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To: Roseville City Council Roseville City Attorney From: Tammy McGehee Date: October 18, 2010 Re: Council Packet Item 13 a, Asphalt Plant As Counsel has named me in this letter attached in the packet I feel 1 must respond. On September 20, 2010, ten days following the close of the comment period for the Bituminous Roadways EAW, I provided to the Council and Counsel a document outlining the case for denial of the Conditional Use Permit citing our present criteria for a CUP and the required performance standards for an industrial zone. 1 also explained that the decision to deny can be made during pendency of environmental review under the EQB Rules, the primary ones of interest are 4410, 3100 and 4410.4600. I very much appreciate the City Attorney's findings that the proposed Asphalt Plant project is not allowable under either the current CUP criteria or the Performance Standards for Industrial Zones, a finding which raises a question of why the issue ever came forward to the Council from the Planning Staff (5/18/09). On the issue of the Council's ability to deny this application and permit during the pendency of environmental review, I believe Counsel is incorrect. i believe the rule is very clear and I have attached an e-mail from Gregg Downing, Coordinator of Environmental Review for the Environmental Quality Board, in which he states: in regard to your question to us, it is our standard guidance to RGUs (and others) when asked about the scope of the prohibitions on governmental actions when environmental review is required, that the prohibition applies only to actions that approve or authorize the project in question and NOT to actions to deny approval for the project. This opinion is based on the plain language of the stature and rule (which explicitly prohibit decisions to grant permits, approve projects and begin projects, but say nothing about denials of projects), and also the common sense conclusion that if a project fails to meet a black and -white requirement for approval it is just a waste of time and resources to go through the environmental unit process and then deny approval anyway. Counsel further bolsters his opinion that one cannot deny at this time by citing a case: Allen vs City of Mendota Heights. This case pertains to a clarification of the rule requiring the tolling of the 60 day requirement for decisions on permit applications. This particular case was one in which the petitioner claimed that their permit was automatically approved because the Council failed to rule within the 60 day period, a period during which environmental review was being done pursuant to a Citizen's Request for an EAW. The district court ruled that the 60 day rule, under MN Statute 15.99, was tolled until the review was complete. The appellate court upheld that ruling. OPINION TOUSSAINT, Chief Judge In this mandamus proceeding, appellants argue that their applications for permits to respondent City of Mendota Heights were automatically approved under Minn. Stat.