If there is a 10 year deed restriction, it's already expired
because there's no activity we're looking at today for the site. We're looking at the Certificate of
Exemption for that time period. Same thing holds true for site number 1. The request was
actually for a Certificate of Exemption for the time period prior to 1991 for the activities that
happened at that time. We were asked to fill out an application and to do a bunch of things
where the primary request at the very beginning was for a Certificate of Exemption before 1991
and I'll tie it up for you. Site number, it'd be number 4 was the same thing as site number 2
again. We're in agreement and the 10 year deed restriction which we feel has been eliminated
with the new law being passed. Site number 3. There they've, the issue that's there is what is the
real area of the wetland and I think it was poorly presented by our consultant to the TEP. I've got
a map in here on Map number 1 I believe. Map number 1. Here the real question is, where was
the wetland? Our wetland. The National Wetland Inventory shows the wetland here and that's
what we, when I put my affidavit in on that we were talking about this area be, the area that was
identified on the map that…the ditch that goes along the road. Our intention was not really to do
anything along this road but we're looking at the treed area here, to take that out where historic
evidence of it is. That there is, in this area here has been in soybeans and the edge of it was in
grassland that we cut…hay. So that, process wise we were denied before we knew why we were
denied and the only way we can come back at it from an appeal so that's a different process for
that area is being appealed. But it's a question of the area that is being identified, the correct
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City Council Meeting - August 27, 2007
area, the historic wetland is not what was ruled on. So I will make one more comment. There's
also a map, Map #3 which shows that, is a topographical map that shows the drop that goes from
that area. There is significant natural drop that it would drain. Map #3. Shows significant
natural drop that it would drain across the Fox property to the east. And I guess one more thing
as I go through here. The Fox property for Site #1 is being looked at as one site so the same
arguments hold there other than the exemption that they were requesting is a type 1(b), and a
type 1(b) is because it was not being farmed on their site. The area that was in question which
was then looked at in the current status and would require replacement. So if there's any
questions I'd be happy to answer anyone.
Mayor Furlong: Thank you. Any questions for Mr. Dorsey?
Councilman Peterson: Mr. Chair?
Mayor Furlong: Sure.
Councilman Peterson: Mr. Mayor or Mr. Chair?
Mayor Furlong: Either one is fine.
Councilman Peterson: I do have a couple Tom. So now, going into this, to clarify, are you
disputing both 1 and 3, that they should, that no part of that should be considered a wetland or
are you just…the size?
Rick Dorsey: No. Number 1 is being disputed. Both of them are being disputed because they're
not…looked at it according to law. They weren't looked at in the time period of 1981 to 1990
only. The size of the wetland being cited as being 2 acres in the Findings of Fact is not the size
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that all information shows at that time. City records show it as being 6/10 of an acre. So not
looking at it at the right timeframe. The one along Lyman Boulevard, clearly what's there and
being looked at is the current status and it's the wrong status. Whoever's fault it, my consultant's
to blame I believe for that because it was the wrong area that showed up on his map.
Councilman Peterson: So again, is the intent of your appeal for, is your desire to have us say that
neither of those parcels whatsoever are wetlands? Is your intent for us to decide, your
preference.
Rick Dorsey: Yeah.
Councilman Peterson: Is that neither of those parcels have any wetlands in as by definition of
the statute?
Rick Dorsey: No. The statute doesn't say that. The statute says that it assumes it was a wetland
and that 6 out of 10 years it was farmed. We're saying we qualified for the exemption for the
activities that occurred prior to 1991.
Councilman Peterson: On the whole area?
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City Council Meeting - August 27, 2007
Rick Dorsey: On site 1. Site #3 was not draintiled. Site #3 was filled with the expansion of
Lyman Boulevard back in '81 and then another project which put about 4 feet of fill below it
covering up the swale.
Councilman Peterson: I'm with you. So what you're saying essentially is that, on 6 of those 10
years, 100% of what is now wet was dry enough for you to plant.
Rick Dorsey: If I'm understanding what you're saying, were we able to cut hay off of Site #1 and
was it planted during that time period? The answer is yes. And Site #1 again should be
recognized at that time period as being this area right here.
Councilman Peterson: Second question. You made a conscious decision to tile at some point in
time.
Rick Dorsey: It was tiled before we bought it.
Councilman Peterson: You made a conscious decision not to necessarily fight or to take legal
action against your neighbor to clear out the leading tile.
Rick Dorsey: The end of it. The ditch in his property.
Councilman Peterson: So kind of walk me through that logic because it would seem more
logical to…
Rick Dorsey: The property owner was absent at this time, was an absentee landowner. He had a
renter who did it. Who's going to pay for it? Is the first question. The landowner says the renter
pays for it. The renter says I'm not paying for it. So it becomes a battle and so you're dealing
with it. In the meantime I'm backing up losing revenue on my side of things and so it was
apparent in talking to them that there was going to be no resolution coming from their side of the
table after a year of time had passed and our thought was well they're not going to pay for me
losing the hay because they backed the water up. So it becomes a thing of what do you do? You
have to look at your options and the option, the only one that you really had was sort of…but at
that point in time digging a hole in the ground, digging it deeper to contain that to a smaller area
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would have been the solution. So we had 6/10 of an acre lost and that's what it is today.
Councilman Peterson: So I guess my question really was is it cost you money to dig it out.
Rick Dorsey: Yes it did.
Councilman Peterson: Probably a lot.
Rick Dorsey: Not that terribly much, you'd be surprised.
Councilman Peterson: I'm trying to figure out the logic versus in going to court to get.
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City Council Meeting - August 27, 2007
Rick Dorsey: Going to court doesn't mean you win.
Councilman Peterson: Doesn't mean you win but it might be. Yeah, I'm just trying to follow
logic. It may have been a small claims court scenario. You would have had to pay for it likely
but it still would have been likely cheaper than you digging a pond.
Rick Dorsey: If in fact you, I mean you put it in perspective and then you talk about the dollars
and everything else, which isn't that huge of a number.
Councilman Peterson: Probably about the same to fix it so.
Rick Dorsey: Yeah, I mean by the time you hire an attorney. Even back at that time…I can tell
you about another wetland dispute I've got going on right now down in this corner and it's
becoming very expensive and getting nowhere. So to answer your question, you end up doing
things, I guess an option but it wasn't there.
Councilman Peterson: Last question. When did the house actually get built?
Rick Dorsey: 1987. '87 it was under construction.
Councilman Peterson: Okay.
Rick Dorsey: But I'll say that didn't have anything to do with the pond. The ditch was run over
in '87 and that was the impetus for it. You can see that in the aerials. That the water started to
back up…standing water in 1988. Prior to that it never was.
Councilman Peterson: Okay. Those are my questions.
Mayor Furlong: Thank you. Other questions? I have a couple Mr. Dorsey. And it gets back to
the reasons that I saw in the report for why 1 and 3 were denied and they speak to not being
annually seeded or in a rotation. Were either 1 or 2 annually seeded?
Rick Dorsey: You mean 1 and 3?
Mayor Furlong: Oh I'm sorry, 1 and 3.
Rick Dorsey: 1 and 3 were in hay land. No, hay land is not annually seeded but the definition of
hay land, which I mentioned is now being overturning, and there's a copy of Exhibit 9 of Cass
County appeal where they ruled that hay land is in fact a crop for the very reason that farmers
make a living off of it and should not have been denied the same rights as somebody who puts in
a row crop. And so the answer to that is that Site #1 was in grass. The current site #3 being, the
question is what area are we talking about?
Mayor Furlong: 1 and 3 are the two that have been…
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City Council Meeting - August 27, 2007
Rick Dorsey: Correct, what our understanding is. What I'm saying is that Site #3, it depends on
what area you're looking at. The area the TEP panel ruled on. I'm not saying that that area was
farmed. They're looking strictly at the ditch.
Mayor Furlong: Okay.
Rick Dorsey: When I was working with this, was working off the historic site right here which
came under appeal. It's on Map number 1. After Exhibit 9.
Mayor Furlong: But what you're saying is that there's the circle shown there was.
Rick Dorsey: The circle shown here, this portion inside over here was…from '82 to '86 I believe.
I'd have to look at it. It was then put into pasture after that because they rented the land to a
farmer next door and he had his cows in there and that's when 3 started to go is when he put it
into pasture.
Mayor Furlong: Okay, so from '82 to '86 it was in beans?
Rick Dorsey: Yeah, I'd have to look at the planting map. It's in the report from, in '86 there
were… I have to look at the engineering report… Well if you're looking at the triangular area
that I was talking about, that area, if you look at the historical pictures which I don't have any. I
don't have them in my packet. Do you have them in your's? A1 through A6. If you look you're
going to see a hook shape in there and you can look at, this is you see 3 and you look at this area
here. This is in crop. In grazing, and then the corner wrapped around and came around and
connected up with, on both sides with grass that was cut…machinery could do that.
Lori Haak: And Mr. Mayor if I might. The Technical Evaluation Panel and staff reviewed the
statements that were submitted with the application. We made no other…based on that.
Rick Dorsey: And that's what I'm saying is that, our only way of talking about it was by
appealing…
Mayor Furlong: But are you saying, what I heard you say Mr. Dorsey is that the number 3 for
Basin 3, it's your belief that the TEP considered both the wetland and the ditch.
Rick Dorsey: Right. The TEP panel looked only at the current, which is on the map and that's
what you're agreeing right? You looked at the current.
Lori Haak: We looked at what was…
Rick Dorsey: What was on this map from the application that came in… and it shows it just
being tight up against the ditch. It's not showing the triangular part that I'm talking about. Our
concern in that, I mean we don't care about the ditch to be honest. It's the treed area here we
were looking at, we felt it was in the wetland. The historic wetland. I'm not showing the
delineation or the area that's being looked at. I guess it's not even an issue.
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City Council Meeting - August 27, 2007
Mayor Furlong: Okay, but again from a seeding standpoint, which is what prompted all this, it
was seeded from '82 to '86 in soybeans.
Rick Dorsey: Either in soybeans, pasture or hay. Because part of the years it was fenced off and
had animals in it. Part of it was in soybeans and part of that edge there was cultivated, or put
grass on after they put the road in and filled it in.
Mayor Furlong: So the hay or pasture which is all of 1 and part of, for a period of time in 3.
Rick Dorsey: Right.
Mayor Furlong: Getting back to my question, which the reason for denial weren't annually
seeded and were they part of a crop rotation plan then too?
Rick Dorsey: They don't have to be. They just have to be mechanically harvested. That was the
definition I gave you of hay.
Mayor Furlong: I saw that but.
Rick Dorsey: And hay land, if you look at, hay land has been accepted and it's Exhibit #9 is the
case on precedence for it.
Mayor Furlong: Okay, and I understand that. I was getting to that. I guess just to be clear, it
wasn't, there wasn't any other seeding or the crop rotation.
Rick Dorsey: There didn't have to be.
Mayor Furlong: Okay. I guess the question with regard to hay land then, because that's
obviously defined as part of it, if, what I'm looking at and what I understand the TEP committee
looked at was what the words say…
Rick Dorsey: Well.
Mayor Furlong: Hay land may, and it looks like hay land is.
Rick Dorsey: I think if you look at the SONAR report which was directed by BWSR and Brad
here can tell you that there's a SONAR report that exists and where the intent of what was to be
understood, is looked at and whenever there's a question about this, the first place they turn and
told me is going to the SONAR report. If it says this, you can't do that. Or you can do that.
Mayor Furlong: But I saw on that Exhibit 9 where it talked about, and you mentioned the Cass
County wetland.
Rick Dorsey: Yep.
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City Council Meeting - August 27, 2007
Mayor Furlong: Under the findings, number 3 it talks about the affidavit stating that the fields
were annually seeded.
Rick Dorsey: You have to read the whole, I just have the overview of it. You have to go and see
the whole court case to understand. I can give you a synopsis of it. What the farmer did is he
seeded.
Mayor Furlong: Okay. But I guess, this speaks about the annual seeding and the cover crop
rotation.
Rick Dorsey: And I was going to answer that for you.
Mayor Furlong: Okay.
Rick Dorsey: If you read the whole synopsis or the whole, his affidavit for that case, he didn't
seed the whole field in any given year. He seeded a portion of his field each year and over a
period of time then had introduced seed into the whole area and that's really the criteria that seed
has to be, the field has to be intraseeded, meaning it can't be range land that you just go and farm.
It has to be that, whatever was put into the field was put into the field and that goes further what,
as far as our presentation, there's also another exhibit that showed in 1963 that this field was
Exhibit…shows that the two things it shows and hopefully you can see it in here. In the corner I
believe the area number 1 there it shows a Y shaped outline which is the draintile.
Mayor Furlong: Can you put that up so we can see what you're pointing to.
Rick Dorsey: My copy isn't very clear. As you're looking at it in this area, see this Y shape right
here? In the white color. And the drain, and that's the draintile line so…signature you see is the
draintile and you'll also see, and as you're seeing that, that it's not planted in alfalfa or grass or
anything at that time to be able to see that. And so what we're showing there is that the grass
field had to be at some point introduced and they were, and there has been a rotation of some
period of time as well if you go through the SONAR report, there was discussion of what is an
appropriate time for rotation…because they couldn't decide but there's a time of 20 or 25 years
was what was talked about and that's why it never was put in there. What I would like to say is
this is a lot of information and I wouldn't expect you, I've been studying it for a number of
months trying to learn it. You certainly would have questions for it. There's certainly some legal
sides of things that definitely helps to know and have gone through legal counsel. From our
standpoint what we do see is that the simple term and reading of the law is that this side of 10
years it was cropped. I've provided evidence that that's the case. The TEP panel didn't look at
hay as being a crop. With the added information we have with the case precedence, we think
that that may influence the TEP's position had they had that information. And then the other part
is the type of wetland and the information that we've provided again, 1988 the City in their
permitting process had identified it as a Class B wetland and that information's in the packet as
well. Class B wetland in the city code is listed as a Type II wetland, so it never was anything
more than that and the only reason why water was there is from incidental reasons. And none of
the engineers we've talked to suggested at all that it could be a Type III wetland based on the
scenario.
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City Council Meeting - August 27, 2007
Councilman Litsey: So you're also disputing the wetland classification?
Rick Dorsey: Absolutely. It's not a Type III in our mind. It's man made. We dug it out.
There'd be no water there without it. If we hadn't done that. Incidental wetlands are also
exemptible.
Mayor Furlong: The, in terms of the size of site 1 that you had made reference to. I think it was.
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Rick Dorsey: 6/10 of an acre.
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Mayor Furlong: 6/10 of an acre. You said that was in the calculation…
Rick Dorsey: If you scale off the size of it to scale, and you can scale off the dotted line and I
have another copy of it that says that dotted line is the wetland boundary. If you can read it
better. Just scaling it off, that's where it comes to.
Mayor Furlong: Okay, any other questions at this time for Mr. Dorsey?
Councilwoman Tjornhom: I have one question, and maybe Lori or Rick you can help me with
this. Let's go to Exhibit A-5. The photo. Either one of you show me where there is a real
significant wetland on this map. Can you identify one?
Mayor Furlong: Which one you on?
Councilwoman Tjornhom: Exhibit A-5.
Rick Dorsey: And what's your question Bethany?
Councilwoman Tjornhom: Give me an example of a wetland.
Rick Dorsey: Where is a wetland?
Councilwoman Tjornhom: Yes. So I can see what one really looks like.
Rick Dorsey: Well, there's one right here. There's one up here.
Mayor Furlong: You're off camera.
Rick Dorsey: You're seeing it appears up in this area. It's seen in this area.
Councilwoman Tjornhom: And do they look white then?
Rick Dorsey: White out is probably water in the black and white. I can show you probably in
another page and that'd be page A-6 is probably clearer. Here's a wetland here that somebody
has farmed around. This is a wetland here somebody's farmed around. Right here they farmed
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City Council Meeting - August 27, 2007
around one. You're not seeing the same type of activity around the edges because you can drive
on this with grass, whereas they couldn't drive on it next to the water, so they stopped short with
their planting pattern.
Councilman Peterson: So use A-6 as your example. Where is Basin 1 on that?
Rick Dorsey: Well it's hard to see but it's right in this area.
Councilwoman Tjornhom: Just by the green dot. What is the green dot?
Rick Dorsey: Just identifying my parcel. Here's the property right here.
Kate Aanenson: It's a tough scale to look at.
Councilwoman Tjornhom: It really is.
Lori Haak: I actually looked at these. These are the wetlands adjacent to Lot 3…what you're
seeing here. I don’t know about what you're pointing out.
Rick Dorsey: But that's a flow of water through that.
Councilwoman Tjornhom: Did you turn the page?
Lori Haak: Yeah, I went back to, this is A-5.
Kate Aanenson: It's hard at that scale and black and white.
Councilwoman Tjornhom: It is but I'm…
Rick Dorsey: The point is that we're not an engineer…can't, without knowing what's there, it's
very difficult to read an aerial photo. You can see signatures but when the draintile, the
difference you're going to see is this. There could have been standing water there at some point
in the year. It drains through and it could have been…
Kate Aanenson: It's also a copy of an aerial photo.
Councilwoman Tjornhom: Yeah but that's what I'm looking at because there's white spots…
Rick Dorsey: But all I can go by is the engineer's, I had two engineers look at the…and that's
what they came back with. This report that's in your report.
Mayor Furlong: Okay. Any other questions for Mr. Dorsey at this time? Okay. Good, thank
you. Mr. Fox, public hearing.
Jeff Fox: Mayor, councilmen.
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City Council Meeting - August 27, 2007
Mayor Furlong: Good evening.
Jeff Fox: And council persons. I'm here basically just to enter the appeal concerning our type,
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basically to Basin 1 which is related to the 22 acres. …had you go to 6/10 of an acre and 1.3,
that the city has accepted to review the property at the time, that the less than 2 acres issue.
…also a Type III for my property and I think it's pretty clear it's probably a Type, possibly a
Type II but not a Type III…understand our position.
Mayor Furlong: And Mr. Fox, let me clarify that. The area of concern, because the exemption
you're looking for is a different exemption or different.
Jeff Fox: No. Our, it's one basin.
Mayor Furlong: Okay.
Jeff Fox: Keep the basin the size it is to deny this appeal…but if it is considered exempt, if you
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bring it back to the 6/10 of an acre, then it might become an issue of under 2 acres and my
appeal…2 acres as a whole.
Mayor Furlong: Okay, and that's good. We're looking at the current?
Jeff Fox: Yeah.
Mayor Furlong: The current then we'd have to look at, as I understood and correct me if I'm
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wrong, when Mr. Dorsey talked about the 6/10, that's what he was indicating was the size of the
basin back in '91, correct?
Jeff Fox: Yeah.
Mayor Furlong: But under your exemption it'd be the size of the basin in the current, at the time
of the application? I guess that's what, is that a corrected? I heard earlier that because of the two
different.
Rick Dorsey: You have to look at what the wetland is and the question is what is wetland on
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mine and what's incidental and what's not really wetland. It's 6/10 of an acre is the actual
wetland. The rest of it that grew around it was due to the excavation of the pond and the
leeching of it into the soils and saturating the soils around it. No different then a storm pond and
that's why they say a storm pond as well can resemble a wetland. It's not a wetland because
you're going to take on characteristics around it that are like a wetland, so the engineers would
say and have said in their report that it's an incidental wetland. If you're looking at the true
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wetland area of 6/10 of an acre, Jeff's property actually has incidental wetlands on it but you
don't even take that into account. There would be less than 2 acres at that point.
Mayor Furlong: So the question, it's 1(b) I think for the Fox property. Is that their request
because it's an incidental wetland?
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City Council Meeting - August 27, 2007
Rick Dorsey: No. It's a request because he did not farm that area so he couldn't utilize
exemption 1(a). So…looking forward, he didn't have a history of working that ground…looked
for it after 1991 in the timeline, a different exemption. Exemption 1(b) and 1(b) says that if
you're looking at going into a Type I or Type II wetland, you can do that if it's less than 2 acres
of Type II and any amount of Type I is the old law. I'm not sure what the new one is, and then as
well there was a deed restriction tied to that which may be gone.
Mayor Furlong: So he doesn't deal at all with incidental wetland?
Rick Dorsey: Well you have to identify what is the wetland area…you'd have to have it redone.
He didn't have that done because there wasn't a feeling when it was walked off by the engineer
that there was more than 2 acres there total, much less 2 acres of Type II. So part of the reason
for the exemptions for agriculture and not going through the sequencing process, so you don't
have to spend a lot of money. You're supposed to be able to go and bring in a general case and
show that there's an amount of land. An idea the State did not want to have happen is have to
have every farm has to go out and delineate their property and so they basically set it up and set
criteria and said if you have less than 2 acres of Type II and any amount of Type I you can get an
exemption for it. And you don't have to go and delineate it.
Councilman Litsey: So the type of wetland hasn't been disputed. It's the size of the wetland?
Rick Dorsey: A combination.
Councilman Litsey: Maybe it's over simplification but the wetland classification, there's not a
dispute over that?
Lori Haak: No there is.
Councilman Litsey: Oh it is also on that type. But not…okay.
Rick Dorsey: And they're saying that because the Type III is the pond on my property. Or
they're calling it a Type III.
Mayor Furlong: And I guess again you showed, just to clarify this process. At the beginning I
understood you to tell us that the exemptions that are being requested on the Dorsey property,
you looked at it in the time period of 1991. But for (b) you look at it what exists at the time of
the application, which would include your existing pond and the wetlands…
Rick Dorsey: The real amount of true wetland. If mine is exempt, it's not classified as wetlands
any longer from the standpoint of being a Type III. There is no Type III there. It's a surface
water management pond so that would be…off of what the true wetland is perhaps. Or it's
incidental wetland my understanding is around it that incidental wetland, we could drain it and
bring it right back to it's original size. You're looking at trying to identify…
Mayor Furlong: Maybe this is a legal question in terms of, because, and I guess because if
they're looking at it as of today, then wetlands can change over time, right?
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City Council Meeting - August 27, 2007
Rick Dorsey: Correct, they do. My point of what changed over time Mayor may not be natural
caused. And so what you're seeing on my property is that there's a prime example is, it's not
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natural causes that created this to go from 6/10 of an acre to 2 acres. It was because of man
made activity which is incidental, if you want to look at it that way. The pond is incidental. We
would not have dug the pond and had it leech out had the ditch not been collapsed by a third
party in another property preventing it from draining.
Mayor Furlong: Okay.
Rick Dorsey: A way you could look at it, I mean it's not agricultural. Agriculture is just one
area that has exemptions. Forestry does. Mining does. Just put it in your own way to maybe
understand it. Let's just say that you have a swale going by your yard and somebody puts up a
block wall and you don't get to get the water out from your yard swaling to the neighbor's yard.
It backs up and floods your basement. Now was that natural things or did somebody do it?
Somebody did it and you expect them to remove the wall and you expect to be able to utilize
your basement again when it dries out. Not to let it stay as a flooded basement. Although a
stretch but it helps you understand the rationale here.
Jeff Fox: The last comment I want to make is…myself but on behalf of the Fox Properties more
so and my piece, we have two pieces land locked. We have no access to as of right now. Once
Powers Boulevard is opened up. The southern portion below the tree line.
Mayor Furlong: Can you show us on the picture?
Kate Aanenson: Show the picture you had again for farming purposes. I was curious on that one
too. That one showing how you're going to get to the farm field.
Rick Dorsey: This one here? Right here is the aggregate plant of the new 212 and there will be
an opening here but there's just is a ditch and a culvert going under the road and this ditch is
continuous so there's no way to get across to this field right here without coming through my
property or climbing over curbs and up tight, steep embankments. On this property here, this is
again there's a tree line here and no access points along the road. He used to access it when this
farmer down here came across through here but this is all now a wetland so there's no road that
comes up through there the way it used to. So there's no access to the property right now. So
we've worked together to try and create an option that's workable for all of us in the interim
whereby if you come in here and pull in this area up here, you could come around from one side
to the other and be able to access that point and then be able to access this point through here, so
you either come in here.
Kate Aanenson: Can I ask a question? Did mister, on the Fox Parcel LLC, that was previously
land locked but you were able to use Mr. Jeurissen's driveway, is that correct?
Jeff Fox: No, we actually had two accesses…
Kate Aanenson: But that was Mr. Jeurissen's, not your's.
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City Council Meeting - August 27, 2007
Jeff Fox: Yes, we had a 10 foot easement called Powers Boulevard and it came from Pioneer
Trail that the City dedicated back in the 70's. That was our access point to that property.
Kate Aanenson: So it's been land locked for a while is my point.
Jeff Fox: No, I had a 16 foot easement to that property.
Kate Aanenson: Since?
Jeff Fox: I don't know when it was recorded.
Kate Aanenson: Okay, I just wanted to check on that a little bit because I think it's been that way
for.
Jeff Fox: You guys walked away from the property so that was, actually Powers Boulevard the
City did…
Kate Aanenson: That was like in?
Jeff Fox: 1970 something it showed up.
Rick Dorsey: He could get access to it with equipment before. Now you can't get through to it
without climbing over this curb. New city curbs and bike trail. They're going to get damaged
you know so there's going to be expense there too. Plus the traffic, there's going to be a
significant amount of traffic.
Mayor Furlong: So Mr. Fox, anything else?
Jeff Fox: That's it for me.
Mayor Furlong: Okay.
Jeff Fox: Thank you.
Mayor Furlong: Okay, thank you. Now that he sat down, any questions? Very good, thank you.
This is a public hearing so at this time I would certainly offer the podium to any other interested
parties to speak at this public hearing regarding this matter.
Brad Wozney: At least one more point please?
Mayor Furlong: Please. Restate your name and address for the record if you would please.
Brad Wozney: Sure. Brad Wozney with the Board of Water and Soil Resources. 520 Lafayette
Road North, St. Paul, Minnesota. One point that Mr. Dorsey has brought up is the incidental and
I believe it is your city ordinance to apply for every single exemption that you're claiming and
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City Council Meeting - August 27, 2007
that to the best of my knowledge there's only application for agricultural exemption. That they
would both have to be claimed and there'd have to be proof of that incidental claim. That's my
knowledge.
Councilman Litsey: So you're saying the incidental claim was never raised initially?
Brad Wozney: It was mentioned but it wasn't applied for.
Councilman Litsey: So it wasn't applied for so therefore it's a moot point?
Kate Aanenson: I think there's a lot of factual things that we need to go through in this and the
application and the request responding to some of the things in the report so.
Mayor Furlong: Okay. This is a public hearing. Is anybody else wishing to provide comment
for the record on this matter? No one? Seeing nobody, is there a motion to close the public
hearing?
Councilman Peterson: So moved.
Councilwoman Ernst: Second.
Mayor Furlong: Is there a second? I'm sorry, Mr. Fox did you want to say something? Okay.
Alright. There's been a motion made and seconded to close the public hearing. Any discussion
on that motion?
Councilman Peterson moved, Councilwoman Ernst seconded to close the public hearing.
All voted in favor and the motion carried unanimously with a vote of 5 to 0.
Mayor Furlong: I guess at this point there was some comments, we received a lot of
information. Some this evening. Some as a matter of the last few hours. Staff has made the
initial request to have some time to take a look at the information that was just received. I guess
my question is, we have an issue of deadline in front of us, is that right Mr. Knutson?
Roger Knutson: Mayor that's correct and we have, I've prepared prior to the start of this evening,
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a written, hand written extension letter that if signed would give us until October 1 to act on this
matter.
Kurt Deter: Mr. Mayor, we have no problem with that. We would encourage more review of
this information.
Mayor Furlong: Okay.
Roger Knutson: And then I'd just ask if I could Mr. Deter, did you want to submit any written
arguments?
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City Council Meeting - August 27, 2007
Kurt Deter: I think we've submitted everything that we need to submit. I guess I will submit
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something in the next 5, you're getting until October 1. I will have something in today, I will
have something in a week from today if I want to submit anything more but my initial thought is
no. I think you've got.
Roger Knutson: And that'd be written argument, not additional or substantive evidence?
Kurt Deter: That's right.
Roger Knutson: Mayor, so if that being the case I would, I think Mr. Deter would have until a
week from today to submit any written arguments he wants to submit and if they're not submitted
by then, the record would be deemed closed and then we will provide you with our own analysis
as well as will staff.
Kurt Deter: So we do have a complete record, we want to make Mr. Dorsey's comments and the
whole packet and pictures may be incorporated. We need to make sure that's all a part of the
record. That's one of the reasons it got remanded so we want to make sure.
Roger Knutson: That's part of the record. The booklet you received is part of the record. And
the power point presentation by Lori Haak and everything else that's been considered tonight.
Kurt Deter: Thank you very much.
Mayor Furlong: Alright. With that I guess the, to turn to the council and direction in terms of
going here. Clearly I think we'll have the record complete within 5 business days. That we will
have then for staff to put together their opportunity to provide comment on the new information
received. I guess the question that I would have and Mr. Knutson, from an appropriate
standpoint, there was some questions raised early on with regard to changes in the law. With
regard to the 10 year deed and how that applies and two, with regard to whether or not one of the
basins that was approved by the TEP panel would still be approved under the current law. Is
that, I guess my question is, is that something that you could provide us with some guidance on?
Roger Knutson: Absolutely Mayor. We will do that. That's exempt, I believe it's 1(a), the 1(a)
exemption was changed in the statute and correspondingly in the rules. And if Mr. Deter wanted
to comment on the law changes and their application, that'd be fine. We'd review that as well.
Mayor Furlong: Okay. And so that would give us and I think some guidance as to review.
Obviously the rules change, we would need to take consideration of those changes and how they
apply. Are there any other information at this point? That people know they're going to want to
want to look at. If not, we may have a situation where there may be some additional questions
that we might have after our review of all the information so I would anticipate that when this
comes back, there may be a question and answer period with staff and the applicants. Obviously
the public hearing is closed but we may have some additional discussions and questions as we try
to make sure we understand clearly the information that's been included in the record. From a
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timing standpoint, in terms of date specific, I guess I would ask staff if the 10 is sufficient time,
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City Council Meeting - August 27, 2007
given the Labor Day holiday next weekend, and we might receive last information, if we should
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be looking to the 24 as the next time we would see this?
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Roger Knutson: Mayor I'll be out of town myself for a few days so I'd suggest the 24 if that's
okay.
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Mayor Furlong: 24? Okay. Is that the correct date? I believe that's the correct date. So at this
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point we have an extension through October 1 so the idea would be to table this item to our
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meeting of September 24. Is that, does that work for the applicant in terms of availability and
staff? Okay.
Kurt Deter: Mr. Mayor?
Mayor Furlong: Yes.
Kurt Deter: If there is a staff recommendation before that, will that be provided to the applicants
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before the 24 so we can see the recommendation? I don't know how your process works here.
Mayor Furlong: Our process, typically the information is distributed as part of the council
packet is sent out usually the Wednesday or Thursday prior to the council meeting and so that
would, that then becomes part of the public document and I would assume it would be available,
that would be available to you at that time.
Kurt Deter: Thank you.
Mayor Furlong: Okay. Anything else on this at this time or questions? Make sure everybody's
clear on working together on this so with that, I guess I would entertain a motion to table this
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item to our meeting of September 24.
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Councilwoman Ernst: I would make a motion that we table the item until September 24.
Mayor Furlong: Thank you. Is there a second?
Councilman Litsey: Second.
Mayor Furlong: It's made and seconded.
Councilwoman Ernst moved, Councilman Litsey seconded to table the appeal of Wetland
Exemption Determination located at the southwest corner of Lyman Boulevard and Powers
Boulevard, Jeff Fox and Richard Dorsey to the September 24, 2007 City Council meeting.
All voted in favor and the motion carried unanimously with a vote of 5 to 0.
Mayor Furlong: Very good. Thank you everyone.
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City Council Meeting - August 27, 2007
COUNCIL PRESENTATIONS:
Mayor Furlong: One item, Miracles for Mitch Triathlon, we heard about that earlier this evening
during the Fire Chief's presentation. They had volunteers out there. I know too that our city
park and rec department spent a lot of time getting Lake Ann ready, working with that
organization. The Chanhassen based organization that raises money for families whose children
have cancer. It's a great organization and put in a lot of time and effort goes in not only for
Miracles for Mitch and all the volunteering from our city staff, Carver County Sheriff's
department, our fire department, a number of other volunteers and so on behalf of the council,
congratulations for the Miracles for Mitch Foundation for it's successful event and thank you and
appreciation to all those that were involved in terms of making that such a successful event again
this year. This is the fourth year that they've done it here in Chanhassen and it's a major
fundraiser that they have. So far city staff and all those from Carver County, we appreciate their
efforts.
ADMINISTRATIVE PRESENTATIONS:
Todd Gerhardt: Mayor, council members. The only item I had this evening is that we will be
wrapping up our storm damage pick-up this week. We've been doing that for the last 2 weeks.
We've established quite a pile out at Park Place. They will be wrapping that up this week so all
the little piles you've seen…
Mayor Furlong: So if residents have questions, contact city hall on that soon?
Todd Gerhardt: Correct.
Mayor Furlong: Sooner rather than later.
Todd Gerhardt: Soon, yeah.
Mayor Furlong: Alright, very good. Any questions for Mr. Gerhardt or his staff? No?
CORRESPONDENCE DISCUSSION.
None.
Councilwoman Ernst moved, Councilman Litsey seconded to adjourn the meeting. All
voted in favor and the motion carried unanimously with a vote of 5 to 0. The City Council
meeting was adjourned at 9:25 p.m..
Submitted by Todd Gerhardt
City Manager
Prepared by Nann Opheim
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