9.a 5 letter from Ameresco legal counselLarkin
HoDrnrul
August 12, 2016
The Honorable Mayor Randall Simonson
City of Scandia
Scandia Community and Senior Center
14727 2091h Street N.
Scandia, MN 55073
Councilmember Jim Schneider
City of Scandia
Scandia Community and Senior Center
14727 2091h Street N.
Scandia, MN 55073
Council Member Bob Hegland
City of Scandia
Scandia Community and Senior Center
14727 2091h Street N.
Scandia, MN 55073
Larkin Hoffman
8300 Norman Center Drive
Suite 1000
Minneapolis, Minnesota 55437-1060
GENERAL, 952-835-3800
FAX, 952-896-3333
WEB, www.larkinhoffman.com
Councilmember Chris Ness
City of Scandia
Scandia Community and Senior Center
14727 2091h Street N.
Scandia, MN 55073
Councilmember Dan Lee
City of Scandia
Scandia Community and Senior Center
14727 2091h Street N.
Scandia, MN 55073
VIA EMAIL and US MAIL
Re: Ameresco - Scandia Community Solar Garden Project
Our File #35,211-04
Dear Mayor Simonson and Councilmembers:
We represent Ameresco, Inc. ("Ameresco") with respect to the conditional use permit (CUP)
application ("Application") for the proposed community solar garden (the "Project") located at
23359 Oldfield Avenue North ("Property") in the City of Scandia ("City"). On August 16,2016,
the Project will again be before the City Council. Throughout the Application review process
Ameresco has made a concerted effort to address and respond to any and all concerns raised by
City staff, the Planning Commission, and City Council, particularly as they relate to screening
and landscaping of the Project. Ameresco has detailed its response in the document titled Plan
Revisions, dated August 9, 2016, and the accompanying site plan and planting schedule.
The purpose of this letter is to reiterate the legal standard for the City'S review of the Application
and confirm that Ameresco has met the legal requirements for screening and landscaping under
the City'S ordinance.
Mayor Simonson and City Councilmembers
August 12,2016
Page 2
Reasonableness Standard
As the City attorney noted at the June 21, 2016 Council Meeting, the City's ordinances must be
interpreted in a "reasonable" manner. This is because under Minnesota law, the legal standard
for the City's decision related to any zoning action is whether the zoning authority's action has a
"reasonable basis" for the decision. Courts will overturn a City's decision where it is
unreasonable, arbitrary and capricious. See Honn v. City of Coon Rapids, 313 N.W.2d 409,416-
417 (Minn. 1981). In granting or denying a CUP, "reasonableness" is measured by the standards
set by the zoning ordinance. Id. at 417.
Moreover, any decision by the City must be rationally related to the health, safety, and general
welfare. The courts will find that denial of a CUP is arbitrary and unreasonable when the
application meets the standards established under the ordinance and "does not endanger the
public health or safety or the general welfare of the area affected or the community as a whole."
Id. Any detrimental impacts to the health, safety, and general welfare must be legitimate and
demonstrable claims. Minnesota courts will reverse a denial of a CUP based on unproven and
unsubstantiated concerns about potential devaluation of property values or general criticisms
related to the application. See Earthburners, Inc. v. Cty. of Carlton, 513 N.W.2d 460,461
(Minn. 1994 )(reversing CUP denial based on ; C. R. Investments, Inc. v. Vill. 0/ Shoreview, 304
N.W.2d 320,325 (Minn. 1981) (reversing CUP denial based on vague criticisms and opposition
of nearby neighbors); In re Stuckmayer, No. A09-30, 2009 WL 4910053, at *8 (Minn. Ct. App.
Dec. 22, 2009).
Consistency with the City Ordinance
As is detailed in the staff report, the Application meets the findings required for granting of a
CUP and is consistent with the adopted Comprehensive Plan policies. Through extensive
revisions, Ameresco has also satisfied the Primary remaining issue relating to the performance
standard pertaining to screening of community solar gardens, which reads as follows:
Solar farms and community solar gardens shall be screened from view from the
public right of way to the extent possible by setbacks, berming, existing
vegetation, landscaping, or a combination thereof.
City Code Sec. 4.34(4)(G)(emphasis added). Minnesota law requires that the City Council's
application of this language must be reasonable and rationally related to the health safety and
general welfare. Based on the City Code, the City cannot legally deny the Project plans based
on a failure to provide 100% screening. Nor could the City deny the Project for failure to
provide a practically unfeasible and unreasonable berming and landscaping.
As is detailed in the Plan Revisions document and accompanying site plans and planting
schedule, Ameresco has satisfied the screening requirement and the requirements under the law
for granting the Application. The Project site plan and planting schedule represent the product of
several months of efforts by Ameresco to satisfy the City Code, including three (3) Planning
Commission meetings, two (2) City Council meetings, and two (2) on-site meetings with
neighbors and Planning Commissioners.
Mayor Simonson and City Councilmembers
August 12,2016
Page 3
The planting schedule includes more than 600 plantings, consisting of 19 tree and shrub species.
As is described in more detail in the Plan Revisions document, many of the proposed plantings
will eventually grow to 40 to 60 feet, screening the majority of the Project when mature. Taller
plantings would not be feasible due to the soil conditions, lack of water source, and the low
survivability of transplanted trees in excess of the height proposed. Based on the conditions,
grading, and topographical limitations of the site the Project will be screened to the extent
possible.
Ameresco has demonstrated that the Application meets the required findings under the City Code
to obtain approval of the CUP, including compliance with the screening requirements. The
proposed screening plan will screen the Project to the extent possible, and will satisfy the City
Code. Ameresco has strived to meet the requests of the community members, the Planning
Commission, and the City Council, and will continue to do so in the future; however, denial of
the plan as proposed would be arbitrary, capricious, and unreasonable. We strongly encourage
the City Council to approve the Application and grant the CUP.
Please contact me with any questions about this letter or the information contained herein.
Sincerely,
Jacob W. Steen, fo
Larkin Hoffman
Direct Dial:
Direct Fax:
Email:
952-896-3239
952-842-1738
i steen@larkinhoffman.com
cc: Neil Soltis, City Administrator
Andy Pratt, City Attorney
Sherri Buss, City Planner
4836-0347-8070, v. 2