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CL~NL SPEL EII~ANI~UIV~ <br />PRDFCSSIDNAL LIMITI•1D LIABILITY PARTNERSHIP <br />SUITI•1 ] 200 <br />200 SOUTH SIXTH STRILT <br />MINNRAPOLIS, MINNCSDTA 5502 <br />~b12) 3'13-0830 FAx ~G12} 373-094 <br />T0; Mayor and Members of the Elk River City Council <br />C. Lori Johnson, Peter Beck, and Rebecca Haug <br />FROZVI: John M. Baker, Greene Espel P.L,L.P. <br />DATE; March 12, 2010 <br />RE: Certain statements by Elk River Landfill's counsel in his 1~la~ch 9 2010 letter <br />and <br />attachments to the Planning Commission <br />Our File No; 2043y0369 <br />ERL's March 9, 2010 letter characterizes various positions that the Ci 's counsel took in <br />tY the <br />Landfill s suits before Judge Robert B. Varco challenging the Ci Council's denials of the Lan ' <br />. tY dfill s <br />appl~cat~ons ~n 2009. The arguments that the City's counsel made at the hearin s before J <br />g udge Varco <br />were consistent with the arguments that the City made in its written submissions to the court, while <br />ERL's March 9 letter purports to describe the City's positions on certain issues the letter <br />does not <br />provide complete quotations of the actual arguments that the Cit has made and omits or ' <br />Y misstates <br />them context, Thrs memorandum is intended to let the Council see the full uotation ' <br />q sand their <br />context, to better evaluate the accuracy and credibility of the Landfill's ar uments. <br />g <br />A.. E 4s Ie~ter; ERL's March 9 letter states on page 2 that "Cit also ar ued at the Jan <br />2 Y g uary 29, <br />010 hearing that ERL's proposed lesser included 13~acre landfill ex ansion was not ro <br />p p perly part of <br />the ERL's March 30, 2009 CUPILicense amendment a lication because ERL nee <br />pp ded to make a <br />separate application for just the 13 acres," <br />The pi's ~lings;ln a January 7, 201 o brief seeking summar 'ud ment in its favor i ' <br />Y J g n its <br />suit challenging the October 2009 denial of its CUP, the Landfill had ar ued that i ' " ' <br />g t ~s entitled to its <br />CUP and License amendments as it relates to the 13,4 acre oltion of the 73,4 acre M <br />P SW landfill <br />expansion which is within the existing 137.4 acre landfill ro e~•t ," ERL CUP o enin ' <br />p P Y~ p g brief at 2). <br />To this, the City responded on January 21 that "its Application for a CUP amendment di ' <br />d not include <br />a fallback request; it did not seek, for example, an amended CUP for an ex ansion to i ' <br />p is solid waste <br />fac~l~ty that would take place an 13.4 ac~•es of its own ro ert or that was limited ' <br />p p Y~ to the boundaries <br />of the existing SWF District and its own property," ~Cit CUP res once brief at 3 , T ' <br />Y p } he City also <br />argued, "Because the Landfill just requested an amended CUP for a unit ex ansion ene ' <br />~y p ompasszng <br />