7.a)1) Malkerson Gunn Martin Letter Dated 01-15-13 Re: Zavoral Mining and Reclamation Project N
MALKERSON GUNN MARTIN LLP
1900 U .S. BANK PLAZA SOUTH TOWER
L Z O S O U T H S 1 X T H S T R E E T
MINNEAPOl.15, MINNESOTA 55402
TELEPHONE 612-344- t � � �
FACSIMILE 612•344- 1414
Bruce D.Malkerson
Direct Dial No.612.344.1699
Bruce.Malkersonl�rt m¢mll .com
Janua�y 15, 2013
VIA EMAIL (council(a�ci.scandia.mn.us)
Mayoi•Randall Simonson
City Council Members
Councilrnember Chris Ness
Councilmember Sally Swanson
Councilmember Jim Schneider
Councilmember Dan Lee
City of Scandia
14727-209th Street Noi�th �
Scandia, MN 55703-8503
Re: Zavoral Mining and Reclamation Project
Our File No.2452.001
Dear Mayor Simonson and Councilmembers:
I write on behalf of Jim and Kathleen Zavoral,the owners of the property of the proposed
Zavoral Mining and Reclamation Project(the"Project"). The purpose of this letter is to urge the
Council to grant the Conditional Use Peimit(the"CUP") sought by Tiller Corporation("Tiller").
The Zavorals fully support this Project as it provides a very significant benefit to their
neighborhood and the community of Scandia. Obviously,there is a benefit to them personally as
well. It is important to note,however that this Project is limited in scope. This is intentional and
reflects their desire that the primary purposes of this Project be balanced in a way that has a
positive effect at its completion. The mining interest in bringing this valuable material to market
is balanced with the reclamation interest in assuring that upon reclamation the Project site ties
back into the area in a way that substantially improves the neighborhood and allows it to be
assimilated into sun-ounding properties.
M
Scandia City Council
January 15,2013 �
Page 2 '
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This Project by combining a limited amount of mining with the site reclamation provides I
a unique opportunity to reclaim this property that will not be able to be duplicated in the future.
Notwithstanding the benefits of this unique opportunity,it is also important that the Council
considers Zavorals' interests as the owners of this property. When the Scenic Easement was
acquired nearby the Project area was not included. The mining area is wholly outside the scenic
easement area acquired as a buffer for the Wild and Scenic St. Croix River. The Project does
include reclamation grading within the scenic easement,but only to reclaim the previously mined
area therein. The mining area is not on propei�ty that has been acquired for scenic easement and
thus is not restricted in use by the Park Service programs.
Tiller's application seeks approval of the mining use which is under the CiTy's
Development Code and Comprehensive Plan in effect at the time of the submission of the
application for the conditional use. This is the correct legal standard that has been consistently
and correctly applied during this process for reasons outlined by the City Attorney,the attorney
for Tiller and the undersigned in my letter to the City Council dated May 26, 2011. The
Zavorals'property has been tied up in an environmentai review process for four years while the
environmental performance of this Project was scivtinized very carefully. As a consequence of
that scrutiny,the City has produced an Environmental Impact Statement("EIS")that clearly
describes the basis upon which the City Council may conclude(and in fact must conclude)that
the Project meets the City's Conditional Use Permit standards described in its ordinance. City
Staff has presented an analytical staff report describing in great detail the standards applicable
and the manner by which those standards are met at multiple times during the Planning
Commission and City Council's review of the Project. After the extensive testimony provided
by the public and Project opponents, Staff has continued to recommend approval. It is axiomatic
in state law that the City must have a rational basis for its actions in considering the CUP
request. This rational basis is met when the City acts in accordance with adopted ordinance
standards. Staff has described in detail how these standards are met by the Project. When
considering the criticisms of the Project,it is also important that the City Council recognize the
significant distinction between expressions of unsubstantiated fears and concerns as contrasted
with objective analysis of Project impacts. The Minnesota courts have made it clear that a
rational decision on a permit is not well founded if it is based only on projected fears and
concerns. Stated another way a criticism"the Project might..."is not rational;the criticism"the
Project will..."could support a rational decision. When the Council reviews the record of the
proceedings by the Planning Commission and the information gathered in the EIS,this
distinction is well demonstrated.
It is also important to bear in mind that in making a land use permitting decision, as
opposed to review ofthe EIS,the Project's qualities to be evaluated are not the"worst case
scenario"that is evaluated in the EIS, but rather the mitigated Project with reasonable conditions
imposed through the conditional use permit. Thus, here by applying the conditions described in
the Staff Report the Council can readily and must conclude that the CUP standards are met.
{153839.DOC- 1/15/2013}
Scandia City Council
January 15,2013
Page 3
Quite fi-anlcly,it would be clearly arbitrary and illegal n�t to approve the CUP. A denial of the
CUP will result in a substantial financial loss for my clients and a denial of their rights as the
owners of the property on which this Project is to be located.
On behalf of the Project landowners,we request that the City apply these standards to the
Project. As shown in the city staff report and submittals from Tiller Corporation there is a solid,
rational basis for approving the Project. There is no legal basis for denial. For these reasons,the
Zavorals request that the City approve the Conditional Use Permit so that this impoi�tant Project
can commence and be promptly completed.
Very truly yours,
�s.J�,�„�,i.�� � .
Bruce D. Mallcerson
c: Kristina Handt, City Administrator(k.handt(a�ci.scandia.mn.us)
Tom Miller, City Attorney(tom_;,,,�a millerstevens.com)
Sherri Buss, City Planner(sherri.buss a�tkda.com)
Dr. James Zavoral and Kathleen Zavorai(jimzavoral,yahoo.com)
Gregg Korstad(gkorstad�a,larkinhoffman.com)
{153839,DOC- 1l15/2013}