11. 2017_12_13 Applicant response to RPBCWDLarkin
Horfun*Larkin Hoffinan
8300 Norman Center Drive
Suite 1000
Minneapolis, Minnesota SS 437 -1060
cENERAT: 952-835-3800
FAx: 952-896-3333
wEB: wwwlarkinhoffman.com
December 13,2017
Andrea Moffatt, WSB & Associates, Inc.
c/o Kate Aanenson, Community Development Director
7700 Market Boulevard
Chanhassen, MN 55317
Re:Avienda Project Wetland Conservation Act Application -- Response to fuley Purgatory
Bluff Creek Watershed District
This letter is sent on behalf of Level 7 Development, LLC to provide information in response to
the December 7 ,2017 letter to the City from the Riley Purgatory Bluff Creek Watershed District
("Watershed District") regarding the Wetland Conservation Act permit for the Avienda Project.
Our team received the letter on December 11 and appreciates the opportunity to provide this
information.
As you, city staff and other interested parties are aware, we have submitted a complete permit
application to the city as well as numerous additional submittals in response to the city,
Technical Evaluation Panel and U.S. Army Corps of Engineers comments and questions on the
project. We have appreciated the opportunity to answer all questions and respond to all
comments. The answers to the Watershed District comments are already included in the record
that the city will use in its permit decision. We attempt to locate information in the record in
response to the Watershed District comments with the caveat that directly responding to the
comments is difficult in light of the Watershed submitting comments that are in large part
supported by statements like "to the District's knowledge" or are general statements of whether
or not the Watershed District "concurs" with certain conclusions rather than comments on
critical issues underlying those conclusions. Further, it is simply difficult to response to
comments supported by recollections of items that were "brought up" in previous meetings.
The Watershed District's first two comments related to Minnesota Rule 8420.0520 regarding
complete wetland impact avoidance. The first references subpart 3.C(1) which requires that the
applicant provide the city with at least two alternatives that avoid wetland impacts. The second
references subpart 3.C(2) which defines the city's determination of whether any feasible or
prudent alternative is available that avoid wetland impacts.
The record clearly shows that our team provided complete and detailed descriptions and analysis
of the avoidance alternatives that exceed the rule requirements and that they were provided in
good faith. The Watershed District comments do not include any support for their apparent
allegation that a feasible and prudent alternative exists that would avoid wetlands and meet the
Andrea Moffatt, WSB & Associates, Inc.
c/o Kate Aanenson, Community Development Director
December 13, 2017
Page 2
project purpose. The comment letter therefore does not support a suggestion that the applicant
has not complied with the requirements of Minnesota Rule 8420.0520 subpart 3(c).
The Watershed District’s comments appear to focus on impact avoidance layouts and provide no
substantive comments on whether the avoidance actions suggested produce a feasible and
prudent project that meets the project purpose. For example, Comment 1 references the October
26, 2017 Revised Joint Application. The Watershed District states that the ring road
configuration shown in the attachment “can be made without completely filling” two wetlands.
The Watershed Comment fails to note however that the area inside the ring road in that figure is
completely occupied by the retail hub buildings and parking area. The Watershed District does
not suggest, nor could they, that constructing the ring road and leaving the area within the ring
road undeveloped is a prudent and feasible alternative that would meet the project purpose.
Similarly, the Watershed District suggests the District “does not feel” that the applicant has fully
demonstrated that a feasible and prudent alternative does not exist but cites as it’s only basis for
that statement an assertion that “by all appearances” a parking ramp might produce a feasible and
prudent alternative that would meet the project purpose and avoid wetland impacts.
Our team provided detailed alternatives that included a complete avoidance alterative that
required significant reconfiguration including reconfiguration of the road through the project.
Jim McComb’s provided in documents and reports this expert analysis of whether that was a
feasible and prudent alternative design of a Regional Lifestyle Center, focusing on the
interdependent nature of individual project components. For the “Complete Avoidance
Alternative” he concluded:
There is inadequate parking in front of the supermarket and the parking lot to the east of
the supermarket does not relate to the entrance to the supermarket.
The site plan has only one restaurant pad site.
The four buildings for small shops are unrelated to the larger store and do not constitute a
shopping center.
Other than the two buildings south of WL9, there is no likely pedestrian activity between
these four building clusters.
These buildings, due to their size and orientation, are unlikely to attract knowledgeable
retail and service tenants. Those tenants that do lease a space in these buildings will most
likely fail.
This site plan with only 193,300 square feet does not represent a regional lifestyle center
in scope, design, or size.
Andrea Moffatt, WSB & Associates, Inc.
c/o Kate Aanenson, Community Development Director
December 13, 2017
Page 3
This development concept is not consistent with the City of Chanhassen vision contained
in the Comprehensive Plan.1
In addition, to respond to some of the Watershed Districts general statements, our team provided
information showing the assessment of multiple alternatives that evaluated complete wetland
avoidance as well as providing wetland impact minimization alternatives as required by rule.
None of the avoidance/minimization alternatives meet the project purpose. The Watershed
District’s attached Figure 7 (prepared/edited by the Watershed District) does not meet the project
purpose as it does not provide for a retail hub/central village which is the “heart” of the overall
Avienda lifestyle center development.
The Watershed District does not comment on the materials supplied to the city by the McComb
Group, Ltd., clearly supporting his conclusion that the location, design, and proximity of the
individual components of a viable regional mixed use lifestyle center are based on the need to
create a synergistic development in which each individual component is successful and
contributes to the success of the entire development. The principals that create successful mixed
use regional lifestyle centers are based on Mr. McComb’s lessons learned over about 25 years of
design and development for this type of center. The successful regional mixed use lifestyle
centers have reinforced how the individual components should be designed and located so that
they support the other components. The retail component (i.e., the retail hub/central village) is
the central focus of the developments.
The proposed plan (number of buildings, building type/square footage/orientation,
pedestrian/walking routes, parking areas, parking space orientation, incorporation of two types of
housing, offsite connections, internal roadway connections, avoidance of Bluff Creek Overlay
District, etc.) represents extensive consultation with experts in lifestyle center development and
potential tenants, and 3+ years of coordination with City staff to develop a plan that meets City
ordinances, stormwater requirements, and project purpose (i.e., results in a viable mixed-used
lifestyle center project).
As an aside regarding the Watershed Districts first comment, the Watershed incorrectly states
that there are “TEP findings of fact for the February 9, 2017 TEP meeting.” The TEP members
recognized that the February 9 meeting was a pre-application meeting where the applicant
received initial information on what would be needed in permitting. The TEP withdrew their
document that had erroneously described that information as findings.
The Watershed District’s third comment addresses the city’s need to evaluate avoidance
alternatives. The record contains a very complete set of alternatives that clearly support approval
of the permit application.
1 Kjolhaug Memorandum to U.S. Army Corps of Engineers and Andi Moffit as LGU Representative for
the City of Chanhassen, June 5, 2017at page 6
Andrea Moffatt, WSB & Associates, Inc.
c/o Kate Aanenson, Community Development Director
December 13, 2017
Page 4
Six alternative sites were evaluated for project feasibility. Two of these six sites were
determined to be practicable alternative sites. These sites within the City of Chanhassen were
not guided for lifestyle center development yet were evaluated for the proposed project to assess
whether less wetland and other environmental impacts were possible on these alternative sites. It
was concluded that development of a mixed use regional lifestyle center on either of the
practicable alternative sites would result in more wetland impacts, more environmental impacts,
and more Bluff Creek Overlay District impacts than development of the proposed site. There are
no other sites in the City of Chanhassen that would meet the project purpose and result in less
wetland impacts. This wetland avoidance alternatives analysis is allowed by WCA Rule
8420.0520 Rule 8420.0520 Subp, 3.C(1).
The fact that the proposed site is guided for mixed use regional lifestyle center development is
relevant. Land use and zoning designations are applied by the City after careful consideration of
adjacent land use, existing infrastructure, and needs of the community. Furthermore, the need
for a mixed use regional lifestyle center in the City has been identified since 2008, and as such
an AUAR was prepared and later updated to evaluate the suitability of this site for such use.
Finally, the Watershed District comments on the city decision whether to grant sequencing
flexibility. An assessment of wetland functions and public values was completed using MnRAM,
a methodology approved by the board. Per that assessment, the proposed replacement wetlands
will provide equal or greater public value.
The MnRAM analysis of WL1/WL2 resulted in Low ratings for vegetation, wetland water
quality, wildlife, amphibian habitat, and aesthetics/recreation/education, and Medium ratings for
flood/stormwater attenuation and downstream water quality – with the overall result of a Manage
2/Medium quality wetland.
The wetland banks proposed for replacement are rated as Preserve/Exceptional quality –
demonstrating that they have higher overall function and value than WL1/WL2 (this statement is
also true for all wetlands proposed for impact) (see attached Table 1 of the Sequencing
Flexibility memo).
Wetland Conservation Act rules allow wetland credits outside of the minor watershed (in this
case Bluff Creek and Lake Susan) to be used to meet WCA wetland replacement requirements.
Credits purchased will be twice the amount of wetland impacted. Although some of the credits
are “upland credit” the banking process takes this into account, and for WCA replacement (via
banking) all credit types (wetland and upland credits) are equal (known as Standard Wetland
Credit; SWC). The same is true for wetland types (type 1, 2, 3, 4, 5, 6, and 7 wetlands); the
banking process takes wetland types into account, and for WCA replacement (via banking) all
wetland types are equal. For WCA replacement via banking, in-kind replacement is not
required.
The current primary water quality function of WL1/WL2 is filtering and detention of untreated
agricultural runoff. Although this function is beneficial to downstream water resources, the
Andrea Moffatt, WSB & Associates, Inc.
c/o Kate Aanenson, Community Development Director
December 13,20ll
Page 5
treatment currently provided by the wetland is not likely to meet current stormwater standards.
Irrespective of water quality benefits, the remaining social benefit of WL/WL2 is limited as this
wetland is located on private property, is not visible from offsite, and has been degraded by
excavation, partial drainage, invasive vegetation and farming up to and within the wetland edge.
Development of the site will eliminate untreated agricultural runoff and downstream impaired
waters will no longer receive untreated runoff from an agricultural site. In addition, with site
development, implementation of the SWPPP that will treat runoff to State, Local, and Watershed
District standards represents an improvement to the water quality of runoff/discharge from the
site, thereby benefiting/improving the water quality of impaired downstream waterbodies as
demonstrated in Tables 2 and 3 of the Sequencing Flexibility memo (updated "stormwater
Assessment Summary" and "Non-Degradation Summary" tables attached). The proposed
stormwater treatment system not only meets the water quality requirements, but is an
improvement over the existing conditions in capturing total suspended solids (TSS) and total
phosphorus (TP).
Although the Applicant will provide funds to the City for other water quality improvement
projects, this is not a requirement of Sequencing Flexibility and represents an additional good
faith effort by the Applicant outside the requirements of WCA. This funding can be used at the
discretion of the City for a projecVmultiple projects that will provides or enhance the public
value which they deem most important for the community/watershed.
Development of the proposed site as a mixed use regional lifestyle center will: (1) significantly
reduce untreated agricultural runoff in the minor watershed, (2) preserve nearly 20 acres of Bluff
Creek Overlay District woodland in perpetuity, (3) treat all new development runoff to State,
Local, and Watershed District standards, (4) improve the water quality input to downstream
impaired waterbodies, and (5) fund City priority water improvement projects, while complying
with WCA wetland impact sequencing and replacement requirements.
WCA does not specify that replacement of functions must occur within the City or local
Watershed District. In fact, 8420.0522 Subp. 1 allows replacement of wetland functions and
values to occur at more than one location. While RPBCWD may prefer to see wetland
replacement within their jurisdictional boundaries, such a requirement is not found within the
Wetland Conservation Act rules.
Andrea Moffatt, WSB & Associates, Inc.
c/o Kate Aanenson, Community Development Director
December l3,20ll
Page 6
We appreci ate the opportunity to provide these comments
Best
Esq., for
Direct Dial: 952-896-325'7
Email: plarson@larkinhofftnan.com
Enclosures
Mark Nordland, Level 7 Development, LLC
Todd Gerhardt, City of Chanhassen
cc:
Table 1. MnRAM Assessment Summary - Avienda Village, Chanhassen, MN1256789#1494; Drummer Bank (BSA9, Wtsh 32, Blue Earth Co)#1605; Schmidgall Bank (BSA9, Wtsh 23, Stevens Co)#174; Ryan Bank (BSA9, Wtsh 33, Rice Co)#1636; Kremer Bank 1 (BSA9, Wtsh 25, Lyon Co)Vegetative Diversity/Integrity Moderate Low Low Low Low Low Low High High Moderate HighMaintenance of Hydrologic RegimeLow Low Low Moderate Low Low Low Moderate Moderate High HighFlood/Stormwater/Attenuation Moderate Moderate Moderate Moderate Moderate Moderate Moderate High High Moderate HighDownstream Water Quality Moderate Moderate Moderate High Moderate Moderate Moderate Moderate Moderate Moderate ModerateMaintenance of Wetland Water QualityLow Low Low Moderate Low Low Low High High Moderate HighShoreline Protection NA NA NA NA NA NA NA NA NA NA NAWildlife Habitat Low Low Low Low Low Low Low High High High ModerateFish Habitat NA NA NA NA NA NA NA Moderate NA NA NAAmphibian Habitat Low Low NA NA NA NA NA Moderate Moderate Moderate ModerateAesthetic/Recreation/ Education/CulturalLow Low Low Moderate Low Low Low Moderate Moderate Exceptional ModerateFinal Management Classification 2Manage 2 Manage 2 Manage 3 Manage 2 Manage 3 Manage 3 Manage 3Preserve (Wetland Water Quality = High & Veg Diversity/Integrity = High)Preserve (Wetland Water Quality = High & Veg Diversity/Integrity = High)Preserve (Aesthetics etc. = Exceptional & Wildlife Habitat = High)Preserve (Wetland Hydrology = High & Veg Diversity/Integrity = High)1 Additional wetland bank that may be used in the event credit availability from other bank/s change.2 Preserve = Exceptional; Manage 1 = High Quality; Manage 2 = Medium Quality; Manage 3 = Low Quality Avienda Existing Wetlands (BSA9, Wtsh 33, Carver Co) Mitigation Wetland BanksWetlands & Wetland Functions/Values
Tables 2 and 3