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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