5.4. SR 05-17-2010 - Laserfiche WebLink

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GREENE ESPEL MEMORANDUM PROb'CSSIONAL LIMITED LIABILITY PARTNERSHIP $UITC 1200 200 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA SS402 (612) 373-0830 FAX (612) 373-0929 TO: Mayor and Members of the Elk River City Council C: Lori Johnson, Peter Beck, and Rebecca Haug FROM: John M. Baker, Greene Espel P.L.L.P. DATE: March 12, 2010 RE: Certain statements by Elk River Landfill's counsel in his March 9, 2010 letter and attachments to the Planning Commission Our File No: 2043-0369 ERL's March 9, 2010 letter characterizes various positions that the City's counsel took in the Landfill's suits before Judge Robert B. Varco challenging the City Council's denials of the Landfill's applications in 2009. The arguments that the City's counsel made at the hearings before Judge Varco were consistent with the arguments that the City made in its written submissions to the court. While ERL's March 9 letter purports to describe the City's positions on certain issues, the letter does not provide complete quotations of the actual arguments that the City has made and omits or misstates their context. This memorandum is intended to let the Council see the full quotations and their context, to better evaluate the accuracy and credibility of the Landfill's arguments. A. ERL's letter: ERL's March 9 letter states on page 2 that "City also argued at the January 29, 2010 hearing that ERL's proposed lesser included 13-acre landfill expansion was not properly part of the ERL's March 30, 2009 CUP/License amendment application because ERL needed to make a separate application for just the 13 acres." The City's filings: In a January 7, 2010 brief seeking summary judgment in its favor in its suit challenging the October 2009 denial of its CUP, the Landfill had argued that it is "entitled to its CUP and License amendments as it relates to the 13.4 acre portion of the 73.4 acre MSW landfill expansion which is within the existing 137.4 acre landfill property." (ERL CUP opening brief at 2). To this, the City responded on January 21 that "its Application for a CUP amendment did not include a fallback request; it did not seek, for example, an amended CUP for an expansion to its solid waste facility that would take place on 13.4 acres of its own property, or that was limited to the boundaries of the existing SWF District and its own property." (City CUP response brief at 3). The City also argued, "Because the Landfill just requested an amended CUP for a unitary expansion encompassing