Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2024.05.20 CC Packet
A. CALL TO ORDER B. ROLL CALL C. PLEDGE OF ALLEGIANCE D. APPROVAL OF MINUTES 1. May 6, 2024, City Council Meeting 2. May 15, 2024, Diamond Point Park Neighborhood Meeting E. APPROVAL OF AGENDA F. APPOINTMENTS/PRESENTATIONS 1. Nothing Scheduled G. CONSENT AGENDA All matters listed under the Consent Agenda are considered to be routine by the City Council and will be enacted by one motion and a roll call vote. If a member of the City Council or the public wishes to discuss an item, that item will be removed from the Consent Agenda and will be considered separately. 1. Approve Claims Roster 2. Approve Six-Month Performance Review and Extension of Probationary Period for Public Works Worker Miguel Souffront 3. Approve Six-Month Performance Review for Public Works Utility Lead Worker Richard Fox 4. Approve Fireworks Permit for Good Neighbor Days on Saturday, June 8, 2024 5. Approve Resolution Approving PUD Amendment for Shores of Oneka Lake 4 th Addition 6. Approve Resolutions Approving Final Plat and Development Agreement for Shores of Oneka Lake 4th Addition 7. Approve Resolution Approving Encroachment Agreement for 5413 Ferrara Avenue North 8. Approve Purchase of New Playground Equipment for Diamond Point Park Mayor: Tom Weidt Councilmembers: Becky Petryk, Ward 1 Phil Klein, Ward 2 Dave Strub, Ward 3 Mike Miron, Council at Large City Council Agenda Monday, May 20, 2024 Address: 14669 Fitzgerald Ave. N. Hugo, MN 55038 Phone: 651-762-6300 Website: www.ci.hugo.mn.us H.PUBLIC HEARING 1.Nothing Scheduled I.UNFINISHED BUSINESS 1.Nothing Scheduled J.NEW BUSINESS 1.Discussion on Moratorium on Solar Farms K.VISITOR PRESENTATIONS 1.Nothing Scheduled L.COUNCIL PRESENTATIONS 1.Nothing Scheduled M.ADMINISTRATIVE PRESENTATIONS 1.Reminder – Nystrom & Associates Ribbon Cutting on Tuesday, May 21, 2024 2.Reminder - City Administrator’s Performance Review to Monday, June 3, 2024 3.Approve Closing City Hall and Public Works on Friday, July 5, 2024 4.Schedule Commissioner Interviews for July 8, 22, or 29, 2024 N.EXECUTIVE SESSION 1.White Bear Lake Homeowners Association Lawsuit IN THE MATTER OF RESTRICTIONS TO VARIOUS MUNICIPAL WATER APPROPRIATION PERMITS (OAH MASTER DOCKET No. 8-2002-37733). O.ADJOURNMENT BACKGROUND MEMO FOR THE CITY COUNCIL MEETING ON MAY 20, 2024 D.1 Approve of Minutes for the May 6, 2024, City Council Meeting D.2 Approve Minutes for the May 15, 2024, Diamond Point Park Neighborhood Meeting Staff recommends Council approve the above minutes as presented. G. 1 Approve Claims Roster Staff recommends Council approve the Claims Roster as presented. G.2 Approve Six-Month Performance Review and Extension of Probationary Period for Public Works Worker Miguel Souffront At its November 20, 2023, meeting, Council approved the hiring of Miguel Souffront as a Public Works Worker. Miguel began employment on December 4, 2023. According to the City’s Personnel Policy, all appointments for regular full-time employees are subject to a six-month training and evaluation probation period. Staff recommends Council approve the six-month performance review and staff further recommends extension of the probationary period for an additional six months. G.3 Approve Six-Month Performance Review for Public Works Utility Lead Worker Richard Fox At its November 20, 2023, meeting, Council approved the hiring of Richard Fox as a Public Works Worker. Miguel began employment on December 11, 2023. According to the City’s Personnel Policy, all appointments for regular full-time employees are subject to a six-month training and evaluation period. Staff recommends Council approve the six-month performance review and removal of probationary period for Public Works Utility Lead Worker Richard Fox. G.4 Approve Fireworks Permit for Good Neighbor Days on Saturday, June 8, 2024 The Hugo Lions Club has applied for a Fireworks Display Permit for fireworks on Saturday, June 8, 2024. The Lions have been working with PC Pyrotechnics, a licensed pyrotechnic operator, who will discharge fireworks on City owned property located north of the wellhouse adjacent to the northwest corner of St. John’s Cemetery. The Hugo Fire Department will have an apparatus on standby during the display. Fire Chief Jim Compton has reviewed the application and finds it acceptable under the condition they meet setback requirements of their State license. Staff recommends Council approve the fireworks permit for Hugo Good Neighbor Days pending a site inspection by the Hugo Fire Chief and/or the Hugo Fire Marshal on the day of the event. G.5 Approve Resolution Approving PUD Amendment for Shores of Oneka Lake 4 th Addition M/I Homes of Minneapolis/St. Paul, LLC. is requesting an amendment to the PUD General Plan for “The Shores of Oneka Lake 4th Addition” to create 25 single-family detached lots, where 24 twin home lots were previously approved. Staff has reviewed the PUD Amendment request for consistency with the standards outlined in the City Code, found that the request meets all standards, and recommended approval of the request to the Planning Commission. At its May 9, 2024 meeting, the Planning Commission held a Public Hearing and considered the request. No one spoke at the Public Hearing. The Planning Commission unanimously voted to recommend that the City Council approve the PUD Amendment request, subject to the conditions in the resolution. G.6 Approve Resolutions Approving Final Plat and Development Agreement for Shores of Oneka Lake 4th M/I Homes is requesting approval of a final plat and development agreement in order to plat 26 lots on an outlot in The Shores of Oneka Lake development. The lots meet the minimum lot standards and requirements outlined in the regulations for The Shores of Oneka Lake PUD. Staff recommends approval of the resolution approving the Final Plat and Development Agreement for The Shores of Oneka Lake 4th Addition. G.7 Approve Resolution Approving Encroachment Agreement for 5413 Ferrara Avenue North Greg and Michelle Stream have requested an encroachment agreement to allow construction of a fence within a drainage and utility easement on property located at 5413 Ferrara Avenue North. The Senior Engineering Technician has reviewed the location of the fence and is comfortable with the request. Staff recommends Council approve the resolution approving the encroachment agreement for 5413 Ferrara Avenue North. G.8 Approve Purchase of New Playground Equipment for Diamond Point Park At the neighborhood meeting of May 15, 2024, the Parks Commission invited residents to select a new playground for Diamond Point Park. Diamond Point Park was identified as the neighborhood park to see improvements in 2024 in the Parks Capital Improvement Plan. Four designers presented proposals and St. Croix Recreation was selected. Their proposal included the nucleus aspire tower structure for ages 5-12, the imagination playfort for ages 2-5, swings, and spinners. Residents and the Parks Commission requested a river/forest themed color palette. The existing playground will be removed and replaced with the new equipment in summer 2024 in addition to other renovations at the park. The Parks Commission is recommending approval of the purchase of playground equipment from St. Croix Recreation in the amount of $150,000. J.1 Discussion on Moratorium on Solar Farms Recently the City Council discussed a Solar Farm Interim Use Permit (IUP) application and there were observations that a Solar Farm may not be appropriate in certain land use categories in the City because of issues related to compatibility and appearance. Staff recommends the City Council discuss whether to revise or add any regulation, restrictions, or prohibitions, to the ordinance. If the City Council would like to amend the Solar Farm ordinance, staff has drafted and recommends the City Council adopt an interim ordinance placing a moratorium on new development of Solar Farms and directing a study to be conducted. Accessory Solar Energy Systems are not included in the interim ordinance and remain an allowed use. M.1 Reminder – Nystrom & Associates Ribbon Cutting on Tuesday, May 21, 2024 Council has scheduled a meeting to attend the Ribbon Cutting event at Nystrom & Associates, 4638 Victor Path, Suite 900, on Tuesday, May 21st from noon – 1 p.m. M.2 Reminder - City Administrator’s Performance Review to Monday, June 3, 2024 Council has scheduled the City Administrator’s Performance Review for Monday, June 3rd at 6 p.m., one hour prior to their regular meeting. M.3 Approve Closing City Hall and Public Works on Monday, July 5, 2024 According to the City’s Personnel Policy, each regular, full-time employee who has worked for the City for one calendar year is allowed one day of their choosing as a personal holiday. Staff has collectively requested to use their personal holiday on Friday, July 5, and requests Council close City Hall and Public Works on that date. M.4 Schedule Commissioner Interviews for July 8, 22, or 29, 2024 Staff is soliciting applications to fill vacancies on the EDA, Parks Commission, and Historical Commission. Staff recommends Council select a date on which to hold interviews. N.1 Executive Session -White Bear Lake Homeowners Association Lawsuit Pursuant to Minn. Stat. D.05 Subd. 3(b) the Council will adjourn to executive sessions to discuss information relating to the lawsuits filed by the White Bear Lake Homeowners Association and their demanded domestic water restrictions. O. Adjournment MINUTES City Council Meeting City Hall Council Chambers Monday, May 6, 2024 7:00 p.m. Call to Order Mayor Weidt called the meeting to order at 7:00 p.m. Roll Call COUNCIL PRESENT: Klein, Miron, Petryk, Strub, Weidt COUNCIL ABSENT: None OTHERS PRESENT: City Administrator Bryan Bear, City Engineer Mark Erichson, City Attorney Dave Snyder, Community Development Director Rachel Juba, City Clerk Michele Lindau Approval of Minutes for the April 15, 2024, City Council Meeting Petryk made motion, Klein seconded, to approve the minutes for the City Council meeting held on April 15, 2024, as presented. All Ayes. Motion carried. Approval of Minutes for the April 22, 2024, Council Workshop Klein made motion, Strub seconded, to approve the minutes for the Council Workshop held on April 22, 2024, as presented. All Ayes. Motion carried. Approval of Minutes for the April 24, 2024, Metro Cities Annual Meeting Klein made motion, Strub seconded, to approve the minutes from the Metro Cities Annual Meeting held on April 24, 2024, as presented. as presented. All Ayes. Motion carried. Approval of Agenda Weidt made motion, Miron seconded, to approve the agenda as presented. All Ayes. Motion carried. Council Meeting Minutes for May 6, 2024 Page 2 of 12 Approval of Consent Agenda Miron made motion, Petryk seconded, to approve the following Consent Agenda: 1. Approve Claims Roster 2. Approve Performance Review for Building Department Secretary Debi Close 3. Approve Annual Performance Review for Parks Planner Shayla Denaway 4. Approve Annual Performance Review for Parks Lead Worker Rick Kieffer 5. Approve Six-Month Performance Review for Fire Chief Jim Compton, Jr. 6. Approve Fire Department Job Descriptions 7. Approve Donation from the Hugo American Legion to the Hugo Fire 8. Approve Special Event Permit for New Life Church on Sunday, June 9, 2024 9. Approve Special Event Permit for MS 150 on Sunday, June 9, 2024 10. Approve Special Event Permit for Blacksmith Lounge 2024 Summer Events 11. Approve Special Event Permit for North Star Regional Rodeo on July 26-28, 2024 12. Approve Temporary Liquor License for the North Star Gay Rodeo on July 26-28, 2024 13. Approve Temporary Liquor License for the Lions Club for Good Neighbor Days 14. Approve Hold Harmless and Indemnification Agreement – Oneka Prairie 15. Approve Encroachment Agreement for 5562 130th Way North 16. Approve Encroachment Agreement for 16211 Finale Avenue North 17. Approve Encroachment Agreement for 15352 Goodview Avenue North 18. Approve Encroachment Agreement for 14123 Oneka Parkway North 19. Approve Preparation of Shoreland Ordinance Revisions 20. Approve Pay Request No. 3 to C.W. Houle for Lift Station 12 Project 21. Approve Hydrology Data Collection by WSB for the North Star Wetland Bank All Ayes. Motion carried. Approve Claims Roster Adoption of the Consent Agenda approved the Claims Roster as presented. Approve Performance Review for Building Department Secretary Debi Close Debi Close was hired as the City’s Building Department Receptionist on March 20, 2006. Adoption of the Consent Agenda approved the annual performance review for Building Department Receptionist Debi Close. Approve Annual Performance Review for Parks Planner Shayla Denaway Shayla Denaway was hired on May 11, 2009, as the Economic Development/Parks Intern. On May 3, 2010, Council approved promoting Shayla as the new Parks Planner. Adoption of the Consent Agenda approved the annual performance review for Parks Planner Shayla Denaway. Approve Annual Performance Review for Parks Lead Worker Rick Kieffer Rick Kieffer was re-hired by the City of Hugo as a Public Works Worker on May 31, 2005 returning after a short period of time in the private sector. Rick was promoted to Public Works Parks Lead Worker on April 17, 2023. Adoption of the Consent Agenda approved the Annual Performance Review for Public Works Parks Lead Worker Rick Kieffer. Council Meeting Minutes for May 6, 2024 Page 3 of 12 Approve Six-Month Performance Review for Fire Chief Jim Compton, Jr. At its October 16, 2023, meeting, Council approved the hiring of Jim Compton, Jr. as the City’s first fulltime Fire Chief with a starting date of November 20, 2023. According to the City’s Personnel Policy, all appointments for regular full-time employees were subject to a six-month training and evaluation period. Adoption of the Consent Agenda approved the six-month performance review for Fire Chief Jim Compton and removal of probationary period. Approve Fire Department Job Descriptions At the April 22, 2024, workshop, Council discussed the culture and structure of the Hugo Fire Department. Part of that discussion was the need to update the job descriptions for the officers in the department. Fire Chief Jim Compton, Jr. had drafted new job descriptions. Adoption of the Consent Agenda approved the new job descriptions for Chief Engineer, Assistant Chief, Deputy Chief, Captain, Lieutenant, Engineer, Firefighter, and Fire Marshal. Approve Donation from the Hugo American Legion to the Hugo Fire The Hugo American Legion requested to donate $1,000 to the Hugo Fire Department from pull-tab proceeds for equipment and training. All donations to the Fire Department needed to be approved by the Council. Adoption of the Consent Agenda approved the donation of $1,000 to the Hugo Fire Department. Approve Special Event Permit for New Life Church on Sunday, June 9, 2024 David Streitz on behalf of New Life Church had applied for a Special Event Permit to hold an outdoor event on Sunday, June 9, 2024. A Special Event Permit was required because they would be using an amplified sound system during the event. The event would include a free outdoor service held from 9-10:30 a.m. followed by a picnic from noon-4 p.m. Approximately 100 people were expected to attend. Adoption of the Consent Agenda approved the Special Event Permit for New Life Church for an outdoor event on June 9, 2024. Approve Special Event Permit for MS 150 on Sunday, June 9, 2024 The Multiple Sclerosis Society had applied for a Special Event Permit (SEP) for their annual fundraising bicycle event to be held on June 8-9, 2024, from Proctor, MN to White Bear Lake, MN. On the second day of the ride, bikers would be traveling south through Hugo, primarily on the Hardwood Creek Trail and Highway 61. Council needed to approve SEPs where there are expected to be over 200 people in attendance. The MS 150 would have approximately 1,800 riders. Adoption of the Consent Agenda approved the SEP as described in their application in addition to conditions in the SEP memo. Approve Special Event Permit for Blacksmith Lounge 2024 Summer Events The Blacksmith Lounge, 17205 Forest Boulevard North, had applied for a Special Event Permit for their 2024 events to be held between Memorial Day and end of September. Events included four auctions, seven car shows, one motorcycle swap meet, and one fundraising event. A SEP approved by Council was required because there will be alcohol served outside and there may be up to 200 people in attendance. Adoption of the Consent Agenda approved the Special Event Permit for the Blacksmith Lounge. Council Meeting Minutes for May 6, 2024 Page 4 of 12 Approve Special Event Permit for North Star Gay Rodeo on July 26-28, 2024 The North Star Gay Rodeo had applied for a Special Event Permit to hold a regional rodeo at the Dead Broke Arena site at 5676 170th Street North on July 26-28, 2024. A SEP was required because there would be amplified sound and alcohol served outside. Adoption of the Consent Agenda approved the SEP for the North Star Gay Rodeo as outlined in their application. Approve Temporary Liquor License for the North Star Gay Rodeo on July 26-28, 2024 North Star Gay Rodeo Association had applied for a Temporary On-Sale Liquor License to serve alcohol at their rodeo event on July 26-28, 2024, at the Dead Broke Arena, 5676 170 th Street North. Staff had received the completed application, fee, and proof of liquor liability insurance. Adoption of the Consent Agenda approved the Temporary On-Sale Liquor License for the North Star Gay Rodeo. Approve Temporary Liquor License for the Lions Club for Good Neighbor Days The Hugo Lions Club had applied for a Temporary On-Sale Liquor License to serve alcohol at the Hugo Good Neighbor Days on June 7-9, 2024. The Lions Club had completed the application and paid the fee. Adoption of the Consent Agenda approved the On-Sale Liquor License for the Hugo Lions for Good Neighbor Days subject to receipt of the appropriate Certificate of Liquor Liability Insurance for the event. Approve Hold Harmless and Indemnification Agreement – Oneka Prairie Capstone Homes-MN was seeking a Certificate of Occupancy for a home recently constructed at 4807 162 Way North. The Oneka Prairie development was to be served by the newly constructed Lift Station No. 12; however, the lift station was not yet fully functioning, and the official startup had yet to occur. The project was, however, near completion. As identified in Exhibit B of the development agreement, prior to the issuance of Certificate of Occupancy, the lift station needed to be constructed and fully functioning. Staff had worked with Capstone Homes-MN to prepare a Hold Harmless and Indemnification Agreement where the builder was responsible to ensure the lift station was checked and pumped as necessary and was responsible if there were any damages related to the builder’s request for a Certificate of Occupancy at 4807 162nd Way prior to the lift station being fully operational. Adoption of the Consent Agenda approved the Hold Harmless and Indemnification Agreement. Approve Encroachment Agreement for 5562 130th Way North Alicia Knafla had requested an encroachment agreement to allow construction of a fence within a drainage and utility easement on property located at 5562 130th Way North. The Senior Engineering Technician had reviewed the location of the fence and was comfortable with the request. Adoption of the Consent Agenda approved RESOLUTION 2024-12 APPROVING AN ENCROACHMENT AGREEMENT TO ALLOW CONSTRUCTION OF A FENCE WITHIN A DRAINAGE AND UTILITY EASEMENT ON THE PROPERTY LOCATED AT 5562 130TH WAY NORTH. Council Meeting Minutes for May 6, 2024 Page 5 of 12 Approve Encroachment Agreement for 16211 Finale Avenue North Marc Roles had requested an encroachment agreement to allow construction of a fence within a drainage and utility easement on property located at 16211 Finale Avenue North. The Senior Engineering Technician had reviewed the location of the fence and was comfortable with the request. Adoption of the Consent Agenda approved RESOLUTION 2024-13 APPROVING AN ENCROACHMENT AGREEMENT TO ALLOW CONSTRUCTION OF A FENCE WITHIN A DRAINAGE AND UTILITY EASEMENT ON THE PROPERTY LOCATED AT 16211 FINALE AVENUE NORTH. Approve Encroachment Agreement for 15352 Goodview Avenue North Susan Powell and Marylou Cunningham had requested an encroachment agreement to allow construction of a fence within a drainage and utility easement on property located at 15352 Goodview Avenue North. The Senior Engineering Technician had reviewed the location of the fence and was comfortable with the request. Adoption of the Consent Agenda approved RESOLUTION 2024-14 APPROVING AN ENCROACHMENT AGREEMENT TO ALLOW CONSTRUCTION OF A FENCE WITHIN A DRAINAGE AND UTILITY EASEMENT ON THE PROPERTY LOCATED AT 15352 GOODVIEW AVENUE NORTH. Approve Encroachment Agreement for 14123 Oneka Parkway North Tim and Carli Hofferber had requested an encroachment agreement to allow construction of a fence within a drainage and utility easement on property located at 14123 Oneka Parkway North. The Senior Engineering Technician had reviewed the location of the fence and was comfortable with the request. Adoption of the Consent Agenda approved RESOLUTION 2024-15 APPROVING AN ENCROACHMENT AGREEMENT TO ALLOW CONSTRUCTION OF A FENCE WITHIN A DRAINAGE AND UTILITY EASEMENT ON THE PROPERTY LOCATED AT 14123 ONEKA PARKWAY NORTH. Approve Preparation of Shoreland Ordinance Revisions The EDA had been discussing the future of the City owned property in downtown and had approved a marketing plan for the property. With the approval, they made a recommendation to start the process with the DNR on amending and updating the shoreland ordinance to include implementation flexibility. Implementation flexibility would allow local governments to deviate from certain shoreland rules in the State Statute but would require incorporation of restrictive or higher standards in other areas of the shoreland ordinance. It is in staff’s opinion that the shoreland ordinance should be reviewed and updated. The shoreland ordinance was out of date and there were other benefits to updating the ordinance that would give the City more administrative approvals. Adoption of the Consent Agenda authorized staff to start the ordinance amendment process. Approve Pay Request No. 3 to C.W. Houle for Lift Station 12 Project C.W. Houle, Inc. had submitted Pay Request No. 3 in the amount of $140,204.04 for work certified through April 20, 2024, on the Lift Station No. 12 Project. The electrical work had been completed and the lift station would be operational soon. Adoption of the Consent Agenda approved payment to C.W. Houle, Inc. in the amount of $140,204.04. Council Meeting Minutes for May 6, 2024 Page 6 of 12 Approve Hydrology Data Collection by WSB for the North Star Wetland Bank At the meeting of June 12, 2023, Council approved a scope of work from WSB to prepare and submit the prospectus document for the North Star Wetland Bank. Additional data was collected in 2023. The prospectus was drafted in winter 2024 and submitted for evaluation by the Technical Evaluation Panel. The TEP had not yet made a decision on the prospectus, but it was likely that additional hydrology data would be required. In 2023, the Council approved the purchase of data loggers. WSB provided an estimate of $7,852 to relocate existing monitoring wells, install the City’s data loggers, and compile hydrology data in 2024. Adoption of the Consent Agenda approved 2024 hydrology data collection at North Star Wetland Bank by WSB, estimated at $7,852. Public Hearing on Cost to be Assessed for the property located at 14197 Forest Blvd. N. Community Development Director Rachel Juba explained that on May 15, 2023, the City Council adopted a resolution approving an order regarding a hazardous and substandard building located at 14197 Forest Boulevard North, due to a fire. During March and April 2023, the City had sent the property owner letters notifying them of the nuisance and hazardous state of the building. The Court issued an Order for demolition on October 25, 2023, and stated that the cost of the demolition and expenses incurred to carry out the Order would be assessed against the property. The demolition of the building was completed on February 14, 2024. The total cost of demolition and expenses incurred was $37,676.75. This would be assessed over 10 years at 5.25 percent. Notices were sent to the property owner and other interested parties that the hearing was being held, and it also provided the payments options. The prepared resolution stated no building permits could be issued until the expenses were paid. She recommended the Council hold the public hearing and adopt the resolutions approving the expense report and order preparation of the assessment against the property. Mayor opened the public hearing. Tim Lindgren, property owner, and Mike Walters, Public Insurance Adjuster for DTL Global, approached the podium and explained the claim had not yet been settled and they were asking for a little more time. Walters said the property was in dispute with All State Insurance and DTL Global and it should be resolved this fall. Weidt asked what the plan was to pay. Walters responded that All State was responsible for paying the bill. The plan was to submit the paperwork to the attorney at All State. He said they should get full reimbursement, and they planned on rebuilding. There were no other comments, and Weidt closed the public hearing. Weidt asked staff if there would be a problem with waiting for payment. Rachel responded that according to the notice, it would need to be paid in a short amount of time before interest incurred. The assessment would not be sent to the County until the Fall for taxes payable in 2025. It could be paid in full before that without interest. The resolutions would assure the assessed amount was recorded against the property. If the owner were to sell it, the buyer would know there was an assessment. Miron asked if the interest payment could be waived until the amount has to be sent to the County Council Meeting Minutes for May 6, 2024 Page 7 of 12 to be included in the County’s assessment. Bear responded that the property owner can pay in full until November without interest. Then it would be certified to the County and that’s when interest starts to accrue. Klein made motion, Miron seconded, to approve RESOLUTION NO. 2024-16 ADOPTING AN EXPENSE REPORT AND COSTS TO BE ASSESSED FOR COSTS INCURRED IN CARRYING OUT AND ENFORCING THE HAZARDOUS BUILDING PROCEEDINGS AGAINST THE PROPERTY LOCATED AT 14197 FOREST BOULEVARD NORTH, HUGO, MINNESOTA. All Ayes. Motion carried. Klein made motion, Strub seconded, to approve RESOLUTION NO. 2024-17 DECLARING COST TO BE ASSESSED, AND ORDERING PREPARATION OF PROPOSED ASSESSMENT FOR PROPERTY LOCATED AT 14197 FOREST BOULEVARD NORTH. All Ayes. Motion carried. Approve Site Plan and Interim Use Permit for Solar Farm on Everton Avenue North EESolar13, LLC for Enterprise Energy, LLC had requested approval of a site plan and an interim use permit for a solar farm located east of Everton Avenue North and north of 149 th Street North. City Administrator Bryan Bear explained that a public hearing was held at the Planning Commission on April 11, 2024, but Council could take public comment if they wished. Associate Planner Max Gort explained the Planning Commission concerns and discussion on it not fitting in with the character of the area, screening and fencing, and other. The Commission voted to approve the site plan and interim use permit with additional conditions requiring ten- foot-tall trees along the southern side and the fence be changed to a black vinal-coated chain link fence. Gort provided background on the ordinance and the surrounding area. The ordinance regulating solar energy was adopted in 2016, and the only project in Hugo was built in 2018. The ordinance was recently revised in July 2023. The proposed solar farm on Everton Avenue would be located on a vacant, approximately 12-acre parcel surrounded by other 10-acre parcels with townhomes and single-family developments surrounding them. In 2006, these larger parcels were removed from the MUSA, so they were not eligible for sewer and water. Those parcels were zoned Agricultural and identified in the 2040 Land Use Plan as Large Lot Residential. He explained the request was for Site Plan approval and an Interim Use Permit. No variances were requested. He presented the site plan that showed solar panels overlayed on it and the landscape plan being proposed by the applicant to provide screening from adjacent properties. Gort reviewed the performance standards required in the ordinance for an IUP for a solar farm and explained how the applicant had met all the performance standards and criteria necessary for approval. He focused on two of the criteria. First, the construction of the solar farm could not impede the City’s ability to implement its own Comprehensive Plan. He explained the parcel was not in the MUSA and could not be subdivided because zoning required a ten-acre minimum lot size; therefore, it would not impede on implementing the Comprehensive Plan. Secondly, the solar farm would need to be compatible with the character of the area. Gort described the Council Meeting Minutes for May 6, 2024 Page 8 of 12 surrounding Agricultural uses and explained how the solar farm would have a low impact on adjacent properties. He said it was staff’s opinion that the proposal was compatible with the character of the surrounding area. Staff had also reviewed the site plan requirements saying most of them overlapped the IUP requirements except ones relating to stormwater management and wetlands. Staff found that solar panels would not affect overall drainage patterns. There were 3.6 acres of wetlands on the site, and the solar array would be constructed in a portion of it, as was permitted by ordinance. The applicant had received a no-loss exemption from the Technical Evaluation Panel for the construction. Gort concluded his presentation by saying staff had found the proposal met all requirements of City Code. The Planning Commission unanimously voted to recommend approval to the Council with the two added conditions. He explained that based on feedback from the public hearing and recent correspondence from neighboring residents relating to the character of the area, staff drafted a resolution with findings of fact for denial for the Council to also consider. Strub asked about barbed wire on the top of the fence that was mentioned during the Planning Commission public hearing. Gort responded that the Planning Commission did not recommend it being changed, and it is still on the plan. Petryk asked if the applicant was the property owner or if it would be a long-term lease. Gort replied that the applicant had a purchase agreement with the owner. Weidt noted there were a lot of attendees that may want to speak, even though this was not a public hearing. He asked the developer to speak first. Evan Carlson from Enterprise Energy, 2925 Dean Parkway in Minneapolis, explained he was the owner of the company and had the purchase agreement on the property. He said that about a year and half ago, he started working on this project. He said he has a lot in it, and it is an important project for him, and he intends to own it long term. He said he knew it was not popular with surrounding landowners, so he wanted it to be done well. Carlson indicated he followed all the requirements of the ordinance, which he found to be very robust, and they were using an area that was not suited for anything else. Carlson said his wife was a veterinarian and has respect for people who rehab animals. He said he understood their concerns and wanted to do his best to address them and do it in a way that makes people happy. He talked about other solar panels in the neighborhood saying the only difference was that these were on the ground. He said the City had done a good job protecting the aesthetics of the neighborhood by requiring setbacks. In addition to the vegetation management plan, they also did a tree survey so the impact would be extremely minimal. Evan said the property was outside the MUSA, which he felt was a very important characteristic, along with the owner of the property not being able to put a well and septic on it, so this would be a productive way to utilize the land. A full SWPP was also done. He commented on the City’s requirements that are reflected on the site plan saying they are very robust, and he hoped he could gain respect from people by doing a good job. Mayor Weidt opened it up for other comments. John David Udstuen, 15190 Everton Avenue North, stated he was speaking on behalf of the entire neighborhood who are 100% opposed. He said that per the ordinance, the solar farm was to be compatible with the present character of the surrounding area, and this was not compatible. Udstuen said he had countless reason why it was not but would only focus on a few. They have large lots with single family homes and lots of open space with mature trees and wildlife. It’s Council Meeting Minutes for May 6, 2024 Page 9 of 12 become a walking area for the surrounding community, and he has had to explain that it was private property to residents who think it is a nature preserve. He said it’s 160 acres with less than two dozen homes, and a very special place. He commented on the City’s part in protecting the land when the Everton Avenue Coalition was created to keep it from development. He talked about the word “AG” being created to preserve and protect the character neighborhoods and keep 10-acre minimums. Udstuen described it as a jewel of the community, something to be proud of. He talked about some of the properties being listed as a green corridor according to the Parks Plan. He said that is the true character of the neighborhood, open and undisturbed land. He said the main portion of the request for denial will be presented by Laura. Laura Syring, 15149 Everton Avenue North, said she has been a resident for the past 21 years. She read a letter that they had sent to the City Council and Mayor addressing their concerns. In the letter, the history of the neighborhood and its residents was provided to show the character of the area. This letter will be retained as part of the official record. Daniel Skaar, 13857 Geneva Avenue North, had questions to ask. He wanted to know if the City was under any renewable mandate; who was getting/buying the power and what was the contract; were there output goals, power purchase agreements, and performance guarantees; what would happen if he couldn’t get these agreements with Xcel; and was there a substation on this property. He noted the property was adjacent to a power line. He said he had done a lot of solar projects in California, and he found this location to be a bit awkward. He said it would be helpful to see some analog from other municipalities that have put this type of solar array in this type of environment. Carlson responded to some of the questions explaining this would be a community solar garden, and when they put power in the grid, they get grid credits rather than selling it right to a utility. There was no substation and would go right into the line that goes into people’s houses. The bill credit was then sold to people, known as subscribers, who don’t have a good spot for solar panels. He explained how it was different than the utility scale development that plugs into the transmission lines, which is a federal interconnection process. He said that it was different than community solar, which provided solar to people that do not have a good spot. Carlson said they would sign a contract with Xcel who would give them 25 years to sell the bill credits. That was why they were asking for a 25-year IUP. After 25 years, they would need to renew or decommission after the useful life was done as per application requirements. He explained there were no concrete footings poured into the ground. Instead, high beams would be hammered into ground in rows with a rack on it that the panels go into. He said he had applied for an interconnection agreement with Xcel that was in an advanced study phase, so it was ready for construction. He explained the steps he went through to have his plan reviewed and accepted by experts. He talked about other projects that are several smaller projects with points of interconnections that would have a lot of poles. He said this would be a small one-megawatt project on 3.9 acres that would have two more poles than what is located along the road right now. Carlson said his vegetation management plan preserved all existing habitat that’s possible; everything that flies could still be there, and he explained the deer-style fence. He said by doing this they were preserving this habitat for the future. Weidt asked how the area was calculated because it appeared it took up more than 3.9 acres. Carlson responded that the fenced area would be 5.5 acres, and the solar panel area would be 3.9 acres. Carlson stated that he would be open to an alternative public use of the setbacks. Bear addressed the question on whether there was a renewable mandate saying there was not, but Council Meeting Minutes for May 6, 2024 Page 10 of 12 there was a law that required electric companies to purchase electric from these types of facilities, which had created a market for them. There was no mandate that requires cities to approve these applications. John Udstuen requested Council show the video and pics they put together. Arnie Triemert, 1522 Everton Avenue, said he wanted Council to consider how it did not fit in the neighborhood at all. The Mayor granted Udstuen’s request and the photos were shown to Council. Laura Syring explained they hired a drone company to take these pictures depicting the feeling and flavor of the area to show that the solar farm does not fit the character of the neighborhood. A drone video was also presented. She thanked the Council for viewing them. Evan Carlson commented that the image does a good job demonstrating what people are concerned about, but that was not his plan. He said his plan preserved the trees and had setbacks and greenspace. Had the City not done such a robust job enacting its ordinance, he said his project may have looked like that. Bear noted that the photos and video would become part of the record. Weidt talked about the neighborhood being unique and set aside after multiple discussions in 1989 and again in 2006. It was the largest undeveloped piece of land in a high and medium density residential neighborhood in that part of town. He said there can certainly be a case made on the effect it would have on a neighborhood, and it would change the intention of why it was set aside. He talked about not knowing if a solar farm would have met the intention of the Council so many years ago, but he has seen many examples of how the character is changed by a project like this. He talked about the solar ordinance and the original intent of having solar farms allowed in agricultural zones was to have it on larger open pieces of land that make it easier to hide solar farms from neighboring residents as compared to what it does on this long narrow strip of land. A lot of townhomes abut this project, and he said he was not sure how you would screen the solar project from tall buildings. He said it would alter the area for the next 20 years. Klein agreed the ordinance was very robust. He sat on the Ordinance Review Committee with Council Member Miron, and they wanted it to be more robust. He said he agreed with the mayor; it was a unique area with residential buildings all around it. The MUSA was also close by, and that could be hooked into very quickly if the property owners decided to change the zoning. He recalled discussions at the Ordinance Review Committee, and it was not the intent to have a solar farm in the middle of town. He said it was a unique property and thought a solar farm would be better located somewhere else in the community. He said Evan did an excellent job preparing his site plan, and he could understand why the Planning Commission recommended approval, but from a characteristic standpoint, he thought the developer should find a different location in the community. Petryk was around in 1998 and said it had been a struggle for the residents. She said they sacrificed a great deal of money by being removed from the MUSA and did it because they believed in the area and believed it should be kept preserved. It was very generous with the townhomes for their views. She talked about the green corridor and said 160 acres goes a long way for animals. She said the area has history, functions as parkland for a lot of people, and has done exactly what she hoped it would do. She stated it was not the intent to have something like Council Meeting Minutes for May 6, 2024 Page 11 of 12 this put in the neighborhood, and though staff and the Planning Commission did a good job evaluating the project, she could not support it. Miron commended the applicant saying he put together a good site plan, but the parcel or the history on it can’t be changed. In terms of connections, the site made sense from a utility standpoint. He talked about the establishment of the ten-acre properties, saying the long-term vision for the character of this neighborhood was for it to be set aside. He said the project was not a good fit despite a good attempt. Strub agreed that it did not fit the character of the neighborhood. He talked about the parcel being empty for so long and was concerned for the landowners’ rights. He said the buyer thinks he had found the best use of the land, and he was concerned about the landowner would be stuck with it. He said everyone loves the view, but they don’t own it. Weidt asked how long the owner had owned the land. Evan responded that he thought they bought it a year before it was on the market, but they couldn’t sell it. He guessed they owned it for 3-4 years. Weidt talked about having respect for property rights, and he didn’t think it was purchased as an investment but as a residential property. Unfortunately, they did not move forward and build a house on this lot. He said they likely don’t care about the neighborhood because they don’t live there anymore. He said there are things that just don’t fit in certain locations. Klein made motion, Petryk seconded, to approve RESOLUTION 2024-18 APPROVING FINDINGS OF FACT DENYING A SITE PLAN AND INTERIM USE PERMIT FOR A SOLAR FARM ON PROPERTY LOCATED EAST OF EVERTON AVENUE NORTH AND NORTH OF 149TH STREET- NORTH. Bear recommended adding to the resolution another “whereas” stating it was based on all hearings. Both Councilmembers making the motion agreed to the addition. Weidt stated he had visited the area several times and appreciated the efforts Evan had made. He said he hoped Evan could look at Hugo in a positive way. Roll call vote: Ayes-Klein, Miron, Petryk, Strub, Weidt Nays-None Motion carried. Schedule Performance Review for City Administrator for Monday, May 20, 2024 Bryan Bear has been employed with the City since May 3, 2004. Bryan served as the Community Development Director until being appointed as the City Administrator on November 7, 2011. Staff requested Council schedule the annual performance review for City Administrator Bryan Bear. Miron made motion, Klein seconded, to schedule the City Administrator’s performance review for June 3, 2024, at 6 p.m., prior to the regularly scheduled Council meeting. All Ayes. Motion carried. Council Meeting Minutes for May 6, 2024 Page 12 of 12 Shred It and Forget It Event on Thursday, May 9 and Friday, October 4, 2024 City Administrator Bryan Bear reminded Council of the Shred It and Forget It event to be held on Thursday, May 9 and Friday, October 4, 2024, in the parking lot at City Hall. Residents could bring up to five bags of paper to be shredded for free between 8 a.m. and 10 a.m. This event was paid for with the Washington County recycling grant. Reminder - Diamond Point Park Neighborhood Meeting on Wednesday, May 15, 2024 City Administrator Bryan Bear reminded Council they scheduled a meeting to attend the Diamond Point Park neighborhood meeting on Wednesday, May 15, 2024, at 7:00 pm at the Peder Pedersen Pavilion. Plans to reconstruct and update the park would be shared. Adjournment Strub made motion, Klein seconded, to adjourn at 8:35 p.m. All Ayes. Motion carried. Respectfully Submitted, Michele Lindau, City Clerk MINUTES City Council- Joint Parks Commission Mtg Peder Pedersen Pavilion Wednesday, May 15, 2024 7:00 p.m. COUNCIL PRESENT: Klein, Miron, Petryk, Strub, Weidt COUNCIL ABSENT: None Council attended the neighborhood meeting held by the Parks Commission to review proposals for the 2024 playground equipment replacement at Diamond Point Park. Respectfully Submitted, Shayla Denaway Parks Planner City of Hugo Claims May 20, 2024 G. 1 Vendor Invoice Amount Description Department Abdo Financial Solutions LLC 488480 2,850.00$ Accounting Assistance Finance Dept Abdo Financial Solutions LLC 488482 11,312.50$ Accounting Assistance Finance Dept Anderson, Scott CLAIM 146.53$ Clean Up Day Supplies Recycling Aquacide Company 751544 595.00$ Raingarden Supplies Gen Gov't Bldgs Canteen Refreshment Services MSP96894 332.29$ Breakroom Supplies Public Works Canteen Refreshment Services MSP96895 474.33$ Breakroom Supplies Gen Gov't Bldgs Capital One Trade Credit/Northern Tool 1089243651 219.98$ Pump - Unit #470 Parks Dept CivicPlus 300180 487.46$ Supplement Pages City Clerk Companion Animal Control LLC April 469.17$ Callout Fees & Mileage Animal Control Forest Lake NAPA April 1,590.19$ Auto Parts & Shop Supplies Various Gopher State One Call 4040486 481.95$ April Service Charges Water & Sewer Grainger 9095016169 15.18$ Parts - Unit #470 Parks Dept Hawkins Inc 6754685 674.73$ Water Chemicals Water Utility Home Depot Credit Services 7094201 83.88$ Trash Bags Parks Dept Hugo Feed Mill 161302 4.47$ Hardware - Unit #208-97 Street Dept Innovative Office Solutions LLC IN4531175 52.40$ Restroom Supplies (PPP) Parks Dept Innovative Office Solutions LLC IN4534223 265.70$ Steel Wall Files, Folders & Tape Public Works Interstate Battery System of Minneapolis 110058331 32.78$ Batteries Public Works Interstate Battery System of Minneapolis 110058331 145.95$ Battery - Unit #108-15 Water & Sewer Interstate Battery System of Minneapolis 110058331 565.80$ Batteries - Unit #314-16 Street Dept Klein, Lori 906383 1,050.00$ April Cleaning Services (PPP) Parks Dept L.T.G. Power Equipment 284469 75.34$ Parts - Unit #318-24 Parks Dept L.T.G. Power Equipment 284469 75.34$ Parts - Unit #344-20 Parks Dept L.T.G. Power Equipment 284469 75.34$ Parts - Unit #347-23 Parks Dept Laughlin's Pest Control 65171 150.00$ Pest Control Service - 14715 Forest Blvd Rental Properties Lindau, Michele CLAIM 44.97$ Canva Subscription (March - May) Administration Lindau, Michele CLAIM 34.06$ Election Mileage Elections LRS Portables of Minnesota MP247907 114.29$ Toilet Rental - Oakshore Park Parks Dept LRS Portables of Minnesota MP247908 114.29$ Toilet Rental - Oneka Park Parks Dept LRS Portables of Minnesota MP247909 114.29$ Toilet Rental - Beaver Ponds Park Parks Dept LRS Portables of Minnesota MP247910 114.29$ Toilet Rental - Diamond Point Park Parks Dept LRS Portables of Minnesota MP247911 114.29$ Toilet Rental - Frog Hollow Parks Dept LRS Portables of Minnesota MP247912 228.58$ Toilet Rental - Hanifl Park West Parks Dept LRS Portables of Minnesota MP247913 114.29$ Toilet Rental - Valjean Park Parks Dept LRS Portables of Minnesota MP247914 114.29$ Toilet Rental - Arbre Park Parks Dept LRS Portables of Minnesota MP247915 114.29$ Toilet Rental - Heritage Ponds Park Parks Dept LRS Portables of Minnesota MP247916 114.29$ Toilet Rental - McCollar Park Parks Dept LRS Portables of Minnesota MP247917 114.29$ Toilet Rental - Arcand Park Parks Dept LRS Portables of Minnesota MP247918 60.72$ Toilet Rental - Irish Ave Park Parks Dept LRS Portables of Minnesota MP247919 228.58$ Toilet Rental - Hanifl Park East Parks Dept MacQueen Emergency P28729 1,238.45$ Wildland Structural Boots Fire Dept Marco INV12461819 55.31$ May Copier Maintenance Building Inspections Menards 32312 420.67$ Fire Department Supplies Fire Dept Metering & Technology Solutions INV5120 9,815.20$ Water Meters & Hardware Water Utility Metro-INET 1890 10,341.00$ May Computer Service Various Nardini Fire Equipment Inc IV00287314 656.00$ Annual Monitoring of Public Works Alarm System Public Works Oxygen Service Company 3583110 106.34$ Welding Supplies Public Works Press Publications 803680 83.94$ Planning Commission Public Hearing Notice Ordinances/Proceedings Silver Star Industries Radco - Blaine BLN-92908 343.87$ Adjustable Ball Mount & Mud Flaps - Unit #6109-24 Fire Dept Silver Star Industries Radco - Blaine BLN-92909 154.95$ Adjustable Ball Mount - Unit #6107-19 Fire Dept SiteOne Landscape Supply LLC 140339291-001 244.83$ Seed Starter Mulch (Plow Damage) Street Dept Smith, Schafer & Associates 30161 11,350.00$ 2023 Audit Interim Billing Finance Dept Smith, Schafer & Associates 30161 10,375.00$ Accounting Assistance Finance Dept Smith, Schafer & Associates 30161 2,000.00$ ARPA Single Audit Interim Billing Finance Dept T-Mobile 870254054 601.81$ Cellular Phone Charges Various T-Mobile 870254054 10.50$ Tower No. 4/Well No. 6 Cradlepoint Water Utility T-Mobile 870254054 10.50$ Rice Lake Centre Cradlepoint Administration T-Mobile 870254054 40.25$ Hanifl Cradlepoint Parks Dept UniFirst Corporation 1410056106 121.94$ Uniforms, Supplies & Floor Mat Services (PW) Public Works UniFirst Corporation 1410057515 10.55$ Restroom Supplies & Floor Mat Services (CH) Gen Gov't Bldgs UniFirst Corporation 1410057516 153.94$ Uniforms, Supplies & Floor Mat Services (PW) Public Works Verizon Wireless 9962417159 23.03$ Cellular Phone Charges Public Works Winnick Supply 43006 25.15$ Hardware - Unit #7101-02 Fire Dept WSB & Associates February 88,784.38$ Engineering Fees - See Attached Breakdown Various WSB & Associates March 69,553.00$ Engineering Fees - See Attached Breakdown Various 230,486.73$ Total Claims for May 20, 2024 Page 1 Assistants Name Date of Birth MN Cert # Chad Stivers 10/6/1971 833 Keith Chmielewski 3/28/1983 933 Joeseph Newman 12/20/1983 Jeff Roehl 12/16/1968 950 Ken Shull 2/8/1977 984 Nick Stegman 6/28/1988 Samantha Stivers 4/3/2001 Harrison Marchio 10/9/1998 Chris Walsh 1/3/1997 937 Erin Walsh 11/15/1983 Imagery ©2024 Airbus, CNES / Airbus, Maxar Technologies, Map data ©2024 100 ft Measure distance Total distance: 294.80 ft (89.86 m) 5/10/24, 1:25 PM Google Maps https://www.google.com/maps/@45.1637765,-92.9953238,296m/data=!3m1!1e3?entry=ttu 1/1 Agenda Number: G.5 CITY OF HUGO PLANNING AND ZONING APPLICATION STAFF REPORT TO: Bryan Bear, City Administrator FROM: Max Gort, Associate Planner SUBJECT: M/I Homes of Minneapolis/St. Paul, LLC. Request for an amendment to the PUD for “The Shores of Oneka Lake 4th Addition” to create 25 single-family detached lots, from the previously approved 24 twin home lots. DATE: May 16, 2024 for the City Council meeting of May 20, 2024 ZONING: Planned Unit Development (PUD) LAND USE: Low Density Residential (LD) 60-DAY REVIEW DEADLINE: July 5, 2024 1. PLANNING COMMISSION UPDATE: At its meeting on Thursday, May 9, 2024 the Planning Commission held a public hearing and considered the request. Staff provided a background presentation and recommended approval of the request. No one from the audience spoke at the public hearing. The Planning Commission agreed that the application met the requirements to approve a PUD Amendment, and unanimously voted to recommend approval of the request to the City Council. 1. DESCRIPTION OF REQUEST: The applicant is requesting an amendment to the PUD to create 25 single-family detached lots from the previously approved 24 twin home lots. 2. BACKGROUND: In 2022, the City Council approved the PUD General Plan for The Shores of Oneka Lake. Since then three phases have been developed. The first phase included 19 single family home lots, 16 twin home lots, and 15 villa lots. The second phase included 14 single family home lots. The third phase included 39 single family home lots and 38 villa lots. The Shores of Oneka Lake 4th Addition PUD Amendment Page 2 The PUD allowed flexibility on the following: 1. Minimum lot size – the PUD allows smaller lots 2. Minimum lot width – the PUD allows narrower lot widths 3. Reduced Setbacks – the PUD allows reduced front, side, and rear yard setbacks 4. Impervious surface coverage – the PUD allows an increased percentage of impervious surface coverage 5. Shoreland Overlay District – the PUD allows a smaller lot size, narrower lot width, and a higher allowable building height in exchange for an increased setback from the ordinary high-water level and a decreased maximum impervious surface coverage from the shoreland overlay district requirements for Oneka Lake. The developer is requesting the amendment to the fourth phase to create 25 detached single-family lots, known as “carriage lots”, where 24 twin home lots were previously approved. The requested amendment includes the following development standards specific for the proposed carriage lots in addition to the development standards previously approved: Standards Required Single Family Lots Villa Lots Twinhome Lots Proposed Carriage Lots Minimum Lot Size 10,400 square feet (SF)/15,000 square feet (Twinhome) Smallest Lot: 5,417 square feet Largest Lot: 19,201 square feet Average Lot: 11,503 square feet Minimum Lot Width 80 feet (SF)/100 feet (Twinhome) 65 feet 52 feet 86.7 feet 42 feet Front Yard Setback 25 feet 25 feet 25 feet 25 feet 25 feet Side Yard (Street) Setback 25 feet 25 feet 25 feet 25 feet 25 feet Side Yard (Interior) Setback 10 feet 7.5 feet 6 feet 15 feet (between buildings) 6 feet Rear Yard Setback 20 feet 30 feet 30 feet 30 feet 30 feet Standards Required Single Family Lots Villa Lots Twinhome Lots Proposed Carriage Lots Maximum Building Coverage 30% maximum 45% 45% 45% (both lots combined) 45% Maximum Lot Coverage 50% maximum 60% 60% 60% (both lots combined) 60% *Proposed changes with the PUD amendment highlighted in yellow. The Shores of Oneka Lake 4th Addition PUD Amendment Page 3 3. CONTEXT: A. Surrounding Land Use and Zoning The property is surrounded by parcels that are part of the Shores of Oneka Lake development, and zoned Planned Unit Development (PUD). The properties to the west and southeast are occupied by single family homes, the properties to the north and northeast are occupied by villa homes, and the properties to the south and east are city-owned outlots. B. Natural Characteristics of Site The site is relatively flat with a wetland area to the north and a stormwater pond on the parcel to the south. The site has been previously graded. The proposed amendment does not include any additional wetland impacts. 4. ANALYSIS: C. Level of Discretion in Decision Making The City’s discretion in approving or denying a preliminary plat is limited to whether or not the proposed plat meets the standards outlined in the subdivision regulations in the City Code. If it meets these standards, the City must approve the preliminary plat. The City has relatively high level of discretion in approving PUD amendments. A PUD amendment must be consistent with the City’s comprehensive plan. The City may impose reasonable requirements in a PUD amendment not otherwise required if the City deems it necessary to promote the general health, safety, and welfare of the community. D. Consistency with the PUD and Ordinance Standards Preliminary Plat and PUD There primary revision to the plan is detaching the previously approved twin homes and creating narrower, detached homes, with one lot being added to the previously approved 24 lots. The proposed carriage homes have a building lot similar to the previously approved villa homes, which also received approval for a 6-foot side yard setback. The development is required to meet all of the conditions from the previously approved preliminary plat and PUD. The proposed plans meet the intent of the previously approved preliminary plat and PUD. The 25 homes proposed by the developer will bring the total lot count for the entire development from 218 lots to 219 lots, and result in a net density from 2.21 units per acre to 2.22 units per acre. This density is less than what would be allowed in a straight zoning single family development (3- 4 units per acre) and what would be allowed with a PUD (Up to 4 units per acre). The density is consistent with City requirements. The Shores of Oneka Lake 4th Addition PUD Amendment Page 4 Grading and Stormwater Management The site has been partially graded from the mass grading completed before previous phases of the development. There will be minor changes to grading with the proposed amendment. Park Dedication With the creation of an additional lot the developer will need to pay the park dedication fee of $3,400, in addition to the combination of land and fee as previously approved. 5. CONCLUSION AND STAFF RECOMMENDATION: The site is currently within the Shores of Oneka Lake PUD and the plan layout maintains a development pattern that complies with the approvals for the Shores of Oneka Lake PUD. Staff has reviewed the PUD amendment for consistency with the standards outlined in the City Code and finds that the application is consistent with all the standards. Staff recommended approval of the amendment to the PUD, subject to the conditions listed in the resolution. 6. PLANNING COMMISSION RECOMMENDATION: The Planning Commission unanimously voted to recommend that the City Council approve the PUD Amendment request, subject to the conditions in the resolution. ATTACHMENTS: 1.Resolution Approving the Amendment to the PUD 2.Previously Adopted Resolution 2022-32 3.Location Map 4.Applicants Narrative with building elevations 5.Previously Approved Preliminary Plat with twin homes 6.Proposed layout of carriage homes 7.Carriage home examples RESOLUTION 2024-xx APPROVING AN AMENDMENT TO THE PUD FOR M/I HOMES OF MINNEAPOLIS/ST. PAUL, LLC, FOR “THE SHORES OF ONEKA LAKE 4TH ADDTION” ON PROPERTY LOCATED NORTH AND EAST OF GOODVIEW TRAIL NORTH AND WEST AND SOUTH OF GOODVIEW AVENUE NORTH WHEREAS, M/I Homes of Minneapolis/St. Paul, LLC, has requested approval of a PUD Amendment and one additional lot to the property legally described as follows: Outlot A, The Shores of Oneka Lake 2nd Addition WHEREAS, the Planning Commission has reviewed the preliminary plat at a duly called Public Hearing and recommends approval, and; NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUGO, MINNESOTA, that it should and hereby does approve the request by Elmcrest Investments, LLC, for an amendment to the PUD, subject to the following conditions: 1. A PUD general plan is approved to allow the creation of 219 residential units and 10 outlots. The development shall be constructed in accordance with the application and plans received by the Ci ty on March 7, 2024 and March 21, 2024 except as amended by this resolution. 2. The development shall comply with the Shores of Oneka Lake PUD standards in Resolution 2022-32, as amended. 3. The new grading and utility plans are subject to review and approval by the City Engineer. 4. Plans shall be revised to show new lot line orientation for lots 8, 9, 10, and 11. ADOPTED by the City Council this 3rd day of June, 2024 ______________________________ Tom Weidt, Mayor ATTEST: __________________________________ Michele Lindau, City Clerk RESOLUTION 2022-32 APPROVING PUD GENERAL PLAN FOR M/I HOMES MINNEAPOLIS/ ST. PAUL, LLC, FOR “THE SHORES OF ONEKA LAKE” ON PROPERTY LOCATED EAST OF HIGHWAY 61 AND NORTH GOODVIEW AVENUE NORTH WHEREAS, M/I Homes Minneapolis/St. Paul. LLC, has requested approval of a PUD general plan to allow approximately 218 residential lots and 10 outlots on the 131.66 acre property legally described as follows: (See Attached) WHEREAS, the Planning Commission has reviewed the PUD general plan at a duly called Public Hearing and recommends approval, and; NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUGO, MINNESOTA, that it should and hereby does approve the request by M/I Homes Minneapolis/St. Paul. LLC, subject to the following conditions: 1. A PUD general plan is approved to allow the creation of 218 residential lots and 10 outlots. The development shall be constructed in accordance with the application and plans received by the City on October 22, 2022, April 5, 2022, April 19, 2022, April 28, 2022, and May 4, 2022 except as amended by this resolution. 2. Approval is contingent upon City Council approval of the requested rezoning of the 131.66 acre property and preliminary plat. 3. The PUD general plan is approved based on the finding that the proposed project is consistent with the City’s Comprehensive Plan. 4. The developer shall comply with all conditions in the City Engineer’s letter dated May 4, 2022 5. PUD flexibility is granted to allow: a. Flexibility to allow various lot sized with a minimum lot size of 5,417 square feet, where 10,400 square feet is required. b. Flexibility to allow various lot width with a minimum lot width of 52 feet, were 80 feet is required by ordinance. c. Flexibility to allow a minimum front setback of 25 feet, where 30 feet is required. d. Flexibility to allow various setbacks with a minimum side yard setback of 6 feet, where 10 feet is required. e. Flexibility to allow a maximum impervious coverage of a lot to be 60% , where 50% is required. f. Flexibility from the shoreland overlay district regulations as below: Resolution 2022-32 Page 2 Oneka Lake Required Proposed Setback from OHW 150 feet Over 150 feet Minimum Lot Size 20,000 sq. ft. 5,417 sq. ft. Minimum Lot Width 125 feet 52 feet Maximum Structure Height 25 feet 35 feet Maximum Impervious Surface Area 25% Less than 25% overall 6. The preliminary phasing plan is generally approved per plans dated October 21, 2022, revised May 4, 2022. Any major revisions to the phasing plan shall require PUD amendment. Minor modifications shall be reviewed and approved by staff. a. Phase 1 shall include: i. Permit shall be issued by MnDOT for construction of the roundabout at 159th Street and Highway 61. ii. Start of construction of the roundabout at 159th Street and Highway 61. iii. The developer is responsible for the cost and construction of the roundabout at 159th Street and Highway 61. The Letter of Credit for Phase 1 shall include the costs for construction of the roundabout. b. Phase 2 shall include: i. The roundabout at 159th Street and Highway 61 shall be constructed and functioning, with the first layer of bituminous, prior to issuance of a building permit for the 1st building. ii. Park improvements: 1. An 8’ bituminous trail, boardwalk, and landscaping shall be installed within all of Outlot G that is in phase 2. Final location of the trail and boardwalk shall be reviewed and approved by staff prior to installation. This shall be constructed by and paid for by the developer. 2. The trail locations and trail connections to the parks to the south and the connections to the development shall be reviewed and approved by staff. 3. Connections to the parks and development shall be installed. c. Phase 3 shall include: i. Park improvements: 1. The remaining 8’ bituminous trail, boardwalk, and landscaping shall be installed within all of Outlot G. Final location of the trail and boardwalk shall be reviewed and Resolution 2022-32 Page 3 approved by staff prior to installation. This shall be constructed by and paid for by the developer. 7. Any development of Outlot C or A shall require PUD amendment and PUD General Plan submittal for review and approval by the City Council. 8. The building setbacks and impervious surface coverage requirements for the PUD are as follows: Standards Proposed Single Family Lots Proposed Villa Lots Proposed Twinhome Lots Minimum Lot Size Smallest Lot Proposed: 5,417 square feet Largest Lot Proposed: 19,201 square feet Average Lot Proposed: 11,503 square feet Minimum Lot Width 65 feet 52 feet 86.7 feet Front Yard Setback 25 feet 25 feet 25 feet Side Yard Setback 7.5 feet 6 feet 7.5 feet Rear Yard Setback 30 feet 30 feet 30 feet Maximum Building Coverage 45% 45% 45% (both lots combined) Maximum Lot Coverage 60% 60% 60% (both lots combined) 9. A stormwater re-use system, as shown in the plans, shall be constructed with the development. The final plans shall be reviewed and approved by staff. The system will be installed by the applicant, and owned/operated/maintained by the homeowner’s association. A stormwater reuse agreement shall be reviewed an approved by staff and recoded at Washington County. 10. The developer has indicated that an HOA will be established for the development to own/operate/maintain community areas, landscaping, and the water re-use system. The HOA documents shall be reviewed and approved by staff prior to the recording of the final plat for the Phase 1. 11. The twinhome elevations shall be reviewed and approved by staff. Resolution 2022-32 Page 4 12. The developer must comply with the following, prior to Final Plat and Final PUD Plan application: Landscaping and Lighting a. The landscape plan shall be revised to include: 1. A landscape buffer, with evergreen trees, from commercially zoned property to the west. 2. A landscape plan for the roundabout, including irrigation. 3. Additional landscaping at key locations and focal points in the development. 4. Details for any monument signage and landscaping. b. The final landscape plans must be submitted for review and approval by staff. c. The developer shall enter into an easement agreement for access and maintenance of the landscaping with in Outlots B, E, F, G, and I. Streets/Access d. A permit from Rice Creek Watershed District shall be issued for the ditch crossing for construction of Street A. e. An access and utility connection shall be made on the west side of Outlot B. f. Adequate access shall be provided for maintenance to Outlot J. The access width and location shall be reviewed and approved by staff. Parks and Trails a. An additional off street trail shall be built if construction of a trail on the berm along Oneka Lake not be feasible. b. A trail or sidewalk shall be constructed on Street H to provide a connection to the proposed Oneka Lake trail. c. The developer shall provide details and specifications for the trail and boardwalk along Oneka Lake. d. The developer shall work with staff on Outlot G amenities and connections to the parks to the south. Resolution 2022-32 Page 5 Miscellaneous e. The wetland replacement plan shall be reviewed and approved by the Technical Evaluation Panel (TEP) and the City. f. An encroachment agreement shall be approved by Xcel Energy for improvement within the power line easement. ADOPTED by the City Council this 6th day of June, 2022 _____________________________ Tom Weidt, Mayor ATTEST: __________________________________ Michele Lindau, City Clerk THE SHORES OF ONEKA LAKE 4TH ADDITION FINAL PLAT AND PLANNED UNIT DEVELOPMENT AMENDMENT The Shores of Oneka Lake 4th Addition Final Plat Page 1 INTRODUCTION M/I Homes of Minneapolis/St. Paul, LLC is submitting application for a Planned Unit Development (PUD) Amendment and The Shores of Oneka Lake 4th Addition final plat. The preliminary plat and Planned Unit Development (PUD) were approved June of 2022 with a total of 218 lots including 109 single family lots, 40 twinhome lots, and 69 villa lots. Due to the market and high interest level we have seen in our carriage lots (narrower lots with detached, narrower homes), we are requesting a PUD amendment to change 24 of the twinhome lots to carriage lots. The requested amendment would result in an increase in the number of lots within this portion of the development from 24 to 25 lots, thus resulting in an increase in the total number of lots within the development from 218 lots to 219 lots. ABOUT M/I HOMES M/I Homes has been in business for over 40 years and has built over 140,000 homes in 17 markets within the United States. They entered the Twin Cities Market in 2015 by purchasing Hans Hagen Homes. Hans Hagen Homes was founded over 50 years ago and was one of the largest and oldest home builders in the Minneapolis market. DEVELOPMENT STANDARDS The development standards approved with the preliminary plat and PUD will be generally adhered to with the addition of new standards for carriage lots. Below are the approved development standards with the addition of the proposed standards for carriage lots. The proposed standards are very similar to those of what has already been approved within the development. As shown in the attached elevations, our carriage product is fairly similar in height to our villa product (a difference of only about a few feet depending on the plan). The carriage product is also much narrower. We have provided examples of communities throughout the metro area that have our carriage product with similar setbacks to what is being requested. Standards Required Single Family Lots Villa Lots Twinhome Lots Proposed Carriage Lots Minimum Lot Size 10,400 square feet (SF)/15,000 square feet (Twinhome) Smallest Lot: 5,417 square feet Largest Lot: 19,201 square feet Average Lot: 11,503 square feet Minimum Lot Width 80 feet (SF)/100 feet (Twinhome) 65 feet 52 feet 86.7 feet 42 feet Front Yard Setback 25 feet 25 feet 25 feet 25 feet 25 feet Side Yard (Street) Setback 25 feet 25 feet 25 feet 25 feet 25 feet Side Yard (Interior) Setback 10 feet 7.5 feet 6 feet 15 feet (between buildings) 6 feet Rear Yard Setback 20 feet 30 feet 30 feet 30 feet 30 feet The Shores of Oneka Lake 4th Addition Final Plat Page 2 Standards Required Single Family Lots Villa Lots Twinhome Lots Proposed Carriage Lots Maximum Building Coverage 30% maximum 45% 45% 45% (both lots combined) 45% Maximum Lot Coverage 50% maximum 60% 60% 60% (both lots combined) 60% DENSITY With the addition of a lot, the density will not be significantly affected. With 218 lots and a net acreage of 98.65 acres, the net density was 2.21 units per acre. With the addition of a lot and a total of 219 lots, the density will increase to 2.22 units per acre. HOMEOWNER’S ASSOCIATION (HOA) Oneka Shores Master Association, Inc. is structured as a Master Association with three sub-associations. Supplemental documents for Oneka Shores Master Association, Inc. will be prepared in preparation of recording of the Final Plat. The lots within the 4th Addition will not be HOA-maintained but will be part of the Master HOA. The Master HOA has restrictions on outdoor storage, parking (no boats, campers, or trailers), fences, and sheds in order to keep the community looking orderly and well maintained. The Shores of Oneka Lake 4th Addition Final Plat Page 3 The Shores of Oneka Lake 4th Addition Final Plat Page 4 The Shores of Oneka Lake 4th Addition Final Plat Page 5 The Shores of Oneka Lake 4th Addition Final Plat Page 6 The Shores of Oneka Lake 4th Addition Final Plat Page 7 The Shores of Oneka Lake 4th Addition Final Plat Page 8 The Shores of Oneka Lake 4th Addition Final Plat Page 9 O N E K A P O N D SO N E K A P O N D SPRELIMINARY GRADING& EROSION CONTROL PLAN13off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\preliminary\8869_grade.dwgSave Date:06/10/22Revisions:1. 2/25/22 Revise Layout per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota10/21/2110/21/21Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKEHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416222. 4/27/22 Revise Layout per City Comments.3. 5/4/22 per City Comments.4. 5/19/22 per City Comments.5. 6/10/22 per City Comments.BENCHMARKSLOCFrom Preliminary Plat and PUD approved June 6, 2022 Proposed layout of detached carriage homes Agenda Number G.6 CITY OF HUGO COMMUNITY DEVELOPMENT DEPARTMENT PLANNING AND ZONING APPLICATION STAFF REPORT TO: Bryan Bear, City Administrator FROM: Rachel Juba, Community Development Director SUBJECT: M/I Homes Minneapolis/St. Paul, LLC. Final Plat and Development Agreement for The Shores of Oneka Lake 4th Addition DATE: May 16, 2024 for the City Council Meeting of May 20, 2024 1. PROPOSED MOTION: Move to approve the resolution approving the Final Plat and Development Agreement for The Shores of Oneka Lake 4th Addition. Approval of the Final Plat requires a 3/5 vote of the City Council. 2. DESCRIPTION OF REQUEST: The applicant is requesting approval of a final plat and development agreement in order to plat 26 lots on an outlot in The Shores of Oneka Lake development. The final plat will include 26 single family lots. The City Council reviewed and approved the preliminary plat and PUD for The Shores of Oneka Lake at its June 6, 2022, meeting. On December 19, 2022 the City Council approved the final for The Shores of Oneka Lake platting 50 lots. On September 5, 2023, the City Council approved the final plat for The Shore of Oneka Lake 2nd Addition platting 14 lots. March 4, 2024, the City Council approved the final plat for The Shore of Oneka Lake 3rd Addition platting 77 lots. This request will plat 26 lots for the forth phase of the development. The lots meet the minimum lot standards and requirements outlined in the regulations for The Shores of Oneka Lake PUD. The park dedication requirement will be met by fee for a total of $52,598 ($2,023 per unit). A portion of the Park Dedication was previously satisfied by dedication of 3.89 acres of upland on Outlot G. 4. RECOMMENDATION: Staff recommends approval the resolution approving the Final Plat and Development Agreement for The Shores of Oneka Lake 4th Addition. The Shores of Oneka Lake 4th Addition Final Plat and Development Agreement Page 2 ATTACHMENTS: a) Location Map b) Resolution Approving the Final Plat and Development Agreement c) Engineer’s Memo dated May 16, 2024 d) Draft Development Agreement e) Final Plat Graphics f) Final Plat Construction Plans RESOLUTION 2024-____ APPROVING A FINAL PLAT AND DEVELOPMENT AGREEMENT FOR M/I HOMES OF MINNEAPOLIS/ST. PAUL, LLC, FOR THE SHORES OF ONEKA LAKE 4th ADDITION WHEREAS, M/I Homes of Minneapolis/St. Paul, LLC, has requested approval of a final plat for the property legally described as follows: Outlot A, The Shores of Oneka Lake 2nd Addition WHEREAS, the Planning Commission has reviewed the preliminary plat and PUD at a duly called public hearing and recommended approval of the preliminary plat and PUD; and WHEREAS, the City Council approved the preliminary plat and PUD at its meeting on June 6, 2022. NOW, THEREFORE, BE IT HEREBY RESOVLED BY THE CITY COUNCIL OF THE CITY OF HUGO, MINNESOTA, that it should and hereby does approve the request by M/I Homes of Minneapolis/St. Paul, LLC., for a final plat, subject to the following conditions: 1. The final plat is approved to allow the creation of 26 lots, in accordance with the plans and application received by the City on March 7, 2024 and March 21, 2024, except as amended by this resolution. 2. The development shall substantially compl y with all plans and conditions of the PUD and preliminary plat approval granted by the City on June 6, 2022. 3. Development standards shall comply with Resolution 2022-32 and 2022-33, and as amended. 4. The developer shall comply with all conditions outlined in the City Engineer’s memo dated May 16, 2024, and revisions required in “redlined” comments from the City Engineer. 5. The developer shall design and install a stormwater re-use system for irrigation of the individual lots. 6. The developer shall establish a property owners association for the development to own/operate/maintain common elements, monument signage, landscaping, and the water re-use system. The property owners association documents shall be reviewed and approved by staff prior to recording the plat. 7. The landscaping planned for the plat shall be installed in one phase. The developer shall take proper precautions to protect the trees as the homes are being built. Resolution 2024-___ The Shore of Oneka Lake 4th Addition Final Plat and Development Agreement 8. Each home shall include a minimum of 2 parking spaces within the driveway. The driveway widths shall be a maximum of 24 feet at the right of way line. 9. Staff will continue to work with the applicant on the street lighting plan. Exact locations of the street lights shall be reviewed and approved by staff prior to installation. 10. When needed, a Letter of Map Revision will need to be prepared and submitted for FEMA approval so that the existing floodplain boundaries and elevations can be revised per the plans. 11. The developer shall obtain all necessary local, state, and federal permits. 12. The property owners association shall be responsible for maintenance of all development signage (if any) and landscaping within the outlots, common space, and the 159th Street roundabout. 13. Prior to recording the final plat: a) The developer must obtain all necessary stormwater management and wetland conservation act (WCA) permits from the City. b) The developer shall pay $52,598 ($2,023/lot) in full to satisfy the required cash in lieu of parkland dedication requirement. A portion of the Park Dedication was previously satisfied by dedication of 3.89 acres of upland on Outlot G. c) The developer shall pay the sewer and water trunk fees for each lot at final plat. The City’s SAC and WAC fees will be paid at the time building permits issued. d) The applicant shall provide copies of the property owners association documents/covenants for City review and approval. A copy of the document shall be filed for recording with the final plat. e) A stormwater reuse agreement shall be reviewed and approved by staff and recoded at Washington County. f) The developer shall enter into a development agreement, shall agree to complete all improvements, and pay all fees as required by the agreement. 14. Prior to the issuance of building permits: g) The applicant shall file the final plat, development agreement and associated documents with Washington County. Proof of recording shall be provided to the City. Resolution 2024-___ The Shore of Oneka Lake 4th Addition Final Plat and Development Agreement 15. Prior to the issuance of Certificate of Occupancy: h) All public improvement required with the development agreement shall be installed. ADOPTED by the City Council on May 20, 2024. ___________________________ Tom Weidt, Mayor ATTEST: _________________________________ Michele Lindau, City Clerk S:\Users\R_Juba\DEVELOPMENT PROJECTS\The Shores of Oneka Lake\The Shores of Oneka Lake 4th Addition Final Plat and PUD Amendment\Engineers Memo - Shores of Oneka Lake 4th Final Plat - 20240516.docx 178 E 9TH STREET | SUITE 200 | SAINT PAUL, MN | 55101 | 651.286.8450 | WSBENG.COM May 16, 2024 Ms. Rachel Juba Community Development Director City of Hugo 14669 Fitzgerald Avenue North Hugo, MN 55038 Re: Shores of Oneka Lake 4th Addition Final Plat Review WSB Project No. 025586-000 Dear Ms. Juba: We have reviewed the Final Plat submittal for the Shores of Oneka Lake 4th Addition. We have reviewed the following information related to this application: • The Shores of Oneka Lake 4th Addition Final Plat Submittal dated February 23, 2024, by Carlson McCain • The Shores of Oneka Lake 4th Addition Sanitary Sewer, Watermain, Storm Sewer, and Street Construction Plans dated February 23, 2024. • The Shores of Oneka Lake 4th Addition Grading, Development & Erosion Control Plans dated February 23, 2024. Based on the review of the documents, we offer the following Engineering comments related to this application: General/Access 1. The subject property is located east of Highway 61 at 159th Street and north of the existing Oneka Ponds development. 2. The roundabout at TH 61 and 159th Street will serve as the primary access for the development and is open to traffic as of late last fall. 3. Plans have been completed and there are no further engineering comments. Utility Plan 4. An 8” sanitary sewer will be extended along 157th Street North from an existing sanitary sewer stub extended from Goodview Trail North. 5. The construction plans correctly show an 8” watermain being extended through the 4th Addition, connecting Goodview Trail North and Goodview Avenue North. 6. The sanitary sewer will be connecting into an 8” sanitary sewer stub provided in a previous phase of this development. Stormwater Management 7. The site is meeting water quality requirements primarily through water reuse for onsite irrigation. The remaining water quality required will be provided by the stormwater ponds onsite. 8. The site meets rate control requirements through the stormwater ponds within the overall development. 9. Plans have been completed and there are no further engineering comments. Ms. Rachel Juba May 16, 2024 Page 2 S:\Users\R_Juba\DEVELOPMENT PROJECTS\The Shores of Oneka Lake\The Shores of Oneka Lake 4th Addition Final Plat and PUD Amendment\Engineers Memo - Shores of Oneka Lake 4th Final Plat - 20240516.docx Wetlands 10. No wetland impacts are proposed with the 4th Addition. Thank you for the opportunity to provide comments on this project. Additional detailed, red-lined comments have been provided to the applicant’s engineer and we have had meetings to discuss how they propose to modify the plans. These minor comments will need to be addressed prior to approval of the construction plans. If you have any questions, please do not hesitate to contact me at 651-286-8463. Sincerely, Mark Erichson, PE City Engineer cc: Scott Anderson, Public Works Director (email only) Liz Finnegan, Senior Engineering Technician (email only) Brian Krystofiak, Carlson McCain (email only) Return To: City of Hugo 14669 Fitzgerald Ave N Hugo, MN 55038 CITY OF HUGO WASHINGTON COUNTY, MINNESOTA DEVELOPMENT AGREEMENT The Shores of Oneka Lake 4th Addition THIS AGREEMENT, made and entered into this _____ day of _______________, 20___ by and between the CITY OF HUGO, a Minnesota municipality organized under the laws of the State of Minnesota (hereinafter referred to as "City"); and M/I Homes Minneapolis/St. Paul, LLC., a Limited Liability Corporation, (hereinafter referred to as "Developer"). WITNESS: The Shores of Oneka Lake 4th Addition 2 WHEREAS, the City Council of the City has, by Resolution Number 2022-33 on June 6, 2022, approved the preliminary plat for a major subdivision as proposed by the Developer to be known as "The Shores of Oneka Lake" ; and, WHEREAS, the City Council of the City has, by Resolution Number 2022-32 on June 6, 2022, approved the PUD general plan for a major subdivision as proposed by the Developer to be known as " The Shores of Oneka Lake” ; and, WHEREAS, the City Council of the City has, by Resolution Number 2024-___ on May 20, 2024, approved the final plat for a major subdivision as proposed by the Developer to be known as " The Shores of Oneka Lake 4th Addition" (hereinafter referred to as the "Plat"); and, WHEREAS, the Plat proposed a development of an approximately 6 acre parcel of land into 26 residential lots; and, WHEREAS, it is the policy of the City to enter into development contracts as contemplated in Minnesota Statutes §462.358, Subd. 2(a); and, WHEREAS, the parties hereto desire to set forth their respective rights and obligations of the parties to this Agreement. NOW, THEREFORE, in consideration of the premises and of the mutual promises and conditions contained herein, it is agreed by the parties hereto as follows: A. GENERAL ENGINEERING CONDITIONS; 1. Escrow for City Costs and Fees. Developer shall, contemporaneously with the execution of this Agreement, deposit with the City an escrow as outlined in Exhibit C to cover the cost of legal fees, engineering and construction observation fees, administrative expenses, and other costs related to this Plat, including the Highway 61 roundabout improvements construction. All fees and costs incurred by the City in connection with the Plat shall be charged against said escrow account which shall remain in effect until the expiration of the warranty period for the Plat, as defined in paragraph 7, in all events said fees and costs shall be the responsibility of the Developer and shall be paid on demand. Any funds remaining in the escrow account after the completion of the warranty period shall be refunded to the Developer. In the event that the escrow account herein is depleted, Developer agrees to post additional funds to replenish the account and to cover projected City costs. Specifically, Developer agrees that the escrow account shall maintain a balance of no less than $5,000.00. Developer shall be entitled, upon request, to an itemized statement of all costs and fees charged against this escrow account. The Shores of Oneka Lake 4th Addition 3 2. Development Plans. In accordance with the policies and ordinances of the City, and subject to all City resolutions and approvals in connection herewith, the Developer shall construct the proposed improvements (hereinafter referred to as the "Improvements"). All Improvements shall be constructed and installed pursuant to the terms and conditions herein set forth in accordance with the plans approved and listed on Exhibit A, subject to all City resolutions and approvals listed in Exhibit B, subject to final approval by the City, and in accordance with City standards and requirements including those listed herein. In addition, all public street, utility, and storm drainage improvements shall comply with the City’s adopted specification book and the reasonable direction of City staff. 3. Authorization to Proceed with Construction. Developer agrees not to commence any grading, utility or street work within the Plat until the following are completed: 1) Construction plans are approved by the City and distributed. 2) Pre-construction conference is held. 3) Notice to Proceed is issued. 4. Construction Observation. The City, for its benefit, will provide staff of its choosing to provide construction observation for the Improvements outlined in this Agreement. All costs associated with construction observation and inspection will be the responsibility of the Developer. The Developer shall allow City staff and City consultants access to the Plat to allow for this work to occur. 5. Miscellaneous Requirements. a) Property Corners: All property corners as identified on the Plat must be monumented with iron surveyor's pipes by the Developer prior to final project acceptance, as defined in paragraph 7 of this Agreement. b) Drainage Easements: Drainage easements shall be dedicated on the Plat so as to cover any wetlands and stormwater ponding areas located below the 100-year high water levels. c) Soils Testing: Soils inspection and compaction testing by a registered professional engineer shall be accomplished on all lots where filling is required, in accordance with the approved Grading, Drainage, and Erosion Control Plan. A minimum of one (1) compaction test for all developed lots shall be obtained for every two (2) foot increment of fill that is placed. A summary of all inspections and compaction tests for all developed lots shall be provided to the City upon completion of the grading and shall be provided for a respective lot prior to the issuance of a building permit for such lot. d) Private Utilities: All private utilities that are installed, including The Shores of Oneka Lake 4th Addition 4 electricity, telephone, natural gas and cable television, shall be installed underground. e) Mailboxes: Developer shall coordinate mailbox locations with the United States Postal Service. f) Street Lights: Street lights shall be installed within the Plat according to the Street Lighting Plan, which will first be approved by the City Engineer. Developer shall also submit its Street Lighting Plan to the applicable power company for its review, comment and approval. The installation of the street lights shall be coordinated with the applicable power company so that the street light system is installed, constructed and operated in such a manner as will harmoniously exist with other street lights within the area. g) Working Hours: Construction activity, including equipment startup and fueling, can only occur between the hours of 7:00 a.m. and 7:00 p.m. Monday through Friday; 8:00 a.m. and 5:00 p.m. on Saturdays; at no time on Sundays or holidays. h) Street Sweeping: Developer shall sweep and/or otherwise clean all streets, as needed, within and adjacent to the -Plat as a result of construction activities associated with the Plat until final acceptance of the Improvements. If the streets are not maintained in a manner acceptable to the City, after reasonable notice to the Developer the City will arrange for the street sweeping at Developer’s cost. i) Placement of Bituminous Wear Course: The bituminous wear course can be placed on all streets once all of the following have occurred: 1. A Certificate of Occupancy has been issued for at least 75% of the lots or a cash escrow in the amount of $10,000 has been deposit with the City which will be held until 75% of the lots have received Certificates of Occupancy. At the City’s discretion, the wear course may be placed prior to having 75% occupancy. If applicable, the warranty period shall be extended an additional one (1) year for a total of two (2) years from final acceptance. In no case shall the wear course be placed with less than 50% occupancy. 2. The base course on all streets has been in place for at least one full freeze-thaw cycle. 3. City staff or its assignees have visually inspected all roadways and curb within the Plat, and any repairs necessary as a result of said inspection are complete and written approval issued. 6. Project Completion: The Improvements listed herein on Exhibit A, including street, sanitary sewer, storm sewer, and municipal water, shall be completed subject to the approval of the City in accordance with the approved plans. All Improvements shall be substantially The Shores of Oneka Lake 4th Addition 5 completed to the reasonable satisfaction and approval of the City within twelve (12) months of the execution of this Agreement. Substantial completion shall consist of all work with the exception of placement of the bituminous wear course and completion of the final punchlist. The Developer shall be excused from the strict completion date set forth herein if written notice is received from the Developer of the existence of causes over which the Developer has no control which will delay the completion of the work and approved in writing by the City. In that event, the City may extend the date or dates herein specified. 7. Project Acceptance: Final project acceptance will be considered by the City Council once the following have been completed: (a) All Improvements are installed according to the approved plans. (b) All punchlist items are completed. (c) All Record Drawing information has been provided to the City to its satisfaction. (d) Escrow account for City costs and fees is current in accordance with the provisions of this Agreement. (e) The City receives confirmation via lien waivers that contractors or other parties have been paid for the work completed. (f) The City receives a written request from the Developer to accept the Improvements. 8. Record Drawing Requirements and Engineer’s Certification. Following completion of all development activities and prior to the release of security and acceptance of Improvements, the Developer and/or their assignee shall provide to the City "as-built" plans for the Improvements listed on Exhibit A. This information shall be provided to the City in the following formats: (a) 1-set mylar drawings (22” x 34”) for all Improvements. (b) 1-set paper drawings (22” x 34”) for all Improvements. (c) Individual Adobe.pdf (or approved equivalent) for all plan sheets and the final plat. All Record Drawings shall include the following information: (a) All bench marks shown on plans (bench marks shall be top nut of hydrants). (b) Swing ties to all gate valves shown on plans (ties should be to manholes, catch basins, hydrants or other permanent objects. (c) Swing ties to curb stops shown on plans (ties should be to manholes, catch basins, hydrants, property corners or other permanent objects). (d) Top of casting and invert elevation for all structures. (e) All pipe sizes, material type, pipe classification, grades and lengths The Shores of Oneka Lake 4th Addition 6 (f) All horizontal and vertical curve data in the appropriate location on the plans. (g) Televised report of the sanitary sewer with videotape. (h) Swing ties to any manhole or catch basin outside the roadway area. (i) A text file including the x, y and z coordinates (based on Washington County’s coordinate system) for the following: 1. All curb stops 2. All hydrants 3. All gate valves 4. All manholes located outside of the roadway 9. Construction Warranty and Financing of Improvements. The Developer agrees to construct the Improvements described herein at its own expense and in accordance with City specifications. The Developer shall engage at its own expense a registered, professional civil engineer to prepare plans and specifications for the Improvements and shall submit the same to the City for review and approval. The Developer represents and warrants that all of the Improvements made as a part of this development shall be guaranteed to be properly functioning as designed for a period of not less than one (1) year following acceptance of the entire project by the City. In the case of any material or labor that is supplied and that is reasonably rejected by the City as defective or unsuitable, then the rejected materials shall be removed and replaced with approved material, and the rejected labor shall be done anew to the reasonable satisfaction and approval of the City at the sole cost and expense of the Developer. In any event, none of the warranty periods expressed herein shall begin to run until all of the Improvements within the Plat have been approved and accepted by the City. The Developer’s engineer shall certify that grading within the Plat was completed in accordance with the approved Grading, Drainage and Erosion Control Plan before the City issues any building permits. The Developer shall remain ultimately responsible for accurate grading of all lots and shall correct any deficiencies in grading that may be discovered until the certificate of occupancy is issued for the applicable lot or the Developer is released from its obligation under this Agreement as outlined in paragraph 7 above. 10. Signs. The Developer shall prepare a plan for all regulatory, directional and street name signs to be within the Plat. The plan shall be reviewed and approved by the City’s public works department. Upon plan approval, the City’s public works department shall install all public signage within the Plat. The installation of all private signage shall be the responsibility of the Developer. All costs related to the installation of public signage shall be the responsibility of the Developer and will be deducted from the Developer’s escrow account. The Developer shall post funds as outlined in Exhibit C prior to the City’s public works department beginning the installation. The Shores of Oneka Lake 4th Addition 7 11. Drainage Easements. a) Work within Easements: No improvements, landscaping, or grading, other than Improvements shown on the approved plans, shall be permitted in dedicated drainage easements without the prior written permission of the City and any regulatory agency having jurisdiction. b) Maintenance Responsibilities: The Developer and its successors in interest, including all individual homeowners, shall be responsible for routine maintenance of all storm water management ponds, wetlands, and drainage areas within easements dedicated to the City on their property. Routine maintenance shall include litter removal, mowing and maintenance of the property adjacent to pond or wetland areas. In the case of drainage swales, routine maintenance includes the removal of obstructions from the swale as necessary to maintain proper drainage in addition to the aforementioned items. The City shall be responsible for non-routine maintenance of storm water ponds within the easements, including pond dredging, maintenance of the storm water inlet(s) and outlet(s) pipes, and erosion control at outlet and inlet locations. Such maintenance shall be completed as deemed necessary by the City. 12. Wetland Signage: Permanent signage shall be placed along wetland edges as outlined in the City’s General Specification and Standard Details Manual or approved equal by the City. 13. Lowest Floor Elevations. All minimum floor elevations shall comply with Section 90-171 of the Hugo Zoning Ordinance, the City’s Comprehensive Stormwater Management Plan, or the approved Grading, Drainage, and Erosion Control Plan, whichever is more restrictive. Except as may be specifically allowed under Exhibit A, no building shall be constructed on any of the lots herein unless the lowest floor elevation is at least three (3) feet above the 100-year flood elevation or four (4) feet above the high groundwater elevation, whichever is greater, for the subject property. Additionally, the lowest floor elevation shall be specifically referenced and designated, for each lot, on a certificate of survey, which survey shall be provided to the City before any building permits are issued for any lots within the Plat. 14. Landscaping. All disturbed areas within the Plat shall be landscaped in accordance with the approved landscape plans, the City ordinances, and the City’s General Specification and Standard Details Manual. All landscaping shall be complete, established and growing within sixty (60) days of issuance of a Certificate of Occupancy, except that, if the certificate of occupancy is issued between the dates of October 1 and May 1, then the landscaping required herein shall be complete, established and growing no later than July 1. All front yards, side yards and back yards shall be fully sodded. All landscaped areas shall be tilled or otherwise worked mechanically in order to loosen compacted soils and shall contain at least four (4) inches of black dirt containing no more than 35% sand. Unless specific arrangements are made and agreed to by the City, all The Shores of Oneka Lake 4th Addition 8 landscaping installed within the Plat shall be maintained by the Developer and its successors, including all individual homeowners or the homeowners association which is required to be formed by the Developer pursuant to the agreement. All areas, other than proposed street areas, disturbed by grading activities on the site shall be seeded. Seeding shall be immediate upon completion of grading activities or as directed by the City Engineer. Seeding shall be completed as follows: a) All areas shall be restored with a minimum of four (4) inches of adequate topsoil prior to seeding. b) Upland areas shall be seeded in accordance with the grading, drainage, and landscape plans listed in Exhibit A. The rate of application shall be one hundred (100) pounds per acre. Areas seeded shall be mulched with Type 1 mulch at a rate of two (2) tons per acre. All mulch shall be disk anchored. c) Wetlands, wetland replacement areas and storm water ponding areas shall be seeded with MN/DOT Seed Mixture 25B, or as required by the permitting regulatory agency. The minimum rate of application shall be thirty (30) pounds per acre, or as recommended by the supplier. d) All seeded areas shall be maintained for the term of this Agreement. Upland areas shall be mowed as necessary or as directed by the City Engineer. e) All disturbed areas within the development shall be maintained to limit vegetation growth to less than ten (10) inches except designated natural areas or designated open spaces as shown on the approved plans. 15. Safe Rooms. The Developer shall require all builders to offer a safe room as an option to any and all potential homebuyers. All safe rooms offered and built within the City must meet or exceed FEMA requirements and standards. B. ESCROWS, CHARGES AND UTILITY OVERSIZING: Developer shall pay the escrows, fees and charges listed on Exhibit C. C. SPECIAL PLANNING REQUIREMENTS: The Plat shall be built and maintained in accordance with the planning requirements listed on Exhibit A hereto, and any miscellaneous requirements listed on Exhibit B hereto. D. ADMINISTRATIVE REQUIREMENTS: 1. Miscellaneous Provisions. Developer specifically understands that this Plat The Shores of Oneka Lake 4th Addition 9 approval is given subject to the following requirements: a) Expiration. The final plat documents for the Plat, which is the first phase of The Shores of Oneka Lake preliminary plat, have been submitted to the City Council within one hundred twenty (120) days of preliminary plat approval. The final plat must be recorded with the Washington County Recorder (and the mylar "hardshells" must be fully executed) within sixty (60) days of the City Council motion giving final plat approval, unless such deadline is extended by the City Council in its sole discretion, or else said approval shall be null and void. All fees relating to this subdivision shall be paid by the Developer, including the cost of recording documents with Washington County. b) Recording. The Developer shall record this Agreement with Washington County simultaneous with the recording of the Plat, and shall forward confirmation of recording of the Plat and this Agreement to the City prior to the issuance of building permits. All applicable conditions of Plat approval must be met before any deeds are stamped for recording and prior to the recording of the Plat at the Washington County Recorder's Office. Plat approval shall be contingent upon compliance with the approved plans for the Improvements and upon compliance with this Agreement. c) Model Homes. The Developer shall be entitled to two (2) building permits, subject to final approval by the Community Development Director, and under the following conditions: • The plat shall be recorded at Washington County • The Development Agreement shall be executed and recorded at Washington County. • All corresponding documents shall be reviewed and recorded per the Development Agreement. The development fees per Exhibit C shall be paid. • The building permit shall be for model homes only. • Building permits will be allowed at the end of an existing dead-end road. • All public utilities are installed adjacent to the model homes. • The construction entrance shall be stable and approved by the City Engineer. • The City will not snow plow the construction road. The developer will be responsible for the snow plowing. • Gradations (3 minimum) on the aggregate base placed on the roadway adjacent to the model homes will be performed 48 hours before pavement installation. Material must meet Class 5 or salvaged/recycled material meeting Class 5 gradation per MnDot Specification 3138. Aggregate base that no longer meets Class 5 gradation must be replaced before pavement is installed. • No Certificate of Occupancy for model homes or other homes shall be issued until all public improvements, including first lift of bituminous pavement, per the final plat construction plans have been constructed and inspected. Other Models Homes and Homes Constructed for Sale No other model homes may be constructed or utilized until at least one (1) lift of bituminous has The Shores of Oneka Lake 4th Addition 10 been installed from said model home lot providing access to a public street or roadway outside of the Plat. No certificate of occupancy shall be issued for any model or other home until all necessary public improvements and utilities have been installed and the utilities have been successfully tested. Prior to this, and at the time that a model home passes final inspection, a model home may only be used by Developer’s, authorized builders, staff or realtors for purposes of showing the models to potential buyers. No model home may be used until landscaping conforming to City ordinance and paragraph 14 of this Agreement has been installed except that, if the certificate of occupancy is issued between the dates of October 1 and May 1, then the landscaping required herein shall be complete, established and growing no later than July 1. d) Sales Trailers. The Developer may be entitled to a maximum of one (1) temporary sales office (sales trailer) for this and all subsequent phases of the development for a period of time not to exceed nine (9) months. Upon receipt of an acceptable site plan, a sales trailer may be approved by the City Community Development Director prior to the first model home being available for showing. The trailer is subject to the issuance of a building permit, shall meet all applicable building codes, shall be fully skirted, shall be suitably landscaped, shall contain sufficient parking for the size of the office, and shall have safe and suitable access to a paved, public roadway. The trailer shall be removed, and the site shall be restored within seven (7) days following the date that a model home passes final inspection. e) Deviations. No material deviations from the approved Plat shall be allowed unless approved in writing by the City. Approval herein is also given subject to full compliance with the conditions of approval and findings adopted by the City Council in connection with the approval of the development. f) Certificates of Survey. A certificate of survey shall be provided to the City Building Inspector for each lot at the time a building permit is requested for the lot. Attached to the certificate of survey shall be an erosion control plan for the lot showing location and type of all erosion control measures to be used on the lot, and spot elevations, tree preservation plan shall be submitted for each home site. g) Outhouses. The Developer shall provide on-site a sufficient number of portable outhouses to be available for the persons who will be working on-site until Improvements are accepted according to the plans in Exhibit A. h) Property Owners Association. When required as a condition of approval outlined in Exhibit B, the Developer agrees to form a property owners association, membership in which shall be mandatory for all of the lots within this development. The property owners association shall be responsible for maintenance and repair of all common elements as listed in the property owners association documents within this development and the same shall be maintained in good condition in accordance with all City ordinances and reasonable directions of The Shores of Oneka Lake 4th Addition 11 the City. Developer agrees to provide a copy of the property owners association documents to the City prior to the recording of the final plat. In the event of failure or refusal of any property owners association to so maintain or repair the common elements then the City may, with seven days written notice and without regard to the requirements or formalities of Minn. Stat. §429 perform the work and assess each of the lots within the plat for the cost of the work. i) Intentionally deleted j) The property owners association documents shall advise owners of all lots of the requirements of this Agreement as follows: THE LAND WITHIN THIS PLAT, INCLUDING THE LAND CONVEYED HEREIN, IS BOUND BY RESTRICTIONS IN A DEVELOPMENT AGREEMENT. SAID DEVELOPMENT AGREEMENT IS ON FILE AT THE OFFICE OF THE WASHINGTON COUNTY RECORDER. k) Developer acknowledges that a separate development agreement will be entered into at the time of final plat approval of subsequent phases in the development. That development agreement will address, among other things, necessary improvements to be made, financial guarantees to be provided, and the amount of the development fees to be paid by the Developer. l) Developer shall remove all tree waste, junk, miscellaneous debris, junk vehicles, and any other personal property from the Plat which does not comply with the City Zoning Ordinance until final acceptance of the Improvements. E. DAMAGES AND DEFAULT: 1. Developer agrees to pay liquidated damages to the City if any lot has a real estate closing occur before all public improvements within the Plat are certified as being substantially completed by the City. Specifically, Developer agrees to immediately pay to the City liquidated damages in the amount of Ten Thousand Dollars ($10,000.00) for each lot closing which occurs in violation of this paragraph. The City shall be authorized to retain an appropriate percentage of the financial guarantee referred to in paragraph 4 as security for payment of any liquidated damages owed to the City. Model Homes are exempt from this section. 2. Developer agrees to pay liquidated damages to the City, in the amount of Five Thousand Dollars ($5,000.00), if the Developer encroaches upon any City road right-of-way or utility easement not permitted on the plans without first obtaining a written permit from the City expressly authorizing said encroachment. The City shall be authorized to retain an appropriate percentage of the financial guarantee referred to in paragraph 4 as security for payment of any liquidated damages owed to the City. The Shores of Oneka Lake 4th Addition 12 3. Events of Default. a) Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: 1. Subject to unavoidable delays, failure by Developer to commence and complete construction of the Improvements pursuant to the terms, conditions and limitations of this Agreement. 2. Failure by Developer to substantially observe or perform any material covenant, condition, obligation or agreement on their part to be observed or performed under this Agreement. b) Remedies on Default. Whenever any Event of Default occurs, the City, subject to any rights of third parties agreed to by the City pursuant to this Agreement, or otherwise by written, executed instrument of the City, may take any one or more of the following: 1. The City may suspend its performance under the Agreement until it receives assurances from Developer, deemed adequate by the City, that Developer will cure their default and continue their performance under the Agreement. Suspension of performance includes the right of the City to withhold permits including, but not limited to, building permits. 2. The City may initiate such action, including legal or administrative action, as is necessary for the City to secure performance of any provision of this Agreement or recover any amounts due under this Agreement from Developer, or immediately draw on the financial Letter of Credit, as set forth in this Agreement. 4. Enforcement by City; Damages. The Developer acknowledges the right of the City to enforce the terms of this Agreement against the Developer, by action for specific performance or damages, or both, or by any other legally authorized means. The Developer also acknowledges that its failure to perform any or all of their obligations under this Agreement may result in substantial damages to the City; that in the event of default by the Developer, the City may commence legal action to recover all damages, losses and expenses sustained by the City; and that such expenses may include, but are not limited to, the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement. The Shores of Oneka Lake 4th Addition 13 F. THIS AGREEMENT: 1. Release of Agreement. This Agreement shall run with the land and may be recorded against the title to the property. After the Developer has completed the work required of it under this Agreement, at the Developer’s request the City will execute and deliver to the Developer a release. 2. Warranty of Title. Developer warrants and represents to the City that it is the fee owner of the land described herein, except for a portion of the property, and that it has authority to execute this Agreement, with consent from the other fee owner, and agree to the conditions hereof and to subject the land hereto. Developer also represents and warrants that the use for which this development is sought will not violate any restrictive covenants applying to the property. 3. Binding Effect. This Agreement shall be deemed to be a restrictive covenant and the terms and conditions hereof shall run with the land described herein and be binding on and inure to the benefit of the heirs, representatives and assigns of the parties hereto, and shall be binding upon all future owners of all or any part of the subdivision, and shall be deemed covenants running with the land. Reference herein to the Developers, if there be more than one, shall mean each and all of them. This Agreement shall be placed of record so as to give notice hereof to subsequent purchasers. The cost of said recording shall be borne by the Owner and charged against the escrow account. 4. Restrictions on Transfer/Indemnification. Developer agrees to defend and hold the City, and its officials, employees and agents, harmless against any and all claims, demands, lawsuits, judgments, damages, penalties, costs and expenses, including reasonable attorney's fees, arising out of actions or omissions by Developer, their employees and agents, in connection with the Project. No transfer or assignment of this Agreement shall be made without City approval and any assignment or transfer without such approval shall be void. 5. Incorporation by Reference. All general and special conditions, plans, special provisions, proposals, specifications and contracts for the Plat and for any Improvements furnished and let pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as if fully set out herein in full. 6. Developer will comply with and promptly perform all of its obligations under this Agreement. 7. Evidence of Title. Developer shall furnish the City with evidence of fee The Shores of Oneka Lake 4th Addition 14 ownership of the property being platted by way of an attorneys title opinion or title insurance commitment dated not earlier than thirty (30) days prior to the execution of the Plat. IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be duly executed on the day and year first above written. The Shores of Oneka Lake 4th Addition 15 City of Hugo By________________________________ By__________________________________ Tom Weidt, Mayor Michele Lindau, Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON) On this _____ day of __________________, 20__, before me, a Notary Public, personally appeared Tom Weidt, Mayor, and Michele Lindau, Clerk, of the City of Hugo, a Minnesota municipality within the State of Minnesota, and that said instrument was signed on behalf of the City of Hugo by the authority of the City Council of the City of Hugo, and Tom Weidt and Michele Lindau acknowledge said instrument to be the free act and deed of said City of Hugo. __________________________________________ Notary Public The Shores of Oneka Lake 4th Addition 16 Developer M/I Homes By________________________________ ________________________ Its: ___________________________________ STATE OF MINNESOTA ) ) ss. (Corporate Notary) COUNTY OF WASHINGTON) On this _____ day of _________________, 20__, before me, a Notary Public, within and for said County and State, personally appeared ___________________, to me personally known, who, by me duly sworn did say that they are the _________________ of ____________________________, a _____________________, on behalf of said ____________________. __________________________________________ Notary Public DRAFTED BY: David K. Snyder Johnson & Turner 56 East Broadway Avenue #206 Forest Lake, MN 55025 The Shores of Oneka Lake 4th Addition 17 EXHIBIT A LIST OF DEVELOPMENT PLANS Sheet No. Plan Date Author Final Plat Recorded at Washington County Carlson McCain 1 Grading, Development and Erosion Control Plans Carlson McCain 2 Cover Carlson McCain 3 Grading, Development and Erosion Control Plan Carlson McCain 4 Grading, Development and Erosion Control Plan Carlson McCain 5 Grading, Development and Erosion Control Plan Carlson McCain 6 Grading, Development and Erosion Control Plan Carlson McCain 7 Grading, Development and Erosion Control Plan Carlson McCain 8 Grading, Development and Erosion Control Plan Carlson McCain 9 Grading, Development and Erosion Control Plan Carlson McCain 10-12 Temporary Grading at Low Points Carlson McCain 13-14 Details Carlson McCain 15 Retaining Wall Profiles Carlson McCain 1-22 Sanitary Sewer, Water Main, Storm Sewer, and Street Construction Plans Carlson McCain 1-5 Landscape Plan October 21, 2021, revised January 23, 2023 Carlson McCain Stormwater Reuse Plan March 20, 2023 The Shores of Oneka Lake 4th Addition 18 EXHIBIT B APPROVAL CONDITIONS 1. The final plat is approved to allow the creation of 26 lots, in accordance with the plans and application received by the City on March 7, 2024 and March 21, 2024, except as amended by this resolution. 2. The development shall substantially comply with all plans and conditions of the PUD and preliminary plat approval granted by the City on June 6, 2022. 3. Development standards shall comply with Resolution 2022-32 and 2022-33, and as amended. 4. The developer shall comply with all conditions outlined in the City Engineer’s memo dated May 16, 2024, and revisions required in “redlined” comments from the City Engineer. 5. The developer shall design and install a stormwater re-use system for irrigation of the individual lots. 6. The developer shall establish a property owners association for the development to own/operate/maintain common elements, monument signage, landscaping, and the water re-use system. The property owners association documents shall be reviewed and approved by staff prior to recording the plat. 7. The landscaping planned for the plat shall be installed in one phase. The developer shall take proper precautions to protect the trees as the homes are being built. 8. Each home shall include a minimum of 2 parking spaces within the driveway. The driveway widths shall be a maximum of 24 feet at the right of way line. 9. Staff will continue to work with the applicant on the street lighting plan. Exact locations of the street lights shall be reviewed and approved by staff prior to installation. The Shores of Oneka Lake 4th Addition 19 10. When needed, a Letter of Map Revision will need to be prepared and submitted for FEMA approval so that the existing floodplain boundaries and elevations can be revised per the plans. 11. The developer shall obtain all necessary local, state, and federal permits. 12. The property owners association shall be responsible for maintenance of all development signage (if any) and landscaping within the outlots, common space, and the 159th Street roundabout. 13. Prior to recording the final plat: a) The developer must obtain all necessary stormwater management and wetland conservation act (WCA) permits from the City. b) The developer shall pay $52,598 ($2,023/lot) in full to satisfy the required cash in lieu of parkland dedication requirement. A portion of the Park Dedication was previously satisfied by dedication of 3.89 acres of upland on Outlot G. c) The developer shall pay the sewer and water trunk fees for each lot at final plat. The City’s SAC and WAC fees will be paid at the time building permits issued. d) The applicant shall provide copies of the property owners association documents/covenants for City review and approval. A copy of the document shall be filed for recording with the final plat. e) A stormwater reuse agreement shall be reviewed and approved by staff and recoded at Washington County. f) The developer shall enter into a development agreement, shall agree to complete all improvements, and pay all fees as required by the agreement. 14. Prior to the issuance of building permits: The Shores of Oneka Lake 4th Addition 20 g) The applicant shall file the final plat, development agreement and associated documents with Washington County. Proof of recording shall be provided to the City. 15. Prior to the issuance of Certificate of Occupancy: h) All public improvement required with the development agreement shall be installed. The Shores of Oneka Lake 4th Addition 21 EXHIBIT C ESCROWS, FEES AND CHARGES a) Escrow for City Costs and Fees. The Developer shall deposit sufficient escrow with the City as outlined in Section A. 1. The required beginning balance in the account is calculated at $___________. This sum is calculated to be four percent (4%) of the estimate of the required Improvements to be installed to serve the development, plus $5,000 which is the minimum balance required in the account. b) Cash Escrow or Letter of Credit. The Developer shall provide a financial guarantee to the City, in the form of a cash escrow or letter of credit, in the amount equal to one hundred twenty-five percent (125%) of the estimated amount of the required Improvements. This amount has been calculated by the City Engineer to be $_______________. This amount may be reduced upon request of the Developer and approved by the City. At no point shall the Letter of Credit be reduced below ten percent (10%) of the original amount. The City shall have the right to retain the financial guarantee until the Improvements have been completed to the satisfaction of the City and the warranty period has expired. c) Storm Water Trunk Fee. The Developer shall pay the City a Storm Water Trunk Fee in the amount of $____________. This sum is calculated to be $0.07 per square foot for the ___________ square feet of net developable area within the Plat. This fee shall be paid before the Plat is signed by the City. d) Storm Water Ponding Fee. The storm water ponding requirement has been met by the Developer through the incorporation of on-site ponding. No storm water ponding fee will be applied. e) Snow Plowing. The Developer agrees to pay a one-time lump sum cash escrow to the City to cover the cost of snow plowing the roads within the plat, during the first snow season, before the roads are formally accepted by the City of $.50 per lineal foot. The Developer shall post a cash escrow with the City in the amount of $_____________. g) Street Maintenance. The Developer shall post a one-time lump sum cash with the City in the amount of $__________ to cover the cost of the first street maintenance the streets in the Plat. This sum is calculated to be $4.00 per foot for the _____________ feet of streets The Shores of Oneka Lake 4th Addition 22 within the Plat. h) Park Dedication. The Developer agrees to pay a park dedication fee of $2,023 per lot for residential development payable before the final plat is signed by the City. Said fee shall be due for each of the 26 lots within the Plat (i.e. total due $52,598). i) Cul-de-sac Escrow. N/A j) Escrow for Street Signage. The Developer shall deposit $__________ for ____________street signs k) WCA Escrow. N/A l) Sanitary Sewer Trunk Fee. The Developer shall pay the City a sanitary sewer trunk fee in the amount of $42.432. This sum is calculated to be $1,632 per lot for the 26 residential lots within this phase. m) Water Trunk Fee. The Developer shall pay the City water trunk fee in the amount of $38,729. This sum is calculated to be $1,960 per lot, with credit provided for the stormwater reuse/irrigation system based on the anticipated reduction in water demand. The reduction is calculated at 24%, resulting in a trunk water fee amount of $1,489.60 per lot. The total is based on the reduced per unit fee applied to the 26 lots in the plat. n) Watermain Oversizing Credit. The Developer shall be provided a credit for watermain oversizing in the amount of $___________. The Shores of Oneka Lake 4th Addition 23 EXHIBT D IRREVOCABLE LETTER OF CREDIT No._______________ Date: ______________ TO: City of Hugo 14669 Fitzgerald Avenue North Hugo, MN 55038 Dear Sir or Madam: We hereby issue, for the account of __________________________, and in your favor, our Irrevocable Letter of Credit in the amount of $________________, available to you by your draft drawn on sight on the undersigned bank. The draft must: a) Bear the clause, “Drawn under Letter of Credit No. ____________, dated ________________, 200__, of _________________”; b) Be signed by the City Administrator; and, c) Be presented for payment at ____________________________________________ on or before 4:00 p.m. on _______________________, _____. This Letter of Credit shall automatically renew for successive one (1) year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be _________________ of each year), the Bank delivers written notice to the Hugo City Clerk that it intends to modify the terms of, or cancel, this Letter of Credit. Written Notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail at least forty-five (45) days prior to the next annual renewal date addressed as follows: Hugo City Clerk, City of Hugo, 14669 Fitzgerald Avenue North, Hugo, Minnesota 55038, and is actually received by the City Clerk at least thirty (30) days prior to the renewal date. This Letter of Credit sets forth in full our understanding which shall not in any way be modified, amended, amplified or limited by reference to any document, instrument or agreement, whether or not referred to herein. The Shores of Oneka Lake 4th Addition 24 This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be made under this Letter of Credit. This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 400. We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation. By: Its The Shores of Oneka Lake 4th Addition 25 EXHIBIT E CERTIFICATE OF INSURANCE PROJECT: CERTIFICATE HOLDER: City of Hugo 14669 Fitzgerald Avenue North Hugo, MN 55038 INSURED: ADDITIONAL INSURED: City of Hugo AGENT: WORKERS’ COMPENSATION: Policy No. Effective Date: Expiration Date: Insurance Company: COVERAGE – Workers’ Compensation, Statutory. GENERAL LIABILITY: Policy No. Effective Date: Expiration Date: Insurance Company: ( ) Claims Made ( ) Occurrence LIMITS: [Minimum] The Shores of Oneka Lake 4th Addition 26 Bodily Injury and Death: $500,000 for one person $1,000,000 for each occurrence Property Damage: $200,000 for each occurrence -OR- Combination of Single Limit Policy $1,000,000 ore more COVERAGE PROVIDED: Operations of Contractor: YES Operations of Sub-Contractor (Contingent): YES Does Personal Injury Include Claims Related to Employment? YES Completed Operations/Products: YES Contractual Liability (Broad Form): YES Governmental Immunity is Waived: YES Property Damage Liability Includes: Damage Due to Blasting YES Damage Due to Collapse YES Damage Due to Underground Facilities YES Broad Form Property Damage YES AUTOMOBILE LIABILITY: Policy No.: Effective Date: Expiration Date: Insurance Company: (X) Any Auto The Shores of Oneka Lake 4th Addition 27 LIMITS: [Minimum] Bodily Injury: $500,000 each person $1,000,000 each occurrence Property Damage: $500,000 each person -OR- Combined Single Limit Policy: $1,000,000 each occurrence ARE ANY DEDUCTIBLES APPLICABLE TO BODILY INJURY OR PROPERTY DAMAGE ON ANY OF THE ABOVE COVERAGES: If so, list: Amount: $ [Not to exceed $1,000.00] SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL THIRTY (30) DAYS WRITTEN NOTICE TO THE PARTIES TO WHOM THIS CERTIFICATE IS ISSUED. Dated at on BY: Authorized Insurance Representative W E T L A N DVICINITY MAPTHE SHORES OF ONEKA LAKE 4TH ADDITIONENGINEERINGSURVEYINGENVIRONMENTAL157TH STREET NORTHW E T L A N D T O P S O I LS T O C K P I L ECOVER1Know what'sbelow.before you dig.CallRHugo, MinnesotaTHE SHORES OF ONEKA LAKEM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr-cvr.dwgSave Date:02/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT & EROSION CONTROL PLANSBENCHMARKS VICINITY MAP SITE. . . . . . .3+$6(,3+$6(,,3+$6(,,3+$6(,,3+$6(,4. 1/20/23 Rev. Sht. 75. 2/23/23 per Street Names and Apartment Site Updates.6. 3/20/23 Revise Grading of Lots 247 & 248.8. 5/10/23 Revise Retaining Walls 2 & 3 (Sheets 5 & 13).7. 3/27/23 Revise Grading North of 159th Street N (Sheet 7).9. 7/19/23 per 2nd Addition (Sheets 1-4)1 S T A D D I T I O N1 S T A D D I T I O N2 N D A D D I T I O N1 S T A D D I T I O N10. 8/18/23 Revise Grading North of 159th Street N (Sheet 7).11. 8/22/23 per Phase II Grading (Sheets 1-13).12. 9/6/23 Revise Pond 300 Rip Rap (Sheet 3).13. 9/28/23 Revise Temporary EOF for Pond 700 (Sheet 12).3 R D A D D I T I O N3 R D A D D I T I O N14. 12/8/23 per 3rd Addition (Sheets 5-8)15. 1/23/24 Revise Lots 249-262B and 277-286 per Owner (Sheets 3-6)16. 2/23/24 per 4th Addition (Sheets 3-6) T O P S O I LS T O C K P I L EKnow what'sbelow.before you dig.CallR2COVERBENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr-index.dwgSave Date:02/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments. WETLAND FILL SUMMARY PHASE IPHASE IIPHASE IIPHASE IIPHASE IPHASE IPHASE I4. 2/23/23 per Street Names and Apartment Site Updates.5. 3/20/23 Revise Grading of Lots 247 & 248.6. 3/27/23 Revise Grading North of 159th Street N (Sheet 7).2 N D A D D I T I O N1 S T A D D I T I O N1 S T A D D I T I O N1 S T A D D I T I O N9. 8/22/23 per Phase II Grading (Sheets 1-13).F U T U R E A D D I T I O N8. 8/18/23 Revise Grading North of 159th Street N (Sheet 7).7. 7/19/23 per 2nd Addition3 R D A D D I T I O N3 R D A D D I T I O N10. 1/23/24 Revise Lots 249-262B and 277-286 per Owner.11. 2/23/24 per 4th Addition.4 T HA D D I T I O N 3GRADING, DEVELOPMENT& EROSION CONTROL PLANBENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.PHASE IPH. II4. 2/23/23 per Street Names and Apartment Site Updates.1 S T A D D I T I O N2 N D A D D I T I O N5. 7/19/23 per 2nd Addition4 T HA D D I T I O N6. 8/22/23 per Phase II Grading7. 9/6/23 Revise Pond 300 Rip Rap7. 1/23/24 Revise Lots 249-262B and 277-286 per Owner.8. 2/23/24 per 4th Addition. 4BENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT& EROSION CONTROL PLANPHASE IPHASE II4. 2/23/23 per Street Names and Apartment Site Updates.1 S T A D D I T I O N1 S T A D D I T I O N2 N D A D D I T I O N5. 7/19/23 per 2nd Addition6. 8/22/23 per Phase II Grading7. 1/23/24 Revise Lots 249-262B and 277-286 per Owner.8. 2/23/24 per 4th Addition. 5BENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT& EROSION CONTROL PLANPHASE IPHASE I4. 2/23/23 per Street Names and Apartment Site Updates.5. 3/20/23 Revise Grading of Lots 247 & 248.6. 5/10/23 Rev. ret. walls 2 & 3 (per owner).1 S T A D D I T I O N7. 8/22/23 per Phase II Grading3 R D A D D I T I O N8. 12/8/23 per 3rd Addition9. 1/23/24 Revise Lots 249-262B and 277-286 per Owner.10. 2/23/24 per 4th Addition.4 T HA D D I T I O N 6BENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT& EROSION CONTROL PLANPHASE IPHASE II4. 2/23/23 per Street Names and Apartment Site Updates.1 S T A D D I T I O NPHASE I I 3 R DA D D I T I O N5. 8/22/23 per Phase II Grading.3 R DA D D I T I O N6. 12/8/23 per 3rd Addition7. 1/23/24 Revise Lots 249-262B and 277-286 per Owner.8. 2/23/24 per 4th Addition. T O P S O I LS T O C K P I L E7BENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT& EROSION CONTROL PLANPHASE IPHASE I4. 1/20/23 Adjust bottom of re-use basin (east of ditch)5. 2/23/23 per Street Names and Apartment Site Updates.6. 3/27/23 Revise Grading North of 159th Street N.1 S T A D D I T I O N8. 8/22/23 per Phase II Grading.7. 8/18/23 Revise Grading North of 159th Street N.3 R D A D D I T I O N9. 12/8/23 per 3rd Addition 8BENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date: 01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT& EROSION CONTROL PLANPHASE IPHASE II4. 2/23/23 per Street Names and Apartment Site Updates.PHASE I I5. 8/22/23 per Phase II Grading.3 R D A D D I T I O NF U T U R EA D D I T I O NF U T U R E A D D I T I O N6. 12/8/23 per 3rd Addition 9BENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_gr.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.GRADING, DEVELOPMENT& EROSION CONTROL PLANPHASE IPHASE I I4. 2/23/23 per Street Names and Apartment Site Updates.PHASEII 5. 8/22/23 per Phase II Grading. 10TEMPORARY GRADINGAT LOW POINTSBENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_temp_gr.dwgSave Date:02/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.PHASE I4. 8/22/23 Revise Grading at Low Points per Phase II Grading. TEMPORARY GRADINGAT LOW POINTSBENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_temp_gr.dwgSave Date:02/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.PHASE IPHASE II114. 8/22/23 Revise Grading at Low Points per Phase II Grading.PHASE II TEMPORARY GRADINGAT LOW POINTSBENCHMARKSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_temp_gr.dwgSave Date:02/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.PHASE IPHASE I I 124. 8/22/23 Revise Grading at Low Points per Phase II Grading.PHASE II5. 9/28/23 Revise Temporary EOF for Pond 700. 13DETAILSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_detail.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments. FRAMECURBFRAME14DETAILSM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_detail.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.4. 2/23/23 per Street Names and Apartment Site Updates. M/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 55416ofTHE SHORES OF ONEKA LAKEHugo, Minnesotaoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\grading\8869_detail.dwgSave Date:01/23/2415Revisions:1. 11/29/22 per City Comments.Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota09/30/22LOC09/30/22Brian J. Krystofiak, P.E.25063BJK#88692. 12/29/22 per City Comments.3. 1/6/23 per City Comments.15RETAINING WALL PROFILES4. 5/10/23 Rev. ret. walls 2 & 3 (per owner).4. 8/22/23 Remove "FUTURE" designation from Phase II Wall #1. off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_cover.dwgSave Date:02/23/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161. VICINITY MAP SITEO N E K AP O N D SCOVER1BENCHMARKSO N E K A L A K E1 S TA D D I T I O N3 R DA D D I T I O NHugo, MinnesotaTHE SHORES OF ONEKA LAKESANITARY SEWER, WATER MAIN, STORM SEWERAND STREET CONSTRUCTION PLANS2 N DA D D I T I O N4TH ADDITIONF U T U R EA D D I T I O N4 T H A D D I T I O NPROPOSEDAPARTMENTS(BY OTHERS ) 1 S TA D D I T I O N off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_cover.dwgSave Date:02/23/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.Know what'sbelow.before you dig.CallR2BENCHMARKSINDEX1 S T A D D I T I O N2 N D A D D I T I O N 1 S T A D D I T I O N 3SANITARY SEWER &WATER MAINoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_utility.dwgSave Date:02/23/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.BENCHMARKS930925920915910905900935930925920915910905900935895157TH STREET N1 S TA D D I T I O N 4STORM SEWER935930925920915910905off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_utility.dwgSave Date:02/23/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.BENCHMARKS9259209159109059008959309359001 S TA D D I T I O N 5STREET CONSTRUCTIONoff:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_street.dwgSave Date:02/23/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.BENCHMARKS940935930925920940935930925920915915910910905945945157TH STREET N off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS6 off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS7 off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS8 off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS9 off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS10FRAMECURBFRAME off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS11 off:\jobs\8861 - 8880\8869 - dell webb - hugo\cad c3d\engineering\final plans\utility\4th addition\8869_detail.dwgSave Date:02/20/2412Revisions:Print Name:Signature:Date:License #:Drawn:Designed:Date:I hereby certify that this plan, specificationor report was prepared by me or under mydirect supervision and that I am a dulyLicensed Professional Engineer underthe laws of the State of Minnesota2/23/24NJP2/23/24Brian J. Krystofiak, P.E.25063BJK#8869THE SHORES OF ONEKA LAKE4TH ADDITIONHugo, MinnesotaM/I HOMES OF MINNEAPOLIS, LLC5354 Parkdale Drive, #100St. Louis Park, Minnesota 554161.DETAILS12 Agenda Number: G.7 CITY OF HUGO PLANNING AND ZONING APPLICATION STAFF REPORT TO: Bryan Bear, City Administrator FROM: Max Gort, Associate Planner SUBJECT: Greg and Michelle Stream– Encroachment agreement to allow a fence within a drainage and utility easement on property located at 5413 Ferrara Avenue North DATE: May 15, 2024 for the City Council meeting of May 20, 2024 ZONING: Planned Unit Development (PUD) LAND USE: Low Density Residential (LD) 60-DAY REVIEW DEADLINE: July 14, 2024 1. DESCRIPTION OF REQUEST: The applicant has requested an encroachment agreement to allow construction of a fence within a drainage and utility easement on property located at 5413 Ferrara Avenue North. The lot is a corner lot with a sidewalk bordering the north and east property lines. The applicant has proposed to construct the fence with a 3-foot setback from the north and east property lines to leave adequate space for the City to maintain the sidewalk. Additionally, the applicant is proposing to construct the fence at an angle in the northeast corner of the parcel to maintain a setback of 20 feet from the intersection of Ferrara Avenue North and Finale Avenue North as required by ordinance. The Senior Engineering Technician has reviewed the location of the fence and is comfortable with the request. 2. CONCLUSION/RECOMMENDATION: Staff has reviewed the request and recommends that the City Council approve the encroachment agreement for the property located at 5413 Ferrara Avenue North. ATTACHMENTS: 1. Location Map 2. Encroachment Agreement Resolution 3. Encroachment Agreement Stream Encroachment Agreement 4. Site Plan RESOLUTION 2024-XX APPROVING AN ENCROACHMENT AGREEMENT TO ALLOW CONSTRUCTION OF A FENCE WITHIN A DRAINAGE AND UTILITY EASEMENT ON THE PROPERTY LOCATED AT 5413 FERRARA AVENUE NORTH WHEREAS, an application has been filed by Gregory and Michelle Stream that requests approval of an encroachment agreement to allow construction of a fence within a drainage and utility easement on the property located at 5413 Ferrara Avenue North, legally described as follows; Lot 5, Block 6, Meadows at Hugo, Washington County, Minnesota WHEREAS, the City Council has fully considered the request for the encroachment agreement. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUGO, MINNESOTA, that it should and hereby does approve the encroachment agreement on property located at 5413 Ferrara Avenue North. ADOPTED by the City Council this 20th day of May, 2024. ________________________________________ Tom Weidt, Mayor ATTEST: _________________________________ Michele Lindau, City Clerk ENCROACHMENT AGREEMENT THIS AGREEMENT is made this 20th day of May, 2024 by and between the CITY OF HUGO, a Minnesota municipality (hereinafter “City”) and, Gregory Stream and Michelle Stream, 5413 Ferrara Avenue North, a married couple (hereinafter “Owner”), and their successors in title. WHEREAS, the City has an easement for drainage and utility purposes (the “Easement”) along the northerly, easterly, and southerly portion of the Owner’s property, which is legally described as: Lot 5, Block 6, Meadows at Hugo, Washington County, Minnesota; and, WHEREAS, Owner is desirous of constructing a fence partially within the easement area; and, WHERAS, the City will permit the placement of a fence in the area described herein subject to the terms and conditions hereof. NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt of which is acknowledged, the City will permit the encroachment on its easement as set forth herein and subject to the conditions set forth below: 1. Owner and their successors in title may install and maintain a fence within the Easement, and the fence shall be constructed in accordance with the plans on file with the City of Hugo. 2. No plantings, trees, permanent improvements or structures other than the fence may be maintained or placed in the easement area. 3. Owner shall maintain the fence in good repair and shall not permit it to be expanded, lengthened or to impair the City’s easement or its rights thereunder in any respect. 4. The encroachment granted to Owner herein is subject to the existing easement rights of the City as granted in various easements. 5. The City will notify Owner if it requires removal or relocation of the fence or any part of it. Thereafter, Owner shall remove the fence according to the direction of the City and if Owner fails to do so, the City may enter upon the land and remove as much of the fence as required and cast it upon the adjoining lands. In such an event, the City shall not be liable to Owner for any costs, loss or damage whatsoever, and may assess the property for all of its costs incurred in removing the fence, and Owner waive all formalities, requirements and defenses arising from or relating to Minnesota Statutes Section 429 relating to or arising from the work done by the City. 6. To the fullest extent permitted by law, Owner agrees to release, defend, protect, indemnify, save and hold harmless the City, its agents, directors, employees, shareholders and contractors against any and all claims, costs and liabilities, including the costs of defense for damages, injury or death arising from or in any way connected to the installation, maintenance, repair, removal and/or presence of the fence, regardless of whether such harm is to Owner, the City, the employees or officers, guests or invitees of either or any other person or entity, except Owner shall not be liable under this paragraph for loss or damage to the extent resulting from the negligence of the indemnified parties. 7. The permission granted herein is limited exclusively to the proposed fence within the specified portion of the easement area of the City’s Easement. Owner shall not alter the grade or permit such alteration anywhere upon the land upon which the City has reserved its easement rights without proper express written consent of the City. 8. Owner shall, at all times, use their best efforts to conduct all of their activities on said Easement in such a manner as to not interfere with or impede the operation of the City’s Easement and related activities in any manner whatsoever, and shall follow the direction of the City. 9. This Agreement shall run with the land and inure to the benefit and be binding upon the parties hereto, their heirs, successors and assigns. 10. Owner shall be responsible for the costs of recording this Agreement with the Washington County Recorder. WHEREUPON, the parties have set their hands this day of , 2024. CITY OF HUGO By By Tom Weidt, Mayor Michele Lindau, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON) On this _____ day of __________________, 2024, before me, a Notary Public, personally appeared TOM WEIDT and MICHELE LINDAU, of the City of Hugo, a Minnesota municipality within the State of Minnesota, and that said instrument was signed on behalf of the City of Hugo by the authority of the City Council of the City of Hugo, and TOM WEIDT and MICHELE LINDAU acknowledge said instrument to be the free act and deed of said City of Hugo. __________________________________________ Notary Public _____________________________________ Gregory Stream, Owner _____________________________________ Michelle Stream, Owner STATE OF MINNESOTA ) ) ss. (Individual Notary) COUNTY OF WASHINGTON) On this _____ day of __________________, 2024, before me, a Notary Public, personally appeared Gregory Stream and Michelle Stream, a married couple, who signed the foregoing instrument and acknowledged said instrument to be their free act and deed. __________________________________________ Notary Public THIS INSTRUMENT DRAFTED BY: David K. Snyder Johnson & Turner, P.A. 56 East Broadway Avenue, Suite 206 Forest Lake, MN 55025 (651) 464-7292 20'3'3' By signing estimate or authorizing by email or PO, purchaser is agreeing to billing terms as listed on the estimate. Order to include model number(s), quantity and color(s) above including any supplemental documents provided and/or requested. Please verify all content for accuracy. **Those purchasing off of the MN State Contract are bound only by the terms and conditions listed in said contract** SSt. Croix Recreation Fun Playgrounds INC. 1826 Tower Dr W Stillwater, MN 55082 US 16514301247 hannah@stcroixrec.com Estimate EESTIMATE #7038 DDATE 05/16/2024 EEXPIRATION DATE 06/28/2024 AADDRESS City of Hugo Accounts Payable 14669 Fitzgerald Ave N Hugo, MN 55038 SSHIP TO City of Hugo Diamond Point Park 6344 145th St. N. Hugo, MN 55038 ATTN: SHAYLA DENAWAY, PARKS PLANNER PLEASE DETACH TOP PORTION AND RETURN WITH YOUR PAYMENT. SSHIP DATE SSHIP VIA SSALES REP 07/12/2024 Truckload MIKE BASICH ACTIVITY QTY RATE AMOUNT BBCI-100-185186-1 CUSTOM BURKE PLAYGROUND EQUIPMENT IDENTIFIED IN ALL ASSOCIATED PROPOSAL DOCUMENTS ATTACHED AS 100-185186-1 INCLUDING ALL EQUIPMENT, STRUCTURES AND STANDALONE EVENTS 1 167,044.00 167,044.00T FFreight Freight quotes currently only valid for 15 days. Quote based on information currently listed on estimate. Modifications to delivery address, contact or offloading capability must be made prior to order. If made after order is placed, surcharges may apply. 1 3,200.00 3,200.00T EEWF - Dropped/Installed Wood Fiber quote includes freight and drop-off of quoted CY to your location. Quoted CY amount based on customer information provided. If you are unsure of the quantity of CY needed, please provide SQFT and depth. Desired depth should be appropriate for equipment safety standards. It is the customer’s responsibility to ensure that the drop site is accessible by truck. Product will be moved to appropriate areas per safety standards as determined by installer. Site work and restoration for pre/post project is not included. 1 11,360.00 11,360.00T IINSTALL INSTALLATION OF EQUIPMENT: THIS INSTALL PERFORMED BY INDEPENDENT CERTIFIED INSTALLER AND WILL BE BILLED DIRECT BY THE INSTALLER. THIS ESTIMATE IS INCLUDED AS A COURTESY. 1 20,000.00 20,000.00T AAPPLIED DISCOUNT ADDITIONAL MFG. DISCOUNT APPLIED 1 -51,604.00 -51,604.00T MATERIAL ITEMS AS QUOTED ARE GOOD FOR 30 DAYS. FREIGHT QUOTES ARE GOOD FOR 15 DUE TO FUEL UNCERTAINTIES. SALES TAX SUBJECT TO CHANGE. ADD IF NOT TAX EXEMPT OR SUPPLY EXEMPTION CERTIFICATE IF NOT ON FILE. PAYMENT TERMS ARE NET 30 DAYS UNLESS OTHERWISE NOTED. FAILURE TO PAY IN A TIMELY MANNER WILL BE SUBJECT TO INTEREST AT A RATE OF 1.5%/MONTH OR 18% ANNUALLY. SUBTOTAL 150,000.00 TAX (0%) 0.00 TOTAL $$150,000.00 By signing estimate or authorizing by email or PO, purchaser is agreeing to billing terms as listed on the estimate. Order to include model number(s), quantity and color(s) above including any supplemental documents provided and/or requested. Please verify all content for accuracy. **Those purchasing off of the MN State Contract are bound only by the terms and conditions listed in said contract** *LEAD TIMES AND SHIPPING DATES ARE BASED ON CURRENT INVENTORY. PLEASE BE PATIENT AS OUR VENDORS NAVIGATE SUPPLY CHAINS & NATIONAL SHORTAGES. **FOR BIDDING CONTRACTORS & SUPPLIERS: ST CROIX RECREATION IS NOT LIABLE FOR INTERPRETATION OF PROJECT BIDS, DRAWINGS OR ADDENDA. IT IS THE CUSTOMER'S RESPONSIBILITY TO VERIFY ACCURACY OF MODEL NUMBER(S), DESCRIPTION(S), QUANTITY AND COLOR(S) DIRECTLY WITH END USER Accepted By Accepted Date J.1 CITY OF HUGO COUNTY OF WASHINGTON ORDINANCE NO. 2024-____ AN INTERIM ORDINANCE PLACING A TEMPORARY MORATORIUM ON NEW DEVELOPMENT OF SOLAR FARM SOLAR ENERGY SYSTEMS AND DIRECTING A STUDY TO BE CONDUCTED NOW, THEREFORE, the City Council of the City of Hugo does ordain: SECTION 1. BACKGROUND. WHEREAS, the City Council adopted an Ordinance 2016-475 SOLAR ENERGY SYSTEMS on January 4, 2016 and an amendment Ordinance 2023-528 on July 24, 2024; WHEREAS, in view of experience following the adoption of the above-referenced ordinances, including an observation that Solar Farm Solar Energy Systems may not be appropriate in certain land use categories in the City because of issues relating to compatibility and appearance, the City has determined that an additional study shall be conducted to review the City’s zoning ordinance and official controls relating thereto to ensure the zoning ordinance and official controls regarding Solar Farms adequately addresses the public health, safety and general welfare of the community; WHEREAS, Solar Farms are defined as a solar energy system that is composed of multiple solar panels where the primary land use, whether by footprint or visual impact or both, of the parcel is for a solar array. A solar farm produces energy for wholesale to subscribers. WHEREAS, the City has determined that a study shall be conducted to review the ordinance to determine whether to revise or add any regulations, restrictions or prohibitions, including siting and location of use, performance standards, and screening of Solar Farms within all the City of Hugo. WHEREAS, the City has determined that the section of the ordinance regarding Accessory Solar Energy Systems adequately addresses the public health, safety, and general welfare of the community, and are exempt from the moratorium. Such systems are for accessory use and predominantly serve on-site, single building users. WHEREAS, to provide adequate time for study, analysis, and the finalization of City Code amendments regarding Solar Farms or to preserve the status quo within the City, the City desires to enact an interim ordinance on the applications for and the issuance of permits for Solar Farms. WHEREAS, pursuant to Minn. Stat. § 462.355, subd. 4, the City is authorized to enact by ordinance a moratorium to regulate, restrict or prohibit any use within the jurisdiction to protect the public health, safety, and welfare. Specifically, the City is authorized to enact a Ordinance 2024-____ Page 2 of 3 moratorium ordinance to allow it to undertake a study to determine whether to revise or add any regulations, restrictions or prohibitions, including siting and location of use, performance standards, and screening of Solar Farms. SECTION 2. FINDINGS. 1. The City Council finds there is a need to study the Solar Farm section of the ordinance to determine whether to revise or add any regulations, restrictions, or prohibitions, including siting and location of use, performance standards, and screening of Solar Farms. This ordinance does not have an effect of imposing limitations or restrictions to the application of Accessory Solar Energy Systems. 2. The study will address issues including, but not limited to the following: 1) The particular districts and locations such use shall be allowed; 2) The concentration and density of such uses in the City; 3) Performance standards for such uses in the City; and; 3) The effects of such uses on other uses and the surrounding area. 3. The study will allow the City Council to determine the appropriate changes or prohibitions, if any, that it should make to City ordinances. 4. The City Council, therefore, finds that there is a need to adopt a City-wide moratorium of the applications for and the issuance of permits for Solar Farms. SECTION 3. MORATORIUM. 1. No individual, establishment, organization, or business may apply for applications for approval or the issuance of permits for Solar Farms for six (6) months from the effective date of this ordinance. 2. No application or permit of any kind, by any individual, establishment, organization, or businesses involved in Solar Farms within the City of Hugo shall be accepted, considered, or issued for six (6) months from the effective date of this ordinance. 3. Planning or zoning applications related to Solar Farms or applications from individuals, establishments, organizations, or businesses involved in Solar Farms within the City of Hugo shall not be accepted, considered, or issued for six (6) months from the effective date of this ordinance. SECTION 4. STUDY. The City Council directs City staff to study the Solar Farm section of the ordinance to determine whether to revise or add any regulations, restrictions, or prohibitions, including siting and location of use, performance standards, and screening of Solar Farms. Upon completion of the study, the City Council, together with such commission as the City Council deems appropriate, or as may be required by law, will consider the advisability of adopting new ordinances or amending its current ordinances. SECTION 5. ENFORCEMENT. The City may enforce this Ordinance by mandamus, injunctive relief, or other appropriate civil remedy in any court of competent jurisdiction. The Ordinance 2024-____ Page 3 of 3 City Council hereby authorizes the City Administrator, in consultation with the City Attorney, to initiate any legal action deemed necessary to secure compliance with this Ordinance. A violation of this Ordinance is also subject to the City’s general penalty in City Code § Sec. 1 - 18 subd. (b). SECTION 6. TERM. Unless earlier rescinded by the City Council, the moratorium established under this Ordinance shall remain in effect until six (6) months from its effective date, at which point, it will automatically expire. SECTION 7. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after its passage by the City Council. This ordinance is effective upon adoption. ADOPTED by the City Council this 20th day of May, 2024 ______________________________ Tom Weidt, Mayor ATTEST: _____________________________ Michele Lindau, City Clerk I am writing to personally invite you to the ribbon cutting of our mental health clinic expansion in Hugo, Minnesota. Nystrom & Associates is a behavioral health company that has 62 locations in Minnesota, Wisconsin, North Dakota, Missouri, and Iowa. Please join us to learn about the services we offer at our Hugo clinic, the impact to the community and our future plans. You will also have the chance to meet the providers and tour the new clinic. Dignitaries include: Mayor Tom Weidt Nystrom & Associates Clinic Director Wade Crandall City Council members and more Tuesday, May 21st, 2024 12:00-1:00 pm 4638 Victor Path, Suite 900 Hugo, MN Refreshments will be served. Tours to follow ribbon cutting. May 16, 2024 VIA EMAIL ONLY Sarah Strommen Commissioner Minnesota Department of Natural Resources Attn: Dawn Fredrickson Box 9 500 Lafayette Road Saint Paul, MN 55155 Dawn.Fredrickson@state.mn.us; jill.nguyen@state.mn.us Re: In the Matter of Amendments to Various Water Appropriation Permits OAH 8-2002-37733 Dear Commissioner Strommen: Enclosed and served upon you is the Administrative Law Judge’s FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER in the above-entitled matter. The Official Record will be returned to the Minnesota Department of Natural Resources after the appeal period has expired. If you have any questions, please contact me at (651) 361-7874, michelle.severson@state.mn.us, or via facsimile at (651) 539-0310. Sincerely, MICHELLE SEVERSON Legal Assistant Enclosure cc: Docket Coordinator See Attached Service List STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS PO BOX 64620 600 NORTH ROBERT STREET ST. PAUL, MN 55164-0620 CERTIFICATE OF SERVICE In the Matter of Amendments to Various Water Appropriation Permits OAH Docket No.: 8-2002-37733 On May 16, 2024, a true and correct copy of the FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER was served by United States mail, unless otherwise indicated below, addressed to the following: VIA EMAIL ONLY Sarah Strommen Commissioner Minnesota Department of Natural Resources Attn: Dawn Fredrickson Box 9 500 Lafayette Road Saint Paul, MN 55155 Dawn.Fredrickson@state.mn.us; jill.nguyen@state.mn.us VIA EMAIL ONLY Colin P. O’Donovan Assistant Attorney General colin.odonovan@ag.state.mn.us; kathryn.mitchell@ag.state.mn.us On behalf of Minnesota Department of Natural Resources VIA EMAIL ONLY Gary A. Van Cleve Larkin Hoffman Daly & Lindgren, Ltd. gvancleve@larkinhoffman.com On behalf of H.B. Fuller Company VIA EMAIL ONLY David K. Snyder Johnson Turner david@johnsonturner.com On behalf of City of Hugo VIA EMAIL ONLY Jay T. Squires Rupp, Anderson, Squires & Waldspurger, P.A. jay.squires@raswlaw.com On behalf of City of Lino Lakes VIA EMAIL ONLY David L. Sienko Michael J. Hirak LeVander, Gillen & Miller, P.A. dsienko@levander.com; bnason@levander.com; mhirak@levander.com On behalf of City of Mahtomedi VIA EMAIL ONLY Byron E. Starns Stinson, LLP byron.starns@stinsonleonard.com Richard B. Allyn Shira T. Shapiro Robins Kaplan, LLP rallyn@robinskaplan.com; sshapiro@robinskaplan.com On behalf of White Bear Lake Homeowners Association and White Bear Lake Restoration Association VIA EMAIL ONLY Michelle E. Weinberg James J. Thomson Sarah J. Sonsalla Kennedy & Graven, Chartered mweinberg@kennedy-graven.com; jthomson@kennedy-graven.com; ssonsalla@kennedy-graven.com; bklahr@kennedy-graven.com; aschneider@kennedy-graven.com; On behalf of City of Lake Elmo and City of Oakdale VIA EMAIL ONLY Megan Hafner Assistant St. Paul City Attorney megan.hafner@ci.stpaul.mn.us; riddhi.mistry@ci.stpaul.mn.us On behalf of Saint Paul Regional Water Services VIA EMAIL ONLY David L. Sienko Michael J. Hirak LeVander, Gillen & Miller, P.A. dsienko@levander.com; mhirak@levander.com On behalf of City of Stillwater and Stillwater Board of Water Commissioners VIA EMAIL ONLY James C. Erickson, Jr. Erickson, Bell, Beckman, & Quinn, P.A. jericksonjr@ebbqlaw.com On behalf of City of Vadnais Heights VIA EMAIL ONLY Monte A. Mills Nicholas Scheiner Greene Espel, PLLP mmills@greeneespel.com; jkammueller@greeneespel.com On behalf of City of White Bear Lake VIA EMAIL ONLY Chad D. Lemmons Kelly & Lemmons, P.A. chadlemmons@kellyandlemmons.com On behalf of White Bear Township VIA EMAIL ONLY H. Alan Kantrud H.A. Kantrud, P.A. HAKantrudPA@protonmail.com On behalf of Dellwood Country Club, Indian Hills Golf Club and the White Bear Yacht Club VIA EMAIL ONLY Jared D. Shepherd Leah C. Koch Soren M. Mattick Campbell Knutson jshepherd@ck-law.com lkoch@ck-law.com smattick@ck-law.com On behalf of City of North St. Paul OAH 8-2002-37733 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE DEPARTMENT OF NATURAL RESOURCES In the Matter of Amendments to Various Water Appropriation Permits FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER These matters came before Administrative Law Judge Eric L. Lipman for a series of evidentiary hearings in October and December 2023. The disputes between the parties relate to the appropriateness of amendments made by the Commissioner of Natural Resources to water appropriation permits held by municipalities neighboring White Bear Lake. Colin P. O’Donovan and Oliver J. Larson, Assistant Attorneys General, appeared on behalf of the Minnesota Department of Natural Resources (Department or DNR). David K. Snyder, Johnson Turner, appeared on behalf of the City of Hugo. James J. Thomson, Sarah J. Sonsalla, David T. Anderson, and Michelle E. Weinberg, Kennedy & Graven, Chartered, appeared on behalf of the City of Lake Elmo and the City of Oakdale. Jay T. Squires, Squires, Waldspurger & Mace, P.A., appeared on behalf of the City of Lino Lakes. David L. Sienko and Michael J. Hirak, LeVander, Gillen & Miller, P.A., appeared on behalf of the City of Mahtomedi. James C. Erickson, Jr., Erickson, Bell, Beckman, & Quinn, P.A., appeared on behalf of the City of Vadnais Heights. Monte A. Mills and Nicholas B. Scheiner, Greene Espel, PLLP, appeared on behalf of the City of White Bear Lake. Richard B. Allyn and Shira T. Shapiro, Robins Kaplan LLP, and Byron E. Starns, Stinson LLP, appeared on behalf of the White Bear Lake Restoration Association (Restoration Association) and the White Bear Lake Homeowners Association (Homeowners Association). [204185/1] 2 STATEMENT OF THE ISSUES 1. Whether the permit amendment requiring the appellant permit holders to submit a contingency plan for a total or partial conversion to surface water sources for water supplies is reasonably necessary for the “safety and welfare of the people of the state?” 2. Whether the permit amendment requiring the appellant permit holders to “prepare, enact, and enforce a residential irrigation ban” when notified by the DNR that the elevation of White Bear Lake has fallen below 923.5 feet (and to continue this prohibition until notified by DNR that the lake elevation has reached an elevation of 924.0 feet) is reasonably necessary for the “safety and welfare of the people of the state?” 3. Whether the permit amendment requiring the appellant permit holders to submit enforceable plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day, is reasonably necessary for the “safety and welfare of the people of the state?” 4. Whether the permit amendment requiring the appellant permit holders to submit annual reports to DNR detailing their efforts to develop plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day is reasonably necessary for the “safety and welfare of the people of the state?” SUMMARY OF DISPOSITIONS For the reasons detailed in the Findings of Fact, Conclusions of Law, and Memorandum below, the Administrative Law Judge concludes that: 1. The permit amendment requiring the appellant permit holders to submit a contingency plan for total or partial conversion to surface water sources for water supplies is reasonably necessary for the “safety and welfare of the people of the state.” 2. The permit amendment requiring the appellant permit holders to “prepare, enact, and enforce a residential irrigation ban” is so underinclusive that it is an arbitrary and unlawful condition on appropriations of groundwater. An arbitrary condition cannot be reasonably necessary for the “safety and welfare of the people of the state,” as those words are used in Minn. Stat. § 103G.315, subd. 6 (2022). 3. The permit amendment requiring the appellant permit holders to submit enforceable plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day, is reasonably necessary for the “safety and welfare of the people of the state.” 4. The permit amendment requiring the appellant permit holders to submit annual reports to DNR detailing their efforts to develop plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day is reasonably necessary for the “safety and welfare of the people of the state.” [204185/1] 3 Based upon the evidence in the hearing record, the Administrative Law Judge makes the following: FINDINGS OF FACT I. White Bear Lake as a Water Resource in the East Metro 1. White Bear Lake is an approximately 2,400-acre lake located between Ramsey and Washington Counties, Minnesota, in the northeast quadrant of the Twin Cities Metropolitan Area.1 2. White Bear Lake overlays the Prairie du Chien and Jordan aquifers – which are collectively known as the Prairie du Chien-Jordan system.2 3. The lake is a public water within the meaning of Minn. Stat. § 103G.005, subd. 15 (2022).3 4. White Bear Lake is primarily managed by the DNR for walleye and muskellunge, but many other aquatic species thrive in the lake.4 5. Riparian landowners and the citizens of Minnesota use White Bear Lake for swimming, angling and boating.5 6. There are three public beaches on White Bear Lake.6 7. For homeowners living next to White Bear Lake, and those traveling to the lake for recreation purposes, low levels of the lake have been a concern for many years.7 8. Elevation data for White Bear Lake has been collected since 1924.8 9. White Bear Lake's ordinary high-water level is 924.89 feet.9 10. White Bear Lake's elevation has fluctuated over that time within an 8.16-foot range.10 11. White Bear Lake's highest recorded lake elevation was observed in June 1943, when the lake reached an elevation of 926.7 feet.11 1 White Bear Lake Restoration Ass'n v. Minnesota Dept. of Natural Resources, 2017 WL 9833672, slip op. at *2 (Minn.Dist.Ct. 2017) (WBL-Dist). 2 See id. slip op. at *3-*4. 3 Id. slip op. at *57. 4 See e.g., DNR Exhibit (Ex.) 302 at 1. 5 See WBL-Dist, slip op. at *1, *39 -*40, *61. 6 See id. slip op. at *40. 7 See id. slip op. at *11-*12. 8 Id., slip op. at *3. 9 Id. 10 Id. (June 1943 level of 926.7 feet, subtracting January 2013 level of 218.54 feet, equals 8.16 feet). 11 Id. [204185/1] 4 12. White Bear Lake's lowest elevation, 918.54 feet, was recorded in January 2013.12 13. Lake levels at or above 924.80 were measured in 1942 through 1947, 1950 through 1953, 1985 through 1987, 1995 through 1999, and 2003.13 14. Periods of water levels at the lower end of White Bear Lake's historic range (918.84 feet to 921.5 feet) were measured between 1924 to 1927, 1934 to 1935, 1989 to 1991, and 2009 to 2015.14 15. White Bear Lake has no natural inlet and has a single constructed outlet.15 16. The outlet for White Bear Lake was first established in 1906 at 926.3 feet.16 17. At the time, the Ramsey County Board directed that a sloping concrete slab be installed at 926.3 feet to facilitate outflow from White Bear Lake.17 18. The slab was breached in 1943, and there was extensive flooding around the lake.18 19. In 1943, the slab was converted to a culvert.19 20. Further, at the request of landowners along the shore of White Bear Lake, the lake's outlet was lowered to 925.5 feet. The landowners urged that, at this lower level, problems with flooding lakeshore properties would be reduced.20 21. In 1982, the DNR issued Ramsey County a permit to lower the culvert to 924.5 feet.21 22. Ramsey County constructed the actual outlet at 924.3 feet.22 II. Withdrawals of Groundwater and its Impacts to White Bear Lake 23. Each of the appellant permit holders in this case holds a water appropriation permit and makes withdrawals of groundwater from the Prairie du Chien and Jordan aquifers for use in their respective communities.23 12 Id. 13 DNR Ex. 320 at 2. 14 Id. 15 WBL- Dist, slip op. at *2. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 See generally DNR Ex. 3, Attachment A at 6. [204185/1] 5 24. These permits are “perpetual” – because they do not have specific end dates listed – but, as detailed below, include annual appropriation limits: Permit Holding Municipality Year Permit Issued Annual Authorized Withdrawals in Millions of Gallons Hugo 1975 650 Lake Elmo 1961 260 Lino Lakes 1985 900 Mahtomedi 1969 315 Oakdale 1978 1,210 Vadnais Heights 1980 579 White Bear Lake 1969 1,15024 25. Not every community withdraws the entire amount of groundwater authorized by its appropriation permit each year. In fact, the limits are structured to “allow groundwater users to respond to rare emergencies, such as firefighting or emergency inter-connections with other communities, without violating the permit.”25 26. The Prairie du Chien and Jordan aquifers are hydro-geologically connected to White Bear Lake. Groundwater flows both into and out of White Bear Lake.26 27. As groundwater is pumped from the aquifers for domestic, agricultural, and industrial uses, the withdrawal of water creates a “cone of depression” and draws surface water from White Bear Lake down into the aquifers below.27 28. In this way, the level of White Bear Lake is directly affected by the water level in the aquifers below – and by extension, the withdrawals of groundwater made by the permit holders out of those aquifers.28 24 See DNR Ex. 19 at 7; Hugo Ex. 9; Lake Elmo (Elmo) Ex. 1; Lino Ex. 1; Oakdale (Oak) Ex. 1; Mahtomedi (Maht) Ex. 11; White Bear Lake (WBL) Ex. 3; Vadnais Heights (VH) Ex. 3. See also Minn. R. 6115.0750, subp. 2 (2023) (“Long-term permits will remain in effect subject to applicable permit provisions and conditions of the permit, the law, and [Minn. R. ch. 6115]”). 25 DNR Ex. 3., Attachment A at 17. 26 Hearing Transcript (Tr.) Volume (Vol.) 4 at 68-71 (Grubb). In order to “to simplify the process of judicial review” of the hearing record “as well as increase its ease and availability” (see Minn. Stat. § 14.001 (7) (2022)) the evidentiary hearing transcripts are denominated as follows: October 17, 2023 (Vol. 1); October 18, 2023 (Vol. 2); October 19, 2023 (Vol. 3); October 30, 2023 (Vol. 4); October 31, 2023 (Vol. 5); December 11, 2023 (Vol. 6); December 12, 2023 (Vol. 7); December 13, 2023 (Vol. 8); December 14, 2023 (Vol. 9); December 15, 2023 (Vol. 10). 27 Volume (Vol.) 4 at 131-32 (Grubb). 28 Id. at 39, 47-48, 59, 70-71, 88-89, 91-93, 120-21, 125-26. [204185/1] 6 29. Groundwater pumping also reduces water pressure in the Prairie du Chien and Jordan aquifers.29 30. If communities near White Bear Lake significantly reduced their pumping of groundwater, the level of White Bear Lake would rise.30 31. Accordingly, the needs and interests of the communities with water appropriation permits clash with the needs and interests of those who use and enjoy White Bear Lake for fishing and recreation.31 This case is about the lawful resolution of those conflicts. III. The Power to Regulate Groundwater Supplies in Minnesota 32. The Commissioner of Natural Resources has the duty to: [m]anage water resources to assure an adequate supply to meet long-range seasonal requirements for domestic, municipal, industrial, agricultural, fish and wildlife, recreational, power, navigation, and quality control purposes.32 33. Minn. Stat. § 103G.261 (a) establishes a hierarchy of priority uses for “the consumptive appropriation and use of water.” The statute includes six priorities, four of which touch upon the contested cases in this matter: A. The first priority is domestic water supply which is defined as water used for “general household needs such as cooking, cleaning, drinking, washing, and waste disposal.” B. The second priority is uses that are less than 10,000 gallons per day. C. The third priority is agricultural irrigation and processing in excess of 10,000 gallons per day. D. The sixth priority is all non-essential uses.33 34. DNR maintains that whenever there is not a sufficient supply of water, the DNR allocates water according to the statutory hierarchy of priorities.34 29 Id. at 131. 30 Tr. Vol. 3 at 221 (Champion). 31 See generally Tr. Vol. 5 at 70-71 (Grubb); D. Owen, Taking Groundwater, 91 Wash. U.L. Rev. 253, 256- 67 (2013) (“Most aquifers span property boundaries, and one property owner’s pumping can compromise or even dry out her neighbors’ wells. That pumping also can strain ecological systems protected under a wide variety of environmental laws. Consequently, groundwater use routinely activates the tension between a widely shared desire to protect private property rights from regulation and an equally widely recognized need to use regulation to curb problematic uses of property. As many commentators have noted, resolving that tension forms one of the central challenges of American property and constitutional law.”). 32 Minn. Stat. § 103G.265, subd. 1 (2022). 33 Minn. Stat. § 103G.261 (a); DNR Exs. 3, 6, 32; Tr. Vol. 3 at 221, 223-24, 228 (Champion); Tr. Vol. 4 at 100 (Grubb); Tr. Vol. 5 at 66 (Grubb). 34 Tr. Vol. 10 at 9-10 (Moeckel); Tr. Vol. 10 at 241 (Doneen). [204185/1] 7 35. DNR also uses the priority allocation law when evaluating whether and when to grant water appropriation permits.35 36. During times of “critical water deficiency,” Minnesota law gives the Governor broad powers to impose water conservation restrictions. Minn. Stat. § 103G.291, subd. 1 (2022), provides: (a) If the governor determines and declares by executive order that there is a critical water deficiency, public water supply authorities appropriating water must adopt and enforce water conservation restrictions within their jurisdiction that are consistent with rules adopted by the commissioner. (b) The restrictions must limit lawn sprinkling, vehicle washing, golf course and park irrigation, and other nonessential uses, and have appropriate penalties for failure to comply with the restrictions.36 37. As of the date of this Order, the Governor has not declared a “critical water deficiency” in the Northeast Metro.37 IV. The Purpose, Use, and Development of Protective Elevations 38. The Commissioner of Natural Resources is directed by statute to administer: “(1) the use, allocation, and control of waters of the state; (2) the establishment, maintenance, and control of lake levels and water storage reservoirs; and (3) the determination of the ordinary high-water level of waters of the state.”38 39. These administrative powers include the authority to “establish water appropriation limits to protect groundwater resources.”39 40. When establishing water appropriation limits, the commissioner works to preserve “the sustainability of the groundwater resource, including the current and projected water levels,” and “the ability of future generations to meet their own needs.”40 41. To set appropriate sustainability levels, Minnesota law also grants the Commissioner of Natural Resources the power to both set “protective elevations” for bodies of water in Minnesota, and to limit water appropriations to amounts that will not reduce water basins below those elevations.41 35 Tr. Vol. 10 at 9-10 (Moeckel). 36 Minn. Stat. § 103G.291, subd. 1. 37 See Archive of Executive Orders from Governor Walz (https://mn.gov/governor/newsroom/executive- orders/) (last accessed, May 13, 2024). 38 Minn. Stat. § 103G.285, subd. 3(b) (2022). 39 Minn. Stat. § 103G.287, subd. 3 (2022). 40 Id. 41 Minn. Stat. § 103G.255 (2022). [204185/1] 8 42. Minn. R. 6115.0630, subp. 13 (2023) defines a protective elevation as “the water level of the basin necessary to maintain fish and wildlife habitat, existing uses of the surface basin by the public and riparian owners, and other values which must be preserved in the public interest.”42 43. When setting a protective elevation for White Bear Lake, the DNR found both that: (1) periodic fluctuations in lake elevation were important to the ecological health of White Bear Lake; and (2) the recorded range of fluctuation of elevations within the lake basin has not significantly reduced the acreage of the lake’s “littoral zone.”43 44. A lake’s littoral zone is that area of the lake where water depths are equal to, or less than, 15 feet deep and represents the near-shore area where aquatic plant growth is typically most abundant. This area of a lake provides critical “shallow water” habitat for many fish and wildlife species.44 45. The “littoral zone acreage” of White Bear Lake when the lake level is 926.0 feet is 1,158 acres. There is only a modest change in the littoral zone acreage of the lake even when the lake level drops by eight feet. At a level of 918.0 feet, the littoral zone acreage of the lake is approximately 1,111 acres.45 46. From this finding, the Department concluded that “the size of the littoral zone, which is critical in supporting associated fish, wildlife, and plant resources, is not significantly affected over the range of observed lake levels on White Bear Lake.”46 47. DNR further concluded that “the existing recreational uses of White Bear Lake by the public and riparian landowners provide the only justification for establishing a protective elevation for White Bear Lake that is within the historic range of water level elevation recorded for White Bear Lake.”47 48. Lower levels on White Bear Lake have resulted in a series of adverse impacts; including “dock extensions, beach closure, increased requests to control Eurasian milfoil, and reduced access at public ramps and limitations on shore fishing.”48 49. After assessing the various impacts, the DNR set a protective elevation for White Bear Lake at 922.0 feet, mean sea level.49 50. None of the parties to the contested cases challenged DNR’s determination of the protective elevation.50 42 Minn. R. 6115.0630, subp. 13 (emphasis added). 43 See DNR Ex. 3, Attachment A at 7-8. 44 Id. at 18. 45 DNR Ex. 302, at 10. 46 DNR Ex. 3, Attachment A at 20. 47 DNR Ex. 302, at 17. 48 DNR Ex. 4 at 3. 49 Findings of Fact and Order: White Bear Lake Protective Elevation White Bear Lake, Ramsey and Washington Counties (December 21, 2016); DNR Ex. 4 at 3; Associations (RAHA) Ex. 35; Tr. Vol. 10 at 294 (Doneen). 50 Tr. Vol. 10 at 12 (Moeckel). [204185/1] 9 V. The State Court Litigation 51. After the level of White Bear Lake fell to its lowest-recorded elevation, the Restoration Association and the Homeowners Association filed suit against DNR in the District Court of Ramsey County. The suit claimed claiming that the water appropriations made by thirteen communities in the northeast Twin Cities Metropolitan Area reduced the levels of White Bear Lake, causing unlawful impairments to the lake.51 52. The Associations asserted that DNR’s management of the water appropriation permitting process resulted in “pollution, impairment, or destruction” of White Bear Lake – a water resource of the state.52 53. DNR asserted that the District Court had no jurisdiction to make orders regulating the Department’s issuance of water appropriation permits.53 54. During proceedings before the District Court, the Associations’ expert, Stuart Grubb, maintained that the collective water withdrawals authorized by the DNR in the Northeast Metro had a negative impact on the level of White Bear Lake. Mr. Grubb submitted a “water budget model” to show that cumulative withdrawals of groundwater by municipal pumping had lowered the level of the lake.54 55. Mr. Grubb opined that “to effect needed change, all wells within at least a five-mile radius should be subject to groundwater use restrictions.”55 56. The water budget model presented to the District Court did not attribute amounts of reduction in the level of White Bear Lake to the withdrawals made by each permit holder. Instead, the budget model only described the aggregated impacts of the annual withdrawals of groundwater.56 57. On August 30, 2017, after a three-week bench trial, the District Court found in favor of the Restoration Association and the Homeowners Association. The District Court concluded that the DNR’s administration of the water appropriation permit process resulted in excessive withdrawals of groundwater from the Prairie du Chien and Jordan aquifers and impairments to White Bear Lake. These impairments, continued the District Court, violated the Minnesota Environmental Rights Act.57 58. Among the key findings of the District Court were: 51 See generally White Bear Lake Restoration Association v. Minnesota Department of Natural Resources, No. 62-CV-13-2414, 2017 WL 9833672 (Dist. Ct. Ramsey Cnty. 2017) (WBL-Dist). 52 See WBL-Dist, slip op. at *1. 53 See generally White Bear Lake Restoration Ass’n ex rel. State v. Minnesota Dep’t of Nat. Res., 928 N.W.2d 351, 355 (Minn. Ct. App. 2019), aff’d in part, rev’d in part, 946 N.W.2d 373 (Minn. 2020) (WBL I) (the DNR argued “the district court was without jurisdiction to make orders concerning the DNR’s issuance of well permits”). 54 Tr. Vol. 2 at 96-97 (Bauer). 55 See WBL-Dist, slip op. at *26. 56 Tr. Vol. 2 at 97-98 (Bauer). 57 See WBL-Dist, slip op. at *70 (“Because the DNR violated MERA, Plaintiffs are entitled to declaratory and injunctive relief as set forth in the Order for Judgment”). [204185/1] 10 a. White Bear Lake is hydrologically connected to the Prairie du Chien and Jordan aquifers. b. The model [from the U.S. Geologic Survey] demonstrates that a 30 percent increase in groundwater pumping (from the 2002-2013 average) causes White Bear Lake to fall by 1.5 feet. c. A 30 percent reduction in groundwater pumping (from the 2002-2013 average) would cause White Bear Lake to rise by 1.5 feet. d. The [U.S. Geologic Survey’s] findings are “conclusive proof that water from White Bear Lake is entering the Prairie du Chien Aquifer and is being pumped out by [DNR-permitted wells] in the area of White Bear Lake.” e. As a general rule, groundwater use increases in dry years and declines in wet years. f. The increase in use is primarily due to non-agricultural irrigation; that is, lawn watering. g. This non-essential use accounts for about 30 percent of annual (not just summer) water use in the northeast metro. h. To have an impact on the water level in [White Bear Lake] actual groundwater use must be reduced, not just the permitted amount, [because] not everyone pumps their total appropriation. i. Pumping from wells five or more miles from the lake does impact it. Mr. Grubb testified that five miles is the minimum range of impact, and identified a number of wells of that distance that had a “very significant influence” on the lake. Dr. Tonkin found a significant number of wells between 6-12 miles from White Bear Lake that had an impact, and Dr. Berg agreed that wells “far” from the lake can have “a significant effect” depending on their pumping rate. j. Ms. Ekman, from the DNR, calculated that by implementing an irrigation ban, the DNR could reduce use by as much as 25 to 40 percent. The DNR admits there is “significant opportunity” to reduce water use by targeting summer water use, and that “we need to find ways to reduce this dramatic increase [in water use] in the summer. [204185/1] 11 k. This “profligate use of summertime irrigation” is the major driver of the outsized increase in water consumption in this area. l. Mr. Sather [White Bear Lake City witness] testified that the citizens of the City of White Bear Lake voluntarily reduced their water use by 20 percent in response to a water emergency caused by drought. They did so only for a short time: With the passing of dry years and with the return of normal rainfall, the city went back to using their previous volume of water.58 59. The District Court ordered the DNR to take the following actions with respect to “groundwater permits within a five-mile radius of White Bear Lake”: a. Within six months after August 30, 2017, prepare, enact, and enforce a residential irrigation ban when the lake elevation of White Bear Lake is below 923.5 feet. DNR was further ordered to continue the irrigation ban until the lake reaches an elevation of 924.0 feet. b. Require all existing permits to have an enforceable plan to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day on or before August 30, 2018. c. Require all groundwater permittees to report annually to DNR on collaborative efforts with other northeast metro communities to develop enforceable plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day. d. The court's order also directed the DNR to “immediately amend all permits to require that, within one year of August 30, 2017, all permittees must submit a contingency plan in their water supply plans for conversion to total or partial supply from surface water sources.”59 60. Additionally, the District Court directed the DNR to: Analyze the cumulative impact of these permits within the five-mile radius of White Bear Lake to determine whether pumping at the maximum rates allowed by the permits is sustainable. The specific results of the analysis 58 WBL-Dist, at *6 -*54. 59 Id. at 71. [204185/1] 12 will be published in a public newspaper, in a form understandable to the general public.60 61. DNR appealed the District Court’s order to the Minnesota Court of Appeals.61 62. On September 10, 2018, the District Court partially stayed the effectiveness of its order pending the resolution of the appeal by the appellate courts.62 63. In April of 2019, a divided Court of Appeals panel reversed the District Court’s judgment on jurisdictional grounds, dismissed the Associations’ Public Trust Doctrine claim and remanded Petitioners’ Minnesota Environmental Rights Act claim for administrative proceedings.63 64. In May of 2019, the Associations petitioned for further review of the Court of Appeals’ decision by Minnesota Supreme Court, and their petition was granted.64 65. Following a remand from the Minnesota Supreme Court, the Court of Appeals affirmed the District Court’s order in part, but also allowed permit holders to request a contested case hearing prior to any of the permit amendments being effective.65 66. Importantly, while the Court of Appeals allowed permit holders to request a contested case hearing on the amendments, the appellate panel made clear that the permit holders could not relitigate whether “appropriations within a five-mile radius of the lake have or will have a negative impact on surface waters” of White Bear Lake.66 67. In setting out this middle path, the appellate panel did not rule out the possibility of inconsistent judgments between the outcomes of the District Court litigation and the contested case processes. It noted: We nevertheless caution the district court that heed must be taken of the permit holders’ statutory right to a hearing as it administers the injunction and that, depending on the evidence adduced at the contested-case hearings, modifications may be appropriate.67 60 Id. 61 See White Bear Lake Restoration Ass’n v. Dep’t of Nat. Res., et. Al., No. A18-0750, 2020 WL 7690268, slip op. at *10 (Minn. Ct. App. 2020) (WBL III). 62 See WBL I, 928 N.W.2d at 358. 63 White Bear Lake Restoration Ass’n ex rel. State v. Minn. Dep’t of Nat. Res., 928 N.W.2d 351, 368-75 (Minn. App. 2019) (WBL I). 64 See Petition for Further Review, A18-0750 (Minn. 2019); White Bear Lake Restoration Ass’n ex rel. State v. Minnesota Dep’t of Nat. Res., 946 N.W.2d 373, 379 (Minn. 2020) (WBL II). 65 WBL III, slip op. at *9-*11. 66 Id. at 10. 67 WBL III, slip op. at *11; Minn. R. 6115.0740, subp. 3 and Minn. R. 6115.0750, subp. 5(c) (2023) extend the right to a contested case hearing prior to “[a]ll actions” “amendments and modifications” to water appropriation permits. [204185/1] 13 68. On February 28, 2018, in compliance with the District’s Court order, the DNR amended 44 water appropriation permits. The amendments directed the appellant municipal permit holders to do the following: New Condition 1: Submit a revised Water Supply Plan to the DNR that includes a contingency plan to fully or partially convert “the source water” for the municipality from groundwater to surface water source(s). The contingency plan must include a schedule for funding[,] design, construction, and conversion to a surface water supply. New Condition 2: The permittee must prepare, enact, and enforce a residential irrigation ban when notified by DNR that the lake level of White Bear Lake has fallen below 923.5 feet, to continue until notified by the DNR that the lake level has reached an elevation of 924 feet. New Condition 3: Submit an enforceable plan to the DNR to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day. New Condition 4: Annually submit a report to DNR detailing [the permit holder’s] collaborative efforts with northeast metro communities to develop plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day.68 69. With respect to plans for conversion from groundwater sources to surface water sources, as provided in new Condition 1, the DNR noted that “[w]hether any conversion would occur shall be determined by the DNR and the holder of this permit.”69 70. Following the DNR’s amendment of 44 water appropriation permits in the Northeast Metro, 17 permit holders sought contested case hearings on the amendments. It is uncontested that each of the appellants timely sought a contested case hearing.70 71. Of the 17 permit holders that demanded a contested case hearing, seven municipal permit holders proceeded to an evidentiary hearing.71 72. The water appropriation permits held by the cities of New Brighton, Shoreview and Woodbury – each of which lies more than five miles from White Bear Lake – were not revised by the Department following the District Court’s order.72 68 See e.g., Maht Ex. 11 at 3. 69 Id. 70 Tr. Vol. 10 at 18 (Moeckel); see also WBL III, slip op. at *16, n. 7 (“The DNR notes in its supplemental brief to this court that all of the municipalities have requested contested-case hearings”). 71 See Tr. Vol. 1 at 2-7 (Notices of Appearance). 72 Tr. Vol. 10 at 283-84 (Doneen) (the permits were not amended “because the Court didn’t order us to”); see also Tr. Vol. 2 at 15-16 (Bauer). [204185/1] 14 VI. The Commissioner’s Powers to Amend Water Appropriation Permits 73. When granting a water appropriations permit, the Commissioner of Natural Resources may include permit terms as to both the amount and manner of uses for appropriated water, “as appear reasonably necessary for the safety and welfare of the people of the state.”73 74. Additionally, water appropriation permits are subject to: a. cancellation by the commissioner at any time if necessary to protect the public interests; b. further conditions on the term of the permit or its cancellation as the commissioner may prescribe and amend and reissue the permit; and, c. applicable law existing before or after the issuance of the permit.74 75. Likewise important, the Commissioner’s power to authorize withdrawals of groundwater is limited to occasions when the purported withdrawals “avoid known negative impacts to surface waters.” Minn. Stat. § 103G.287, subds. 2, 3 (2022), provide: Groundwater appropriations may be authorized only if they avoid known negative impacts to surface waters. If the commissioner determines that groundwater appropriations are having a negative impact to surface waters, the commissioner may use a sustainable diversion limit or other relevant method, tools, or information to implement measures so that groundwater appropriations do not negatively impact the surface waters. …. When establishing water appropriation limits to protect groundwater resources, the commissioner must consider the sustainability of the groundwater resource, including the current and projected water levels, cumulative withdrawal rates from the resource on a monthly or annual basis, water quality, whether the use protects ecosystems, and the ability of future generations to meet their own needs.75 76. Moreover, Minn. R. 6115.0740 (2023) makes clear that permit holders do not have a firm right to future withdrawals of groundwater: “In no case shall a permittee be considered to have established a right of use or appropriation by obtaining a permit.”76 73 Minn. Stat. § 103G.315, subd. 6(b) (2022). 74 Minn. Stat. § 103G.315, subd. 11 (2022). 75 Minn. Stat. § 103G.287, subds. 2, 3. 76 Minn. R. 6115.0740, subp. 2(a) (2023). [204185/1] 15 77. Revising water appropriation permits was the key regulatory mechanism that the Department had when meeting the requirements of the District Court’s order.77 DNR has no statutory authority to direct municipalities to prepare, enact, or enforce local ordinances. VII. Additional Regulatory Controls 78. Apart from protective elevations, Minnesota law sets absolute limits on the volume of water that may be appropriated from water basins. Collective annual withdrawals from water basins may “not exceed a total volume of water amounting to one-half acre foot per acre of [the] water basin ….”78 79. Accordingly, six vertical inches of water on top of the Lake’s acreage is the total water volume that can be annually appropriated from White Bear Lake.79 80. In the DNR’s view, however, to maintain White Bear Lake’s Protective Elevation, the annual withdrawal limit set in statute must be lowered by an additional 20 percent – namely from 0.05 acre-ft/acre down to 0.4 acre-ft./acre. It notes: [DNR’s] model experiments indicated that long-term withdrawals at a constant annual rate of 0.5 acre-ft./acre (393 million gallons per year) could have caused the lake level to fall below 922 feet during the winters of 2010- 11 and 2012-13. At a constant withdrawal of 0.4 acre-ft/acre (314 million gallons per year) calculated lake levels remained above the protective elevation of 922 ft (MSL, 1912) during the 2002 through 2018 period.80 81. During the evidentiary hearing, Randall Doneen, the Manager of DNR’s Conservation Assistance and Regulations Section, characterized the withdrawals of groundwater beyond the annual limit of 314 million gallons of water, as a “severe” situation.81 82. The Department is charged with allocating the water volume within the collective annual withdrawal limit among all water appropriation permits.82 83. Further, Minn. Stat. § 103G.287 (2022) grants DNR the authority to: [D]esignate groundwater management areas and limit total annual water appropriations and uses within a designated area to ensure sustainable use of groundwater that protects ecosystems, water quality, and the ability of future generations to meet their own needs.83 77 Minn. Stat. § 103G.287, subd. 3. 78 Minn. Stat. § 103G.285, subd. 3(a) (2022). 79 Id.; Tr. Vol. 10 at 294 (Doneen). 80 DNR Ex. 3 at 11; Tr. Vol. 10 at 294 (Doneen). 81 See Tr. Vol. 10 at 299 (Doneen). 82 Id. at 236-40. 83 Minn. Stat. § 103G.287, subd. 4; RAHA Ex. 387; Tr. Vol. 10 at 26 (Moeckel). [204185/1] 16 84. With this authority, DNR established the Northeast Groundwater Management Area. The area includes a five to seven-mile area around White Bear Lake.84 85. Only three such Groundwater Management Areas exist in Minnesota. The Northeast Groundwater Management Area was established to respond to shortages in groundwater supplies.85 VIII. Development and Application of a Transient Water Model 86. The District Court’s findings on the impacts of groundwater pumping to White Bear Lake followed from the “steady state” water model. The steady state model was developed by the United States Geological Service.86 87. Among the shortcomings of a steady state water model, however, is that it lacks a time component. It cannot represent conditions between White Bear Lake and the underlying aquifers over time.87 88. And, as groundwater flows in and out of White Bear Lake, over time, the hydrology of the area changes.88 89. A “transient water model” can reflect those changes in its results.89 90. A workable transient water model was not available to the District Court in 2017.90 91. To set a collective annual withdrawal limit, and to meet the District Court’s directive to analyze the impacts and sustainability of groundwater withdrawals, DNR developed new analytical tools.91 92. DNR contracted with a leading water modeling firm, S.S. Papadopulos & Associates, to develop a “transient water model.” The model – also known as the Northeast Metro Lakes Groundwater model – incorporates eight different layers of geology representing each major hydrogeologic unit.92 93. DNR also incorporated soil-water balances and the rates at which water deposited on the ground, seeps through the soil and “recharges” the water table below.93 84 Tr. Vol. 10 at 181-82 (Moeckel). 85 Id. at 182-83. 86 WBL Dist at *12, *22-24, *33, *66. 87 Tr. Vol. 2 at 95 (Bauer); Tr. Vol. 3 at 19-20, 58 (Champion); Tr. Vol. 5 at 22 (Grubb). 88 Tr. Vol. 3 at 20-21 (Champion). 89 Tr. Vol. 2 at 92-93 (Bauer); Tr. Vol. 3 at 15 (Champion). 90 WBL-Dist, at *24, 66; Tr. Vol. 3 at 24-25 (Champion). 91 See Tr. Vol. 3 at 25 (Champion); Tr. Vol. 10 at 238 (Doneen); see also Minn. Stat. § 103G.285, subd. 3(a). 92 DNR Ex. 3 at 5; Tr. Vol. 3 at 20 (Champion). 93 Tr. Vol. 3 at 21 (Champion). [204185/1] 17 94. Further, the DNR’s transient model included detail on the rates at which surface waters evaporate – items that were not part of the steady-state model.94 95. DNR tested the transient water model during the fall of 2017, incorporated new data as it became available, and updated the model still further in both 2018 and 2019.95 96. The transient model “allows the DNR and communities to evaluate, for the first time, the cumulative and individual effects of permitted groundwater pumping on water levels within White Bear Lake.”96 97. The model quantifies current and projected future impacts to White Bear Lake from the groundwater appropriation by various permit holders.97 98. The DNR transient model is the best available science with respect to the likely impacts of permit conditions. It is more accurate than the steady-state and “water budget” models that were available at the time of the District Court’s decision.98 99. By October of 2017, DNR knew the impacts that withdrawal of groundwater by specific cities had upon the level of White Bear Lake. According to the transient water model,99 the rank order of influencers is: Rank City 1 City of White Bear Lake 2 White Bear Township – Pump 2 3 Mahtomedi 4 Vadnais Heights 5 Oakdale 6 North St. Paul 7 Shoreview 8 Saputo Dairy Foods 9 Woodbury 10 Hugo 94 Id. at 22. 95 Id. at 26-27. 96 DNR Ex. 3., Attachment A at 5. 97 Id. at 22; see also Tr. Vol. 3 at 28 (Champion). 98 See Tr. Vol. 2 at 95-96 (Bauer); Tr. Vol. 3 at 15-16, 19-20, 243 (Champion); Tr. Vol. 4 at 58, 96 (Bauer). 99 DNR Ex. 3, Attachment B-1, Figure 8-8; Tr. Vol. 3 at 60, 222-25, 228 (Champion); see also DNR Ex. 6 at 6; DNR Ex. 11 at 10. [204185/1] 18 Rank City 11 Stillwater 12 Lino Lakes 13 New Brighton 14 White Bear Township – Pump 1 15 Lake Elmo 100. DNR likewise discovered that groundwater appropriations by cities that are closer to White Bear Lake tend to have a greater impact on lake levels than appropriations from more remote locations – even if the volume of groundwater withdrawn by a more distant appropriator is greater. In this way, explains the Department, “distance is actually a larger effect than magnitude.”100 101. The municipal permit holders in this matter are all within the top 15 largest influencers upon the levels of White Bear Lake.101 102. Without some interventions, the impacts to White Bear Lake will be greater as the populations in these communities continue to grow and their demand for water increases.102 103. The analysis from the transient model differed from the steady-state water model in significant ways. First, it made clear that not every permit holder’s appropriation of groundwater had the same, or similar, impact upon levels of White Bear Lake.103 104. Additionally, the transient model also revealed that the shortages were much worse that originally projected by the DNR. To keep White Bear Lake above its Protective Elevation, withdrawals of groundwater from the aquifers needed to be reduced by 40 percent – instead of 25 percent – and new water appropriation permits in the area are not sustainable.104 105. Worse still, the DNR projects that if water appropriation practices in the Northeast Metro are not significantly changed, by 2040, the collective withdrawals of groundwater by the permit holders above could reduce lake levels by almost three feet.105 100 Tr. Vol. 3 at 18, 54 (Champion); DNR Ex. 3, Attachment B-1 at ES 1-2 (“The relative proportions of [stage] effects are related strongly to the rates of pumping, the distance of the pumping from the lake, and the aquifer(s) from which the water is pumped”). 101 See DNR Ex. 6 at 17. 102 DNR Ex. 12 at 28. 103 DNR Ex. 3, Attachment B-1 at ES 1-2 (“the elimination of pumping associated with each permit individually illustrates the proportionally larger effects of pumping associated with some permits versus others on lake levels”); DNR Ex. 3, Attachment B-1, Figure 8-8. 104 DNR Ex. 12; Hugo Ex. 23; Tr. Vol. 10 at 18 (Moeckel); Tr. Vol. 10 at 243, 256 (Doneen). 105 DNR Ex. 32 at 28. [204185/1] 19 106. With the transient model reports, the DNR concluded that reducing area use of groundwater to an average of 90 gallons per resident, per day, would be insufficient to maintain the elevation of White Bear Lake at 922 feet.106 107. Instead, the DNR projected that water use would need to be reduced to 55 gallons, per person, per day, to maintain the elevation of White Bear Lake at 922 feet.107 108. While average for daily water use in Minnesota is 55 gallons, per person, per day, the per capita averages in many of the suburban communities that ring White Bear Lake is much higher.108 109. Among the permitted water systems within five miles of White Bear Lake, the public and private water supply use during the 10-year period from 2011 through 2020, ranged between 73 and 108 gallons of water per person, per day.109 110. Moreover, even if one assumes that water usage could be slashed to 55 gallons per person, per day, there would not be any remaining water for any use other than household uses.110 111. Randall Doneen, the Manager of DNR’s Conservation Assistance and Regulations Section, maintains that a 55 gallon, per person, per day limit is simply too low to be achievable in the near term.111 112. Jason Moeckel, a limnologist with DNR, concurs with this assessment.112 As described below, the DNR proposes more modest conservation goals in the near term. 113. Another difficulty that complicates compliance with the District Court’s order, is that the range of persons included in the term “per capita” is not clear. For example, it is not clear from the text of the order whether the per capita limitation is calculated by tabulating the water usage of all residents within a particular community, or merely those residents who are receiving municipal water services. Put another way: Do the water usage limitations apply to residents who are drawing water from private wells?113 114. In September of 2023, the DNR declared its view as to the proper method of tabulating per capita water use. It explained: Population served can be different than the total population of a community. Population served does not include residences or other facilities within a community that are not connected to the water supply system 106 Tr. Vol. 3 at 12 (Champion). 107 Tr. Vol. 10 at 240-41, 266 (Doneen). 108 Tr. 2 at 144 (Bauer); Tr. Vol. 10 at 241 (Doneen); Tr. Vol. 9 at 137-38 (Griffin). 109 DNR Ex. 3 at 5 (Conclusion 1). 110 Tr. Vol. 10 at 241 (Doneen). 111 Id. at 299. 112 Tr. Vol. 19 at 269-70. Limnologists are scientists who study the physical, chemical and biological properties of lakes, rivers and streams. See WBL-Dist, at *29, n. 249. 113 Tr. Vol. 10 at 241 (Doneen). [204185/1] 20 (i.e. private/individual wells) nor does it include that part of a population served by another municipality. However, it does include any residences outside of the community to which it supplies water. For example, when Lake Elmo residences purchased water from Oakdale, Lake Elmo could not include those residences in its population count, but Oakdale would count those residences in its population count. Residential population includes single-family homes, apartments, trailer parks, senior living facilities, and state prisons. We recommend determining residential population served by multiplying your residential connections by your community’s average persons per household as determined either by the State Demographic Center, or the U.S. Census …. The Minnesota state average is 2.5 persons per household.114 115. During the evidentiary hearings on the permit amendments, the parties expressed doubt as to the proper method of calculating the court-ordered limits.115 IX. Chapter 60 from the 2023 Session 116. In May of 2023, the Minnesota Legislature passed the Omnibus Environment and Natural Resources bill, otherwise known as Chapter 60. Article II, section 5 of the bill appropriated sums “to develop a comprehensive plan to ensure communities in the White Bear Lake Area have access to sufficient safe drinking water to allow for municipal growth while simultaneously ensuring the sustainability of the surface water and ground water resources.”116 117. The legislation set aside resources to plan for the conversion of surface water sources to replace the permit holders’ current appropriation of groundwater. The bill provided: $2,000,000 the first year is to develop a comprehensive plan to ensure communities in the White Bear Lake area have access to sufficient safe drinking water to allow for municipal growth while simultaneously ensuring the sustainability of surface water and groundwater resources to supply the needs of future generations. The Metropolitan Council must establish a work group consisting of the commissioners of natural resources, health, and the Pollution Control Agency or their designees and representatives from the Metropolitan Area Water Supply Advisory Committee; the St. Paul Regional Water Services; the cities of Stillwater, Mahtomedi, Hugo, Lake Elmo, Lino Lakes, North St. Paul, Oakdale, Vadnais Heights, Shoreview, Woodbury, New Brighton, North Oaks, and White Bear Lake; and the town 114 Vadnais Heights Ex. 15. 115 See e.g., Vol. 6 at 78 (Bear); Tr. Vol. 7 at 277-81 (Goebel) (The City of Mahtomedi believes it cannot enforce an irrigation ban against residents that use private wells). 116 2023 Minn. Laws Ch. 60, Art. I, § 5(f). [204185/1] 21 of White Bear to advise the council in developing the comprehensive plan. This is a onetime appropriation and is available until June 30, 2027. The comprehensive plan must: (1) evaluate methods for conserving and recharging groundwater in the area, including: (i) converting water supplies that are groundwater dependent to total or partial supplies from surface water sources; (ii) reusing water, including water discharged from contaminated wells; (iii) projects designed to increase groundwater recharge; and (iv) other methods for reducing groundwater use; (2) based on the evaluation conducted under clause (1), determine which existing groundwater supply wells, if converted to surface water sources, would be most effective and efficient in ensuring future water sustainability in the area; (3) identify a long-term plan for converting groundwater supply wells identified in clause (2) to surface water sources, including recommendations on water supply governance and concept-level engineering that addresses preliminary design considerations, including supply source, treatment, distribution, operation, and financing needed to complete any changes to water supply infrastructure; (4) include any policy and funding recommendations for converting groundwater supply wells to surface water sources, recommendations for treating and reusing wastewater, and any other recommendations for additional measures that reduce groundwater use, promote water reuse, and increase groundwater recharge; (5) include any policy and funding recommendations for local wastewater treatment and recharge; and (6) be submitted to the chairs and ranking minority members of the house of representatives and senate committees and divisions with jurisdiction over environment and natural resources finance and policy by June 30, 2027.117 118. In the view of the legislature, conversion to surface water sources is necessary “to ensure communities in the White Bear Lake Area have access to sufficient 117 Id. [204185/1] 22 safe drinking water to allow for municipal growth while simultaneously ensuring the sustainability of the surface water and ground water resources.”118 X. The Claims of the Appellants 119. Not every permit holder challenged the lawfulness of each of the four new conditions. The municipal parties made the following challenges to the new conditions: Condition 1 – Planning for Conversion to Surface Water Sources Condition 2 – The Residential Irrigation Ban Condition 3 – Plans to Phase Down Residential and Total Water Usage Condition 4 – Reporting on Efforts to Reduce Water Usage Hugo x x x x Lino Lakes x x Lake Elmo x x Mahtomedi x Oakdale x Vadnais Heights x x Challenge Withdrawn Challenge Withdrawn White Bear Lake119 x XI. Condition Number 1 – Plans for Conversion to Surface Water Sources 120. As noted above, new Condition 1 obliges the permit holder to submit a contingency plan that includes a schedule for funding, design, construction, and full or partial conversion to a surface water supply.120 121. Using the Northeast Metro Lakes Groundwater model, the DNR conducted several scenarios that forecasted lake levels if one or more permit holder cities converted from using groundwater to surface water sources.121 122. DNR ran multiple scenarios with different combinations of cities being converted away from pumping groundwater. In each scenario, regardless of which 118 Id. 119 See Lino Ex. 38 at 6; Tr. Vol. 7 at 50, 89 (Gronchalla); Tr. Vol. 7 at 270 (Goebel); Tr. Vol. 7 at 285 (Larson, Mills); Vol. 8 at 315-16 (Thomson); Tr. Vol. 9 at 119 (Bachmeier). 120 See e.g., Hugo Ex. 9 at 3; Elmo Ex. 1 at 3; Lino Ex. 1 at 3; Maht Ex. 11 at 3; Oak Ex. 3-4; WBL Ex. 3 at 3-4. 121 Tr. Vol. 3 at 8 (Champion); DNR Ex. 12 at 23, 27. [204185/1] 23 combination of cities were selected, the model projected large scale increases to the level of White Bear Lake.122 123. The model forecasts that if two permit-holding communities converted to surface water sources, the level of White Bear Lake would rise, although not enough to maintain the lake above its Protective Elevation.123 124. If, however, four of the permit-holding cities converted to surface water sources, the model predicts that White Bear Lake would come close to reaching its Protective Elevation of 922 feet, mean sea level.124 125. Additionally, the model suggests that this stabilization in lake levels would extend toward 2040, even as the population of the Northeast metro grows.125 126. By contrast, if none of the permit-holding cities convert to surface water sources, the model estimates that the level of White Bear Lake will be reduced to less than 919 feet, mean sea level.126 127. Converting some of the northeast metro communities to surface water supplies is the best available method of achieving long-term compliance with the collective annual withdrawal limit and maintaining the Protective Elevation for White Bear Lake.127 128. Surface water systems are more sustainable and renewable than aquifer sources.128 129. Converting cities to surface water sources and away from reliance upon groundwater supplies is a costly, complex and difficult undertaking.”129 130. Planning is a critical first step in the process of converting a municipal water system from groundwater sources to surface water sources.130 131. The plan required by new Condition 1, obliges the permit holder to provide a “schedule for funding[,] design, construction, and conversion to a surface water supply.”131 122 Compare DNR Ex. 12 at 23 with 27; Tr. Vol. 3 at 31-32 (Champion). 123 DNR Ex. 12 at 23. 124 See Tr. Vol. 3 at 11, 39-40 (Champion). 125 DNR Ex. 23 at 27. 126 Id.; Tr. Vol. 3 at 33-34 (Champion). 127 See Tr. Vol. 3 at 3 (O’Donovan); Tr. Vol. 3 at 252 (Champion). 128 Tr. Vol. 4, at 122 (Grubb). 129 See Tr. Vol. 3 at 40 (Champion); Tr. Vol. 5 at 56 (Grubb); Tr. Vol. 6 at 30, 227-28 (Bear); Tr. Vol. 7 at 50-51 (Gronchalla). 130 Tr. Vol. 10 at 27 (Moeckel). 131 See e.g., WBL Ex. 3 at 3. [204185/1] 24 132. Condition 1 does not require the permit holder to fund, design or construct a surface water system with its own resources. A “schedule” is not a fully operational surface water system.132 133. A contingency plan sets out goals, identifies strategies to meet those goals, and ultimately guides the actions that would be needed to achieve the sought-after result – in this case, a surface water system.133 134. Individual conversion plans for each permit-holding city would provide the Department, the Metropolitan Council’s White Bear Lake Area Comprehensive Plan Work Group, and the Minnesota Legislature, with needed detail on the opportunities and challenges facing each city when converting to surface water sources.134 135. Condition 1 is a reasonable and lawful method of protecting the level of White Bear Lake and sustainable use of the Prairie du Chien and Jordan aquifers.135 136. Condition 1 is a reasonable, necessary and lawful condition on access to future groundwater supplies. It is “necessary for the safety and welfare of the people of the state” as those words are used in Minn. Stat. § 103G.315, subd. 6(b).136 XII. Condition Number 2 – The Residential Irrigation Ban 137. As noted above, new Condition 2 obliges the permit holder to: (a) “prepare, enact, and enforce a residential irrigation ban;” (b) enforce the prohibitions on residential irrigation whenever notified by the DNR that the level of White Bear Lake has fallen below 923.5 feet; and (c) continue enforcing the residential irrigation ban “until notified by the DNR that the lake level has reached an elevation of 924 feet.”137 138. In this way, the prohibition on residential irrigation would be a function of the level of White Bear Lake.138 132 See Schedule, Black's Law Dictionary (11th ed. 2019) (“A written list or inventory; esp., a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document”). Tr. Vol. 4 at 123-24 (Grubb). 133 Tr. Vol. 10 at 27 (Moeckel). 134 See Tr. Vol. 9 at 62, 111 (Bachmeier); Tr. Vol. 10 at 54 (Moeckel). 135 See Tr. Vol. 4 at 124 (Grubb). 136 Minn. Stat. § 103G.315, subd. 6(b); Tr. Vol. 10 at 300 (Doneen). 137 See e.g., WBL Ex. 3 at 3. 138 Id.; Tr. Vol. 7 at 223 (Goebel); Tr. Vol. 8 at 59 (Crawford). [204185/1] 25 139. The term “residential irrigation ban” is quite broad – presumably prohibiting the watering of grass, plants, flowers, trees, shrubs or vegetable gardens at a residential property.139 140. The rationale for a sweeping ban is two-fold: First, irrigation of lawns, plants and trees are all “non-essential” uses of groundwater, under the statutory hierarchy of uses. Second, the Associations maintain that non-essential uses of groundwater should not be made while White Bear Lake is below its Protective Elevation.140 141. While the parties differ sharply as to the amount of water that is attributable to residential irrigation, it is, under each of the tabulations in the hearing record a large volume of groundwater – potentially hundreds of millions of gallons of groundwater each year.141 142. Residential irrigation, by volume, is the largest non-essential water use within the communities closest to White Bear Lake.142 143. As noted above, the irrigation ban would be effective for periods after which White Bear Lake had fallen below 923.5 feet, but before it rose to 924 feet. Based upon historic levels of White Bear Lake, such a ban could be in place for many years in a row.143 144. The Northeast Metro Lakes Groundwater model estimates that it would take many years of reducing groundwater withdrawals before there would be corresponding rises in the level of White Bear Lake.144 145. As DNR Hydrologist, Glen S. Champion, explained, for the first few years following imposition of an irrigation ban “the effect would be very, very small and then increasing over time.”145 146. An irrigation ban is likely to increase lake levels by about five inches over a 10-year period, with most of the increases occurring during the latter half of that period.146 139 See Tr. Vol. 7 at 245 (Goebel); Tr. Vol. 8 at 60 (Crawford); Tr. Vol. 8 at 250 (Watson). 140 See Associations' Initial Post-Hearing Brief at 9-10 (“lawn watering is classified as a nonessential use under Minnesota’s water use priority law, having the lowest priority. There are no laws, rules, or regulations in Minnesota that grant a right to water lawns .... [T]he residential irrigation ban serves the safety and welfare for the people of Minnesota by protecting the natural resources and ensuring an adequate water supply.”) (citations omitted); see also Tr. Vol. 5 at 40 (Grubb). 141 Tr. Vol. 4 at 75-77, 105, 293 (Grubb) (“in times when the level of White Bear Lake dips significantly below our trigger elevations, you need to have reductions of water use on the order of tens of millions of gallons per year”); Tr. Vol. 9 at 52-53, 63 (Bachmeier). 142 Tr. Vol. 10 at 183-84 (Moeckel). 143 Tr. Vol. 2 at 114-20 (Bauer); Tr. Vol. 7 at 36 (Gronchella); see also WBL-Dist, slip op. at *5 (the level of White Bear Lake was below 922 feet between 1924 and 1938, 1988 and 1989, and 2007 and 2016). 144 DNR Ex. 4 at 3. 145 Tr. Vol. 3 at 11-12 (Champion). 146 Id.; Tr. Vol. 10 at 4 (O’Donovan); see also DNR Ex. 3, Attachment A (August 30, 2018 “Modeling Analyses”). [204185/1] 26 147. As the limnologist Jason Moeckel summarized: “the system doesn’t work like a light switch.”147 148. A multi-year ban on all irrigation of residential property interrupts the ordinary, investment-backed expectations of those who purchase a home with a yard.148 The expectation of these homeowners is that watering one’s lawn, plants, gardens, and trees is an ordinary incidence of home ownership. 149. To determine the five-mile radius, the Associations’ hydrology expert, Stuart Grubb took a map, knew large pumping wells were within the five miles, and he “had a gut feeling that six miles is too far out.”149 150. The five-mile radius is not based on a physical boundary, or groundwater flow, in the Northeast metro, but rather that “[s]omebody had to draw a line in the sand.”150 151. The five-mile radius around White Bear Lake does not include all the “top fifteen influencers” on lake levels. The cities of New Brighton, Shoreview and Woodbury are among the top fifteen influencers of lake levels, and have municipal water appropriation permits issued by the DNR, but the DNR has not taken any steps to amend these cities’ water appropriation permits.151 152. A multi-year ban on residential irrigation also interferes with the ability of homeowners to properly install and establish new sod, whenever the prohibitions are in effect. By comparison, the Minnesota Department of Transportation’s guidance on the best practice for installing new sod (and preventing erosion) obliges daily watering of new sod for a 30-day period.152 153. The residential watering ban does not include exceptions for the installation of new sod.153 154. A multi-year ban on residential irrigation prevents homeowners from using municipal water for watering grass and plants, but this restriction does not extend to other irrigators. For example, the irrigation restrictions do not apply to commercial properties, government-owned properties, or communities within a five-mile radius of White Bear 147 Tr. Vol. 10 at 28 (Moeckel). 148 See Tr. Vol. 8 at 71 (Crawford) (“I also do not believe that […] residential property owners would follow this ordinance[,] making it very, very challenging to be enforced”); Tr. Vol. 8 at 299 (Watson) (“From a political standpoint telling people what to do with their property is very challenging, and there’s going to be people that are very passionate about their irrigation”); Restatement (Second) of Torts § 858, 1(b) (1979) (Liability for the use of Ground Water) (“A proprietor of land ... who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless ... the withdrawal of ground water exceeds the proprietor’s reasonable share of the annual supply or total store of ground water”). 149 Maht Ex. 26; Tr. Vol. 5, at 49-50 (Grubb). 150 Maht Ex. 26; Tr. Vol. 5 at 50 (Grubb). 151 Tr. Vol. 2 at 15 (Bauer); Tr. Vol. 10 at 281-82 (Doneen). 152 See generally Specification 2575.3(K)(1) Standard Specifications for Construction (MnDOT 2018). 153 See Tr. Vol. 5, at 69-70, 107 (Grubb); Tr. Vol. 7 at 36 (Gronchalla). [204185/1] 27 Lake that do not have municipal water systems. Those property owners may irrigate their lawns, plants and gardens as before.154 155. Similarly, notwithstanding the influence of groundwater withdrawals by the cities of New Brighton, Shoreview and Woodbury on the levels of White Bear Lake, no restrictions on residential irrigation have been imposed by the DNR on these cities in return for future withdrawals of groundwater.155 156. When amending the water appropriation permits held by the communities in this appeal, the Department included a set of findings on the new conditions. In these findings, the Department expressed its own doubts as to the efficacy of a residential irrigation ban. It wrote: Based on the scientific evidence available to the DNR, the DNR further finds that implementation of a residential irrigation ban is unlikely to have a meaningful positive effect on the elevation of White Bear Lake.156 157. The findings continue that, notwithstanding its doubts as to the benefits of an irrigation ban, the DNR amended the water appropriation permits to “implement the requirements” of the District Court’s order.157 158. The Associations urge affirmance of the irrigation bans on the grounds that all the prohibited irrigation is a “non-essential” use of water, and, over a period of years, reducing irrigation in permit-holding cities will cause lake levels to rise.158 159. The cities’ rejoinder is that the “stage impact” – the impact that the prohibition will have on the level of White Bear Lake – from each city’s residential irrigation, during any particular year, is quite small.159 160. Moreover, as one moves farther from White Bear Lake, the near-term “stage impacts” of prohibiting lawn and garden watering in permit-holding cities, would be imperceptible to observers on the shore of the lake. Instead, the effects on lake levels would be akin to fluctuations in barometric pressure.160 154 Tr. Vol. 4 at 163-68 (Grubb); Tr. Vol. 10 at 36 (Moeckel); compare generally Restatement (Second) of Torts § 858, comment (f) (1979) (Liability for the use of Ground Water) (“It is usually reasonable to give equal treatment to persons similarly situated and to subject each to similar burdens”). 155 Tr. Vol. 2 at 138 (Bauer); Tr. Vol. 3 at 152 (Champion); see also Tr. Vol. 3 at 50-51 (Champion) (Woodbury, Shoreview and New Brighton are “outside the five-mile buffer” and “may also affect White Bear Lake significantly or in a non de minimis way”). 156 See e.g., VH Ex. 14 at 1 (emphasis added). 157 Id. at 2. 158 See Associations’ Initial Post-Hearing Brief at 10 (“a 30% reduction in groundwater use would cause White Bear Lake to rise 1½ feet”). 159 See e.g., Oak Ex. 7; Oak Ex. 8; Tr. Vol. 9 at 23 (Bachmeier). 160 Tr. Vol. 2 at 91; DNR Ex. 3, Attachment B-1 at 8-3 (“[I]t is evident that the pumping associated with a fairly small number of permits appears to dominate the response of the lake, and that the pumping associated with the vast majority of permits likely has a very small effect on the lake that would be, in practical terms in the field, difficult to identify or measure”). [204185/1] 28 161. The best reading of the hearing record is that both the Cities and the Associations are partially correct: A multi-city, multi-year prohibition on watering lawns would, eventually, result in a rise to White Bear Lake.161 162. It is also true that a multi-city, multi-year prohibition on watering lawns, that does not yield perceptible changes in lake levels for several years, would be intolerable to affected homeowners.162 163. Additionally, some of the permit-holding cities will face complex and difficult challenges in enforcing a residential irrigation ban. For example, Lino Lakes, Mahtomedi, and Vadnais Heights all provide municipal water service across city lines to neighboring communities – communities as to which they have no jurisdiction to enforce compliance on irrigation restrictions.163 164. Neither the District Court order, nor the DNR, make clear how a permit holding city that provides water supplies to a neighboring community can ensure that residents in the neighboring community will abide by the irrigation restrictions.164 165. The cities maintain that a condition that requires an enforcement program that it cannot legally perform is not “necessary for the safety and welfare of the people of the state” as those words are used in Minn. Stat. § 103G.315, subd. 6(b).165 166. During the evidentiary hearing, the Associations and its expert witness, Mr. Grubb, suggested that the Administrative Law Judge might rewrite Condition 2 to remove its harshest and least consequential features. The Associations maintain that revising Condition 2 to allow watering of personal gardens, new trees, and newly installed sod would be reasonable and appropriate.166 167. While some restrictions on irrigation using water from the Prairie du Chien and Jordan aquifers would be needed and reasonable, Condition 2 is so underinclusive in its application, burdening only one set of irrigators, that it is an arbitrary and unlawful condition on the appropriations of groundwater.167 168. Condition 2 is a not reasonable or lawful condition on access to future groundwater supplies.168 169. Condition 2 is not “necessary for the safety and welfare of the people of the state” as those words are used in Minn. Stat. § 103G.315, subd. 6(b).169 161 Tr. Vol. 3 at 11-12 (Champion). 162 See Tr. Vol. 6 at 76 (Bear); Tr. Vol. 4 at 234 (Grubb) (if a water ordinance is “too draconian,” so that it interferes with people’s lives, it will not be followed and will be ineffective); Tr. Vol. 7 at 253 (Goebel). 163 See e.g., Tr. Vol. 7 at 18688, 253 (Goebel); Tr. Vol. 8 at 252 (Watson). 164 Maht Ex. 18; Tr. Vol. 7 at 188-89, 221, 223-24, 254 (Goebel). 165 See Tr. Vol. 5 at 44 (Grubb); Tr. Vol. 7 at 188, 221-24, 230, 265 (Goebel). 166 See e.g., Tr. Vol. 5 at 71, 107 (Grubb). 167 Tr. Vol. 6 at 73-74 (Bear). 168 See Findings 151, 154, 155, 163 and 165 supra. 169 See Tr. Vol. 10 at 300 (Doneen); Minn. Stat. § 103G.315, subd. 6(b). [204185/1] 29 170. For the reasons detailed in the Memorandum below, the Administrative Law Judge also declines the Associations’ invitation to rewrite Condition 2 to remove its harshest and least consequential features.170 XIII. Condition Number 3 – Plans to Phase Down Residential and Total Water Usage 171. As noted above, new Condition 3 obliges the permit holder to: Submit an enforceable plan to the DNR to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day.171 172. The DNR readily acknowledges that reducing water use to 75 gallons per day, and total per capita water use to 90 gallons per day (the 75/90 standard) will not, in and of itself, restore White Bear Lake to its protected elevation.172 173. Many, but not all, of the permit holding communities are meeting this standard now.173 174. The Northeast Metro Lakes Groundwater model estimates that (assuming 2020 population levels) if all permit holding cities met the 75/90 standard, the level of White Bear Lake would rise by “3 or 4 inches.”174 175. As the Northeast metro moves toward projected population levels in 2040, the model forecasts an increase in lake levels of “8 inches.”175 176. Sharper reductions to groundwater appropriations – specifically, reducing residential water use to 55 gallons per person, per day, and allocating no other water for any other uses – would be required to stay within the collective annual withdrawal limits for White Bear Lake.176 177. As the DNR reasons, the benefits of Condition 3 are twofold: (a) if per capita residential water use is reduced to the 75/90 standard in permit holding communities, the level of White Bear Lake would be stabilized against falling lower; and (b) as the planning process moves toward meeting the 75/90 standard, still other conservation methods could be identified and implemented.177 178. Lake Elmo, which does not now meet the 75/90 standard, will face significant challenges “phasing down” its use of groundwater supplies in the future. Because contamination from wastes containing perfluoro-alkyl substances have leeched 170 See generally Associations’ Initial Post-Hearing Brief at 10; Tr. Vol. 5 at 70-71 (Grubb). 171 See e.g., WBL Ex. 3 at 3. 172 Tr. Vol. 10 at 29 (Moeckel) (“even 75/90 is not going to be enough”); see also Tr. Vol. 4 at 119-20 (Grubb). 173 Tr. Vol. 7 at 140 (Gronchalla); Tr. Vol. 8 at 205 (Huath). 174 Tr. Vol. 3 at 44 (Champion) 175 Id. at 45. 176 Tr. Vol. 10 at 240-41, 299 (Doneen); see also DNR Ex. 3. 177 Tr. Vol. 3 at 50 (Champion); Tr. Vol. 10 at 24, 29 59-60 (Moeckel); see also VH Ex. 4 at 14. [204185/1] 30 into private wells from a former County landfill, Lake Elmo projects that it needs to add another 700 homes to the municipal water system.178 179. Hugo, Lino Lakes and Lake Elmo also argue that imposition of the 75/90 standard will have distorting impacts upon municipal land use decisions and irrational consequences for local conservation efforts. Because apartment dwellers tend to have lower daily per capita uses of water than those living in single-family homes, these cities contend that Condition 3 unduly incentivizes approval of high-density residential projects. High-density projects contribute to compliance with the 75/90 standard, the argument continues, because they add to the number of residents counted in a community’s per capita calculation, while, on average, use less water per resident. Yet, the cities argue, the total volume of groundwater pumped by the cities to serve these residents is likely to be larger than before.179 Hugo, Lino Lakes and Lake Elmo assert that a 75/90 standard which authorizes still more withdrawals of groundwater, with certain land use mixes, shows that Condition 3 is irrational. 180. While the purposes and effects of Condition 3 might be easily undermined by local land use decisions, the condition is not so irrational as to be unlawful. Among the key benefits of the condition is that it places an upper boundary upon residential and community uses of groundwater that are not present today. Some area homeowners are using as much as 250 gallons of water per person, per day.180 181. Likewise important, Minn. Stat. § 103G.287, subd. 2 (2022), provides: If the commissioner determines that groundwater appropriations are having a negative impact to surface waters, the commissioner may use a sustainable diversion limit or other relevant method, tools, or information to implement measures so that groundwater appropriations do not negatively impact the surface waters.181 182. Condition 3 obliges the kind of conservation planning that is needed to avoid overuse of available groundwater supplies and negative impacts to White Bear Lake.182 183. Condition 3 qualifies as a “diversion limit or other relevant method, [tool], or information to implement measures so that groundwater appropriations do not negatively impact the surface waters,” as those words are used in Minn. Stat. § 103G.287.183 184. Condition 3 is a reasonable and lawful method of protecting the level of White Bear Lake and sustainable use of the Prairie du Chien and Jordan aquifers.184 178 Tr. Vol. 9 at 138-40 (Griffin). 179 Elmo Ex. 10; Tr. Vol. 7 at 150 (Grochalla); Tr. Vol. 7 at 213, 218-19, 241 (Goebel); Tr. Vol. 9 at 142, 197-98 (Griffin). 180 Tr. Vol. 4, at 104, 117-19 (Grubb); Tr. Vol. 9 at 197 (Griffin); see also Tr. Vol. 10 at 28-29, 205 (Moeckel); RAHA Ex. 264 at ¶¶ 331-33. 181 Minn. Stat. § 103G.287, subd. 2. 182 See Tr. Vol. 3 at 50 (Champion); Tr. Vol. 10 at 28-29 (Moeckel). 183 Minn. Stat. § 103G.287, subd. 2. 184 Findings 182 and 183 supra. [204185/1] 31 185. Condition 3 is a reasonable, necessary and lawful condition on access to future groundwater supplies. It is “necessary for the safety and welfare of the people of the state” as those words are used in Minn. Stat. § 103G.315, subd. 6(b).185 XIV. Condition Number 4 – Reporting on Efforts to Reduce Water Usage 186. New Condition 4 obliges the permit holder to: Annually submit a report to DNR detailing [the permit holder’s] collaborative efforts with northeast metro communities to develop plans to phase down per capita residential water use to 75 gallons per day and total per capita water use to 90 gallons per day.186 187. Hugo challenged imposition of Condition 4.187 188. As noted above, the DNR’s authority to issue groundwater appropriation permits is limited by the functional requirement of “sustainability” in the water supply.188 189. Condition 4 obliges reports that are needed to assure the sustainability of the water supply and the DNR’s compliance with state law.189 190. Additionally, the DNR is legally entitled to condition water appropriation permits on receipt of “information to implement measures so that groundwater appropriations do not negatively impact the surface waters.”190 191. Condition 4 is a reasonable, necessary and lawful condition on access to future groundwater supplies.191 192. The reporting required by Condition 4 is “necessary for the safety and welfare of the people of the state” as those words are used in Minn. Stat. § 103G.315, subd. 6(b).192 Based upon these Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS OF LAW 1. The Administrative Law Judge has jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 103G.315, subd. 7(b) (2022), and Minn. R. 6115.0750, subp. 5(c) (2023). 185 Id.; Minn. Stat. § 103G.315, subd. 6(b). 186 See e.g., WBL Ex. 3 at 4. 187 Vol. 6 at 241 (Bear). 188 Minn. Stat. § 103G.287, subd. 5 (2022) (emphasis added). 189 See id. 190 Minn. Stat. § 103G.287, subd. 2 (2022). 191 Findings 188-90 supra. 192 See Minn. Stat. § 103G.315, subd. 6(b). [204185/1] 32 2. Pursuant to Minn. Stat. § 14.57(a) (2022), the DNR Commissioner has delegated the authority to make “the final decision in the case” to the undersigned Administrative Law Judge.193 3. The Department has complied with all substantive and procedural requirements of law and rule. 4. Final agency decisions on the appellant municipalities’ water appropriation permits may not violate constitutional provisions, exceed the agency’s statutory jurisdiction, follow from an unlawful procedure, be affected by other error of law, be unsupported by substantial evidence in the hearing record, or be arbitrary and capricious.194 5. Because the Department amended the cities’ water appropriation permits, it is the “party proposing that certain action be taken,” as those words are used in Minn. R. 1400.7300, subp. 5 (2023). It has the burden of proving the reasonableness and lawfulness of the new conditions. 6. The Appellant Cities had the burden of establishing that it was not possible of complying with a condition imposed upon their water appropriation permit, or that the condition was otherwise unlawful.195 7. The Northeast Metro Lakes Groundwater model is the best available tool “for evaluating hydrology and impacts of pumping [on] White Bear Lake.”196 8. The DNR’s expert, Mr. Champion, thoroughly rebutted each of the concerns raised by the Appellant Cities’ expert, Mr. Bauer, as to the accuracy of the model’s results.197 9. It was reasonable for the DNR to reply upon the forecasts, estimates and projections from the Northeast Metro Lakes Groundwater model when making findings and amending the water appropriation permits of the Appellant Cities.198 10. Maintaining the Protective Elevation of White Bear Lake is reasonably necessary for the safety and welfare of the people of Minnesota.199 11. None of the Appellant Cities established that it was not possible to comply with conditions 1, 3 or 4. 193 See Lino Ex. 2. 194 See Minn. Stat § 14.57(a) (2022). 195 See Minnesota Pub. Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 762, 781-82 (Minn. 1977) (defendant landowner had the burden of establishing the affirmative defense that “there was no feasible and prudent alternative” to its use of natural resources). 196 Tr. Vol. 3 at 28, 29-30 (Champion). 197 See Tr. Vol. 3 at 61-75 (Champion). 198 Tr. Vol. 3 at 21-22 (Champion). 199 See Tr. Vol. 10 at 296-98 (Doneen). [204185/1] 33 12. Permit conditions 1, 3, and 4 support compliance with the collective annual withdrawal limits for White Bear Lake and help maintain the Lake’s Protective Elevation. 13. Permit conditions 1, 3, and 4, are reasonable measures to protect groundwater supplies for future generations.200 14. Permit conditions 1, 3, and 4 are reasonably necessary for the safety and welfare of the people of Minnesota.201 15. The terms of government-issued permits must treat similarly situated persons and entities in the same manner.202 16. An arbitrary condition is not reasonably necessary for the “safety and welfare of the people of the state,” as those words are used in Minn. Stat. § 103G.315, subd. 6(b).203 17. The hearing record establishes that Condition 2 only burdens some irrigators within a city, while leaving other similar uses wholly unregulated. 18. The hearing record does not establish that irrigation of green spaces on commercial or public properties is more of a public good, or less harmful to the levels of White Bear Lake, than residential irrigation in those same communities. 19. The hearing record does not establish that residential irrigation in New Brighton, Shoreview or Woodbury is more of a public good, or less harmful to the levels of White Bear Lake, than residential irrigation in the appellant communities. 20. The Commissioner of DNR has powers to regulate the uses of groundwater by permit-holding cities in the Northeast metro. 21. The Commissioner’s powers to regulate uses of groundwater by permit- holding cities in the Northeast metro, are independent of the District Court’s order204 and are not limited to the approaches set forth by the District Court. 22. Condition 2 is so under-inclusive in its scope that the DNR “entirely failed to consider an important aspect” of reducing impacts to White Bear Lake.205 23. The under-inclusivity of Condition 2 is so “implausible that [it] cannot be explained by a difference in view.”206 200 Tr. Vol. 5 at 133 (Grubb). 201 Id. 202 See Northwestern College v. City of Arden Hills, 281 N.W. 2d 865 (Minn. 1979). 203 Minn. Stat. § 103G.315, subd. 6(b); Tr. Vol. 10 at 300 (Doneen). 204 See WBL-Dist, supra. 205 In re Review of 2005 Annual Automatic Adjustment of Charges for All Elec. And Gas Utilities, 768 N.W.2d 112, 118 (Minn. 2009) (an agency ruling “is arbitrary and capricious if the agency … entirely failed to consider an important aspect of the issue ….”) (citing cases). 206 Id. (an agency ruling “is arbitrary and capricious if the agency … made a decision that is implausible that cannot be explained by a difference in view”). [204185/1] 34 24. The doubts raised by the Appellant Cities as to the enforceability of a residential irrigation ban outside of a permit holder’s municipal boundaries, were not rebutted by the Department. 25. DNR did not bear its burden of showing that the irrigation ban is reasonably necessary for the safety and welfare of the people of the state. 26. The Appellant Cities did establish that permit condition 2 is not reasonably necessary for the safety and welfare of the people of Minnesota. Based upon the foregoing conclusions of law, and for the reasons stated in the following Memorandum, the Administrative Law Judge makes the following: ORDER The Administrative Law Judge: 1. DENIES the cities’ challenges to permit Conditions 1, 3 and 4. 2. GRANTS the cities’ appeal of Condition 2. 3. DIRECTS the Department to promptly furnish a copy of this Order to the District Court in White Bear Lake Restoration Ass’n v. Minnesota Dep’t of Natural Resources, No. 62-CV-13-2414 (Dist. Ct. Ramsey Cnty). Dated: May 16, 2024 __________________________ ERIC L. LIPMAN Administrative Law Judge NOTICE Pursuant to Minn. Stat. § 14.57 (2022), and the Commissioner’s Order of May 25, 2021, this Order is the final agency decision in this case. Any person aggrieved by this decision may seek judicial review pursuant to Minn. Stat. §§ 14.63-.69 (2022). MEMORANDUM During the evidentiary hearings, the parties sharply divided on three legal questions; specifically: (a) which parties bore the burden of proof; (b) the reasonableness of imposing a residential irrigation ban only on some of the cities that appropriate water from the Prairie du Chien and Jordan aquifers; and (c) the range of the Commissioner’s powers to protect groundwater supplies in Minnesota. [204185/1] 35 While each of these issues is addressed in the findings of fact and conclusions of law above, some additional exposition on these questions is useful and follows below. I. Legal Analysis A. The Burden of Proof The Department argues that because it assesses all amendments to water appropriation permits as if those changes were submitted as part of a new permit application,207 the cities bear “the burden of proof” in a challenge to new permit conditions. The Administrative Law disagrees. The Department’s internal methods of processing permit amendments does not control the burden of proof. Because the Department is the “party proposing that certain action be taken” – namely, that appropriating groundwater be subject to new and tighter restrictions – DNR has the burden of proving the reasonableness and lawfulness of those conditions.208 It is also true that as to the claims that the new conditions cannot be satisfied by anyone, and are otherwise unlawful, the cities have the burden of proof on these matters. Each of the latter set of claims is in the nature of an affirmative defense against the imposition of new conditions. Accordingly, the responsibility to establish those defenses falls to the permit-holding cities.209 Minn. Stat. § 103G.315, subd. 6(a) (2022), does not point to a different conclusion. This statute carries forward the general rule that the party who applies for a government license, privilege, or benefit has the burden of proving an entitlement to the requested relief.210 The statute reads: In permit applications, the applicant has the burden of proving that the proposed project is reasonable, practical, and will adequately protect public safety and promote the public welfare.211 Yet, the cities in this case did not “apply” for the permit conditions that are at issue here. To the contrary, they each appealed the imposition of the new conditions, asserting that one or more of the changes was unlawful. 207 See DNR’s Initial Post-Hearing Brief, at 13. 208 Minn. R. 1400.7300, subp. 5 (2023) (“The party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard). 209 Id. (“A party asserting an affirmative defense shall have the burden of proving the existence of the defense by a preponderance of the evidence”); Minnesota Pub. Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 781-82. 210 See generally In Application of City of White Bear Lake, 247 N.W.2d 901, 904 (Minn. 1976) (“In this state, the burden of proof generally rests on the one who seeks to show he is entitled to the benefits of a statutory provision”); accord In Re License Application of Children’s Minnesota, OAH Docket No. 71-0913- 35344, 2018 WL 5298584, at *5 (Minn. Off. Admin. Hrgs. 2018); In Re Application of Freeborn Wind Energy, LLC, OAH Docket No. 80-2500-34633, 2018 WL 3586935, at *41 (Minn.Off.Admin.Hrgs. 2018). 211 Minn. Stat. § 103G.315, subd. 6(a) (emphasis added). [204185/1] 36 Accordingly, the better description of the Appellant Cities is “current permit holders,” and not “applicants.” Each of the cities has existing rights – namely, an authorization to appropriate groundwater, that is subject to modification by the Department212 after “notice and opportunity for hearing.”213 The underlying regulations confirm this reading of Minn. Stat. § 103G.315, subd. 6(a). Minn. R. 6115.0750, subp. 5(A) (2023), states: Requests for amendments shall be reviewed as if they were for a new application, subject to provisions of parts 6115.0600 to 6115.0800.214 Again, as noted above, none of the permit amendments were “requested” by the appellant cities. Lastly, assigning to the DNR the burden of proving the reasonableness and lawfulness of permit amendments accords with the legislative history of Minn. Stat. § 103G.315. This statute was enacted in 1990 – a full five years after the contested case procedures were in place.215 The legislature provided that challenges to the terms of water appropriation permits would be resolved under the ordinary contested case rules.216 Presumably, if the Legislature wanted to change the familiar rule on the burden of proof, away from an agency that was “proposing that [a] certain action be taken,”217 the statute would have provided for this result.218 The DNR has the burden of providing that the amendments that it made to the water appropriation permits are reasonable, practical, protect public safety, and promote the public welfare. B. The Reasonableness of Condition 2 Under Minnesota law, an agency decision is arbitrary and capricious if it: (a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it 212 Minn. Stat. § 103G.315, subd. 11 (a)(2) (2022) (“Except as otherwise expressly provided by law, a permit issued by the commissioner under this chapter is subject to .... (2) further conditions on the term of the permit or its cancellation as the commissioner may prescribe and amend and reissue the permit ....”); Minn. R. 6115.0750, subp. 2 (“Long-term permits will remain in effect subject to applicable permit provisions and conditions of the permit, the law, and [Minn. R. ch. 6115]”). 213 Minn. R. 6115.0750, subp. 5(C) (2023) (“All amendments and modifications are made after notice and opportunity for hearing”). 214 Minn. R. 6115.0750, subp. 5(A) (emphasis added). 215 Compare 1990 Minn. Laws, ch 391, art 7, § 37 with 9 State Register 2227, 2292 (April 5, 1985). 216 See 1990 Minn. Laws, ch 391, art 7, § 36 (“A hearing must be conducted as a contested case hearing under chapter 14”) (now codified as Minn. Stat. § 103G.311, subd. 1 (2022)). 217 Minn. R. 1400.7500, subp. 5 (2023) (“The party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard”). 218 See generally Minn. Stat. § 645.16(5) (2022) (“When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters ... the former law, if any, including other laws upon the same or similar subjects”). [204185/1] 37 could not be explained as a difference in view or the result of the agency's expertise.219 When promulgating Condition 2 to the cities’ water appropriation permit, the DNR failed to consider important aspects of the groundwater shortages and offered a rationale for residential irrigation bans that ran counter to its own modeling results. i. Important Aspects of the Water Shortage Problem The hearing record makes clear that as of late 2017, the DNR was aware that the cities of Shoreview and Woodbury had a greater influence on aquifer and lake levels than the cities of Hugo, Lino Lakes and Lake Elmo.220 Yet, notwithstanding this insight, only the latter group of cities had its permits amended. If the purpose of residential irrigation bans is to reduce the volume of groundwater pumped for non-essential uses, leaving the irrigation practices of the greater influencers unregulated fails to consider an important aspect of the problem. Similarly, the DNR’s imposition of irrigation bans only upon residential properties, while leaving undisturbed the irrigation practices of neighboring commercial and publicly owned properties, also fails to consider an important aspect of the problem.221 ii. The Evidence in Support of a Residential Irrigation Ban As noted above, before issuing new Condition 2, the Department determined that “[b]ased on the scientific evidence … implementation of a residential irrigation ban is unlikely to have a meaningful positive effect on the elevation of White Bear Lake.”222 Imposition of a multi-city, multi-year prohibition on watering lawns, that the DNR regards as unlikely to have a meaningful positive effect on the elevation of White Bear Lake, follows from an explanation that runs counter to “the scientific evidence.”223 C. The Range and Depth of the Commissioner’s Regulatory Powers With respect to any shortcomings in the structuring of Condition 2, the Associations argue that they can be repaired by the District Court. They argue: 219 In re Review of 2005 Annual Automatic Adjustment of Charges for All Elec. and Gas Utilities, 768 N.W.2d at 118. 220 See DNR Ex. 3, Attachment B-1, Figure 8-8; Tr. Vol. 3 at 228 (Champion); see also Tr. Vol 3 at 230 (DNR’s stage impact analysis included the effect of groundwater pumping by all of the city appellants and four additional cities); Tr. Vol. 4 at 131 (Grubb) (Wells that are 5 miles (or more) have a negative effect on the aquifer by reducing the aquifer’s water pressure). 221 See generally DNR Ex. 7 (the Department’s transient water model assessed the impacts of wells within 7 miles of White Bear Lake that were authorized to withdraw 100 million gallons of water per and wells within 10 miles of WBL and authorize pumping 1 billion gallons of water or more); Tr. Vol. 10 at 37-38 (Moeckel) (a five-mile radius from White Bear Lake is an “imperfect” and “arbitrary” delineation of impacts from groundwater pumping). 222 See e.g., Vadnais Ex. 14 at 1 (emphasis added). 223 Id. See also Tr. Vol. 10 at 19 (Moeckel) (the five-mile “zone of influence” radius is “imperfect” and does not include some of the major influencers on lake levels). [204185/1] 38 [t]he district court can order DNR to expand the geographic scope of permits subject to the irrigation ban or per capita water use restrictions, or to reduce permitted capacity on an annual basis to comply with the statutory limit on surface water appropriation from White Bear Lake to preserve its Protective Elevation.224 The suggestion that the duty to amend water appropriation permits appropriately falls to the District Court, misstates the Commissioner’s duties and powers. It is the Commissioner of Natural Resources who is charged with faithfully executing the laws225 – including the conditioning of uses and appropriation of groundwater “as appear reasonably necessary for the safety and welfare of the people of the state.”226 The DNR’s duty to craft appropriate, and well-supported permit conditions, is independent of the District Court. The Department does not need permission from the state courts to amend the water appropriation permits of cities lying more than five miles from White Bear Lake, or to craft conditions that apply even-handedly to all irrigators who water lawns. Further, the DNR does not need to choose between fulfilling the requirements of the District Court’s order and crafting irrigation restrictions that are supported by the record. It can do both simultaneously. If extra steps – beyond the terms of the District Court order – are needed to improve the efficacy and even-handedness of permit conditions, they should be undertaken by the Department. Neither is it sufficient for the Associations to maintain that other, better permit conditions could be issued in the future,227 to rescue a condition like the residential irrigation ban. The Minnesota Court of Appeals rejected a similar argument in Dead Lake Association, Inc. v. Otter Tail County.228 That case involved disputes over a planned development of new residential housing and a marina on the shore of Dead Lake. Otter Tail County maintained that it did not need to specially address potential environmental impacts of increased boat traffic on the lake, because the County could, in the future, restrict that traffic. The appellate panel rejected this argument, explaining that the County’s regulatory response: [ran] counter to the evidence in deferring this issue to its own authority to impose boating restrictions on the lake at some point in the future without complete information. Accordingly, it was arbitrary and capricious for the county to rely on some nebulous “ongoing regulatory authority” in the form of its own ability to enact restrictions that did not yet exist at the time of the negative declaration when the effects of the increased boat usage had not yet been adequately addressed. In this respect, the proposed mitigation measure that the county and DNR “have the ability to mitigate the environmental effects of boating through their ongoing regulatory authority” 224 Associations’ Initial Post-Hearing Brief at 25 (emphasis added). 225 See Minn. Const. Art. V, § 3. 226 Minn. Stat. § 103G.315, subd. 6(b). 227 Associations’ Initial Post-Hearing Brief at 25. 228 Dead Lake Ass'n, Inc. v. Otter Tail Cnty., A04-717, 2005 WL 221773 (Minn. Ct. App. 2005) (unpublished). [204185/1] 39 was inadequate as nothing “more than mere vague statements of good intentions….”229 As it was in Dead Lake Association, neither the Associations nor the Department should be permitted to rely upon “ongoing regulatory authority,” and the potential for permit amendments that do not exist today, to support the reasonableness of Condition 2. Lastly, because the Minnesota Legislature tasked the Commissioner of DNR to manage state water resources, and to adjust uses and appropriations of groundwater to resolve competing demands, the Department, and not the Administrative Law Judge, should draft appropriate permit conditions. D. The Impact of Not Including Major Influencers in Conversion Planning, Phase Down Efforts, or Reports on Collaborations A key critique of setting aside Condition 2 as being fatally under-inclusive, while sustaining the application of new Conditions 1, 2 and 3, is that it does not appear to apply the requirement for regulatory even-handedness … even-handedly. One might ask: In order to avoid issuing permit amendments that are “arbitrary,” must the DNR require all major influencers (including New Brighton, Shoreview and Woodbury) to undertake conversion planning, phase down conservation efforts and additional reporting? The critique is not without force. It is inarguable that the conservation-related conditions on water appropriation permits should follow from the hydrology of the aquifers – and not a set of “imperfect” radial lines on a map.230 Yet, it is also true that the test of the lawfulness for new permit conditions is not whether the DNR crafted the “best possible” conditions under the circumstances. The law only requires that the new conditions be ones that a reasonable regulator could choose.231 And there are sufficient reasons to apply Conditions 1, 3, and 4 to the Appellant Cities. Conservation planning and reporting, as directed by the Commissioner, are part of the obligations that are assumed by every large appropriator of groundwater before any pumping occurs.232 Further, as the results of the transient model make plain, proximity to White Bear Lake is a key driver of the “stage impacts” to lake levels from groundwater pumping.233 A reasonable regulator might choose to begin with the cities that are closest to White Bear Lake before moving out to address issues presented by 229 Id., slip op. at *6 (citations omitted). 230 Tr. Vol. 10 at 37-38 (Moeckel) (a five-mile radius from White Bear Lake is an “imperfect” and “arbitrary” delineation of impacts from groundwater pumping). 231 Soo Line R.R. v. Minn. Dep't of Transp., 304 N.W.2d 301, 306 (Minn. 1981) (An agency's factual findings are properly supported by the evidence when the record contains “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion”); In re Friedenson, 574 N.W.2d 463, 467 (Minn. Ct. App. 1998) (When the record leaves room for two opinions on the matter, an agency's decision is not arbitrary and capricious). 232 See Minn. Stat. §§ 103G.287, subds. 2, 3; 103G.315, subds. 6(b), 11; Minn. R. 6115.0740. 233 See Tr. Vol. 3 at 18, 54 (Champion); DNR Ex. 3, Attachment B-1 at ES 1-2. [204185/1] 40 more remote locales.234 Lastly, and most importantly, new Conditions 1, 3, and 4 apply to everyone in such cities, equally.235 Unlike under Condition 2, the cities as a whole are obliged to plan, conserve and report. Would it be better if all major influencers were required to plan, conserve and report – just like the appellant cities? Of course. But the failure to include New Brighton, Shoreview and Woodbury in this round of water regulations is not so under-inclusive and irrational as to render the entire set of permit amendments unlawful. All of which brings us to the key lesson of the hearing record: The longer-term solution to the overuse of local groundwater supplies and lower levels of White Bear Lake, is to convert cities in the Northeast metro to surface water sources – as quickly as practicable. These conversions will not be simple or inexpensive; but they are necessary. A just solution to our shared dilemmas will require hard work and cooperation by all the parties involved – including the Minnesota Legislature, the DNR, the Metropolitan Council, and nearby permit holders.236 A combined effort provides the best chance for results that are quick and fair. E. L. L. 234 Bloomquist v. Comm’r of Nat. Res, 704 N.W.2d 184, 189 (Minn. Ct. App. 2005) (“conclusions are not arbitrary and capricious as long as a rational connection exists between the facts found and the choice made”) (citing Blue Cross Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001)). 235 Compare with N.W. Residence, Inc. v. City of Brooklyn Ctr., 352 N.W.2d 764, 773 (Minn. Ct. App. 1984) (the City of Brooklyn Park was not “permitted to establish special standards for the operation of residential facilities for the mentally ill,” that did not apply to other “land uses in the community”). 236 See WBL-Dist, slip op. at *19 (“We are beginning to understand the unintended consequences of our past choices as they factor into some natural limits of some of our resources that have always been there.... Everyone is part of the problem and needs to become part of the solution”); see also WBL I, 928 N.W.2d at 357 (“From December 2014 to August 2016, the parties agreed to stay the district-court case while they jointly supported a request to the legislature to fund construction of systems to convert the domestic water supply in certain communities in the northeast metropolitan area from groundwater to surface-water sources. The district court lifted the stay after the legislature declined to fund the surface-water conversion”). 1 5/16/2024 1:53 PM Su Mo Tu We Th Fr Sa 1 2 3 45 6 7 8 9 10 1112 13 14 15 16 17 1819 20 21 22 23 24 2526 27 28 29 30 31 May 2024 Su Mo Tu We Th Fr Sa 12 3 4 5 6 7 89 10 11 12 13 14 1516 17 18 19 20 21 2223 24 25 26 27 28 2930 June 2024May 2024 Apr 28 29 30 May 1 2 3 4 8:00am Spring Cleanup 5 6 7 8 9 10 11 7:00pm City Council 8:00am Shred-It (City Hall Parking Lot) 6:30pm BOZA 7:00pm Planning Comm 12 13 14 15 16 17 18 7:00pm Parks Comm 7:00pm Diamond Pt Pk Meeting (Pede Pedersen Pavilion) 19 20 21 22 23 24 25 7:00pm City Council 12:00pm Nystrom Ribbon Cutting (4638 Victor Path, Suite 5:30pm EDA 6:30pm Hist Comm 6:30pm BOZA 7:00pm Planning Comm 26 27 28 29 30 31 Jun 1 Memorial Day SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY 2 5/16/2024 1:53 PM Su Mo Tu We Th Fr Sa 12 3 4 5 6 7 89 10 11 12 13 14 1516 17 18 19 20 21 2223 24 25 26 27 28 2930 June 2024 Su Mo Tu We Th Fr Sa 1 2 3 4 5 67 8 9 10 11 12 1314 15 16 17 18 19 2021 22 23 24 25 26 2728 29 30 31 July 2024June 2024 May 26 27 28 29 30 31 Jun 1 2 3 4 5 6 7 8 6:00pm Admin Performance Review 7:00pm City Council Good Neighbor Days 9 10 11 12 13 14 15 Good Neighbor Days 6:30pm BOZA 7:00pm Planning Comm 16 17 18 19 20 21 22 7:00pm City Council 5:30pm EDA 6:30pm Hist Comm Juneteenth 7:00pm Parks Comm 23 24 25 26 27 28 29 6:30pm BOZA 7:00pm Planning Comm 30 Jul 1 2 3 4 5 6 SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY