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Regular City Council Meeting Monday, October 25, 2010 Page 21 Mayor Klausing reviewed his interpretations of the issue and whether or not the as- phalt plant met land use requirements; and a decision as to whether the City Council could deny the request should be premised on several points: 1) Since the City Council approved an amendment to City Code Section 1007.015 clarifying permitted uses in Industrial Zoning Districts and that an asphalt plant was not a permitted use, the attorney for Bituminous Roadways had argued that that amendment to the zoning code was not retroactive; and 2) City Councilmember Ihlan's memorandum indicated that the asphalt plant was never a permitted use under City Code as it was unable to meet a number of City Code standards; and 3) City Attorney analysis and opinion that, based on environmental review process issues, the use would have a negative impact; 4) The attorney for Bituminous Roadways letter refutes that analysis as well. Therefore, Mayor Klausing spoke in support of not taking any action at this time in order to put the City in the best position to protect its residents and defend potential litigation. Based on past experience by the City, Mayor Klausing opined that the City should allow the MPCA to continue with its environmental review process, noting the City Council's unanimous support of an Environmental Impact Statement (EIS) to the MPCA; and by proceeding with that review it put the City in the best position, wheth- er from applying the opinion that Bituminous Roadway had no vested interest, as well as from an environmental position. Councilmember Ihlan provided greater explanation for her intended City Council ac- tion tonight, and clarified that she was not proposing that the City Council deny ap- proval tonight. Councilmember concurred with Councilmember Pust's recommenda- tion for written notice to the applicant; and sought additional information on potential grounds for denial based on the information now in hand, and detailed in her memo- randum, the three bullet points on page 1 and including land use and environmental issues; and not totally dependent on the recent ordinance amendment. Councilmemb- er Ihlan noted the greater costs and continued uncertainty by allowing the process to continue. Councilmember Ihlan spoke in support of the first item of her proposed ac- tions, detailed on page 2 of her memorandum. Councilmember Pust suggested further discussion on potential litigation in closed ex- ecutive session. City Attorney Bartholdi advised that the Council could not meet in closed session to discuss threatened litigation. Councilmember Roe questioned what action the City could take to deny when the ap- plicant had only applied for a CUP for outdoor storage of aggregate at this time. Councilmember Ihlan noted that the City Attorney suggested one possible action, that it was not a permitted use based on the information currently before the City Council.