CC minutes 2017 12 18
CHANHASSEN CITY COUNCIL
SPECIAL MEETING
DECEMBER 18, 2017
Mayor Laufenburger called the meeting to order at 7:00 p.m. The meeting was opened
with the Pledge to the Flag.
COUNCIL MEMBERS PRESENT: Mayor Laufenburger, Councilwoman Tjornhom,
Councilman McDonald and Councilman Campion
COUNCIL MEMBERS ABSENT: Councilwoman Ryan
STAFF PRESENT: Todd Gerhardt, Kate Aanenson, Paul Oehme, Vanessa Strong and Roger
Knutson
PUBLIC PRESENT:
Tom Palmquist 4350 Baker Road #400, Minnetonka
Claire Bleser RPBCWD-18681 Lake Drive
R. Cantin 6694 Nez Perce Drive
Andi Moffatt, WSB 701 Xenia Avenue So Suite 300, Minneapolis
Mark Nordland Launch Properties
Mayor Laufenburger: Thank you and I wish to welcome all of you that are present in the council
chambers this evening. Those of you watching on Mediacom cable channel at home or through
our website livestream. Special welcome to all of you here for this special meeting this evening.
Let the record reflect that council members are present with exception of Elise Ryan who is
excused. She is out sick this evening. We have one item on our agenda. Council is there any
modifications to the agenda as printed this evening? There being none we will proceed with the
agenda as printed.
AVIENDA – PLANNING CASE 2017-10: APPROVE WETLAND CONSERVATION
ACT PERMIT APPLICATION AND MITIGATION PLAN.
Mayor Laufenburger: Mr. Oehme is this your’s this evening? Is that right?
Paul Oehme: Yep.
Mayor Laufenburger: Welcome. Nice to have you here.
Paul Oehme: Thank you Mayor, City Council.
Chanhassen City Council – December 18, 2017
Mayor Laufenburger: Before you begin, for anybody present this evening if you haven’t done so
we invite you to register at the registration table which is just right below the map in the council
chambers here. Mr. Oehme.
Paul Oehme: Thank you Mayor, City Council members. Tonight we would like to have the
council consider a Wetland Conservation Act permit to have some wetlands mitigated on the site
of the future Avienda development project located at Lyman and Powers Boulevard. It’s about
120 acre development. With us tonight is Andi Moffatt. She is with WSB and Associates. She
has been working with the City on the wetland permitting process and she can take you through a
brief presentation of what the council action proposed is for tonight.
Andi Moffatt: Thank you Mr. Oehme.
Mayor Laufenburger: Before you begin Ms. Moffatt.
Andi Moffatt: Yes.
Mayor Laufenburger: Mr. Oehme can you clarify, this project came before the City Council
prior to today. Are you going to review that timeline at all Andi?
Andi Moffatt: I’m going to review parts of that timeline.
Mayor Laufenburger: Okay, alright. Just to clarify.
Andi Moffatt: It’s a long timeline.
Mayor Laufenburger: This has already, this PUD has already been approved. This is actually a
modification to the PUD, is that correct?
Paul Oehme: No.
Mayor Laufenburger: Or is it not?
Paul Oehme: This is a little bit separate.
Mayor Laufenburger: Oh okay.
Paul Oehme: So it’s in conjunction with a future development plans. This is a step that has to be
taken before we consider grading and final platting.
Mayor Laufenburger: Okay. Alright very well. Ms. Moffatt I’ll let you continue then.
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Chanhassen City Council – December 18, 2017
Andi Moffatt: Thank you Mr. Mayor, members of the council. Is the presentation up? Is it
going to be up there or?
Paul Oehme: There you go.
Andi Moffatt: So thank you very much. Like Mr. Oehme said my name is Andi Moffatt. I am
with WSB and Associates. I have been working, assisting cities with the Wetland Conservation
Act and as the local government unit representative for over 20 years so just by way of some
background for you in general. The Wetland Conservation Act, there’s a lot of acronyms. I’m
going to try to not use the acronyms. I’ll try to be clear.
Mayor Laufenburger: Thank you.
Andi Moffatt: There’s a lot of rules but please raise your hand if I’ve stepped over my bounds of
acronym use so, the WCA or Wetland Conservation Act is Minnesota Rule 8420 and the process
for any application to the Wetland Conservation Act, any local government unit is the applicant
submits an application to the LGU. The local government unit and in this case the City of
Chanhassen has taken the authority to be the local government unit for the Wetland Conservation
Act. When an applicant submits the LGU has 10 days to determine if an application is complete.
If it is complete the LGU then submits a notice of application. It’s really, it’s a way of notifying
the Technical Evaluation Panel, the watershed district, the Corps of Engineers, the DNR, and any
members of the public who have requested that an application is complete and it has come in and
so there’s usually a 15 to 30 day comment period and there’s potentially a Technical Evaluation
Panel meeting during that time and we’ll talk about the TEP here in a moment. During that time
the LGU considers comments and then they make a decision within 60 days so you may be
familiar with the PUD process. The City has 60 days to make a decision. Same is true for the
Wetland Conservation Act unless there’s extensions of that 60 day decision period so once this
LGU makes a decision they submit what’s called a Notice of Decision. Again goes to the TEP.
To the watershed district. To the Corps, to the DNR and any members of the public and then
that would be the decision related to the Wetland Conservation Act whether the project meets or
does not meet the State wetland rules. So like I said the City is the LGU for the Wetland
Conservation Act. Some other terms, Technical Evaluation Panel or the TEP. That is outlined in
Minnesota Rules 8420 who that is. The TEP provides guidance of WCA items to the LGU if
requested and the members of the TEP not only include the City. A representative from the City
but also a member of the Board of Water and Soil Resources or BWSR as we like to call them.
And the Soil and Water Conservation District so there’s 3 members of the TEP. The other term
you’ll hear is MnRAM. That’s a Minnesota Routine Assessment Method and really that is a
method to evaluate wetland functions and values. It was developed by a number of state
agencies and wetland professionals over several years and it’s been upgraded a number of times.
The outcome of a MnRAM or the Routine Assessment Method is wetlands get placed into
different categories. The City has done this with your wetlands and so it kind of goes in a
continuum of preserve wetlands which are generally high quality. Very diverse wetlands to
Manage 1, Manage 2, to Manage 3 wetlands which are generally lower quality or could be
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Chanhassen City Council – December 18, 2017
providing storm water function. That’s a little bit about the Wetland Conservation Act and the
process. With Avienda itself, well we did. An application was submitted and it was complete in
March 14, 2017. There was a number of meetings and staff meetings with the applicant ahead of
that. I got involved in February with this application but, and there was an incomplete
application that was submitted in February but it wasn’t complete so the applicant added some
items so we did get a complete application in March and the City issued this Notice of
th
Application which is stating that we have an application for review that went out on March 17
and since that time we’ve had actually a number of extensions of the 60 days as the applicant
worked through additional information that was needed for the application so some of that
additional information was looking at avoidance and minimization of the wetland impacts. A
storm water analysis that would also look at the remaining wetlands on site and downstream. An
evaluation of those wetland functions and values that MnRAM can tell you and information
about the wetland outlets so that was initially what we were looking for in March. So in June the
applicant submitted some more additional information related to Avienda itself and regional
lifestyle center and what those kind of things meant and the Technical Evaluation Panel, we did
have a meeting in July and that included those members of the TEP as well as the applicant.
Members of the Riley-Purgatory-Bluff Creek Watershed District and city staff and the applicant
presented their information about regional lifestyle centers and we had a discussion at that time.
From that meeting there was still information that the city, the LGU needed in order to review
the application and that included that avoidance and minimization of wetlands. A storm water
analysis was still being worked on and again looking at those functions and values if the wetland
were to be impacted. 60 day decision timelines were extended again and then in October and
November the applicant submitted the information that was, that had been requested or needed
and at that time they requested sequencing flexibility, which we’ll talk about in a minute and
they also provided the storm water model so in the Wetland Conservation Act there’s this thing
called sequencing which is avoidance and minimization of wetland impacts and there’s also in
the rules sequencing flexibility which gives you just that. Flexibility to that sequencing of
avoidance and minimization. And then the Technical Evaluation Panel did meet on November
th
30 to review that information. So you may have seen this in prior submittals and it did change
a little bit this summer probably from what you’ve seen to reduce some wetland impact and so
the areas that are pink and kind of turquoise identify the wetland impacts and so there are about
10 wetlands on the project area and they are, they are filling all wetlands except for Wetland 3,
Wetland 4 which I noticed the numbers are correct on this table by erroneously say that it is
being filled. It is not being filled. The numbers are correct though so there’s no fill of Wetland
4. They’re partially filling Wetland 6 and they are not filling Wetland 10. So overall with this
project, you can go to the next slide. They are proposing to fill 4.5878 acres of wetland. The
mitigation which is the wetland replacement. They have proposed to purchase wetland credits at
a 2 to 1 ratio so for every acre that is impacted they need to buy 2 acres of wetland credit and
those wetland credits are in a wetland bank certified by the State of Minnesota. They’re in Blue
Earth, Stevens, and Rice County. Now that may seem like far away and it is far away but it is
within what’s called the bank service area or the BSA. The bank service area represents the
major watershed in both the project and these bank areas are within that bank, the same bank
service area.
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Chanhassen City Council – December 18, 2017
Mayor Laufenburger: Is that defined by the Minnesota River?
Andi Moffatt: It’s defined by the State. The DNR for the sub-watershed areas so it’s a state
approved map.
Mayor Laufenburger: Okay.
Andi Moffatt: And the Wetland Conservation Act in certain cases lets you purchase credits
within the same bank service area so, and in their application they also requested sequencing
flexibility in the Wetland Conservation Act Rule. So that’s a little bit about their application. So
now we come, after these many months of review to a decision process and things to consider.
So as part of the decision the local government unit decides on the wetland delineation, so that’s
the boundary where that actual edge of the wetland is. The wetland types. The types are more or
less related to how wet the wetland is or what the different kind of vegetation. And then the
MnRAM functions and values. At that July TEP meeting the local government unit, the City and
the TEP concurred with the delineations. The boundary. The wetland types and the functions
and values and that is shown on this table. There are lots of Type 1 wetlands which are kind of
drier, drier wetlands. Wetland biologists like them. Sometimes my engineering friends don’t
know they’re standing in them. They don’t necessarily look like wetlands that you’re used to.
They don’t have cattails and things but they are still wetlands. There’s Type 3 wetlands.
There’s Type 5. Those are wetter and with different kinds of vegetation and then the
management classifications per that Minnesota Routine Assessment Method. We have a lot of
Manage 2’s and Manage 3’s so on that lower end of the spectrum and we do have one Preserve
wetland which is in the Bluff Creek area as Wetland 10.
Mayor Laufenburger: So Andi just to clarify.
Andi Moffatt: Yes.
Mayor Laufenburger: An M3 wetland would be a low value or low quality wetland.
Andi Moffatt: Low, you’re ranked low on the, based on the Minnesota Routine Assessment
Method classification.
Mayor Laufenburger: And a P Preserve means that’s a high quality wetland.
Andi Moffatt: Correct.
Mayor Laufenburger: Okay. Could you give us an example of another high quality wetland in
Chanhassen that we could use as a comparison?
Andi Moffatt: In Chanhassen, I may have to phone a friend for that one.
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Chanhassen City Council – December 18, 2017
Vanessa Strong: …north end of Lake St. Joe.
Mayor Laufenburger: Oh by, along Minnewashta. Okay. So that means leave it alone.
Vanessa Strong: …Galpin parcel has a little bit of both too.
Mayor Laufenburger: Okay, alright.
Andi Moffatt: It helps governments make decisions on how you want to treat your wetlands. If
you want to protect wetlands. If you want different buffer requirements. If you want different
storm water treatment or you want to protect some and let others go if you’re going to mitigate
them.
Mayor Laufenburger: Okay, alright.
Todd Gerhardt: Andi, Mayor can we go back to the map and you show Wetland 10 just so they
can see which.
Mayor Laufenburger: Which one is Wetland 10?
Andi Moffatt: Can I do this?
Kate Aanenson: Yep.
Andi Moffatt: Ooh, look at that. Wetland 10 is down here.
Mayor Laufenburger: Oh okay.
Andi Moffatt: So Wetland 10 is staying. That’s the, my cursor now went away. So Wetland 10
is not being impacted. Wetland 4 is over here. That is not being impacted. Wetland 3 is not
being impacted is not being impacted and then the green that you see left here is the part of
Wetland 6 that’s not being impacted. And the other areas, there’s 2 downstream MnDOT
mitigation areas that were also in question to be evaluated to see, to evaluate if this development
were going to hydrologically or from a water quality standpoint impact those 2 areas so that’s
good to know too so that’s here and here.
Mayor Laufenburger: Okay, but they are outside of the project area.
Andi Moffatt: They’re outside of the project area but the project area drains there.
Mayor Laufenburger: Okay.
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Chanhassen City Council – December 18, 2017
Andi Moffatt: Okay, so the applicant is requesting sequencing flexibility and that is in the rule,
sub-part 7(a) and a local government unit may allow sequencing flexibility if one of four
conditions are met. So if one of four conditions are met that specific wetland sequencing, that
specific avoidance and minimization does not apply and you would apply the flexibility. So the
first condition to consider is if the impacted wetland degraded to a point where replacement
would result in certain gain and function and value. The Minnesota Routine Assessment Method
is a way to evaluate. It’s a very common way. It’s a State approved way. It’s also the way that
the City has evaluated their wetlands. That was the measure of wetland function and value.
Wetland functions and values and that we’ve reviewed this with the Technical Evaluation Panel
and reviewed the information that was submitted and Wetlands 1, 2, 5, 6, 7 and 9, those are
Manage 2’s and 3’s. The wetland mitigation areas and those banks in those outside counties are
preserve wetlands and those mitigation areas are within the same bank service area which is
allowed by rule that you can use those if you’re using banking. Therefore this condition is met
because the wetland mitigation is of higher quality than the wetlands on site.
Mayor Laufenburger: And that condition being met, that was the judgment of the Technical
Evaluation Panel, is that correct?
Andi Moffatt: That is the judgment of my review along with the Technical Evaluation Panel.
Mayor Laufenburger: Okay.
Andi Moffatt: In addition to recognize that there is loss of function and value immediately
within Chanhassen, it was proposed that an escrow for future wetland or water quality project
within the city be taken to address that loss within the city.
Mayor Laufenburger: Okay. And will you discuss that in greater length later?
Andi Moffatt: Yes.
Mayor Laufenburger: Okay.
Andi Moffatt: The second condition would be, is avoidance of wetland would result in severe
degradation of the wetland. There’s not enough information provided to determine so this
condition 2 was not met. The third condition was, if the upland site for replacement had a
greater ecosystem function and value than the wetland and the applicant agreed to perpetually
preserve the upland site. So there’s the Bluff Creek Overlay District in the southwest portion of
the project area that is a high quality vegetated community. A wooded community. It protects
the bluff and downstream areas and there will be a perpetual conservation easement over that
Bluff Creek Overlay District that’s going to be created and this condition would then be met as
there would be that perpetual protection for that high quality upland area. And the fourth one is
whether the wetland site is a health and human safety factor. That does not apply to this case.
There’s no health and human safety factor related to that wetland being there so one did not
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Chanhassen City Council – December 18, 2017
apply so there are two conditions out of the sequencing flexibility that the Technical Evaluation
Panel believe were met or per the review. The other piece is that sequencing, which is that
avoidance and minimization cannot be implemented unless alternatives have been considered
and replacement plan is certain to provide equal or greater value. The applicant had provided
alternative analysis and those alternatives either had similar or greater impacts at other sites and
so alternatives have been considered and as we indicated the replacement plan provides greater
function and value based on that MnRAM and then additionally that escrow for a future project
within the city.
Mayor Laufenburger: So let me just stop you a second. So the applicant provided an analysis of
alternatives to the wetland and those alternatives either had similar or greater impacts so are they
using, are they describing alternatives that have been used in other parts of the city or other parts
of the state?
Andi Moffatt: The applicant looked at other potential sites within the city for a potential regional
lifestyle center as part of their initial application and those, from that review those sites either
had similar wetland impact or more wetland impact or other ecosystem impact as well.
Mayor Laufenburger: Okay, so this plan, do I understand correctly then Andi, this plan has the
least amount of impact considering the alternatives.
Andi Moffatt: It has some similar impacts with other alternatives. Some of the other alternatives
had more impact.
Mayor Laufenburger: Okay, okay. Alright.
Andi Moffatt: So that is the part with sequencing flexibility. In addition we needed to look at
the storm water analysis as this project area is within Lake Susan and the Bluff Creek watershed.
So looking at the hydrology modeling, from that information the remaining on site wetlands
which are 3, part of 6, 4 and 10 would not be negatively impacted by the storm water
management plan on the site and nor would those two off site MnDOT wetlands so those would
not be negatively impacted by the project. We also looked at the water quality related to the
nondegradation analysis and it showed that this project will meet the city requirements and I do
just want to note that this review is for the Wetland Conservation Act. This is not a review for
the Riley-Purgatory-Bluff Creek Watershed District rules. This is solely for the Wetland
Conservation Act.
Mayor Laufenburger: And it’s the Wetland Conservation Act that is the governing, guiding
document to this, is that correct?
Andi Moffatt: This is what we’re talking about tonight that the City is the local government unit
and so the storm water analysis, we look at the nondegradation. There may be other additional
requirements for other permits but that’s the purview of this permit.
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Chanhassen City Council – December 18, 2017
Mayor Laufenburger: Okay.
Andi Moffatt: So the watershed district did have comments and they did disagree with the use of
the MnRAM assessment to evaluate the functions and values due to the location of the project.
They disagree that the replacement was certain to have higher functions and values. They did
provide correction that not all wetlands on the site have been degraded by agriculture and
grading which is what we had indicated in the packet to you and that is correct. I do correct that
Wetlands 1, 2, 5, and 9 was what I was referring to in the packet as far as being graded and
influenced but I do know, I don’t believe that the watershed district would agree with that
assessment of Wetland 2 so just want to be respectful of their comments as well, if I am relating
these well so. And they do not agree that the Bluff Creek Overlay District is the only location
for mitigation for this project as there are other city locations that were provided to the applicant
for review to provide wetland mitigation in other parts of the city as opposed to looking at these
other counties. So responding to some of these comments, all along this process has been to
follow the Wetland Conservation Act rule. These rules were reviewed against the application.
The MnRAM, the Routine Assessment Method is an approved method to evaluate functions and
values. It’s a common method in the state. It is used all over the state. It was developed by
State agencies. It’s the most frequent methodology that’s used and the City also uses MnRAM
to determine the classification of the wetlands in town for your buffer widths. The MnRAM
does show greater function and value with the replacement sites. The Wetland Conservation Act
does allow replacement in the same bank service area when using banking for a project like this.
Additionally that escrow that the City is looking to take for future wetland and storm water
project will allow, will provide additional benefit for the city as well and the Technical
Evaluation Panel did concur with these findings. There was a process early on this year to locate
other mitigation within the city. The city staff provided the applicant with possible mitigation
sites and the applicant also looked at other sites as well but it was determined these sites weren’t
conducive to providing enough credit, either due to the topography, the hydrology, the type of
wetlands, the condition that they were in. There wouldn’t be enough to provide the credit that
was needed. So the recommendation tonight before you is to recommend approval of the
Wetland Conservation Act replacement plan and sequencing flexibility with the following
conditions. That the Bluff Overlay District be preserved in perpetuity in an conservation
easement. That the $300,000 escrow be provided for future project within the city. That the
completed withdrawal of banking credits, which is a form, be provided for review and signature
and that that proof of withdrawal of those banking credits be provided to the city before grading
occurs. And that engineering plans of the design of the storm water system that at least meets
the outcomes of the model that was provided for this review be submitted to the city for review
and approval prior to grading. So with that if you would have questions or comments.
Mayor Laufenburger: Alright, thank you Ms. Moffatt. I appreciate that and just bear with us as
we may have some questions here so I don’t know if we direct them to you or to Mr. Oehme.
Council members you’ve been given a lot of information here regarding what has brought us to
this point. Are there any questions from council at this time?
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Chanhassen City Council – December 18, 2017
Councilwoman Tjornhom: I have one.
Mayor Laufenburger: Alright, Councilmember Tjornhom, go ahead.
Councilwoman Tjornhom: Can we go into more detail about, under the recommendations what
recommendation 1 entails? What it really means.
Andi Moffatt: Yes. So in the southwest corner there is the bluff overlay district that’s been
identified by the city in various plans and as part of the sequencing flexibility the condition of
the getting sequencing flexibility is that the upland area would be preserved in perpetuity so this
recommendation is that bluff overlay district be put in a conservation easement as part of the
allowing sequencing flexibility for this project.
Councilwoman Tjornhom: Isn’t it already part of some conservation where you cannot grade or
disturb it? The Bluff Creek.
Kate Aanenson: That’s the ordinance.
Councilwoman Tjornhom: Yeah.
Kate Aanenson: Any request to go within the Bluff Creek Overlay District would require a
variance from the city ordinance so this would prohibit that process from moving forward to seek
variance because this would encumber that property under the Wetland Conservation Act.
Todd Gerhardt: Mayor, Kate could you put up the picture of the upland? Yeah with the trees.
Mayor Laufenburger: So this is the Bluff Creek Overlay District is identified as the southwest
corner of this property and it’s marked by a lot of trees, is that correct? And also there’s some
topography to that as well.
Andi Moffatt: Correct.
Mayor Laufenburger: Approximately how big is this area?
Todd Gerhardt: 20 acres.
Andi Moffatt: It’s roughly somewhere in the 20 acre range.
Mayor Laufenburger: Okay. Alright.
Todd Gerhardt: Kate can you just bring up the site plan and show what this area delineates and
the wetland exists in the.
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Chanhassen City Council – December 18, 2017
Kate Aanenson: So as a part of the preliminary approval this was quite a bit of discussion about,
this is the primary zone. So you can grade into the secondary zone but you can’t put a structure
in there so this is still part of that wooded area here so when we were working through the
Planning Commission preliminary and City Council preliminary approval it was decided at that
time we did give a variance for the extension of Bluff Creek Boulevard but at that time the
applicant said we’re not going to approach the variance right now because we’re getting hung up
on that regarding whether or not that building, could that building be reshaped to make it work
so.
Mayor Laufenburger: I recall that we actually approved the PUD in anticipation that there would
be something coming back.
Kate Aanenson: They would have to come back and go through that process correct.
Mayor Laufenburger: And this is tonight part of that coming back process?
Kate Aanenson: No. No. Two separate process yes.
Mayor Laufenburger: Okay. So the only thing we’re talking about is the Wetland Conservation
Act.
Kate Aanenson: That’s correct.
Mayor Laufenburger: Action tonight. Okay.
Kate Aanenson: Correct.
Todd Gerhardt: Well Mayor, council members. The key thing is you are delineating that red
dashed line as everything to the south of that red line would be in a conservation easement as a
part of the wetland mitigation process tonight so I think the applicant may want to talk about that
when they have their chance but I wanted council to understand that as a part of your action this
evening the conservation easement would take place south of the dashed red line. The little
green island with the light gray around it is the wetland. If you go back to the.
Mayor Laufenburger: That’s Wetland 4 isn’t that right?
Todd Gerhardt: Yep.
Andi Moffatt: Correct.
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Chanhassen City Council – December 18, 2017
Todd Gerhardt: And if you go back to the treed area you can see that wetland to the right. And
then the wetland, or the boundary for the Bluff Creek Overlay is the dark dashed line. Correct
Kate?
Kate Aanenson: Yep.
Todd Gerhardt: And then the secondary zone is the second dashed line.
Mayor Laufenburger: Above it.
Todd Gerhardt: Above it and then you can put parking lots, retaining walls 20 feet in from that
dashed line.
Mayor Laufenburger: The white, the light dashed line.
Todd Gerhardt: The light dashed line and then the indication of the red in the middle, do you see
the dashed red in the middle is that 20 foot buffer setback. Yep. And then nothing 20 feet to the
Bluff Creek Overlay line.
Mayor Laufenburger: Okay. Councilmember Tjornhom your question was regarding the Bluff
Creek Overlay District. Are you getting your question answered do you feel?
Councilwoman Tjornhom: Yes, thank you.
Mayor Laufenburger: Alright, okay. Anything else Councilmember Tjornhom?
Councilwoman Tjornhom: Not at this time.
Mayor Laufenburger: Alright, anybody else? Okay. Ms. Moffatt or Mr. Oehme. There’s some
language that you use that I just want to clarify. You said that the City of Chanhassen has
assumed the role of the LGU, is that correct?
Andi Moffatt: Correct.
Mayor Laufenburger: Who else would? Who else could?
Andi Moffatt: In Minnesota the County can be. The Soil and Water Conservation can be. The
watershed district can be. But many times, especially in the metro area it goes to the local, the
local, smallest local government unit which would be the cities.
Mayor Laufenburger: So we are, we are operating clearly within our authority. Statutory
authority to be the LGU for this decision.
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Chanhassen City Council – December 18, 2017
Andi Moffatt: Correct. You actually have a resolution that says the City is the LGU for the
Wetland Conservation Act.
Mayor Laufenburger: Okay. Is there an appeal process? For example if somebody doesn’t
agree with the decision that we as a city council make, is there an appeal process that somebody,
either an individual or an entity could use to say no. They’re a bunch of idiots over there at the
City of Chanhassen. They don’t know what they’re talking about and we challenge it. Can you
explain that?
Andi Moffatt: Yes. The rules, the WCA, the Wetland Conservation Act rules do provide for an
appeal process. There’s two ways to appeal. If there’s a staff decision the appeal would go to
the City Council. If it’s a City Council decision, which is what is tonight. This is a City Council
decision and any time there’s a replacement plan the City Council does review that. Those are
not reviewed. They’re reviewed but they’re not approved at a staff level so a city council
decision gets appealed to the Board of Water and Soil Resources or BWSR and then they
determine whether the executive director, the dispute resolution committee or the board, if they
are going to grant that appeal and hear that or if there’s another process that they’d need that the
council would need to consider but there’s a process within WCA for appealing decisions and in
this case the appeal would go to the Board of Water and Soil Resources.
Mayor Laufenburger: And that’s the group you call BWSR.
Andi Moffatt: Correct.
Mayor Laufenburger: So BWSR could determine, could make the determination if they receive
an appeal they could make the determination that number one, the appeal is not worthy and they
would say we uphold the decision of the LGU, the City of Chanhassen. Or upon review they
could say yeah, it sounds like maybe they didn’t, there was a couple factors that they didn’t
consider and they could then push it back to the LGU and say, you failed to consider these
things. Reconsider or we’re going to overturn your decision and we’re going to do this. Is that
correct?
Andi Moffatt: Those are all correct, yes.
Mayor Laufenburger: Okay, alright. Is there a time limit on that appeal process do you know?
Andi Moffatt: Yes pending the decision tonight what will happen is a Notice of Decision would
be submitted to the TEP, the Corps, the Watershed District, the DNR and from that point, from
that, when that is sent there’s a 30 day appeal window and then there’s a number of timelines.
60 days after that with the BWSR and with the ability to extend those 60 days as well so there
are timelines prescribed in the rules.
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Chanhassen City Council – December 18, 2017
Mayor Laufenburger: Are we obligated or excuse me, is the applicant obligated to wait until the
conclusion of those appeal times before they take action?
Andi Moffatt: I always tell applicants they run their own risk.
Mayor Laufenburger: That’s good wisdom Ms. Moffatt. Alright, let’s see. You mentioned it
during your presentation that this process actually began back in February and March. Is it out
of the ordinary for these extensions to occur in something like this Ms. Moffatt?
Andi Moffatt: Mr. Mayor this process actually started last year as well with some conversations
between city staff and the applicant. I got involved in February. It is not uncommon for these 60
day extensions for larger projects. It’s quite common for cities and applicants to extend as they
work through details and questions so.
Mayor Laufenburger: Okay, alright. Let’s see I noticed that you, you mentioned that the Riley-
Purgatory-Bluff Creek Watershed District had an objection to the method of MnRAM. Are there
other methods that could have been used?
Andi Moffatt: There are other methods.
Mayor Laufenburger: Were any suggested by Riley-Purgatory-Bluff Creek Watershed District?
Andi Moffatt: Not that I’m aware of.
Mayor Laufenburger: Okay.
Andi Moffatt: MnRAM is common. It is what the DNR and BWSR has used and the rule talks
about an approved method. It is one of the approved methods and it’s a very common method.
Mayor Laufenburger: Okay, so it sounds like you used a method that has been used. It’s not like
you used a method off the shelf that had been parked for 30 or 40 years. This is a method that is
used on a regular basis to determine the value, is that correct?
Andi Moffatt: Correct.
Mayor Laufenburger: Okay, alright. Okay. Let’s see, I just want to ask one more time. Any
other questions of council at this time? If not I think I would like to invite the applicant forward
to make any comments that they have. Is the applicant present this evening? And by the way,
before you speak Mr. Gerhardt. Does this require a public hearing of any sort?
Todd Gerhardt: No it does not Mayor.
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Chanhassen City Council – December 18, 2017
Mayor Laufenburger: Okay, so this Wetland Conservation Act permit application did not go
through our Planning Commission or did it?
Todd Gerhardt: No it did not.
Mayor Laufenburger: Okay, alright. And that’s not required?
Todd Gerhardt: No.
Kate Aanenson: Actually as it went through for the preliminary approval they, we did talk about
wetlands but this was held off in abeyance. I mean it went through part of the process. There
was comments during the entire process as it was during the AUAR but the final
recommendation has not been made yet. That’s what we’re doing tonight.
Mayor Laufenburger: Okay, alright. If the applicant is present, state your name and address for
the record and be happy to hear from you.
Kate Aanenson: Mr. Mayor, council members.
Mark Nordland: I’m Mark Nordland with Launch Properties, representing Level 7
Development. I’m at 5216 Oakland Avenue in Edina is where I live. Thank you for going
through this process. Ms. Moffatt thank you for a 10 month process that we’ve been through.
It’s not uncommon to go that long on a project of this size but we are happy to be hopefully at
the conclusion of that process now. The only thing I’d like to address is the Bluff Creek Overlay
District as Councilmember Tjornhom mentioned. As you’ll recall we were in here earlier
looking for a variance to grade into that area for a senior housing project and the feedback that
we got both from the Planning Commission as well as the council that we ought to come back
with an actual plan. With an actual operator that is intending to do it and do everything we can
to eliminate and if we can’t eliminate minimize any impact that we would have into that area and
then come back with our explanation as to why we need to go into that area. We are working
with a senior housing operator right now on planning that site and we’re doing everything we can
just as we were instructed to eliminate any issues in that area and that’s what we’re going to try
to do. We can’t promise that we won’t be back before you asking for some variance there, and if
we do we understand that we would need to go back and the TEP panel would have to re-review
that because one of the conditions of their approval is that we place the Overlay District in a
conservation easement. So that would be done prior to the actual conservation easement being
put in place here in the next couple of months while we’re preparing to grade for this site so.
Mayor Laufenburger: Okay.
Mark Nordland: That’s where that sits. For right now we need to get this permit approved
because everything, as we all have been working on this project for some time, a lot would be
longer than I have, we need to, in order to keep progress going on the site and be ready to grade
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Chanhassen City Council – December 18, 2017
in the spring we need to get this permit in place now and if we need to come back we will. We
hope not to. We hope to be able to do it without that.
Mayor Laufenburger: Okay, any questions of Mr. Nordland? Can you tell us Mark, are you
familiar with all of the evaluations by the TEP panel and are you prepared to comply with all of
the recommendations? All of the Findings of Fact of the TEP panel based on this permit?
Mark Nordland: Yeah. The conditions that were placed upon our permit, yes. With the one
exception that I just mentioned but we are right now we are okay to do that and if we want to do
something different we understand we would need to go back and ask for that and we may or
may not receive that approval.
Mayor Laufenburger: Okay. So as it stands right now then the application that you have, that
you’re bringing forward, which was approved by the TEP panel. Is that the right language Ms.
Moffatt?
Andi Moffatt: They concurred with the findings.
Mayor Laufenburger: They’ve concurred with the findings, okay. And that concurrence is the
basis for asking for the City Council to approve it this evening, is that correct?
Andi Moffatt: The local government unit, the staff review of the application along with the
recommendation. Not the recommendation. The findings with the Technical Evaluation Panel
so before you would be consideration for approval of their placement application and sequencing
flexibility.
Mayor Laufenburger: Okay. Alright. Any other?
Todd Gerhardt: …the application that was submitted.
Mayor Laufenburger: Okay which was.
Andi Moffatt: So Mr. Gerhardt is holding up that there is a sign.
Mayor Laufenburger: This was placed at all of our.
Andi Moffatt: That’s a signed Technical Evaluation Panel Findings of Fact. That those are the
findings that the Technical Evaluation Panel concurs with. The decision, the Notice of Decision
document would look a lot like the city packet information with the findings in it.
Mayor Laufenburger: Okay.
Kate Aanenson: The staff report.
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Chanhassen City Council – December 18, 2017
Andi Moffatt: The staff report, thank you.
Mayor Laufenburger: Alright, thank you Mr. Nordland. I think we have what we needed from
you. Appreciate it.
Mark Nordland: Okay, thank you.
Mayor Laufenburger: So Mr. Oehme or Ms. Moffatt, a question I have. Let’s assume for a
moment the City Council approves this motion. What’s the next action that the applicant would
take in order to move this forward? Mr. Oehme you want to speak to that?
Paul Oehme: So yeah, Mr. Mayor. If the WCA permit was approved tonight barring anybody
contesting that finding, and I think the developer would move onto potentially going through a
grading permit process.
Mayor Laufenburger: Submitting a grading plan to you?
Paul Oehme: Yeah, submitting a grading plan and there’s a slew of things that they would have
to give us for review and approvals for that grading permit. And then move onto final platting
for the public infrastructure and moving onto other planning for their development after that I
think.
Mayor Laufenburger: Okay. So it sounds to me like if we approve this process the next time
that we as a council would see this would be if there’s a modification required to the Bluff Creek
Overlay District, that would be one.
Paul Oehme: That would be one.
Mayor Laufenburger: And another one would be a preliminary plat and then a final plat. Is
there other things that would occur in there? I’m not looking for absolute precision but just give
us an idea of what.
Kate Aanenson: Yeah I think we could just do a development contract for grading permit
potentially.
Paul Oehme: We could.
Kate Aanenson: Without, just do a development contract for that.
Mayor Laufenburger: And would that require City Council approval?
Kate Aanenson: Yes.
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Chanhassen City Council – December 18, 2017
Paul Oehme: Yes it would.
Kate Aanenson: Yeah so it’d be a development contract approved but there’s, as the City
Engineer, there’s quite a few steps of approval that need to be put in place before you get the
grading permit.
Mayor Laufenburger: Okay. Mr. Knutson, you’re our legal counsel here. Are we doing
everything according to statutes this evening?
Roger Knutson: Yes you are Mayor, and just exactly right.
Mayor Laufenburger: Okay, alright. We always like to hear that. I know you tell us we can do
anything we want but we try to follow the rules here if we can. Alright. Okay could we have
that motion up on the screen just for a moment please? Okay. Before we go, before I ask for
any further discussion or action from the council we have a member of the Riley-Purgatory-Bluff
Creek Watershed District, Claire Bleser is with us this evening. Claire is there anything that you
would like to address to the council? This is not a public hearing but I invite you. You
obviously have an interest in this.
Claire Bleser: I do.
Mayor Laufenburger: Alright, just state your name and your association.
Claire Bleser: Yeah so my name is Claire Bleser. I’m the administrator for the Riley-Purgatory-
Bluff Creek Watershed District. We’re located in Chanhassen at 18681 Lake Drive East so not
too far away from here. A little bit about us. We are here to protect, manage and restore our
water resources. Last year actually we began our 10 year management plan, similar to what you
guys have as Comprehensive Plan. We also have it for our world. Our water world. Through
that process we actually engage all of our stakeholders. Our residents. We had workshops in
Chanhassen and throughout our district and a majority of our respondents were concerned about
our wetlands and today you’re making decisions on the wetlands that you have in Chanhassen
which are a part of the Bluff Creek watershed as well as the Riley Creek watershed. Those
wetlands are a benefit to the people because they view as amenities, not only for scenic and
wildlife viewing but as well as flood control. As well as filtering pollutants out of our
environment before they enter either our ground water or creek or in this case Bluff Creek or
Lake Susan. We are, you know we see this development as wiping out quite a few of our
wetlands. The same resources that our residents have say they highly value. Wetlands was
actually identified as a second most valued water resource in our watershed district. First one
was being Purgatory Creek. Longest creek on the east side. Wetlands was number two. So I’m
here today to talk a little bit about those public values or our equal greater values as you’ve heard
Ms. Moffatt talk about. Yes there are some replacement in Blue Earth, Stevens and Rice County.
Nowhere near close to Bluff Creek or Lake Susan. Wetlands that you have currently here for
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Chanhassen City Council – December 18, 2017
that particular development will not be replaced in Chanhassen. They will not benefit Bluff
Creek. They will not benefit Lake Susan. Two impaired water body. I had asked the question,
and I haven’t received an answer yet, in regards to those wetlands that are banked in those other
counties, how many are draining to impaired waters? And I don’t know. But you have two
impaired waters within this city and these wetlands are you know part of that complex. Part of
those water bodies that make them either healthy or unhealthy. In this case we’re taking you
know these bodies that help filter pollutants and we’re taking it aware and we’re putting concrete
so you know I speak on behalf of the watershed district but I’d like you to remember that through
our public comment, public planning process we really heard loud and clear from our residents
the importance of wetlands in our district and this is why within our planning process we really,
we have goals and objectives tied to our wetlands and you know adding the functions and values.
The same terminology you heard earlier within our watershed district. So I just you know want
you to be aware. You know you have a decision to make. We understand that but we, as a
watershed district are concerned about water resources and wetlands are a part of who we are and
our goal, we’re charged through the State to protect and restore those water bodies so with that
thank you.
Mayor Laufenburger: Can you stand for a question or two Claire?
Claire Bleser: Sure.
Mayor Laufenburger: Any questions of Claire Bleser? Go ahead. Mr. McDonald you have a
question? Or a comment.
Councilman McDonald: Well I guess I’ve got a question and I’m looking for a comment. I’ve
listened to everything that’s been said and it would appear that by going by these rules of WCA
and what we’re trying to achieve here is a balance between economic development and I guess
the environment and saving the wetlands. Do you agree that at least the process that we have
gone through, that that thought was kept upper most as far as achieving a balance?
Claire Bleser: Through this process, so we were in the process earlier on and then we weren’t
part of the process so the last TEP meetings that have occurred we actually, the watershed
district was not engaged in that so I’m not, I wasn’t there within those discussions. Earlier part
the applicant had actually provided examples of avoiding impacts on those wetlands and, versus
they have 3 different scenarios and the first scenario actually avoided impacting some of these
wetlands. There were some impacts but a majority of those wetlands were left intact. And now
you know with what you’ve seen today, a majority of the wetlands are gone so with that aspect
you know I see the public value for these wetlands as disappearing within our community and
going to you know really far away from us and really our benefits to your resource, Lake Susan
and Bluff Creek, those wetlands are not going to benefit those impaired waters. They’re gone.
They’re not being replaced within those sub-watersheds so I can’t speak for what has happened
th
in the last 6 months. You know the last TEP meeting we were at was July 11 and I know there
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Chanhassen City Council – December 18, 2017
have been others so all I know is what was provided in writing and also the email that we
received today.
Councilman McDonald: Okay, thank you.
Mayor Laufenburger: Claire, what’s your view of what I think is a pretty substantial, I’m not
sure what the word is you used to describe that $300,000. That $300,000 is offered. What’s the
proper word to describe that Ms. Moffatt, do you know? How would you describe it?
Andi Moffatt: We just call it an escrow to locate another project within the city for wetlands and
storm water.
Mayor Laufenburger: Okay. So it’s quite possible that that would be, that’s money that could be
used to specifically impact positively either Bluff Creek or Lake Susan or Riley Creek, would
you agree? It could be.
Claire Bleser: I can’t agree because I don’t know what is being proposed with it or what’s the
intent of how you’re going to use it so I can’t agree or I can’t deny on it because there’s not
enough information you know.
Mayor Laufenburger: But if that, if some of those funds were used to improve, preserve or
protect waters in the watershed district, that would be a good thing wouldn’t it?
Claire Bleser: So it’s, let me answer it a different way.
Mayor Laufenburger: I was looking for a yes or no.
Claire Bleser: I’m not going to answer it yes or no. I’m going to bring an analogy. If you think
about a wetland or a lake and let’s say it breaks apart, right. So it’s a clay pot and it breaks apart
because it was filled and you come back later on and you try and restore it. It’s really hard to put
the clay pot back together. You’re going to have some omissions and all that. A water body is
like a human body. There’s all these different parts that work together to make it healthy. As
soon as you fill it in for example, or if you dump oil in it or raw sewage or some type of
pollutant, it’s really hard to make it healthy again unless you find the right technology or in our
case the right medicine to help it make healthy but it’s not going to be the same. So you know
I’m not sure if there is a, if that is enough money to be able to replace the functions and values of
those wetlands for Bluff Creek and Lake Susan. Both are impaired. So there’s a lot more
analysis that would need to be done but it’s a very difficult question to ask.
Mayor Laufenburger: Oh no it was easy to ask. It may be difficult to answer.
Claire Bleser: I mean right, difficult to answer yes.
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Chanhassen City Council – December 18, 2017
Mayor Laufenburger: Alright. Secondly you mentioned, you made reference to Purgatory Creek
as the second most just, it’s the what?
Claire Bleser: Yeah, the first. So the first, so we asked our residents what are the resource of
concern to you and Purgatory Creek was our number one. Number two was wetlands.
Mayor Laufenburger: Is Purgatory Creek in Chanhassen?
Claire Bleser: You know actually the northern tip is. So if you look at Lotus Lake.
Mayor Laufenburger: How much?
Claire Bleser: Just you know when Pleasant View kind of curves around, you have actually the
drainage goes to Silver Lake and that’s one of the headwaters to Purgatory Creek. So we have
for council members, if you’re not familiar with our watershed district we have parts of 7
different communities. Eden Prairie, Chanhassen, Bloomington, Minnetonka, Deephaven and
Shorewood and a few blocks in Chaska.
Mayor Laufenburger: Okay, alright. Thank you Claire.
Claire Bleser: Yeah, thank you.
Mayor Laufenburger: Appreciate it. Alright let’s bring it back to council. Any other questions
or comments or actions that you’d like to take tonight? You have a motion in front of you if
you’d like to make that.
Councilman McDonald: Mr. Mayor.
Mayor Laufenburger: Councilmember McDonald.
Councilman McDonald: I’ll make the motion that the City Council approves the WCA
replacement application and sequencing flexibility with conditions for the Avienda project.
Mayor Laufenburger: Alright, we have a valid motion. Is there a second?
Councilwoman Tjornhom: Second.
Mayor Laufenburger: Thank you Councilmember Tjornhom. Alright the motion is to approve
the WCA replacement application and sequencing flexibility with conditions for the Avienda
project. Is there any further discussion?
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Chanhassen City Council – December 18, 2017
Resolution #2017-77: Councilman McDonald moved, Councilwoman Tjornhom seconded
that the Chanhassen City Council approves the WCA replacement application and
sequencing flexibility with the following conditions for the Avienda project:
1. The 20 acre Bluff Creek Overlay District in the southwest corner of the project area be
preserved in perpetuity through a conservation easement.
2. A $300,000 escrow be provided by the applicant for a future wetland/stormwater
improvement project(s) in the city.
3. Complete the Withdrawal of Banking Credits form for LGU review and signature.
4. Provide proof of withdrawal of the wetland banking credits from the banks once the
withdrawal is completed.
5. Engineering plans of the design of the stormwater system that at lest meets the outcomes
of the stormwater model provided with the WCA application be submitted to the City
Engineer for review and approval prior to grading.
All voted in favor and the motion carried unanimously with a vote of 4 to 0.
Mayor Laufenburger: Thank you council. Thank you Ms. Moffatt, Mr. Oehme. All those of
you involved in this. That was the only item on our agenda this evening. May I have a motion
to adjourn.
Councilwoman Tjornhom moved, Councilman Campion seconded to adjourn the meeting.
All voted in favor and the motion carried unanimously with a vote of 4 to 0. The special
City Council meeting was adjourned at 7:55 p.m.
Submitted by Todd Gerhardt
City Manager
Prepared by Nann Opheim
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