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Minutes - March 18, 2010




March 18, 2010


The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President Jim Calkins at 6:55 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 


James Calkins, Pamela Blixt, Lee Keeley, Richard Miller, Jeffrey Casale, Mike Klingelhutz, Brian Shekleton.




Eric Evenson, District Administrator; Renae Clark, District Projects Manager; Nat Kale, District Planner; James Wisker, District Planner; Natalie White, District Maintenance Technician; Michael Panzer, District Consulting Engineer; Chuck Holtman, District Counsel.




It was moved by Manager Klingelhutz, seconded by Manager Miller to approve the agenda with the addition of the following items:  approval of March 4, 2010 Minutes; discussion concerning City of Hopkins redevelopment on Blake Road; discussion of Federal Emergency Management Administration floodplain mapping; and wetland rulemaking discussion.   Upon vote, the motion carried 6-0.


It was moved by Manager Klingelhutz, seconded by Manager Keeley to approve the consent agenda except for the petty cash register; consisting of the minutes of March 11, 2010; checking register, consisting of checks 29705 through 29762, payroll direct deposits and electronic fund withdrawals in the total amount of $323,018.01 and the surety register; and purchase and installation of water level monitoring equipment for the Nokomis Weir.  Upon vote, the motion carried 6-0.

Information Items and Correspondence

Mr. Kale directed the Board to the 2009 planning department annual report in the packet.  Manager Blixt asked about the status of local plan reviews, particularly the five municipalities listed as having submitted no plan for review.  Mr. Kale replied that the District anticipates receiving the City of Orono's proposed plan.  He commented that because Laketown and Watertown Townships are to be annexed, the District has been working with the annexing cities on load allocations and similar matters.  He informed the Board that the City of Minneapolis states that it does not intend to submit a local plan at this time and that communications to the City of Chanhassen have not been reciprocated to date. 

Responding to Manager Miller's question, Mr. Kale explained that Minneapolis believes that state rules do not require it to complete a local plan until all of the watershed management organizations with lands within the Minneapolis have completed their plans.  Manager Miller suggested that the District not spend funds within Minneapolis until it can confirm that the plans are aligned.  Mr. Evenson noted that Minneapolis submitted its last local plan just before the District adopted its plan in 2007, and that there is much commonality between the plans.

Manager Keeley noted the concern of some cities about the standard memorandum of understanding, and would like to discuss the role of that document.

Manager Casale urged that District counsel send a letter to Minneapolis noting for the record the discrepancies between the Minneapolis and District plans. 

Manager Klingelhutz asked further about local water planning in the townships.  Mr. Kale replied that Carver County would be responsible for township water planning.  Manager Casale pointed out that the townships will not be fully annexed during the life of the plan and that it would be desirable and respectful to engage with them in pursuit of the District's resource goals. 

Manager Blixt asked how the Metropolitan Council has handled comprehensive plan approval for these municipalities, given that an approved local plan is required.  Mr. Kale replied that he would confer with the Met Council to determine if extensions have been granted.

Ms. White presented the 2009 operation and maintenance report.  Manager Klingelhutz noted 95 percent native cover as a goal for a number of the District's projects, and asked if this is achievable.  Manager Calkins replied that if the site is properly prepared, a proper seed mix is used and there is diligent maintenance for invasives, that goal is achievable.  He observed that the report cites Southwest Calhoun ponds as under 60 percent native cover, which he believes is higher than he has observed.  Ms. White noted that this figure includes shrub areas and cultivars.  Manager Calkins noted that the herbaceous cover is poor and that the buffer has been encroached on by turf mowing.  Ms. White agreed and said that the District has installed more boundary signs.  Manager Calkins noted his ongoing concern about how to maintain the boundaries of native vegetation on parkland. 

Administrator's Report

Mr. Evenson referred the Board to his report in the packet.

Painter Creek

Ms. Clark reported on flooding and concerns about performance of the weir installed as part of the Painter Creek project in 2008.  She reported that on Monday staff received a call from the property owner at 6200 County Road 26.  Staff went to the property that afternoon.  While the house was not threatened, high water was present on the property and the weir outlet was inundated.

Emmons and Olivier Resources (EOR), the engineer that designed the project, inspected the site on Tuesday.  There is a bypass occurring at the edge of the weir and staff is concerned about erosion at that point.  There has been discussion of riprap and fabric to protect the area.  Ms. Clark has asked EOR to review its hydrologic calculations.  She noted that there has been a high rate of snowmelt along with rain.  Mr. Evenson added that staff removed four six-inch stoplogs as soon as it was able.  Ms. Clark reported that the water level has declined by two inches since then.  She noted that the reason for the stoplogs was simply to protect the new diversion channel during vegetative stabilization, but that there may be the need to discuss an operating plan for the outlet.  She emphasized that staff has kept in close communication with the landowner and relations are good.          

Mr. Panzer indicated that his greatest concern is that the water is inundating the old structure upstream which is set at the 100-year flood elevation.  The water lever is 18 inches over that crest.  Ms. Clark emphasized that EOR has been responsive and is reviewing the situation.  Further, the District engineer will review EOR's analysis. 

Manager Calkins remarked that it would seem basic during design and construction to establish the proper height of the new structure in relation to the old.  Regarding the seepage at the end of the weir, Mr. Panzer suggested that rather than extending some distance into the adjacent soils, the weir structure is fairly short, allowing water to pass around the end.  Manager Miller emphasized that with the funds the District is spending, projects should be completed properly.  Mr. Evenson noted that among other things, staff is looking to distinguish between design and construction flaws.  Manager Calkins emphasized that he has been in communication with staff and that staff has been diligent.

Manager Shekleton arrived at this time.

Manager Calkins remarked that the video presented by Ms. Clark shows bare soils on the bank.  Ms. Clark concurred.  She noted that the contractor provided a two-year vegetation maintenance warranty that ended last fall.  Final project payment is being reviewed and this issue will be addressed.  She noted also that Ms. White is contracting for vegetation work on the adjacent property now. 

Ms. Clark remarked that flooding concerns are not being seen on Minnehaha Creek.  She added that Mr. Panzer has reviewed the flooding issues and still believes that flooding will not be a concern on Lake Minnetonka or Minnehaha Creek.

FEMA Mapping Update

Mr. Wisker reported that FEMA has been reviewing District data and refining the XP-SWMM model.  After that, the model preparer, EOR, will need to review and recertify the model.  At that time, FEMA will proceed with new floodplain maps.  Mr. Wisker reported that the model has shown instabilities due to the large size of the system.

Manager Calkins noted that the District's model will continue to become more complicated and asked whether stability will be an issue.  Mr. Panzer explained that instabilities are inherent in the XP-SWMM model, due to its difficulty in modeling certain features of hydrologic systems.  He noted that this does not affect the results, it simply affects the time needed to run the model.  He noted that some of these deficiencies can be worked around, and the FEMA contractor has been focusing on that.  He does not believe that these issues will become a greater concern as the model becomes more complex.  Mr. Wisker added that once the model is fully approved, the District intends to separate it into smaller pieces and work with those sub-models.  Mr. Evenson remarked that in recent runs, model accuracy has been very good. 

Manager Blixt noted an article in the Minneapolis Star Tribune today concerning flooding issues in St. Paul.  She observed that FEMA is scheduled to redo Hennepin County maps next year, so the District should be prepared to answer questions from the public.

Painter Creek (continued)

Manager Miller returned to the Painter Creek discussion, asking whether the District might simply obtain expanded flowage easements where flooding has occurred.  Mr. Panzer noted that county right-of-way also would be implicated.  Mr. Evenson replied that staff will review all options and report back to the Board.

Minnehaha Glen

Ms. Clark reported that District and U.S. Army Corps of Engineer (USACE) staffs are working to finalize the modified and after-the-fact permits for the work.  As to cultural resource issues, the District and USACE are waiting for the State Historic Preservation Officer to complete review of the proposed Memorandum of Understanding.  The District's archeologist hopes to begin field work next week.  Senator Torres Ray has asked interested agencies to meet next Thursday to provide a project update.

Manager Shekleton recommended that the Senator's office be encouraged to invite Representatives Davnie and Wagenius.  Manager Blixt also suggested that Joel Carlson be asked to attend.

Ms. Clark noted that the District met with Minneapolis Park and Recreation Board (MPRB) staff regarding the USACE Section 14 repair.  MPRB staff does not favor the District's proposed repair work.  Manager Calkins will meet with MPRB Board President Erwin next week to ensure communication at the Board level. 

Manager Calkins noted that there is a lot of exposed soil in the Wabun Park area without erosion and sediment control.  Ms. Clark responded that this is MPRB construction, but there is a District permit for the work.  Ms. Clark will ask staff to inspect.

Manager Calkins also expressed dissatisfaction with the construction and appearance of the wading pool walls, and noted that the stormwater outlet at the deer pen continues to be an eyesore.  He will raise these issues with President Erwin.  Manager Calkins also noted that these projects must be designed either to accommodate or to prevent foot traffic, otherwise they will be defeated.   


Committee and Task Force Reports

Rules Task Force

Manager Casale made note of Mr. Wisker's effort in preparing rulemaking responses.  Manager Casale attended Technical Advisory Committee (TAC) and Task Force meetings on Tuesday, where, he noted, Mr. Wisker made excellent presentations.  Manager Casale reported that TAC representatives from the City of Mound were critical, but others in the audience were more constructive in their comments.  Manager Casale reported that last night he, Manager Calkins, Mr. Wisker and Mr. Evenson attended a meeting of representatives of a number of Lake Minnetonka cities as well as Hennepin County Commissioners Callison and J. Johnson that was called by Mayor Hanus of Mound.  Mayor Hanus, Mound City Council member Osmek and Victoria City Council member Paulson were thoroughly critical of the District, its rulemaking process and the revised rules based on inaccurate information and not constructive in the manner in which they characterized the District or addressed other attendees.  Manager Casale noted that Manager Calkins was offered a brief opportunity at the end of the meeting to speak to the mayors, and provided an eloquent statement emphasizing the extensive process the District has used, the engagement that it has sought and the extensive misunderstanding about the rulemaking that has been perpetuated.  Manager Casale remarked that a number of attendees apologized to him afterwards for the tone of the meeting and affirmed that they would go back to their communities to seek constructive input

Manager Calkins noted that the District was not afforded the opportunity to provide a full response, and that a letter to Mayor Hanus, communicating relevant points about the rulemaking and copied to other elected officials, would be appropriate.  Manager Casale suggested that the letter be accompanied by an addendum listing all of the District's communications with stakeholders since the rulemaking began in 2006.  He reviewed the extensive efforts in which the District engaged early in the process to generate a full complement of engaged stakeholders representing local government units, developers and others with technical knowledge and interest.

Manager Calkins stated that he felt that certain comments made at the meeting were of greatest insult to those on the TAC and Citizens? Advisory Committee (CAC), who have put in a great deal of volunteer time to help develop the rules.  The Board concurred in Manager Calkins? suggestion that a letter be sent to Mayor Hanus and copied to others who attended the meeting.

Mr. Wisker referenced a packet of public communications materials in draft form that would be distributed to the public, including responses to comments, ?Frequently Asked Questions? and a rule summary document.  He reported that Himle Horner prefers one inclusive response letter to individual letters to each commentor.  Manager Miller concurred.  Manager Casale noted that he has been pushing for personalized letters, but that he is thinking more of a personalized cover letter and not necessarily a letter to each commentor containing specific responses to that commentor's issues.  He suggested that each individualized letter simply communicate to the recipient that his or her specific issues have been read and understood, and the letter then could be accompanied by the response to comments, perhaps with references to the places in the response where the commentor's issues are addressed.  Manager Casale also said that he does not favor including in the response to comments the discussion prepared by legal counsel concerning takings.  The Board concurred.  Mr. Holtman remarked that the legal text is an important element of the rulemaking record but that it is appropriate for the response to comments to include a shorter and simpler statement regarding takings issues.

After discussion, the Board concurred that each commentor would receive a separate letter identifying his or her substantial concerns and attaching the response to comments with relevant portions highlighted.  Mr. Evenson advised that staff would proceed accordingly, but that it would focus on getting responses out to elected officials first. 

Manager Casale remarked that the Statement of Need and Reasonableness (SONAR) text is clear and informative and asked whether that has been used in the public communications process.  Manager Calkins remarked that the SONAR has not been distributed yet but will be sent out in conjunction with the official proposed rule. 

Manager Casale also emphasized that the rulemaking, in addition, rests on the foundation of a long, inclusive process that the District used in developing its watershed plan.  Plan development extensively utilized subwatershed groups of stakeholders and the plan was approved by the Counties and the Board of Water and Soil Resources in 2007.  The rules revision is for the purpose of maintaining consistency with the goals identified in the plan.  He urged that this be emphasized as well.  Finally, he asked that the draft public informational document be corrected to reflect that the rules are not to ?restore? resources, but to prevent further degradation.  He noted that restoration generally falls under the District's capital improvement efforts and its other cooperative programs.

Meeting Schedule

Manager Calkins noted that the Information Technology Committee meeting scheduled for March 24 has been rescheduled to March 30, 5:00 p.m., Edina City Hall.  He also reminded Board members of CAC, Property Search Task Force and Information Technology meetings as noted on the agenda. 


Approval of Petty Cash Register

It was moved by Manager Klingelhutz, seconded by Manager Miller to direct that a credit card expense summary be including in the meeting packet.  Upon vote, the motion carried.

It was moved by Manager Klingelhutz, seconded by Manager Shekleton to approve the petty cash register.  Upon vote, the motion carried.;

Mr. Evenson reminded Board members that the original credit card documentation is always available at the meeting and Managers are encouraged to review it. 

March 4, 2010 Minutes

It was moved by Manager Casale, seconded by Manager Shekleton to approve the minutes with a revision on page 5 to note that Manager Casale asked for the commendation letter concerning Mr. Wisker to be appended to the minutes.  Upon vote, the motion carried.

Funding to LMCD for Boat Inspections

Lake Minnetonka Conservation District (LMCD) Executive Director Greg Nybeck and Mr. Gabriel Jabbour appeared before the Board.  Mr. Nybeck reported that they just returned from a Power Squadron meeting, where 30-40 folks volunteered to participate in the LMCD's boat inspection program.  Mr. Nybeck's hope is to supplement paid inspectors with volunteers.  He related that the LMCD has partnered with the Department of Natural Resources (DNR) on inspections since 2001.  The purposes of the program are to limit introduction of new aquatic invasive species into Lake Minnetonka; improve public knowledge of invasive species law; and improve boater behavior with respect to invasive species prevention measures.  Mr. Nybeck reviewed the program cost and asked the Board to consider contributing $7,500.00 out of the total $55,458.00 estimated program cost for this year. 

It was moved by Manager Casale, seconded by Manager Shekleton to authorize the expenditure of $7,500.00 in support of the program.

Manager Blixt stated that she is inclined to oppose the program because the Board has not carried out its responsibility to determine the role the District will play in aquatic invasive species management.  She asked how the District would respond when similar requests are presented for other lakes.  She believes that it is not thoughtful to just spend money without a plan or a sense of how the money will help address the issue.  She does not oppose the program but believes it needs to be in the context of a plan. 

Manager Shekleton stated that he agrees completely but that at the least this provides an opportunity to educate the public and provide an opportunity for the District to have visibility and input.  Manager Keeley agreed, noting that the present effort would be part of a stop-gap measure.  Manager Miller suggested that this program probably is a better investment of funds then some other educational programs.

Manager Casale stated that he considers it important that the effort begin.  Even if this is insufficient, it is visible and will help provide a foundation for more comprehensive actions.  Manager Shekleton noted that the volunteers provide a multiplier effect. 

Manager Miller noted the limited hours that the program would provide coverage and asked whether boat accesses could be closed at certain times of day or night.  Mr. Jabbour responded that the LMCD investigated this question previously and found that the DNR won?t support limitations under its broad reading of the state constitutional provision securing public access to state waters.  Mr. Jabbour also said that a reason for requesting funding is that the Lake Minnetonka Association will not be providing funding this year and that the LMCD is limited in its levy capacity.  He noted that the work has been privately funded in the past, but that the LMCD would like to begin engaging the District with an eye toward future efforts.

Responding to Manager Calkins, Mr. Evenson indicated that funding is available from the Special Projects fund.  Manager Miller commented that it could be funded from the education budget as it would be an effective public educational effort.  Manager Calkins said that he agrees with all comments.  He emphasized that this effort will not keep zebra mussels from Lake Minnetonka and further that the Board has continued to postpone a decision on its effort.  He also noted that the Board has been expecting a staff report.  He would support this effort for its educational value and in the spirit of cooperation.

Mr. Holtman advised that any disbursement should be contingent on some form of a written agreement with the LMCD identifying how the funds will be used.  Mr. Nybeck replied that the LMCD will be able to provide a signed DNR agreement as an input into developing an agreement between the LMCD and the District and further that the LMCD would intend to report back to the Board at the end of the season.  Upon vote, the motion carried 6-1 (Manager Blixt opposed).

Manager Casale asked that District counsel advise as to the constitutional limitation referenced by Mr. Jabbour and that Joel Carlson provide input on how any such constraints could be ameliorated.

Capital Project Vegetation Plan

Ms. White distributed a revised resolution recognizing the District's existing policy of assuming vegetation maintenance responsibility on its capital projects.  The resolution further allows the District to assume responsibility for related vegetation features within or adjacent to projects provided that this is consistent with District goals and that maintenance costs are allocated in a way that reflects which activities are directly related to water resource purposes and which are for the convenience of the cooperating partner.

Ms. White observed that the District would continue to invest in vegetation maintenance on a case-by-case basis.  She reviewed data indicating that vegetation management typically costs between $500 and $1,950 per acre per year, with larger sites toward the low end of that range.

It was moved by Manager Blixt, seconded by Manager Miller to adopt revised Resolution 10-028.  Manager Calkins observed that the cost may be difficult to separate out.  Upon vote, the motion carried.

Citizens? Advisory Committee Appointments

Mr. Wisker informed the Board that CAC members Lori Lovera and Dan Salmon have tendered their resignation and that current alternates John Iacono and Steve Mohn have applied for appointment. 

It was moved by Manager Klingelhutz, seconded by Manager Shekleton to adopt proposed Resolution 10-032 reappointing all existing CAC members except for Ms. Lovera and Mr. Salmon and appointing Mr. Iacono and Mr. Mohn to the CAC.  Upon vote, the motion carried.

Hopkins Land Conservation Activity

Mr. Evenson reported that he spoke with the City of Hopkins today regarding its Blake Road redevelopment project and the potential acquisition and redevelopment of several properties in the northeast quadrant of Blake Road and Lake Street.  Specifically, there has been discussion concerning a parcel containing 24 apartment units in two buildings with creek access.  Apparently the owner is interested in selling the property and has been offered $1.365 million by a private buyer.  The buyer owns other property in the area, is active in the market, and is interested in its speculative value.  The owner, however, also has expressed a preference to sell the property to Hopkins.  The City believes the owner may be willing to convey an option and is asking the District to split the cost of the option 50/50. 

Mr. Evenson referred the Board to a briefing document in the packet describing an overall concept for the area including water resource opportunities.  As issues, Mr. Evenson noted that the property acquisition in question may be expensive; that there may be only moderate water resource benefit from involvement other than land for stormwater management facilities; that the seller's motivation is uncertain and that establishing terms of partnership with the City probably will require more than three months.  On the other hand, Mr. Evenson noted that there is a willing seller, the City is motivated to act, the area is strategic for regional connections and it does afford the opportunity to acquire riparian frontage.  Responding to Manager Miller, Mr. Evenson clarified that there has been no formal City Council action but that the matter could go to the City Council next week depending on the Board's action.

Manger Blixt noted that this is the location of the 2002 Metropolitan Council Environmental Services (MCES) sewer spill.  She said that the MCES is looking at the adjacent single-family lot as a site for relocating its pumping station but wondered about the better suitability of the parcel across the creek.  Mr. Evenson replied that this latter parcel is largely in floodplain and not suited for MCES.

Kristen Elverum, Hopkins Planning Director, introduced herself.  She said the City has prepared a small area plan principally to address public safety issues.  She noted that the area is also very near to the proposed light rail corridor and that the City would like to open up the area along the creek and integrate it with regional trails.  She also noted that the City is very interested in redevelopment of the Hopkins Cold Storage site to the south. 

Manager Miller responded that the District's planning and coordination is very preliminary and that the City is asking the District to consider spending a lot of money before a plan has been formed.  Mr. Wisker noted that the District engineer has reviewed an assessment of water quality opportunities prepared by the City's consultant.  Manager Casale emphasized that Hopkins would need to commit to taking the lead in developing a sound plan and raised the need to better understand the terms of an option that might be negotiated.  Mr. Evenson concurred that activity has not been extensively coordinated.  He said that the District was just advised of the opportunity less than a week ago and staff has been working to develop a concept in order to bring it before the Board. 

Responding to Manager Casale's question, Ms. Elverum stated that in informal conversation with the owner she suggested $10,000 to $20,000 for an option of at least three months.  Manager Miller replied that based on his experience, three months is a very ambitious timeframe particularly given that the District has not yet been provided with the City's plan and does not have the context for a partnership.  He emphasized the need for the District to be thoughtful about its actions.  Manager Shekleton remarked that the District does have a strong interest in the area in accordance with its land conservation plan, but that it is in the very initial stages of using consultant services to help it refine and carry out its plans.  Ms. Elverum emphasized that she respects the District's process; this opportunity has just arisen and she believes the property is likely to cost a lot more later.

It was moved by Manager Blixt, seconded by Manager Keeley to authorize staff to develop the concept further with the City.  Manager Miller remarked that a partnership already is in place for this sort of undertaking.  It was moved by Manager Miller, seconded by Manager Blixt to amend the main motion by substitution and authorize the Administrator to enter into an option agreement with the owner for at least six months subject to the formal approval of the Hopkins City Council.

Manager Casale asked why the owner would be interested in an option when he apparently has a buyer.  He also stated emphatically that he does not want the District to be in the position of a property manager of an apartment building.  Ms. Elverum responding that Hopkins has a housing redevelopment authority and property management capacity.

Manager Calkins agreed that the property is at the center of the District's corridor of interest and likely to be valuable in any plan that is developed.  At the same time, thoughtful planning is necessary before the District can commit to a substantial investment of resources.  He also would like to see an official request from the City. 

Manager Blixt asked Ms. Elverum what Board action she was looking for.  Ms. Elverum replied that she would like the Board to authorize the District to enter into an option agreement.  Manager Casale suggested that the District indicate an interest and support tonight, but was uncertain that the District could do more then that.  Ms. Elverum replied that the owner may need a commitment of some sort by tomorrow, or possibly within a few days.  Manager Keeley asked whether City staff has authority to sign an option agreement.  Ms. Elverum replied that staff does not have City Council authority.  Its plan would be to advise the owner that the District has approved and that the City will be bringing the matter to the Council. 

Manager Shekleton argued that the property could be key to the District's efforts and therefore worth a $10,000 investment at this time simply to maintain the possibility of acquisition.  Manager Shekleton asked what the City's overall picture on the partnership is.  Ms. Elverum replied that the City does not have funds and therefore would be looking to the District to purchase the property.  She advised that the City Manager does believe the Council will authorize cost-sharing for the option agreement. 

Manager Calkins asked whether staff has a recommendation.  Mr. Evenson replied that there has been much internal discussion but that staff does not have a recommendation.  There is a strong interest in partnering, but great uncertainty as to what a partnership with the City and other stakeholders would look like.  Mr. Evenson does respect and trust city staff, and therefore believes that if the City represents that a plan can be pulled together, he is confident that if it can be done.  Manager Casale said that he would support acquiring the property, but would need the City to provide a plan for property management, relocation, demolition and related matters.  He believes accomplishing this in three months is ambitious.  He urged that an option not be considered unless it is for at least six months and that the proposed District funding be offered as matching funding to the eventually approved City funding of the property purchase option.  It was moved by Manager Blixt, seconded by Manager Shekleton to amend the motion to substitute to authorize the Administrator to commit up to $10,000, on a matching basis, for an option to purchase the property at $1.365 million extending a minimum of six months.  Upon vote, the motion carried.  Upon vote, the main motion, as amended, carried.  The Board thanked Ms. Elverum for attending.

Good Samaritan Property

It was moved by Manager Miller, seconded by Manager Calkins to ask staff to present a report on the potential purchase of the Good Samaritan property and options.  Upon vote, the motion carried.

Board Discussion Items

Manager Calkins remarked that he was contacted recently by a City of Minnetonka resident advising that Hopkins in considering changing use of its chip site area.  Manager Calkins has asked staff to look into the matter to see if District involvement might be appropriate. 

Manager Casale remarked that the rulemaking meeting has raised a concern as to text the District inserted at the beginning of the wetland rule.  The language intended to clarify that the buffer requirements would not impede reconstruction of single-family teardowns.  However, some people are reading the language to believe that the buffer requirement could operate to preclude the rebuilding of nonconforming structures.  He asked that the language be revised to clearly say that nonconforming structures can be rebuilt within the existing footprint without triggering the buffer requirement. 

It was moved by Manager Casale, seconded by Manager Miller to direct staff to add language to the buffer provision clarifying that the buffer requirement would be applied consistent with state law governing zoning nonconformities. 

Manager Calkins agreed with Manager Casale's suggestion but noted that the comments actually went further and sought exception from the buffer requirement more broadly.  Manager Casale concurred with Manager Calkins? recollection and repeated that he simply would like the District's rule to mirror state law on nonconformities. 

Manager Klingelhutz suggested that the proposed treatment gave consideration and lenience to existing construction that would not be offered to new development and therefore does not provide equal treatment.  He asked legal counsel if this is legally problematic.  Mr. Holtman responded that first, the District rule simply would mirror state law on nonconformities, which a court might read into the District's rule in any event.  In addition, Mr. Holtman noted that laws regularly involve making distinctions based on factual differences and that if there is a reasonable rationale for the distinction, it is not legally objectionable.  Upon vote, the motion carried.


There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 11:25 p.m.

Respectfully submitted,

Lee Keeley, Secretary