Legalectric

The Minnesota part of the Freeborn County wind project is the site in red, above.

The Association of Freeborn County Landowners has been granted intervention, we’re a party!!!

Order-Intervention-AFCL_20179-135455-01

And a footnote for those wonks interested in Minnesota Rules and OAH and Public Utilities Commission procedure:

For more information about this docket, the application and the filings thus far, go HERE and search for Public Utilities Commission docket 17-410.

I found my notes!!  On August 29, 2017, Alan and I went to the Goodhue County Courthouse for the GreenMark Solar v. Wacouta Township (Court Case No. 25-CV-17-1462) festivities — a Summary Judgment hearing.

FULL DISCLOSURE: I’m not a fan of any of the principals of GreenMark, Mark Andrew, Dennis Egan, and Julie Jorgensen.  Mark Andrew is a former Hennepin County Commissioner and a fan of burning garbage. Here’s a thread from the Mpls yak-yak list about Andrew when he was running for Mayor.  Dennis Egan, well, we had a few go rounds when he was Mayor of Red Wing AND was executive director of Minnesota Industrial Sand Council, and at the time silica sand mining issue was on agenda for City of Red Wing. Julie Jorgensen? Her Excelsior Energy Mesaba Project coal gasification plant took up 5 years of my full-time labor before it went to part-time and intermittent, and still just won’t fully go away! Minn. Stat. 216B.1694, Subd. 3(b)(1)(ii).

That said, I’m also a big fan of solar, from way, way back when my father designed the solar on the Minnesota Zoo (that was later taken down, it was hot water! Not quite what was most needed, and they didn’t know much about solar back then).

Here’s the GreenMark Complaint — couldn’t find the Wacouta Answer or the cross-motions for Summary Judgment. The Wacouta Township website is years out of date — what’s up with that?  (2014 is most current minutes, plus a notice of the May 2017 meeting about the solar project. ???)

Greenmark Solar v. Wacouta Township_Complaint 25-CV-17-1462

Here are a couple articles:

GreenMark Solar challenges Wacouta Township | Republican Eagle

Minnesota Developer Sues for Solar Garden Permit

The oral argument started with Greenmark.  Some points (not all inclusive):

Focus on Minn. Stat. 394.33, Subd. 1, that the township decision violates Town Powers Act. It’s inconsistent with their zoning. They can enact more restrictive zoning, but they didn’t, township has no solar ordinance.2

Township ordinance is ambiguous.  Frank’s Nursery case — if ambiguous, allow property owner to do what they want with the property.

“Agricultural community” — Planning Commission and Board selected different definitions.  Current use, peat mining and hay.  Pollinator scale 45, and 85 with solar.  Wetlands. Reduce carbon emissions.

Township argument:

Town Power Act does not restrict township actions. Bergen defines inconsistent, it’s not different.
Township Ordinance, Art. 3, Subd. 10, limits industrial uses that do not support agricultural. Solar is an industrial use. Twp. does allow solar in ag, BUT, it’s more restrictive, and it’s not inconsistnet.

The standard is whether down decision was rational, i.e., legally sufficient, supported by record.

Reasonable — inconsistent with agriculture, exported to the grid. CUP – exported, GreenMark takes issue with def of ag use, but see “Hubbard Broadcasting” denial of Conditional Use.  Review is deferential.  Mandamus (GreenMark’s action) review not to challenge discretionary decisions of local government.

Frank’s Nursery re: ambiguous ordinance, doesn’t require ordinance to be construed to support use. Court still needs to determine rationality.

Greenmark Rebuttal

Mandamus – this is about building permit, a ministerial act, not discretionary.

Does township even have jurisdiction/authority.

Purpose of project — Goodhue County, that’s the area.

Altenberg (?) – Town Powers Act – Twp didn’t adopt a more restrictive ordinance.

Bergum (?) – legislative intent of Town Powers Act.

Township Rebuttal

Cases of Mandamus for building permits

Goodhue – zoned agricultural, township couldn’t zone industrial, that would be inconsistent with county zoning.

__________________________

Judge Bayley said he has a lot of homework to do, and will do it and issue Order.

Last night, the Red Wing Citizens Assembly report was presented to the Red Wing City Council:

Red Wing Citizens Assembly Event Report

The video isn’t posted yet, though last night’s Library Board meeting is.  ???  Will post that video when it shows up.

I’d had a particular issue that I want addressed in Red Wing, that of ethics in government, particularly development of a culture of ethical behavior, where people would raise whether there are conflicts of interest voluntarily, and these potential conflicts are sufficient to recuse from discussion and votes on an agenda item/issue.  What’s happened that I’ve observed in this town is that there’s no recognition or acknowledgement of conflicts, and it takes harsh exposure, press coverage, and resignation.  It doesn’t need to be that way, especially in a small community where there are so many ties, conflicts are to be expected, and the City needs to learn how to handle them.

Letter: Strengthen the city Code of Conduct

As a member of the Red Wing Citizens Assembly, I’m thinking more formally about public policy. As frequent participants in local issues, representing groups and members of the public, and as individual residents, Alan and I are particularly interested in Red Wing’s Code of Conduct. It’s a company town in many ways, with undue corporate influence.

Compared to that of the Public Utilities Commission where I practice (Minn. R. Ch. 7845), Red Wing’s Code of Conduct is inadequate. Under PUC Code, commissioners “shall behave in a manner that promotes public confidence in the integrity and impartiality of the commission’s decision-making process,” and prohibits “… any action that might result in or create a conflict of interest or the appearance of impropriety… .” Red Wing’s Code gives too much wiggle room.

Remember removal of Mayor Dennis Egan? Why was resignation even a question given the direct conflict of interest and sand issues on the city agenda at the time?

How many City Council members are financially connected to Xcel Energy, as employee, contractor or with business ties? Xcel matters are regularly before the council, i.e., LabUSA “ash mining” (Full disclosure: I represented in limited scope neighbors challenging that project), nuclear issues, utility personal property tax revenue, and the city’s legislative agenda. How does the city balance Red Wing’s interests with Xcel’s interests?

3M/Capitol Safety agreed to create 40 new jobs in exchange for a $500,000 state MIF Loan and $284,677, 100 percent city tax abatement, for the new building. 3M didn’t comply by the deadline, nor within the three-month grace period, and now they’re six months overdue. The public is paying over $19,000 per job, Red Wing’s share over $7,000 per job. The council granted an extension without penalty, with no disclosure of how many jobs 3M fell short. 3M is moving jobs around — why not to Red Wing? Shouldn’t tax be assessed during noncompliance, not abated? An “extension fee” of at least $19,000 per job not created by the deadline? How is extension, with no consequence, in the public interest?

These are just a few examples. A few thoughts for improvement:

• The Red Wing Code of Conduct should require full disclosure of employment and contracting ties, in campaign information and city website biography. For each agenda item with a potential conflict, council and commission members should be queried via roll call about conflicts and interests with their response on the record.

• The administrator’s council packet should review for each agenda item the “city interest,” “applicant interest” and “public interest” for consideration.

• The Code of Conduct should require full disclosure and recusal from discussion and decision of any council or commission member who is employee or contractor or has business dealings with a party to an agenda item.

• The City Council needs education on fiduciary responsibility, protection of city resources and public versus private interest.

City of Red Wing, revise the Code of Conduct. Give it some teeth.

Carol A. Overland and Alan Muller

Red Wing

Get to it, folks.  Comments are due TODAY! Here’s mine, and Alan’s, just filed:

Overland Legalectric Comment_HERC-Xcel 17-532

Muller Comments_20179-135413-01

in eDockets, go here to register, it’s quick, it’s easy, and you can post on Public Utilities Commission’s eDockets system.

Notice_20179-135289-01-1

On what? Xcel Energy’s latest plan (part of) to terminate and/or amend outrageously high priced Power Purchase Agreements on incinerators across Minnesota.

Comment period on HERC PPA Amendment

Just filed — hot off the press:

Commerce DER_20179-135384-01

Hennepin County_20179-135389-01

Xcel Energy_20179-135379-01

And check what Commerce DER is at long last admitting, that there’s a generation surplus and transmission is for export:

Not only is there no need, BUT THERE IS NO NEED FOR MINNESOTANS TO PAY FOR MORE TRANSMISSION! But that’s an argument for another day, another docket…

Here’s another snippet:

And check this conclusion reached by MN’s Dept of Commerce – DER in its first round of comments — that Xcel is double dipping:

Here are the DER Comments:

CommerceDER_20178-134456-02

And Comments of Hennepin County:

Hennepin County_20178-134679-01

Slowly, the siting process for Freeborn Wind is moving.  The Commission issued its order referring the application to Office of Administrative Hearings for a contested case, that’s a first for a wind project in Minnesota!

PUC Order_20178-135140-01

Erratta_20179-135278-01 

And LauraSue Schlatter, the Administrative Law Judge, has issued the Order for the Prehearing Conference, and a directive to the Applicants to share a proposed schedule, which they have done:

OAH_Notice_20179-135289-01

The Erratta Order issued is particularly important because it specifies that the rules that this process will go forward under is Minn. R. Ch. 1405:

Minn. R. Ch. 1405 contains the rules for siting under the Power Plant Siting Act (and wind siting chapter, Minn. Stat. Ch. 216F, is NOT under the PPSA, which is Minn. Stat. Ch. 216E), and not the OAH more general administrative procedure rules, Minn. R. Ch. 1400.  Note there’s no mention of Minn. R. Ch. 7854, about which I’ve filed how many Petitions for Rulemaking because these rules are so deficient and inadequate?  This is seriously inside baseball — it’s a major change, major admission, and what are the implications?  I’ve wanted wind siting to be moved over to the Power Plant Siting Act forever… it was improperly separated out of 116C, without any directive or authorization, when PPSA became Minn. Stat. Ch. 216E.  There’s homework to do.

Here we go…