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Dorsey/Fox Wetland Exemption Appeals CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952.227.1190 Engineering Phone 952.227.1160 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 Park & Recreation Phone: 952.227.1120 Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax: 952.227.1404 Planning & Natural Resources Phone: 952.227.1130 Fax: 952.227.1110 Public Works 1591 Park Road Phone: 952.227.1300 Fax: 952.227.1310 Senior Center Phone: 952.227.1125 Fax: 952.227.1110 Web Site www.ci.chanhassen.mn.us 3 - MEMORANDUM TO: Todd Gerhardt, City Manager FROM: Kate Aanenson, AICP, Community Development Director () IA.. /) - DA TE: September 24, 2007 <J /'f' SUBJ: Dorsey and Fox Wetland Exemption Appeals BACKGROUND On August 27, 2007 the City Council held a public hearing on the appeal of staff's decisions on the Dorsey and Fox Wetland exemptions. At that meeting the City Council heard a presentation of the appeals and staff interpretation from Lori Haak. The applicant, Rick Dorsey, with approval from Jeff Fox, provided a booklet dated August 24, 2007 summarizing points of appeal, findings of fact and exhibits to support their appeal. The City Council closed the public hearing and tabled action so that staff could review the information received. The applicant granted the city an extension of the review period to October 1, 2007. The City Council also granted the applicant an opportunity to provide any written arguments by August 31. To date, the City has not received any written arguments; therefore, all testimony on this item has been acknowledged. ANALYSIS In summary, there are two major issues for the City Council to decide: 1. Are the exemption standards applied correctly? 2. Is the interpretation of the lO-year deed recording correct? (the City Attorney will respond to this issue) One of the points made by the applicants' appeal is the "cropped" interpretation. The contention was that hay is a crop and that the basin was hayed. We agree that there was hay in the basin, but the area was not annually seeded and not in crop rotation. The law provides "the area must be planted with annually seeded crops or must be in a crop rotation ofpasture grass or legumes 6 of 10 years before 1991 ". The applicants' other appeal is the size and type of Basin 1. The staff has determined this wetland to be a Type 3 wetland with a Type 2 fringe over 2 acres in size. In order to apply for the exemption under the law the wetland must be a Type 1 or Type 2 wetland. Even if it were found to be a Type 2 wetland, the exemption would not apply because it is approximately 3.3 acres, which is larger than 2 acres in size. The City of Chanhassen · A growing community with clean lakes, quality schools, a charming downtown, thriving businesses, winding trails, and beautiful parks. A great place to live, work, and play Dorsey & Fox Wetland Exemption Appeals September 24, 2007 Page 2 RECOMMENDA TION Staff is recommending the City Council make the following motion: "The City Council upholds staff's decision on all five (5) exemptions, and affirms the Findings of the Technical Evaluation Panel (TEP) with the exception that the lO-year deed restriction is no longer required". A TT ACHMENTS 1. Wetland Map. 2. Legal Opinion dated September 18,2007 3. Findings of Fact and Exhibit A. 4. Staff report dated August 27,2007 (w/o attachments). 5. City Council Minutes dated August 27,2007. g:\eng\Iori\wetlands\exemptions\dorsey fox exemptions - appealed\dorsey fox appeal cc 9-24-07.doc Wetland Map it? ~. ~, 7~" ~ "- -.-....... "f- ~ >;. ~ ~ I ...----J Thomas J. Campbell Roger N. Knutson Thomas M. Scott Elliott B. Koetsch Joel J. Jamnik Andrea McDowell Poehler Soren M. Mattick John F. Kelly Henry A. Schaeffer, III Alina Schwartz Samuel J. Edmunds Marguerite M. McCarron 1380 Corporate Center Curve Suite 317 . Eagan, MN 55121 651-452-5000 Fax 651-452-5550 www.ck-Iaw.com CAMPBELL KNUTSON Professional Association *** Author's Direct Dial: (651) 234-6215 E-mail Address:rknutsoll@J:k~law.com September 18, 2007 CHANHASSEN MAYOR AND COUNCll..MElVIBERS Thomas A. Furlong, Mayor Vicki Ernst, Councilmember Bryan Litsey, Councilmember Craig Peterson, Councilmember Bethany Tjornhom, Councilmember RE: Dorsey and Fox Wetland Exemption Appeals Dear Mayor and Councilmembers: After the Technical Evaluation Panel and City Staff had evaluated the Dorsey and Fox wetland exemption applications the State law and State Rules were amended. Under the amended statute, Chapter 47,2007 Session Law, and Amended Rules, Minnesota Rilles 8420.0115 and 8420.0122, the ten-year deed restriction requirements for exemption determination under Minnesota Rules 8420.0122, subpart IA have been eliminated. Based upon how Minnesota Courts deal with the law changing pending a judicial appeal, the Council shoilld apply the current law and delete the ten-year deed restriction requirement. See Interstate Power Co., Inc. v. Nobles County Bd Of Comm 'rs, 617 N. W,2d 566, 575 (Minn. 2000), (citing Holen v. Minneapolis-St. Paul Metro. Airports Comm'n, 84 N.W.2d282, 287 (Minn. 1997). The only remaining issues for the Council to decide are whether or not the Dorsey, Basins 1 and 2, and the Fox basin are exempt or are not exempt. Regards, RogerN. son RNK.:sm cc: Todd Gerhardt, City Manager Kate Aanenson, Community Development Director CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA IN RE: Application of Dorsey and Dorsey and Jeff and Terri Fox and Fox Properties LP for Wetland Act Appeal of an Exemption Determination. FINDINGS OF FACT AND DECISION On August 27th and September 24th, 2007 the Chanhassen City Council met at its regularly schedule meeting to consider the Application of Dorsey and Dorsey (Dorsey) and Jeff and Terri Fox and Fox Properties LP (Fox) for Wetland Act Appeal of an Exemption Determination. The cases were consolidated for public hearing purposes and shall be similarly joined together in these findings and conclusions. The City Council conducted a public hearing on the proposed appeals preceded by published notice. The City Council heard testimony from all interested persons wishing to speak and now makes the following: FINDINGS OF FACT 1. The Dorsey and Fox properties are currently zoned A2 Agricultural Estate. 2. The properties are guided in the Land Use Plan for Low or Medium Density Residential. 3. The legal descriptions of the property are attached as Exhibit A. 4. The City of Chanhassen is the Local Governmental Unit (LGU) implementing the Wetland Conservation Act (WCA) in the City. 5. The City makes exemption, no-loss and type and boundary determinations at the staff level, but requires City Council decisions on wetland impact, replacement and banking applications, as well as appeals. 134066vOl RNK:09/17/2007 1 6. In administering the WCA, the City applies both state law and rules, and applicable city ordinances: the most restrictive applies. 7. The WCA (Minnesota Rule 8420.0210) states that "An exemption may apply whether or not the local government unit has made an exemption determination." 8. Chanhassen City Code Section 20-417 (a) states that "Activities exempted by Minnesota Rule 8420.0122 or determined to result in no net loss of wetlands shall be exempted from the provisions of this ordimince. However, certificates of exemption or no loss must be obtained from the city prior to starting work" (emphasis added). 9. The applicants' exemption application was fully evaluated by the Technical Evaluation Panel (TEP) and City Staff (See staff reports of the August 2ih and September 24th, 2007 City Council Agendas which are incorporated herein.) 10. The Dorsey application involves four basins and the Fox application involves one basin. 11. With regard to Dorsey site 1 and 3, there was hay in the basins but the basins were not annually seeded or in a crop rotation in six out of ten years before 1991. 12. There was annual seeding and crop rotation in basins 2 and 4 to meet the exemption criteria. Because of recent statutory and Rule changes the ten year deed restriction is no longer required. 13. With regard to the Fox site, the wetland is a Type 3 with a Type 2 fringe and therefore ineligible for the exemption applied for by the applicant. Even if the basin were determined to be a type 2 wetland it would still be ineligible for the exemption because it is over two acres in size. DECISION The City Council affirms the April 6, 2007 Notice of Decision regarding the Fox and Dorsey properties except that a recorded deed restriction relating to the exemption determination for Dorsey sites 2 and 4 is not required. 134066vOl RNK:091l7/2oo7 2 ADOPTED by the Chanhassen City Council this 24th day of September 2007. CITY OF CHANHASSEN BY: Thomas A. Furlong, Mayor ATTEST: Todd Gerhardt, City Manager/Clerk 134066vO I RNK:09/1712007 3 EXHIBIT A Dorsey & Dorsey Parcel Number 25-0230400 NW1I4 SW1I4 Section: 23 Township: 116 Range: 023 West, Carver County, Minnesota Jeffrey & Terri Fox Parcel Number 25-0230500 NE1/4 SW1/4 Section: 23 Township: 116 Range: 023 West, Carver County, Minnesota, EXC THAT Pia SHOWN AS PARCEL 64 ON MN DOT R-O-W PLAT 10-19 . CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952.227.1190 Engineering Phone: 952.227.1160 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 Park & Recreation Phone: 952.227.1120 Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax: 952.227.1404 Planning & Natural Resources Phone: 952.227.1130 Fax: 952.227.1110 Public Works 1591 Park Road Phone: 952.227.1300 Fax: 952.227.1310 Senior Center Phone: 952.227.1125 Fax: 952.227.1110 Web Site WINI. ci. chan hassen.mn. us MEMORANDUM TO: Todd Gerhardt, City Manager FROM: Lori Haak, Water Resources Coordinator DATE: August 27,2007 SUBJ: Dorsey and Fox Wetland Exemption Appeals REQUESTED ACTIONS The City Council should: 1. Hold a public hearing on the appeals of the staff decisions on the Dorsey and Fox wetland exemptions; and 2. Make decisions regarding the appeals of the staff decisions regarding the exemptions. Any City Council decision regarding these appeals requires a majority of City Council present. SUMMARY Wetland exemption requests were submitted in February 2007 by Dorsey & Dorsey, represented by Rick Dorsey, and Jeff & Terri Fox. City staff reviewed the requests and supporting information and following the receipt and review of the Findings of Fact of the Technical Evaluation Panel, rendered a decision on each of the exemption requests [five (5) total: four (4) on the Dorsey & Dorsey property and one (1) on the Fox property]. Both parties appealed staff's decisions to the Minnesota Board of Water and Soil Resources (BWSR), which remanded the appeals to the City. The City must complete its local appeals process, which includes a public hearing before the City Council and decisions by the City Council. Staffrecommends that the City Council uphold staff's decisions on allfive (5) exemptions and affirm the Findings of the Technical Evaluation Panel (TEP). MINNESOTA WETLAND CONSERVATION ACT In 1991, the State of Minnesota passed the Minnesota Wetland Conservation Act (WCA), which regulates the draining and filling of wetlands within the state. Activities that would otherWise be subject to the requirements of the WCA may be exempted in certain situations. The City of Chanhassen · A growing community with clean lakes, quality schools, a chanming downtown, thriving businesses, winding trails, and beautiful parks. A great place to live, work, and play. Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 2 The implementation of the WCA is regulated by the Minnesota Board of Water and Soil Resources (BWSR). The WCA is implemented locally by governmental agencies such as cities, counties or watershed districts. The agency assuming responsibility for the WCA is called the "Local Government Unit," or "LGU." The City of Chanhassen is the LGU within its boundaries. The City makes exemption, no-loss, and type and boundary determinations at the staff level, but requires City Council decisions on wetland impact, replacement and banking applications, as well as appeals. The City has its own wetland regulations (Article VI of Chapter 20 of Chanhassen City Code), which are administered concurrently with the WCA. The more restrictive always applies. Generally, the City Code is more stringent than the WCA. One example applies to this case. The WCA (Minnesota Rule 8420.0210) states that "An exemption may apply whether or not the local government unit has made an exemption determination." However, Chanhassen City Code Section 20-417 (a) states that "Activities exempted by Minnesota Rule 8420.0122 or determined to result in no net loss of wetlands shall be exempted from the provisions of this ordinance. However, certificates of exemption or no loss must be obtained from the city prior to starting work' (emphasis added). EXEMPTION APPLICATIONS Wetland exemption requests were submitted in February 2007 by Dorsey & Dorsey, represented by Rick Dorsey, and Jeff & Terri Fox. There were 5 total exemption requests: four (4) on the Dorsey & Dorsey property and one (1) on the Fox property. I - ,..{:::"- .,..~ , >~ ~ t ~ Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 3 Dorsey & Dorsey Application The applicant requested an exemption determination for four (4) basins on the Dorsey & Dorsey property, located in the NWIA of the SWIA of Section 23, Township 116N, Range 23W, Carver County, Minnesota. For all four basins, the applicant requested exemptions under MR 8420.0122, subpart lA, which states: "A replacement plan for wetlands is not required for activities in a wetland that was planted with annually seeded crops or was in a crop rotation seeding of pasture grass or legumes in six of the last ten years prior to January 1, 1991. Documentation, such as aerial photographs, United States Department of Agriculture records, or affidavit of landowner must be required by the local government unit to show and use as evidence for this exemption. Land eligible for this exemption must be wetland types 1 and 2. " The LGU decision dated April 6, 2007, reflected the following: . Basin 1: Exemption request denied. The wetland was not an annually seeded crop or in a rotation of pasture grass or legumes. Also, a portion of this wetland is not type 1 or type 2 wetland. . Basin 2: Exemption request approved. The area was annually seeded with crops from 1981 through 1986 and is a type 1 wetland. . Basin 3: Exemption request denied. The wetland was not an annually seeded crop or in a rotation of pasture grass or legumes. . Basin 4: Exemption request approved. The area was annually seeded with crops six of ten years prior to 1991 and is a type 1 or type 2 wetland. . All exempt wetlands will be subject to the lO-year deed recording requirements set forth in MR 8420.0115. The appeal submitted on behalf of Rick Dorsey on May 4, 2007, makes nineteen (19) allegations. The allegations are listed below in bold with the TEP response [as formulated on June 26, 2007 by Brad Wozney (Minnesota Board of Water and Soil Resources), Greg Graczyk (Carver Soil and Water Conservation District) and Lori Haak (City of Chanhassen)] shown in plain type. 1. Rick Dorsey appeals the determination of the City of Chanhassen under the Wetland Conservation Act, as contained in the April 6, 2007, letter and Notice of Wetland Conservation Act Decision and TEP Findings of Fact by Lori Haak, Water Resources Coordinator, City of Chanhassen. No response. Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 4 2. The City of Chanhassen is the Local Government Unit (LGU) implementing the Wetland Conservation Act in Carver County, Minnesota. No response. 3. Dorsey's exemption request was heard concurrently with an exemption request by adjoining landowner Fox. The two cases have issues in common. No response. 4. The decision is contrary to law, arbitrary and capricious, and unsupported by substantial evidence. The decision maker applied the wrong standard of proof, applying a standard that required conclusive proof. The staff decision was based on the Findings of Fact prepared by the Technical Evaluation (TEP) Panel consistent with state law and rules regarding wetland activities. The landowners' affidavits and other evidence were fully evaluated and the TEP Findings indicated that aerial photographs did not support the applicants' contentions. 5. Rick Dorsey is a General Partner of Dorsey and Dorsey who is the owner of real property located in the NW% of SW% of Section 23, Township 116, Range 23, Carver County, Minnesota. Street Address: 1551 Lyman Blvd (PID 250230400). No response. 6. On or about February 5, 2007, Rick Dorsey submitted an application for approval of a wetland project. Dorsey applied for an exemption determination for four areas designated as Sites 1-4 respectively. The purpose of the exemption request was to obtain declaratory determination establishing that the sites were exempt in 1991 and that they remain exempt. The evidence was presented at a meeting, lasting approximately one hour. The evidence showed that the sites were already exempt, were former wetlands, all of which have been drained, excavated and/or filled as of passage of WCA. The Findings of the TEP and the staff decision differ from the applicant's interpretation of the rule and the interpretation of the evidence presented. The four (4) basins were not automatically exempt in 1991. Pursuant to city ordinance, any decision made regarding an exemption must be made only after application. Additionally, although Dorsey & Fox Wetland Exemption Appeals August 27,2007 Page 5 evidence was presented at the aforementioned meeting, the TEP did not make a decision at that time regarding the evidence that was presented. 7. The decision regarding the two areas designated as Site 2 and Site 4 are impacted by the same legal error. The evidence established that prior to 1987, site 2 and 4 met the criteria for WCA exemption 1A. Specifically, the land was used for row crops. Minn. Stat. ~103G.2241 subdivision (lA) part 1. Further, based on available evidence it was determined that during the time period of 1981-1986 the subject areas showed no sign of a wetland or were of type 1 or 2 and, if type 2, were less than 2 acres. Having found that the sites were exempt at that time, however, the LGU incorrectly imposed a ten-year deed restriction dating from the time of the exemption determination, rather than from the date of the existence of the exemption itself. The decision wrongly assumes that the purpose of an exemption determination is to authorize a particular activity as of the date of the exemption request. From this error, the exemption decision determines that the panel should place an agricultural restriction effective after the date of the exemption determination. As a result of this error, the decision wrongly concludes that the applicant must restrict his usage of the property for at least ten years after the date of the decision. Exemptions are self-executing, and the date of the exemption determination is irrelevant for purposes of applying the exemption. The applicant requested an exemption under MR 8420.0122, subpart 1A. No determination has been made by the TEP with respect to subpart 1D for these four (4) basins. The TEP disagrees that exemptions apply from the time of the passage of the Act. The wetland itself is not exempted by the law, but rather activities are exempt. MR 8420.0115 requires the 10- year deed recording at the time of the proposed exempt activity is certified by the LOU. The TEP did not find that the sites were exempt 1981-1986. The evidence submitted does not show that the activities prior to 1991 were sufficient to make the areas non-wetland. Pursuant to City Code Section 20-406, the City as LOU requires application for exemptions. 8. With respect to Site #3, the evidence showed that a wetland of some kind may have existed on this site prior to 1981. During that time, the area was fenced and used as pasture for dairy cows. The County then in 1981, widened Lyman Boulevard and lawfully used this area for clean fill arising from the road construction. The road project created a new clean swale along the 20-foot high road embankment. In 1981-1982 the site was reseeded and used as pasture. In 1983, after the balance of lowland was filled with soil hauled in from Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 6 another City project, the south portion of the former wetland was planted in soybeans and the north half reseeded in pasture grass (hay) which was mechanically harvested and sold through 1988. Thus, at the time WCA was passed, there was no wetland and the land would have been exempt as of the date that WCA became effective. The TEP Panel wrongly focused on an artificial wet area which developed along the road ditch. The decision that Site #3 is not exempt is arbitrary and capricious, unlawful, and contrary to the evidence. Further, as discussed below, the TEP Panel and LGU applied the wrong standard in evaluating the evidence. The TEP focused on the area that was flagged by the applicant's wetland delineator, Mr. Ben Meyer of Bonestroo and Associates. Best professional judgment and photographic evidence do not support the exemption for Site #3 as detailed in the TEP Findings. 9. With respect to Site 1, the TEP used an on-site visit on March 22, 2007, to determine the size and type of wetland area to be impacted as the basis for its decision to deny the exemption request. This review was irrelevant as it did not review the status of size and type prior to 1991. The type determination for Site 1 was not made on-site on March 22, 2007. The type determination was made using aerial photographs and the wetland type definitions set forth in MR 8420.0110, subp 54 a, items A through C. 10. In the relevant time period for exemption determination, there was no wetland on site 1. Within the application, as well as at the predetermination meeting with the TEP Panel, Dorsey and Ben Meyer, a Senior Environmental Consultant with Bonestroo, Rosene, Anderlik and Associates representing Dorsey, provided detailed information regarding the issue of wetland size between 1981 and 1989. They showed that the former wetland had been drained and tiled for over thirty years by the time the WCA was enacted. In an aerial photo from 1963, supplied to the TEP panel in the application, one can see the "Y shape" shadow line on the land including the site area. Once again, the TEP asserts that the size and type prior to 1991 are irrelevant. The evidence submitted does not show that the activities prior to 1991 were sufficient to make the areas non-wetland. The TEP disagrees that exemptions apply from the time of the passage of the Act. The wetland itself is not exempted by the law, but rather activities are exempt. Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 7 11. Minn. Stat. ~103G.2241, subd. l(a)(l), and Minn. Rules Part 8420.0122, subp. l(a) state that a replacement plan for wetlands is not required for activities in a wetland that were annually seeded with crops or were in crop rotation seeding of pasture grass or legumes in 6 of the most recent 10 years prior to January 1, 1991. Because these lands met that requirement as of January 1, 1991, the panel wrongly looked at the condition of the land as of a later date. City staff disagrees. See response to allegation #7. 12. The site was excavated and wetland soil types were removed, in 1989, with approval from the City of Chanhassen, for reasons described in detain [sic] in the application. The excavation was done to make a man made surface water management pond. The plan approved by the City, and of public record, included a survey and topographical map (the application included a copy of said documents) which surveyed the former wetland area in site #1. At that time the high-water ponding area from the incidental pond starting to form as a result of a blocked ditch discussed in the application. Scaling it out, the size is less than 0.7 acres in total. Under exemption lA, the determination is based on pre-existing land use to the WCA enactment, not current time use. For this reason, the size and type of wetland are to be based on what was there pre 1991, using historical data.." [sic] The Owner provided the TEP Panel with a survey and topographical map submitted to the City of Chanhassen in 1989 and accepted in the public record as part of an excavation permit for the site. It shows the size of the historic wetland on site #1 had been between 0.6 and 0.7 acres. The hydric soils, in the approximately 0.7-acre site which were already drain tiled but blocked, were excavated in 1989 with the hydric soils removed from the site, and the depression left as a man made surface water management pond, for reasons described in detail in the application. A storm water management pond was created after the wetland soil types were removed from the site. With respect to the applicant's exemption request, the purpose of the pond excavation is irrelevant. However, the TEP disagrees regarding the purpose of the pond. The staff report for the wetland alteration permit (application number 88-16) states that, "The applicants have met with staff to discuss the creation of a wildlife pond on their property. 10 Ann Olsen met with Dr. Elizabeth Rockwell of the Fish and Wildlife Service on site. Dr. Rockwell felt that construction of the pond in the wetland would be beneficial if the standard six conditions of the Fish and Wildlife service were followed." The size and type of wetland discussed Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 8 in the wetland alteration permit application are irrelevant because a formal wetland delineation was not completed as part of the application. Additionally, the project proposed an excavation of approximately four (4) feet within the wetland (from an elevation of approximately 889 to a bottom elevation of approximately 885). This would result in a wetland type change (from a waterlogged to a standing water condition), not a conversion to non-wetland. 13. Site #1 has been draintiled and farmed for more than 23 years prior to 1986. As a former wetland through and including 1986 it would not be type-able because it was not a wetland. In 1987-1988 when water started to puddle into the growing season, it was incidental to ditch blockage on neighboring property. Any wet ground on the site today is not a natural wetland: it is a man made storm pond that is now overflowing without an emergency overflow. (The increase in the storm pond size since 1989 is due to surface water drainage blocked on neighboring property and seepage of the storm pond saturating a buffer area). Neither of which was intended to create wetlands when the pond was created. The aerial photographs that were submitted show the area was wetland prior to 1986 and that the wetland existed prior to excavation and following excavation. 14. Even if there had been a wetland at the relevant time period, it still would have been in error to deny the exemption, because the land was devoted to exempt agricultural uses. Evidently the panel misconstrued the meaning of the terms crop, pasture grass, and legumes, and misconstrued the meaning of the subdivision l(a)(l) exemption. The TEP did not misconstrue the meaning of these terms nor of the requested exemption. (The exemption cited in allegation #14 does not exist.) 15. "Hayland" is defined as an area that was mechanically harvested or that was planted with annually seeded crops in a crop rotation seeding of grasses or legumes in six of the last ten years. Minn. Stat. H03G.005, subd. 10(c); Minn. Rules Part 8420.0110, subp. 20. So noted. The term "hayland" does not appear in MR 8420.0122, subpart 1A. Dorsey & Fox Wetland Exemption Appeals August 27,2007 Page 9 16. "Agricultural land" is defined as land used for horticultural, row, close grown, pasture and hayland crops. Minn. Stat. ~103G.005, subd. 2(a); Minn. Rules Part 8420.0110, subp. 4. So noted. The term "agricultural land" does not appear in MR 8420.0122, subpart 1A. 17. The statute, rules and SONAR support a plain reading of the exemption requested by Dorsey. City staff and the TEP properly and fairly interpreted the exemption request by Dorsey and properly and fairly applied the statute, rules and SONAR in reaching their recommendations and decisions. 18. A crop is any plant thatis grown in significant quantities to be harvested as food, livestock fodder, or for another economic purpose. Pasture is land with herbaceous vegetation cover used for grazing of livestock as part of a farm or ranch. The key difference between pasture and crop is that a crop is harvested for use away from the specific location that it is grown, whereas with pasture, an animal grazes and consumes the plant as it is growing. A legume is a plant in the family Fabaceae (or Leguminosae), or a fruit of these plants. Well-known legumes include alfalfa, clover, peas, beans, lentils, lupins and peanuts. The terms "annually seeded" and "rotation" are significant in the application of MR 8420.0122, subpart 1A. The term "pasture" does not appear except as a modifier for the term "grass," therefore this differentiation is not significant. 19. The record in this case consists of a variety of documents, maps, and other submissions to the LGU and TEP as well as approximately one hour of testimony presented to the panel. It appears based on the decision of the panel that this testimony was not considered as a result of the panel's erroneous belief that an exemption can only be granted upon conclusive photographic evidence. No recording or minutes were taken during the meeting between the applicant, Mr. Ben Meyer and the TEP, so it is unclear how this "testimony" can be part of the record in this case. All information presented or submitted was considered by the TEP in its decisions, including the applicant's testimony and affidavits, and the TEP findings and staff decision were not based on the alleged erroneous belief but rather on a full and complete consideration of evidence both supporting and contradicting the exemption determination. Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 10 Fox Application The applicant requested an exemption determination for one (1) basin on the Jeff & Terri Fox property, located in the NEl,4 of the SWl,4 of Section 23, Township 116N, Range 23W, Carver County, Minnesota. For this basin, the applicant requested an exemption under MR 8420.0122, subpart 1D, which states: A replacement plan for wetlands is not required for activities in a type 1 wetland on agricultural land, except for bottomland hardwood type 1 wetlands, and activities in a type 2 or type 6 wetland that is less than two acres in size and located on agricultural land. The LGU decision dated April 6, 2007 reflected the following: . Basin 1: Exemption request denied. The wetland is a type 3 wetland with a type 2 fringe that is more than 2 acres in size. The entire wetland basin is approximately 3.3 acres in size. The appeal submitted on behalf of Jeff and Terri Fox on May 4, 2007, makes nine (9) allegations. The allegations are listed below in bold with the TEP response [as formulated on June 26,2007 by Brad Wozney (Minnesota Board of Water and Soil Resources), Greg Graczyk (Carver Soil and Water Conservation District) and Lori Haak (City of Chanhassen)] shown in plain type. 1. Jeff and Terri Fox appeal the determination of the City of Chanhassen under the Wetland Conservation Act, as contained in the April 6, 2007, letter and Notice of Wetland Conservation Act Decision and TEP Findings of Fact by Lori Haak, Water Resources Coordinator, City of Chanhassen. No response. 2. The City of Chanhassen is the Local Government Unit (LGU) implementing the Wetland Conservation Act in Carver County, Minnesota. No response. 3. The decision is contrary to law, arbitrary and capricious, and unsupported by substantial evidence. The decision maker applied the wrong standard of proof, applying a standard that required conclusive proof. Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 11 The staff decision was based on the Findings of Fact prepared by the Technical Evaluation (TEP) Panel consistent with state law and rules regarding wetland activities. The landowners' affidavits and other evidence were fully evaluated and the TEP Findings indicated that aerial photographs did not support the applicants' contentions. 4. Jeff and Terri Fox are owners of real property located in the NE% of SW% of Section 23, Township 116, Range 23, Carver County, Minnesota. Street Address: 1551 Lyman Blvd (PID 250230500). No response. 5. On or about January 25, 2007, Jeff and Terri Fox submitted an application for approval to fill so as to utilize type 1 wetlands for the purpose of agricultural production utilizing standard farming practices and machinery. The application was submitted on February 20, 2007. 6. The property for which Jeff and Terri Fox are seeking a Wetland Conservation Act exemption was at most a Type 1 Wetland entitled to an exemption declaration. At the hearing, appellant presented evidence from a competent expert, Ben Meyer, a Senior Environmental Consultant with Bonestroo, Rosene, Anderlik and Associates, that the property in question was a former Type 1 exempt wetland. The panel visited the site on March 22, 2007, at a time that the ground was frozen. A record snow (approximately 30 inches) had recently fallen and then melted in about eight days just prior to the review, causing flood waters to pond on the frozen ground. The type determination for Basin 1 was not made on-site on March 22, 2007. The type determination was made using aerial photographs and the wetland type definitions set forth in MR 8420.0110, subp 54 a, items A through C. 7. The Panel erroneously failed to recognize that a storm pond in the area on neighboring property is man made and not a type 2 and 3 wetland. Further, the Panel failed to take into account that the size of the wetland on the site is, historically, significantly smaller. The area of wet ground has expanded because a drainage ditch had been driven over by farm machinery and collapsed, blocking drainage and forcing surface water to redirect itself across a larger area to re- enter the drainage ditch at a lower elevation (as such, incidental water has been included in the TEP Panel determination). Dorsey & Fox Wetland Exemption Appeals August 27,2007 Page 12 The TEP disagrees regarding the purpose of the pond. The staff report for the wetland alteration permit on the neighboring (Dorsey & Dorsey) property (application number 88-16) states that, "The applicants have met with staff to discuss the creation of a wildlife pond on their property. Jo Ann Olsen met with Dr. Elizabeth Rockwell of the Fish and Wildlife Service on site. Dr. Rockwell felt that construction of the pond in the wetland would be beneficial if the standard six conditions of the Fish and Wildlife service were followed." In light of this information, the open water area is a wetland, not a stormwater pond. No determination regarding incidental wetland was requested by the applicant or made by the TEP. 8. The decision fails to set out findings of fact which support a finding that there is a type 3 wetland. The decision merely checks a box which provides insufficient explanation for administrative or judicial review. It fails to demonstrate that the panel applied the correct standards or law or that it took a hard look at the evidence in light of the applicable law. It is impossible from the hearing decision to determine whether the panel applied the correct standards, or what evidence the panel considered, or whether the panel was reviewing evidence as of the appropriate time. The TEP employed best professional judgment, the Circular 39 definitions of wetland types (as set forth in the online version of Shaw and Fredine's "Wetlands of the United States - their extent and their value to waterfowl and other wildlife," version 05JAN99, and summarized in MR 8420.0110, subp 54a, items A through C), the grading plan for the wetland alteration permit on the neighboring (Dorsey & Dorsey) property (application number 88-16), and aerial photography to make the wetland typing determination. 9. As more fully explained in the Dorsey appeal, a copy of which is appended to this appeal, the record in this case consists of a variety of documents, maps, and other submissions to the LGU and TEP as well as approximately one hour of testimony presented to the panel and done in conjunction with the Dorsey case. It appears based upon the decision of the panel in the accompanying Dorsey case that in addition, the panel was applying the wrong burden of proof and that it believed that an exemption can only be granted upon conclusive photographic evidence. No recording or minutes were taken during the meeting between Mr. Ben Meyer, Mr. Rick Dorsey and the TEP, so it is unclear how this "testimony" can be part of the record in this case. All information presented or submitted was considered by the TEP in its decisions. Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 13 STAFF RECOMMENDATION Staff recommends that the City Council: 1) Hold a public hearing, 2) Consider all testimony and evidence; and 3) Adopt a motion upholding staff's decisions on all five (5) exemptions, and affirming the Findings of the Technical Evaluation Panel (TEP). RECOMMENDED MOTION The Chanhassen City Council upholds staff's decisions on all five (5) exemptions, and affirming the Findings of the Technical Evaluation Panel (TEP). A TT ACHMENTS 1. Findings of Fact 2. Fox/Dorsey Wetland Exemption Appeal Location Map 3. Affidavit of Publication reo Appeals of Dorsey & Dorsey and Jeff and Terri Fox, dated June 28, 2007 4. Order, Remand of Wetland Conservation Act Appeal of Dorsey & Dorsey, dated June 6, 2007 5. Memorandum from J. Haertel reo Appeal of Dorsey & Dorsey, dated May 9, 2007 6. Letter from G. Von Korff reo Appeal of Dorsey & Dorsey, dated May 4, 2007 7. Appeal of Dorsey & Dorsey, dated May 4,2007 8. Memorandum from L. Haak, dated April 12, 2007 9. Minnesota Wetland Conservation Act Technical Evaluation Panel Findings of Fact for Dorsey Wetland Exemption, dated April 6, 2007 10. Minnesota Wetland Conservation Act Certificate of Mailing of Notice of Wetland Conservation Act Decision for Dorsey Wetland Exemption, dated April 6, 2007 11. Letter from L. Haak reo Dorsey & Dorsey Wetland Exemption Application, dated April 6,2007 12. Letter from L. Haak reo Dorsey & Dorsey Wetland Exemption Application Review Period Extension, dated April 5, 2007 13. Email from B. Meyer reo Dorsey & Dorsey Wetland Exemption Affidavit of Land Use, dated March 20, 2007 14. Email from B. Meyer reo Dorsey & Dorsey Wetland Exemption Aerial Photographs 1981-1986, dated March 12,2007 15. Letter from L. Haak reo Dorsey & Dorsey Wetland Exemption Application Incomplete, dated February 20, 2007 16. Letter from B. Meyer reo Dorsey & Dorsey Wetland Exemption Application, dated February 7, 2007 Dorsey & Fox Wetland Exemption Appeals August 27, 2007 Page 14 17. Email from B. Meyer reo Dorsey & Dorsey Wetland Exemption Determination, dated November 16, 2007 - 2:23 pm 18. Email from B. Meyer reo Dorsey & Dorsey Wetland Exemption Determination, dated November 16, 2007 - 8:47 am 19. Excerpts from the Minnesota Wetland Conservation Act (MR 8420) 20. Staff report for George Dorsey Wetland Alteration Permit (W AP 88-16), dated January 4, 1989 21. Wetland Alteration Permit for George Dorsey Wetland Alteration Permit (W AP 88-16), recorded September 18, 1989 22. Excerpts from "Wetlands of the United States: Their Extent and Their Value to Waterfowl and Other Wildlife" by Shaw and Fredine, printed July 12, 2007 23. Order, Remand of Wetland Conservation Act Appeal of Jeff & Terri Fox, dated June 7, 2007 24. Memorandum from J. Haertel reo Appeal of Jeff & Terri Fox, dated May 9, 2007 25. Letter from G. Von Korffre. Appeal of Jeff & Terri Fox, dated May 4,2007 26. Appeal of Jeff & Terri Fox, dated May 4, 2007 27. Minnesota Wetland Conservation Act Technical Evaluation Panel Findings of Fact for Jeff & Terri Fox Wetland Exemption, dated April 6, 2007 28. Minnesota Wetland Conservation Act Certificate of Mailing of Notice of Wetland Conservation Act Decision for Jeff & Terri Fox Wetland Exemption, dated April 6, 2007 29. Letter from L. Haak reo Jeff & Terri Fox Wetland Exemption Application Review Period Extension, dated April 5, 2007 30. Letter from B. Meyer reo Jeff & Terri Fox Wetland Exemption Application, dated February 20, 2007 31. Aerial photographs 1979-2005 32. Grading plan for George Dorsey Wetland Alteration Permit (W AP 88-16) 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 comers, 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 PRESENT A TIONS: None. PUBLIC HEARING: CONSIDER APPEALS OF WETLAND EXEMPTION DETERMINA TIONS. LOCATED AT THE SOUTHWEST CORNER OF LYMAN BOULEVARD AND POWERS BOULEVARD. JEFF FOX AND RICHARD DORSEY. Public Present: Name Address Brad W ozney Kurt Deter Rick Dorsey Jeff Fox Brent Miller BWSR, 520 Lafayette Road No, St. Paul St. Cloud 1551 Lyman Boulevard 5270 Howards Point Road, Excelsior 1200 Lyman Boulevard Mayor Furlong: Let's start with the staff report and welcome back to Ms. Haak. Good evening. 4 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 ifthe 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 comer 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 comer and Basin 4 is in the southwest comer 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 5 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 staffs 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 l(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 staffs 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 staffs 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 6 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 l(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 comer 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 comer. 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 evening. Up until June, what was it? August 1 st. Up until August 1 st 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 be that type of restriction. As of August 1 st 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 7 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 staffs 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 IlL.. Lori Haak: Sure. 8 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 staffs 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? 9 City Council Meeting - August 27, 2007 Brad W ozney: 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. 10 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. 11 City Council Meeting - August 27, 2007 Lori Haak: The direction that we've gotten from the State in the past, and other LOU'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 lUnl 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. 12 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 com. 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 13 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. 14 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 urn. 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 staffs 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 staffs 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. 15 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 lO 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 16 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 17 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 1991, January 1st. 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 l(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 18 City Council Meeting - August 27, 2007 exemption for example l(b), which is on the Fox's property would deal with the today issue. They looked at the land today, not historical land. Number l(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 LOU 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 alJ 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 bum 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 1. The tractor. Very good farming practices. We contoured the hill with grass and 19 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 20 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 inforination 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 the actual wetland at that point in time was about 6110th,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 21 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 at best was, when it was being looked at, at the time period of being evaluated, was a 6/lOth 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 22 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 l(b), and a type l(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 that all information shows at that time. City records show it as being 6/lOth 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? 23 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 would have been the solution. So we had 6/lOth 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. 24 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 comer 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... 25 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? Al 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 comer 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. 26 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. 27 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 scenano. 28 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. Rick Dorsey: 6/lOth of an acre. Mayor Furlong: 6110th 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 Tjomhom: 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 Tjomhom: Exhibit A-5. Rick Dorsey: And what's your question Bethany? Councilwoman Tjomhom: Give me an example of a wetland. Rick Dorsey: Where is a wetland? Councilwoman Tjomhom: 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 Tjomhom: 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 29 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. 30 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, basically to Basin 1 which is related to the 22 acres. . ..had you go to 6/lOth 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 111... 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 bring it back to the 6/lOth 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 wrong, when Mr. Dorsey talked about the 6110th, 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 mine and what's incidental and what's not really wetland. It's 6/lOth 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 wetland area of 6110th of an acre, Jeffs 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 l(b) I think for the Fox property. Is that their request because it's an incidental wetland? 31 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 l(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 l(b) and l(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? 32 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 natural causes that created this to go from 6/lOth 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. 33 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 34 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 O. 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, a written, hand written extension letter that if signed would give us until October 15t 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? 35 City Council Meeting - August 27, 2007 Kurt Deter: I think we've submitted everything that we need to submit. I guess I will submit something in the next 5, you're getting until October I st. 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 lea), the lea) 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 timing standpoint, in terms of date specific, I guess I would ask staff if the 10th is sufficient time, 36 City Council Meeting - August 27, 2007 given the Labor Day holiday next weekend, and we might receive last information, if we should be looking to the 24th as the next time we would see this? Roger Knutson: Mayor I'll be out of town myself for a few days so I'd suggest the 24th if that's okay. Mayor Furlong: 24th? Okay. Is that the correct date? I believe that's the correct date. So at this point we have an extension through October 15t so the idea would be to table this item to our meeting of September 24th. 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 before the 24th 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 item to our meeting of September 24th. Councilwoman Ernst: I would make a motion that we table the item until September 24th. 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 O. Mayor Furlong: Very good. Thank you everyone. 37