Legalectric

Last night was the I-35 Committee 1 meeting. Lesson learned:

WE NEED THE COST INFORMATION NOW!

What will it cost to upgrade this Co. Rd. 1 and Co. Rd. 46 intersection to handle the ultimate planned buildout, which, with area growth projected in the county transportation plan, goes from 400 trips/day to 9,270 trips/day east west on Co. Rd. 1, and from 160 trips/day to 4,400 trips/day north south on Co. Rd. 46. What will it cost to tear down the Co. Rd. 1 bridge and rebuild it to 4 lane or wider with turn lanes? Who is going to pay?

The committee was presented with the traffic information yesterday, and Leif Knecht is considering the costs of infrastructure for the I-35 development, and he’s on to something here. He started out on infrastructure costs clarifying that though we know it’ll only be an estimate, a range to expect, we need to know how much it will cost. He also said that we should be aware of what the costs would be NOT to develop the area.

The consultant’s answer to this question was not encouraging. He said that this would be addressed primarily in mitigation, after sending it out to the agencies.

My question: If it happens only AFTER it is sent to the agencies, how will agencies be able to review for reasonableness and feasibility and completeness and accuracy and whateve else the agencies will check? How will citizens be able to comment on it if that information is not available until the mitigation phase? The mitigation phase is AFTER the public comment period, it is the phase where public comments are addressed. THIS IS A PROBLEM.

Leif’s response to their timing suggestion?

Tom McMahon, Dundas engineer, was also questioning the plan of doing the infrastructure in the order planned, that if Phase I businesses go up around the Co. Rd. 1 and Co. Rd. 46 intersection, and then after they’re built the Co. Rd. 1 Interstate 35 bridge comes down and is rebuilt, those business will be without access.

Are the consultants paying attention?

The good news is that it seems the original timeline, which anticipated the AUAR would be distributed to state agencies in July, well, it is not going to happen. That is good, and I expect, not hope, EXPECT, that the information needs identified by the group will be incorporated in.

LET’S SEE THOSE COST ESTIMATES, AND LET’S SEE THEM SOON!

I finally got my domestics done, so after running the pooch this morning, I dug around on the floor of the car and hauled the mail inside. The Rice County outhouse (not inhouse) attorney, Paul D. Reuvers, of Iverson Reuvers, served their Answer to the RCLUA lawsuit, and I’m still snorting.

Here’s the RCLUA Complaint. Download file Click “read only” button.
Here’s the Rice County Answer. Download file

This Answer is a hoot because it’s totally off point, apparently they haven’t read the statute, and apparently they think we want to overturn Rice County’s decisions!

In the Complaint, I have to lay out the group’s standing to sue, that MERA provides a cause of action to any person, that RCLUA is a corp and that a corp is a person under the MERA statute. In their Answer, they claim that RCLUA is not a “person” under the Minnesota Environmental Rights Act (MERA).

Here’s the statute, 116B.02, Subd. 2 (bold added). What do you think?

It’s right there in black and white, “any public or private corporation.” DUH!

In the Complaint, I also have to be specific about what I’m asking the court to do, in this case make a declaratory judgment regarding the many violations of environmental law, that the county’s authority for environmental review be pulled, and that the County Commissioners, County Planning Commission and County Staff receive remedial environmental review training (like the recent training for Dundas officials)(see also Bruce Moreland’s blog). In their Answer, they claim that because we did not properly ask for review of the decisions, or properly appeal the decisions, we have no cause of action under MERA. That might make sense as an argument if we were trying to get review of their decisions, to appeal the decisions, but we’re not. The very specific point of the suit is that they violated the law and we want them to have their authority to do environmental review pulled while they get remedial environmental training. We haven’t asked that any decisions be reviewd or overturned, the decision is not the issue, it’s that they routinely violate environmental law and we want them to stop. We want them to follow the law!

They are also saying that environmental review is under the Minnesota Environmental Policy Act (MEPA) and so therefore there’s no cause of action, but MERA covers all environmental law, there is no prohibition, no limitation under MERA, and conversely, no requirement that suits be brought under MEPA. The entire point of MERA is to make it easy for citizens to hold others accountable for violation of environmental law.

And the County’s rush to develop the I-35 corridor made the Northfield News opinion page again yesterday. It’s on the Northfield League of Women Voter’s blog, David Bly, Northfield City Councilman Jim Pokorney, and at northfield.org — can it be this is rising in the community consciousness?

Here’s some of the land in question, taken just north of the intersection of Co. Rd. 46 and Co. Rd. 1, looking north and east. Can you imagine this scene covered with office buildings and warehouses, with a water tower in the background?

Jim Pokorney states in his letter:

And we can always count on Gordon Kelly, Rice County Planning Commission, to shoot himself in the foot. This time, in his letter, he proves my point that the Highway/Commercial rezoning IS NOT IN EFFECT. Remember the EQB guidelines that state the AUAR requirement that an analysis be completed under the plan in effect at the time the AUAR was ordered? That means as it is now, not as it will be December 31, 2005. They can’t avoid it by passing around outdated EQB guidelines. Thanks to Gordon for the backup on my point, unintended as it was! Here’s part of his letter (bold added):

Thank you for clarifying that the Highway/Commercial zoning is NOT in effect now and will not take effect until December 31, 2005. Also, Kelly misrepresents the purpose of that hearing. It was a hearing about whether the Planning Commission would accept the Master Plan, it was NOT a scoping hearing for the AUAR. I did ask Arlyn Grussing whether there would be a scoping hearing, and did not get a response. The prohibition on public particpation at the Committee #1 meeting and the draft AUAR that was distributed to the Committe, but WHICH WAS NOT PROVIDED FOR MEMBERS OF THE PUBLIC TO REVIEW, belies the true nature of this process. I guess that’s what the Data Practices Act is for.

OK, folks, one more time, with feeling, from the EQB’s AUAR guidelines, repeat after me:

LOUDER — I CAN’T HEAR YOU!!! AGAIN:

AGAIN!

… sigh… we’ll see if they’re listening…

View of northern half of I-35 site from Albers Park looking north.
Does this look like the place for office space and warehouses?

The acts of Rice County are under public scrutiny. It’s getting harder and harder for the County to pretend that nothing’s wrong! Before you read the latest Faribault Daily News article, take a second to look at the language from page two of the EQB AUAR guidelines so you know what the fuss is about — I’ve added the italics and underline for emphasis — the bold and CAPS are in the EQB original:

Important Note: Every AUAR document MUST review one or more development scenarios based on and consistent with the RGU?s Comprehensive Plan in effect when the AUAR is officially ordered. (This is equivalent to reviewing the ?no-build? alternative in an EIS.) If an RGU expects to amend its existing Comprehensive Plan, it has the options of deferring the start of the AUAR until after adopting the amended plan or reviewing developments based on both the existing and amended comprehensive plans; however, it cannot review only a development based on an expected amendment to the existing plan. Also, the rules require that one or more development scenarios analyzed must be consistent with known development plans of property owners within the AUAR area.

The language of the rezoning resolution specifically stated that the zoning change would not take effect until December 31, 2005. According to the EQB AUAR guidelines, the equivalent of a “no-build” analysis must be done, it’s not a choice. Also note the date of this EQB guideline, April, 2005, and that this is not the outdated 2004 guideline handed out by the RLK Kuusisto consultants! How dare they — do they think people of Rice County won’t know the difference?!?!?

Here’s the report from the Faribault News:

County committee says no to analysis

7/1/2005 5:00:00 AM

By Pauline Schreiber
Daily News Staff Writer

MILLERSBURG — A committee charged with drafting a master plan for Rice County’s new commercial zone, along Interstate 35 south of the Big Steer Truck Stop, voted Wednesday night not to do an analysis of a no-build alternative.

The vote was 13-to-3.

“Given the controversial nature of this project, I think if we don’t do a no-build alternative (analysis) it’s going to come back at us,” said Don Novak, a member of the committee from Lonsdale, one of three who supported the analysis.

Troy Zabinski, however, another member of the committee from Faribault, did not think it was necessary, as did most of the members of the committee.

“What people want to know is the environmental impact of changing this area to commercial. Doing a no-build alternative is not necessary,” Zabinski said.

“We know changing this to commercial is going to have a huge impact compared to not doing it. This is a significant project. There’s been nothing like it in the county,” said Tom McMahon, Dundas’ city engineer and a member of the committee. “I think this is all going too fast. The Dundas City Council opposes the rate this master plan and AUAR review is going.”

Rice County Commissioner Jessica Peterson and Leif Knecht of Bridgewater Township were the other two members of the committee who supported doing a no-build analysis.

Members of the committee met Wednesday night with consultants from RLK Kuusisto of Minnetonka to go over the elements in an Alternative Urban Areawide Review (AUAR), a analysis similar to an Environmental Assessment Worksheet (EAW) in cases where there is no specific developmental project. Rules for an AUAR are set by the Minnesota Environmental Quality Board, as they are for an EAW and Environmental Impact Statements (EIS), explained Steve Schwanke, principal consultant for RLK Kuusisto.

RLK Kuusisto is the firm hired by the Rice County Board to work with the committee on a master plan.

The AUAR involves 31 elements, including an extensive environmental and traffic review of the impact of converting the area to commercial development.

Same questions
A no-build alternative analysis would have applied the same questions, which are being asked in the AUAR on the master plan for the new commercial zone, to the existing land uses on the 1,080 acres, Schwanke explained.

“It would have been to our benefit to do a no-build alternative analysis because we could have charged the county more money,” Schwanke said. “However, we did not recommend to the committee one way or the other whether one should be done. We just asked them if they wanted one done.”

A draft master plan was approved by the committee at the end of May and approved by the county board on June 14. A preliminary master plan was needed in order to do an AUAR analysis of the environmental and traffic effects of converting the 1,080 acres from farmland to highway commercial.

A public hearing was held before the Rice County Planning Commission in May on the draft master plan for which the AUAR is being conducted. At that public hearing, the option of the county also doing a no-build alternative analysis came up. That is why Schwanke asked the committee whether its members wanted the firm to do a no-build alternative analysis.

“In our opinion, EQB rules do not require one be done because the county’s comprehensive land use plan is consistent with the county’s highway commercial zoning, and the proposed master plan is consistent with the county’s highway commercial rules,” Schwanke said.

Differing opinion
Carol Overland, a Northfield attorney and member of a group that has filed a lawsuit against the county concerning alleged violations of rules for EAWs, believes differently. Her opinion is that rules for AUAR require a no-build alternative review be done. She attended Wednesday’s meeting.

“I think they specifically and deliberately steered the committee away from doing a no-build alternative,” Overland said. “The key here is the zoning in effect at the time an AUAR is ordered. The highway commercial zoning does not go into effect until December.”

However, Rice County Board member Jim Brown pointed out at the meeting that the 1,080 acres “is rezoned. It was voted on last December.” The one year delay in enacting the rezoning in order to do a master plan for the area before opening it to commercial development does not mean the property isn’t rezoned to commercial.

The committee will meet again at 7 p.m. Wednesday, July 13 at the Forest Town Hall west of Millersburg.

— Pauline Schreiber can be reached at 333-3127 or pschreiber@faribault.com.

Will someone please explain the meaning of the words “in effect when the AUAR is officially ordered” to Jim Brown? And remind him when this change takes effect!

Here’s the Co. Rd. 1 & Co. Rd. 46 Intersection. Does this look like the right place for retail and showroom development and warehouses?

I was late, of course, to the I-35 Committee #1 meeting, held in the Forest Town Hall.

When I walked in, there was a discussion going of “whether they should analyze the no-build option.” Ummm… what’s the issue, the EQB guidelines for an Alternative Urban Areawide Review (AUAR) are clear, a “no-build” analysis must be done. MUST! They even use capital letters!

Remember how appalled I was that no one, NO ONE, on the Planning Commission had read the EQB’s summary of the requirements? The one that’s on the EQB home page? Free? Easy access? Color me stupid, but I expect decision makers to make the effort to understand what it is they’re approving… silly me!
Well, it gets worse. Here they are taking up at least half an hour of valuable meeting time talking about “whether” they should do the “no-build.” Here’s what the EQB says about that:

Important Note: Every AUAR document MUST review one or more development scenarios based on and consistent with the RGU?s Comprehensive Plan in effect when the AUAR is officially ordered. (This is equivalent to reviewing the ?no-build? alternative in an EIS.) If an RGU expects to amend its existing Comprehensive Plan, it has the options of deferring the start of the AUAR until after adopting the amended plan or reviewing developments based on both the existing and amended comprehensive plans; however, it cannot review only a development based on an expected amendment to the existing plan.

OK, let’s take a look. The AUAR must review one or more scenarios with the plan IN EFFECT at the time the AUAR was ordered. Let’s see, what plan was IN EFFECT at the time the A?UAR was ordered. DUH, the new plan is NOT in effect until DECEMBER 31, 2005. Remember? So if it’s not in effect, the equivalent of the “no-build” must be done. Now was that so hard?

It’s difficult for Rice County’s Committee #1 because those leading the meeting did not want the analysis of the “no-build” to occur. There is no innocent explanation.

When I heard the group talking about it, I’d gotten out my copy of the AUAR guidelines, and underlined that paragraph, and brought it up to the conslutant, plus enough copies for the entire group, yet the conslutant tried to dismiss me, as did Gordon Kelly. Let me see if I understand this, there is an agency guideline, issued by the same agency that writes the AUAR rules, and they are holding a “discussion” regarding that very issue, and they are not interested in it. OK, then we’ll have to assume that their obliviousness to the guideline is intentional. As the oblivious discussion moved on, it became apparent that they were actually going to vote on it, and that the result would be not to do a “no-build,” I jumped up and said “The EQB requires a no-build,” holding the EQB AUAR guideline in the air. Then the conslutant “wanted” to see it. Right… the conslutant then read it to the group and explained that since the county had voted on the change, the group is not required to do the “no-build.” He did not address the timing of the zoning change, that the review has to be done under the zoning in effect, IN EFFECT, not voted on, at the time the AUAR was ordered. They must do the review based on the zoning in effect now, and not on December 31, 2005. This really isn’t that difficult — unless there’s an intended result different from that required by the EQB.

Then the conslutants passed around their copies of that EQB document. BUT it wasn’t that document, it was one from 2004, and that document omits that section I just quoted about the “no-build.” What’s the difference between the two? Just two variations in language. There’s one insignificant difference, but notably the major difference in the versions is that the above paragraph from page 2 about the need for a “no-build” review is missing! It’s not there in the one they handed out. Nada. Here the county is paying big bucks to these conslutants, and they are handing out the WRONG guidelines.

Apparently it is very important that the “no-build” not be analyzed. What’s that about? What would make someone so dead-set against considering not enacting this plan that the “professionals” would use outdated documents — I had given them 15 copies of accurate up-to-date ones and they acted like they were coated with anthrax. When I pointed out that paragraph to them, they acted as if they would throw me out! Planned, intentional institutional deceit is what I’d call it.

Folks, we have really got a problem here. The conslutants are the actors, leading this group by the nose, but who are the directors? Who’s the producer? Who’s the financier?

Great, power just went out, back on, and I don’t want to blow up this computer. So much for Xcel’s SAIDI, CAIDI and SAIFI’s!

It’s everywhere today — hard to miss that people are concerned about the way Rice County is trying to ram the I-35 development through and the recognition that development should mean community enrichment, not exploitation and taxation of a community for private enrichment. Here’re the Northfield News articles today.

Responding to the I-35 Master Plan

LWV hosts Fourth Monday forum on issue

Dundas officials learn critical lessons

Board approves permit

Dundas City Engineer Tom McMahon summed it up well: