Minutes - March 4, 2010




March 4, 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, Michael Klingelhutz, Brian Shekleton.




Eric Evenson, District Administrator; Mark Ten Eyck, District Land Conservation Program Manager; Ellen Heine, District Land Conservation Specialist; James Wisker, District Planner; Julie Westerlund, District Education/Communications Program Manager; Michael Panzer, District Consulting Engineer; Chuck Holtman, District Counsel.




It was moved by Manager Miller, seconded by Manager Keeley to approve the agenda with the addition of February 11, 2010 minutes approval to the Consent Agenda, clarification that Barkus and Broin agenda items include noticed public hearings, and relocation of the 2009 education and communications report to precede the briefing session with John Himle.  Upon vote, the motion carried 5-0.


It was moved by Manager Keeley, seconded by Manager Miller to approve the consent agenda except for the minutes of February 11, 18, and 25, 2010, consisting of the adoption of Resolution 10-006 authorizing an agreement with Interfluve, Inc., for a feasibility study on Minnehaha Creek Reach 7.  Upon vote, the motion carried



Committee and Task Force Reports

Property Search Task Force

Manager Miller reported that the task force met on March 2 and reviewed three proposals submitted in response to the request for proposals for a property acquisition specialist.  The task force plans to interview all three proposers.  Follow-up questions have been sent to all three and the task force will meet again on March 16.

Manager Shekleton arrived at this time.

Information Technology Committee

Manager Shekleton reported that the committee met last Friday and has narrowed to three the number of finalists for website redesign work.  The committee discussed the structure and schedule for candidate presentations in April.

Personnel Committee

Manager Shekleton noted for the record that on February 25, 2010, the Board held a closed meeting of its personnel committee for the purpose of an interim evaluation of the District administrator.  The primary purpose was discussion, and Managers Shekleton and Blixt were designated to follow up with Mr. Evenson and Ms. Sara Noah to address board/staff communication issues.

Citizens’Advisory Committee (CAC)

Mr. Wisker indicated that the CAC met on February 25.  Ms. Heine provided an overview of the land conservation program.  The CAC will have vacant seats and staff will propose that the Board appoint replacements from present alternate members.  Responding to Manager Klingelhutz, Mr. Holtman indicated that there is no legal conflict of interest issue with respect to Larry Blackstad’s service on the CAC.

Manager Blixt arrived at this time.

Building Committee

Manager Casale stated that the City of Minnetonka plans a site visit and then will respond to the District’s letter.

Upcoming Meetings
Manager Calkins reported the following meetings:  Wasserman corridor community meeting, 6:30 p.m., March 10, Laketown Township Hall; CAC, 6:45 p.m., March 25, District offices; Hydrodata meeting, 11:00 a.m., March 12; Property Search Task Force, 5:00 p.m., March 10, and 4:00 p.m., March 16, District offices; Rules Task Force, 6:30 p.m., March 16, Minnetonka City Hall; Minnesota Association of Watershed Districts (MAWD) legislative briefing, 6:30 p.m., March 10, Kelly Inn, St. Paul; MAWD Legislative Breakfast, 7:30 a.m., March 11, Kelly Inn, St. Paul.


February 11, 2010 Minutes

It was moved by Manager Keeley, seconded by Manager Blixt to approve the minutes with a revision on page five to read: “…buffers would not routinely apply to single-family home sites, but the Board had expressed a desire to leave the framework open.”  Upon vote, the motion carried.

February 18, 2010 Minutes

It was moved by Manager Miller, seconded by Manager Keeley that counsel review the meeting tape and supplement the discussion of public beach sandblanket regulatory issues for Board review.  Upon vote, the motion carried. 

February 25, 2010 Minutes

It was moved by Manager Calkins, seconded by Manager Miller to approve the minutes with further language provided by counsel to supplement the page three discussion, noting the Boards desire to communicate messages to and receive input from the general public and the Board direction that staff provide Himle Horner with the District’s public attitudes survey. Upon vote, the motion carried. 


Ms. Westerlund presented the 2009 Education and Communications Accomplishment Report, which was included in the meeting packet.

Manager Shekleton remarked that the annual Tour de Tonka may offer a good opportunity and good audience to communicate about the District and its work.  Manager Casale commented that he concurred fully.

ACTION ITEMS (continued)

Public Communications: Briefing Session with John Himle

John Himle, Principal, Himle Horner, introduced himself and Chuck Tombarge, also from his firm.  The Board and Mr. Himle then engaged in a conversation concerning the District’s relations with local units of government and other stakeholders.

The discussion included whether those expressing concern about the rules object to the rules themselves or are opposed more philosophically to watershed district intrusion on municipal governance.  Further discussion involved examining the views of local officials as distinct from the views of individual constituents in the community and how the District should communicate productively with each.  Board members noted that District and city staff can work very well together toward concurrence, but that city staff may not advocate fully for outcomes reached when there is pushback from city council members.  Conversely, Manager Keeley observed that many local officials don’t have a great deal of familiarity with water management matters and just follow the lead of staff. 

Other Board members noted that by various measures, watershed taxpayers strongly support the District’s work, but that supporters do not participate in submitting comments or at public hearings.  Manager Blixt suggested that the District needs to do a better job of ensuring that not just opposition but also support is visible, so that decisions represent the general best outcome for the watershed.  Manager Miller observed that while the public is highly favorable in the abstract, everyone is concerned if they believe the rules will affect their use of their property.

Board members noted that there has been fairly good proactive communication with Hennepin County commissioners, with the result that commissioners are deliberative about recent concerns raised, and trust the District’s process.  The importance of ongoing, proactive communication with county board members and local officials was emphasized.  Manager Casale also emphasized that permit applicants appreciate the collaborative approach of District staff, and that the District should do more to communicate this.

Manager Klingelhutz noted that the present local concerns first began to arise when the rule details emerged.  Manager Calkins suggested that much of the opposition is based on a misunderstanding of what the proposed rules say.  He perceives philosophical objections based on the traditional belief that watershed districts should not exercise land use authority.  He believes this underlies the two present areas of local contention: the rulemaking and land conservation program activities.  He noted that in fact the statute explicitly confers watershed district authority to regulate land use, although the District always has consciously decided to avoid exercising this authority so as not to intrude into this realm of local authority.  Manager Casale suggested that this tension is similar to that encountered by the Metropolitan Council: there is an inherent belief in the concept of municipal governance but both watershed districts and the Metropolitan Council were created in recognition of the fact that with respect to certain public policy decisions, the views of individual cities should not be determinative.

There was discussion that the present designation of the rules by letter is confusing to the public.  It was moved by Manager Casale, seconded by Manager Keeley that the District’s rules will no longer be referred to by their letter designations, but just by their names.  Upon vote, the motion carried. 

Mr. Wisker observed that recent meetings with mayors have been productive and outlined staff plans to provide a clear response to all commentors.  Manager Blixt urged that the District undertake active engagements including one-on-one conversations with stakeholders.  Manager Casale emphasized the need to maintain ongoing relations with county commissioners and other officials.  Manager Calkins cautioned that watershed matters are not a major item for county commissioners and that District representatives should be respectful of commissioners’ time and attention. Mr. Himle recommended that the District be very clear about its goals and assess whether it has the resources to meet those goals.

It was moved by Manager Miller, seconded by Manager Casale to authorize the administrator to enter into an agreement on advice of counsel with Himle Horner for public communication services not to exceed $20,000, and for Himle Horner to begin work as described in the proposal.  Upon vote, the motion carried.

Staff Commendation

Manager Calkins noted that Jim White, Mayor, City of Orono, wrote to him highly commending Mr. Wisker’s presentation at the mayors’ meeting.  Manager Casale requested that the letter be appended to and made a part of the minutes.

Weis Property

Mr. Ten Eyck introduced Laura Graf, Barnes & Thornburg, as the District’s land acquisition transaction counsel and Joe Otte, Wenck Associates, who has performed Phase I and Phase II environmental assessments for the District and provided assistance in evaluating contamination issues and risk management measures.  Mr. Ten Eyck reviewed prior Board discussion regarding the property and the Board’s directive that environmental review be presented to the Board before the District proceeds to closing.  Mr. Ten Eyck noted that the staff analysis has considered the effect of the site condition on possible future uses of the property.

Manager Miller emphasized that it is important to know what the site condition is, but that the District should be careful not to let issues unduly affect moving forward.

Attorney Graf reviewed the terms of the purchase agreement concerning the inspection period and environmental contingencies.  She noted that the inspection period ends on March 26, but that the District at its discretion can extend this date for 45 days. 

Mr. Otte reviewed the results of the Phase I and Phase II studies, and liability and property use issues concerning the property more generally.  The property is adjacent to the Control Data Corporation property, which was a listed Superfund site cleaned up under a Minnesota Pollution Control Agency (MPCA) order.  The Schloff site, further to the northwest, is still an active state Superfund site.  He noted that both cleanups largely have been successful though there is low-level residual contamination.  Mr. Otte noted that the existence of a memorandum of understanding between the MPCA and EPA Region V, under which discretion to initiate remedial activity resides primarily with the MPCA in that if the MPCA decides that no such action is appropriate, the EPA will defer. 

Manager Casale asked whether site restoration work such as the creek meandering could send pollutants downstream.  Mr. Otte replied that this should not affect the general movement of whatever residual contamination there is.  He then described the ability of the MPCA to provide a “no association” letter based on the District’s description of its proposed activity, which would help protect the District from any subsequent remediation liability issues. 

Responding to Manager Miller, Mr. Panzer stated that the District could perform the stream meander without intruding on parcels where it has no easement rights. 

Attorney Graf advised of a buyer’s contingency that the seller must obtain a clean certificate of title.  The County Registrar advises that this should be forthcoming in about three weeks.

Manager Calkins and Manager Casale noted that the District would need to know the cost of site cleanup in order to determine the effect of the contamination on development value.  Mr. Otte replied that as conditions now are, there are no cleanup requirements, but that there would be costs to develop and conform to a contingency plan during work and potentially for inclusion of design features such as vapor barriers.  He added that the perception of contamination could depress market value or the pool of potential buyers.  Mr. Otte noted from his site inspection that he does not see signs of human manipulation within the central portion of the site.  Conversely, there are berms and other signs of alteration around the perimeter, but no evidence suggesting that the site has been used for waste disposal.

It was moved by Manager Casale, seconded by Manager Miller to convene in close session to consider an adjustment of terms for the offer to purchase parcels with addresses 7200, 7202, 7250 and 7252 Excelsior Boulevard, St. Louis Park. 

Manager Klingelhutz reviewed the Phase II results and noted a number of organic chemicals detected in the groundwater and soil vapor samples.  He noted that these are not usually found in an open field.  Mr. Otte observed that the compounds are at low levels and appear to be attenuating.  Attorney Graf advised that three monitoring wells with associated piping remain in place on the District’s property although the MPCA has not evidenced clear intent to maintain them as active monitoring wells.  The Board discussed its preference for closing the wells and Attorney Graf indicated that the District is engaging with the seller and the MPCA to see if that can be accomplished.

Upon vote, the motion carried and the Board convened in close session.

The Board reconvened in open session.

Manager Blixt left at this time.

It was moved by Manager Casale, seconded by Manager Klingelhutz that the District require a “no association” letter and approved contingency plan from the MPCA before closing and that Mr. Otte be directed to estimate and report back to the Board on the potential development cost associated with the site contamination.  Upon vote, the motion carried.

Mr. Otte estimated that a “no association” letter would take four to six weeks.  The Board clarified that the estimated development cost impact should be brought back prior to closing for Board discussion, whereas the “no association” letter does not need to, if it does issue and staff is satisfied with it.

Public Hearing:  Barkus, Broin Acquisitions

Manager Calkins opened the public hearing to consider the two property acquisitions.

Ms. Heine presented the proposed acquisition of the 4.8-acre Barkus property, 6525 County Road 26, Minnetrista.  Manager Casale asked whether staff has been in communication with the City.  Ms. Heine replied that she has communicated with staff and understands that staff has kept the Mayor advised.  She noted also that the parcel appears to be in the City’s greenway plan. 

Manager Casale requested that staff send a letter to the City establishing that discussion has occurred and that the City supports the acquisitions.  Manager Klingelhutz further asked about the City’s greenway plan.  Ms. Heine replied that she has not confirmed the precise orientation of the parcel to the plan but that City staff has told her that the parcel is within the identified greenway.

It was moved by Manager Casale, seconded by Manager Klingelhutz, that no Board action be taken on the Barkus acquisition pending the District’s letter and an opportunity for city response.

Managers Casale, Shekleton and Klingelhutz agreed that the staff letter should not require a City response but should provide an opportunity for the City to comment.  Manager Calkins emphasized that the letter should not suggest that District acquisition decisions will require local approval.  Manager Casale added that it is sound to ensure that the record establishes communication with the city in which a possible acquisition is located.  Manager Calkins suggested that the letter reflect the date on which the matter will come back before the Board, in order to establish a time frame for any City response.

Mr. Ten Eyck suggested that staff and counsel draft a policy governing communication with local units in land conservation matters.  Manager Calkins stated that the policy should provide for early involvement of the affected local unit.  Manager Miller cautioned that public authorities acquire property within cities frequently, and that the District is not engaging in actions that are out of the ordinary.  Manager Calkins added that the District, like any other governmental entity, has the authority to acquire property, but that its process should be inclusive and transparent and should provide for notice to city staff and the governing body as soon as the District determines it has an interest in a property.  Manager Casale emphasized the importance of documenting communications in writing.

The main motion was withdrawn without objection.  It was moved by Manager Calkins, seconded by Manager Shekleton, to instruct staff to draft a policy consistent with the preceding direction.  Upon vote, the motion carried 6-0.

By unanimous consent, the prior main motion was renewed and amended to add that the acquisition is to be placed on the next Board agenda.  Upon vote, the motion carried 6-0.  Mr. Evenson advised that staff would circulate a draft to Board members and that any individual manager should direct comments to him. 

Ms. Heine presented the proposed Broin property acquisition, consisting of a 6.5-acre part of two parcels to be subdivided at 14802 and 14814 Timber Hill Road, Minnetonka.

Responding to Manager Calkins, Ms. Heine indicated that potential restoration work on the site could include tree planting and a park/trail connection.  Manager Miller suggested the possibility of restoring and turning the property over to the City.  Manager Calkins observed that the technical committee recommended that the District focus restoration activity on the northern part of the parcel.

Manager Calkins asked whether any members of the public wished to comment on either acquisition.  No comment was offered.  Manager Calkins closed the public hearing.

It was moved by Manager Miller, seconded by Manager Shekleton to adopt Resolutions 10-025 and 10-026 as proposed, authorizing the administrator to enter into a purchase agreement for the Broin property in the amount of $1,115,000.00 plus related acquisition cost and to exercise other authorities as necessary to implement the purchase agreement, and directing that financing from Hennepin County be sought pursuant to the master loan agreement between the two bodies.  Upon vote, the motion carried 6-0.

Manager Klingelhutz expressed his dissatisfaction that the notation of public hearing had been inadvertently omitted from the agenda for the two transactions.


There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 10:50 p.m.

Respectfully submitted,

Lee Keeley, Secretary