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8.f)1) Addition � . -�) � Larkin a�� �.�_�o�� H0�• n ��_ Iarkin Hoffman Daly&Lindgren Itd. ATTOIlNEY4 ��("����F C�f"1 1500 Wells Fargo Plaza � �`� �J 7900 Xerxes Avenue South �. Minneapolis,Minnesota 55431-1194 j��.' . ifi � GENERAI: 9SZ-H3S-3HOO Fax: 952-896-3333 C I T Y O F S C A N D I A wEs: www larkinhoffman.com May 13, 2011 David Hebert, Esq. Scandia City Attorney 20 Lake Street North Forest Lake, MN 55025 Re: Zavoral Mining and Reclamation Project Dear Mr. Hebert: I write on behalf of our client, Tiller Corporation ("Tiller") to address the legal issues raised by opponents of Tiller's efforts to complete the Zavoral Mining and Reclamation Project(the "Project"). We represent Tiller in connection with its 2008 application to the City of Scandia for a conditional use permit("CUP"), consistent with the then-current comprehensive plan and zoning ordinance, for the Project. I have again reviewed the legal issues raised once again regarding the planning controls under which the City should decide Tiller's application and found no changes in the law which would affect this issue. The information presented by project opponents is not significantly different from that presented to the City last fall. As the City has previously decided, it should review Tiller's CUP application under the regulations existing at the time Tiller applied. The law continues to support that decision. Tiller has worked with the City and in compliance with the environmental review laws for almost three years, investing significant time and expense in its property and the application throughout that lengthy period. Initially, Tiller completed the Environmental Assessment Worksheet in December 2008. Several months later—but even before the comprehensive plan amendments—the City determined that it would require preparation of an Environmental Impact Statement for the Projectl before the City will decide whether to grant or deny Tiller's application. The City's earlier decision to treat Tiller's application under the comprehensive plan and ordinances effective at the time of Tiller's application demonstrates that the City understands it 1 Tiller then continued the process of providing to the City and its consultants information concerning Tiller's application and the potential environmental impacts of its intended use and commissioned the technical research and evaluation needed to support the EIS. Tiller and the City's consultants have been actively engaged in obtaining the information identified by the consultants. This process has resulted in the proactive determination by Tiller to remove certain controversial components from the Project and a determination by the City to revise the scope of its EIS, allowing the City to present a very thorough and well studied Environmental impact statement of the Project David Hebert, Esq. May 13, 2011 Page 2 has the power and discretion to do so. Eagle Lake of Becker County Lake Assoc. v. Becker Counry Bd. of Comm'rs, 738 N.W.2d 788 (Minn. App. 2007). The ability to treat an application under the law existing at the time of the application is consistent with fair play, as well as the realities of the environmental review process that extends the period of time between an application submission and decision (which naturally increases the chances of a change in law while the application is pending, simply due to the passage of time). We reviewed Minnesota law concerning the City's authority in this respect and confirmed that it has not changed since this issue was before the Council in December. There has been one new unreported appellant decision relating to a land use applicant's property rights, the Minnesota Court of Appeals' recent decision in Continental Prop. Group, Inc. v. City of Minneapolis,No. A10-1072, 2011 WL 1642510 (Minn. App. May 3, 2011). This case is about the extent to which a property right to a land use permit is implicated in denial of an application, an issue which has been raised by project opponents,but does not affect the legal analysis. The Continental Prop. decision is not relevant to Tiller's situation because it does not concern the power of the City to review an application under the laws and regulations existing at the time of the application. As we have previously indicated, the law permits the City to review Tiller's application under the legal framework existing at the time it was submitted. Nothing has changed to support a different position. Very truly yours, Gregory E. Korstad, for Larkin Hoffinan Daly& Lindgren Ltd. Direct Dial: 952-896-3292 Direct Fax: 952-842-1722 Email: �korstad(a�larkinhoffman.com 1355502.1 . D - � � � e �`����� J Tiller Corporation �� nnd its oYemtiug divisrons i TI L L E R �rton Sand dL Gravel Co. Commercial Asphalt Co. C O R P O R AT I O N' CITY OF SCANDfA B��nEnterprises,lnc. Corporate Office: General: (763)425-4191 P.O.Box 9480 Facsimile: (763)425-7153 7200 Hemlock Lane,5uite 2W Web: www.tillercorp.com Maple Grove,Minnesota 5531]-6$40 May 16,2011 Mayor Randall Simonson Council Member Connie Amos Council Member]im Schneider Council Member Chris Ness Council Member Sally Swanson City of Scandia 14272 209th Street North Scandia, MN 55703-8503 Re: Zavoral Mining and Reclamation Project:Updated Studies and Data Submittals for Environmental Review Dear Mayor Simonson and Council Members, This letter supplements the information you received in the council packet for your May 17, 2011 meeting.It describes in greater detail the work done by and on behalf of Tiller Corporation (Tiller),the project proposer,in support of the environmental impact statement ("EIS")being prepared by AECOM on behalf of the City of Scandia. Tiller has made the submittal requests and understands AECOM is continuing to review project information and is preparing the Draft EIS. This EIS continues to be the most comprehensive and thorough examination of a modest scale gravel pit we have been involved in. We are con6dent that the City's environmental review and very rigorous scrutiny to which this project has been subjected will benefit everyone. We are also very pleased that the additional evaluation of this project over the last year has confirmed the objectives of Tilier's determination that the environmental performance of the mining and reclamation project would be substantially improved by operating the Zavoral siCe as a source of unprocessed aggregates only. This decision has resulted in elimination of many of the concerns relating to the potential environmental effects of dust,noise,visibility and groundwater appropriation which were raised as concerns arising out of the washing,stock- piling,sorting and crushing activities commonly associated with facilities producing construction grade aggregates. Tiller's decision to remove the processing activities has resulted in a project with a meaningfully reduced potential for impacts. The most significant issue addressed in this subsequent information gathering activity relates to reclamation alternatives and the desired approach of obtaining input and guidance from a broad set of interested agencies early in the process. Tiller and its project consultants,Critical Connections Ecological Services and Sunde Engineering PLLC,met with individuals from the National Park Service,Washington Conservation District and MN Department of Natural Ma�16,2011 �� Page 2 of 3 Resources to discuss proposed reclamation alternatives.After this meeting and consultation with City staff and A6COM,Tiller and its project consultants submitted reclamarion and management plans that we beiieve most effectively improves the property and its relationship to the adjacent river way protection district�nd other properties in the immediate vicinity. Data Submittal and Analy,gis Performed On December 17,2010 a timeline for Tiller's submittals of data for AECOM's review and incorporation into a draft EIS was developed. This timeline identified various component items which AECOM identified and a schedule for submittal of those items by Tiller. This timeline did not,however,provide f�r the required continued interaction among and between the numerous entities involved in preparing the studies and evaluating progress in data submittals. During the last 5 months Tiller has submitted a variety of reports,studies and analyses received comments from AECOM and revised and updated those reports. • December 23, 2010-CADD Files for Mining and Phasing • December 23, 2010-Air Emissions Data • December 28,2010-Equipment List • January 4,2011-Waste Disposal Methods and Amounts * January 17,2011 - Mine Plan and Project Description; Mining Process and Site Layout; Air Emissions Data Supplemented • January 19,2011 -Wetland Report • February 15,2011 -Noise Report • February 16,2011 -Visual Analysis • March 30,2011-Visua]Analysis in native format and G1S Data from Critical Connections is submitted • April 5,2011-Tree Survey Report • April 5,2011-Air Emissions Data Supplemented • April 18,2011 -Mining Plan Revised and Resubmitted • April 25,2011 -Economic Data Submitted • April 29, 2011 -Economic Data Supplemented • May 3,2011- Forest Management Plan,Reclamation Plan,Historical Land Use Repori submitted , Mct�16,2011 �� Page 3 of 3 Now that all of these submittals have been completed,and assuming that they have been reviewed on an on-going basis EIS preparation acCivity can proceed in earnest.Tiller is ready to provide any additional information or support requested by AECOM or the City. If you have any questions please do not hesitate to call. I may be reached at(7b3)425-4191. Respectfully, Tiller Corporation Michae Caron Director of Land Use Affairs