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I r ,, • MEMORANDUM TO: Scott T. Anderson, File, Jay T. Squires FROM: Scott T. Anderson DATE: May 24, 2007 RE: Roseville Retainer Our File No. 4002(1)-0001 SUBJECT: Livingston/AUAR • I looked over provisions of Minn. Stat. Ch. 116D and Minn. R. Ch. 4410. The issue I was looking at to get some guidance on was whether an AUAR stops the running of the 60 days under Minn. Stat. § 15.99. The starting point for the analysis is the 60-day rule. Minn. Stat. § 15.99, subd. 3(d) states that the time liinit in subd. 2 is extended if a state statute, federal law, or court order requires a process to occur before the agency acts on the request, and the time periods prescribed in the state statute, federal law, or court order make it impossible to act on the request within 60 days. The above provision has been interpreted in the case of Allen v. City of Mendota Hei h�ts, 694 N.W.2d 799 (Minn. App. 205). In that case there was a petition for an EAW. The Allen court concluded that a plain reading of § 15.99 and MEPA unambiguously supported a tolling of the 60-day time period under subd. 3(d) of the 60- day rule. In doing so, the court looked not only to Minn. Stat. § 116D.04, but also to the rules promulgated thereunder. One of the things Allen noted was that both MEPA and the 4410 Rules "specifically inandate that environmental review of projects takes priority by prohibiting granting a permit, approving a project, or beginning a project until the environmental-review process is complete." While it was conceivable that a part of the environmental review process could be completed within 60 days (such as a decision on a petition for an EAW) the court noted that � 15.99 did not require breaking down a statutory "process" into parts and applying the impossibility standard to each of the parts. Allen, at p. 803. Thus, the petition for an EAW initiated a process that must occur before the agency could act on the written request under Minn. Stat. § 15.99, subd. 2. It looks to me like it is likely that that same analysis would apply to an AUAR. I say "likely" because of soine language concerns I have, some of which were alleviated by the analysis employed in the Allen case. Minn. Stat § 116D.04, subd. 2(b) states that if