(really, that’s their “site plan” — how informative!!)
It’s in the news, Concerned River Valley Citizens’ suit against LS Power, Lent Township and Chisago County had a hearing last week. Short version:
Judge Hoffman said he wanted to be armed with sufficient information to make a decision. He asked for just one thing – a written transcript of the legislative discussion that preceded the adoption of the legislation regarding the tax exemption in 2009, specifically subdivision 92 pertaining to the obtaining of the development agreement.
He asked the attorneys to write a letter to the court when it is provided and then he will make his decision.
The judge believed this information is important and he can’t be obligated to make a decision until he knows what the legislation said about approval of a development agreement “before” the start of construction.
Most committee meetings now are available online, and the legislative library provides tapes. One problem is that the legislative intent is rarely conveyed in the committee meetings, and all the behind the scenes doings aren’t going to see the light of day.
The statutory section at issue – Minn. Stat. 272.02, Subd. 92.
Here’s the Summons and Complaint from last June:
CRVC -Summons and Complaint
For more info, go to www.stopsunriseriverplant.com
From ECM Post Review:
Wednesday, 06 October 2010
By MaryHelen Swanson
In courtroom 202, Tenth Judicial District Judge John C. Hoffman heard from attorney Douglas Sauter of Barna, Guzy & Steffen, Ltd., representing the CRVC and Carlson, and three attorneys representing Chisago County, Lent Township and LS Power (Sunrise River Energy) respectively.
The CRVC and Carlson have filed a civil lawsuit against the three entities named above in connection with the siting of an electric generating power plant in Lent Township.
The attorney for Chisago County, separately retained, explained to the judge the proposal by LS Power and the coalition’s argument that there is no pre-emption to county zoning ordinance. The county’s attorney says there is pre-emption.
The attorney showed the judge the legislation enacted in 2009 that required a development agreement and host agreement before tax exempt status is granted.
The attorney said in his opinion, the county, as well as Lent Township, did nothing wrong, it was what they needed to do.
The CRVC and attorney believe that the cart has been put before the horse and argues that the sequence of events is wrong.
Attorney Sauter provided Judge Hoffman with background on the proposal, which has LS Power constructing a 780 MW natural gas-fired electric generating plant on 40 acres in Lent Township, property adjacent to the substation off County Road 14.
Giving details of the LS Power proposed project, Sauter told the judge the presence of such a large plant would destroy the nature of the community and Carlson’s ability to sell high end lots in his nearby development.
The process, he stressed, is important.
Sauter said the plant currently is not permitted by ordinance or conditional use permit in either the county or Lent Township.
He argued that getting the development agreement before going to the Minnesota Public Utilities Commission (PUC) was the wrong order.
Sauter pointed out that the statute says the development agreement must be obtained before construction to get the tax break.
But he said, LS Power said they needed it before going to the PUC and didn’t want to incur high costs unless they had the assurance that the tax exemption would be given.
Sauter also told the judge that the proposed plant was not a public utility and said the electric generated was most likely not going to be used in Minnesota.
Again, saying the process is extremely important, Sauter said all people in the community would be affected.
He also noted that there have been public meetings concerning the plant, but not with the PUC.
When Sauter told the judge about the county board’s overturn of its decision and re-vote to approve the development agreement last March, the judge simply said county boards deal with that all the time.
Again Sauter’s argument went to the sequencing of the process.
There is no pre-emption until they (LS Power) get a site permit and purchase the property, Sauter said.
LS Power does not own the property, a question the judge had asked early on, but the owner allegedly is willing to sell it, it was noted.
The judge said that in the end, neither the county nor township can approve the plant.
Sauter countered that unless the PUC steps in, local zoning prevails.
Sauter said his clients want a fair hearing and that what happened at the county board was flip flop.
So all shareholders have a fair hearing, he went on, the proposal should be put in proper sequence and that means going through the PUC first and an environmental review.
When the site permit is issued, there is pre-emption and local law doesn’t apply any more, Sauter said.
At that time, LS Power should seek the development agreement, he went on, saying until then “it’s a death penalty to the community as it exists.”
“Process, process, process,” he repeated, adding the action taken was contrary to the county’s own law.
“We’re not talking about expanding the chicken coop here,” he said.
Sauter concluded, “If we go through the process and lose, so be it.”
The judge was interested in how long the substation was located there.
Sauter said it was a long time, but it doesn’t generate electricity and there is no noise and no trucks hauling fuel.
Sauter said his clients invite the process to go forward with the PUC.
The attorney for LS Power noted that within the PUC process there is two review processes for siting a plant.
The judge acknowledge that, but said even if the shorter process is used, a full environmental review would be required.
The attorney representing Lent Township said that neither the county nor the township have violated anything.
Judge Hoffman said he wanted to be armed with sufficient information to make a decision. He asked for just one thing – a written transcript of the legislative discussion that preceded the adoption of the legislation regarding the tax exemption in 2009, specifically subdivision 92 pertaining to the obtaining of the development agreement.
He asked the attorneys to write a letter to the court when it is provided and then he will make his decision.
The judge believed this information is important and he can’t be obligated to make a decision until he knows what the legislation said about approval of a development agreement “before” the start of construction.
He did say “before” might have an issue of ambiguity.
There’s no violation of zoning here, said the defendants’ attorneys, adding that LS Power can’t build until it is approved by the PUC.
Judge Hoffman concluded the hearing saying once he gets the word on Sub. 92 (in the legislation), he’ll begin making his decision.
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