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w,9 SARAH E ARENDT KATHLEEN K. RALIENHORST FREDERIC W, KNAAK MELISSA A MILLER STEVEN P. CARLSON May 9, 1989 Pat Morrison City Administrator 3800 Laverne Avenue Lake Elmo, Minnesota RAUENHORST CARLSON & KNAAK ATTORNEYS AT LAW , ROSEDALE CORPORATE PLAZA 2665 LONG LAKE ROAD ROSEVILLE, MINNESOTA 55113 55042 Re: Ed Gorman, White Hat Restaurant Fill Permit Dear Pat: TELEPHONE: (612)631.1080 FAX: (612) 631-1631 The purpose of this memorandum is in response to the Council's request at the meeting on May 2, 1989 for legal opinion regarding the reasonableness of Council action taken on April 18, 1989 wherein Council directed staff to notify Mr. Gorman that fill operations would be suspended until a site plan had been considered and approved by the Council based on two specific findings as enumerated in those minutes of April 18, 1989. I have had an opportunity to review those minutes together with the minutes from the September 20, 1988 meeting in which the Council granted a fill permit to Mr. Gorman for 20,000 cubic yards of fill on the property of the White Hat Restaurant. It appears from the minutes of September 20, 1988 that Mr. Gorman was requesting a renewal of his fill permit which was originally granted on September 4, 1987 for an "unstated" amount of fill in order for him to proceed with his Phase I Development. It also appears from those minutes that Mr. Gorman's architect had felt 20,000 to 30,000 yards of fill was needed in order to accomplish this result. It also appears from those minutes that Mr. Bohrer, the City Engineer, had some concern about too much fill being brought in to that location. Notwithstanding Mr. Bohrer's concern, the Council granted a fill permit for Mr. Gorman for the White Hat Restaurant for 20,000 cubic yards with further review again in the spring. It further provides that the granting of the fill permit does not grant approval to add buildings on this site and it was to be assured that no rerouting of the drainage would occur. It appears from the minutes, however, that the granting of the permit, nevertheless, was subject to the review and approval by the City Engineer. The issue of Mr. Gorman's fill permit was apparently placed on the agenda of the April 18, 1989 meeting as a result of the Council and staff having received inquiries on the status of the fill pile south of the White Hat Restaurant. The minutes from that meeting clearly provide that Mr. Bohrer said the fill was not blocking the drainage, which was specifically a condition of the permit as issued from the meeting on September 20, 1988. Mr. Bohrer further went on to say, however, that he felt that if the full 20,000 cubic yards were brought in, there would be much greater likelihood of interference with the drainage, dirt and dust uses, and erosion. It was his opinion,