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Home My WebLink About9C2 - Resolution 05-134 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 CITY COUNCIL AGENDA REPORT MEETING DATE: AGENDA #: PREPARED BY: Decernber19,2005 9C-2 Jane Kansier, Planning Director AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION RESCINDING CANCELLATION OF THE CUP AND CLARIFYING THROUGH RECISION THE INTENTION AND EFFECT OF RESOLUTION 05-134. DISCUSSION: Introduction: The accompanying resolution should be considered only if the Council first approves the proposed Amended Settlement Agreement and Release. If the Council takes any other action regarding that proposed amendment, then staff recommends that the Council defer consideration of this item. History: I have been monitoring Ryan's efforts to comply with the Section C preconditions under the Settlement Agreement. I have spent considerable time reviewing the progress of Ryan's work. I have reviewed Ryan's monthly reports to the City, exchanged many email messages with representatives of Ryan, met with Ryan's representatives on several occasions, spoken with Ryan's representatives by phone on other occasions, and accepted two invitations from Ryan to review their work on-site. I have also reviewed Ryan's submissions to other agencies and reviewed a letter of credit obtained by Ryan and provided to the City. Current Circumstances: Based on those activities, I have concluded that Ryan has now satisfied all of the Section C preconditions as set forth in the Amended Settlement Agreement and Release. Judging the timeliness of Ryan's satisfaction of those conditions under the Amended Settlement Agreement and Release, I have also concluded that Ryan's satisfaction of those conditions is timely. I have also become aware of an argument, made by the Sioux Mdewakanton Sioux Community, that in July 2005 the City already granted Ryan a new CUP through the adoption of Resolution 05-134. This is the first time that anyone from the SMSC or Ryan has ever construed that Resolution in that fashion. I believe this is a mistaken interpretation of the Resolution, and that to resolve any question about whether it had such an intention or effect, the Council should rescind the portions of that Resolution which have served as the basis for this misinterpretation. ISSUES: The proposed Resolution would resolve any question about the intent and the effect of Resolution 05-134, determine whether Ryan has satisfied the preconditions to the rescission of the cancellation of its 2001 CUP, and cause that CUP to be reinstituted. Under the terms of the CUP and of the Amended Settlement Agreement and Release, the CUP would only be in effect for one year, commencing with the recording of the CUP, which itself must occur no later than June 1, 2006. FINANCIAL IMPACT: Approval of the resolution would not require the City to incur any new expenditures. By clarifying the intention and effect of a previous resolution and making certain findings, the resolution may speed the end of litigation currently pending, while reducing the likelihood of www.cityofpriorlake.com I\COUNC: L )'\Gi'jF{PTS\2005\ 121 O(Y~)~H6i41ri952!4tt1~423~a~ CF~W9"5i2~4~"1:~!245[ future litigation. ALTERNATIVES: As noted above, the accompanying resolution should be considered only if the Council approves the proposed Amended Settlement Agreement and Release. If the Council takes any other action, then staff recommends that the Council defer consideration of this item. The City Council has the following alternatives: 1. Approve the resolution. 2. Deny the resolution. 3. Defer action and provide staff with specific direction. RECOMMENDED MOTION: The staff recommends Alternative #1. This requires a motion and second. L/ l Reviewed by: I\COUNCIL \/\CNiU)TS\2005\ 121905 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION OS-xx RESCINDING IN PART RESOLUTION 05-134 AND RESCINDING THE CANCELLATION OF CONDITIONAL USE PERMIT No. 01-19 (APPROVED FEBRUARY 27,2001) Motion By: Second By: WHEREAS, On February 27,2001, the City Council approved the issuance of a conditional use permit for mining and excavation by Ryan Contracting Co. ("Ryan") on the property located north of CSAH-42, and north and west of McKenna Road, subject to conditions identified by Resolution 01-19 ("CUP 01-19"); WHEREAS, One of the conditions in CUP 01-19 was a one-year term of validity, subject to revocation at any time for noncompliance with any condition contained in the CUP; WHEREAS, The City Council approved CUP 01-19 only after performing environmental review under Minnesota law regarding the potential impacts of the proposed project and making specific findings in the approval resolution reflecting that CUP 01-12, with its conditions and limitations, satisfied the criteria for the approval of a CUP under the City's Zoning Ordinance; WHEREAS, Following a bench trial, additional conditions on Ryan's proposed operation were imposed by the Court; WHEREAS: In January 2004, the City cancelled CUP 01-19, which caused Ryan to file a lawsuit against the City, in which Ryan challenged not only the legality of the cancellation of CUP 01-19 but also challenged the legality of certain terms in that CUP, and sought reinstatement of the CUP without the challenged terms; WHEREAS: Ryan's lawsuit, if fully successful, could have required the City to reinstate CUP 01-19 while removing the one-year term of that CUP and eliminating other conditions intended to protect the environment and the City, and awarding damages and attorney's fees against the City and in favor of Ryan; WHEREAS: The parties to that lawsuit engaged in settlement discussions in 2005 which culminated in the authorization and execution of a Settlement Agreement and Release ("Settlement Agreement") and Development Contract between the City and Ryan, and the dismissal of Ryan's suit against the City; WHEREAS: On July 18, 2005 the City Council approved a motion authorizing the execution of the Settlement Agreement, and Resolution 05-134 authorizing the execution of the Development Agreement; R\RESOIUTI\nANRES\121~i05 'YEln rcsolutonDOC www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 WHEREAS: In approving a motion authorizing the execution of the Settlement Agreement and Resolution 05-134 authorizing the execution of the Development Agreement, the City Council did not intend to thereby approve the issuance of a CUP to Ryan, but merely intended to authorize the City to carry out the terms of the Settlement Agreement in the form that was before the Council and to authorize the execution of a Development Contract; WHEREAS: Following the approval of Resolution 05-134, Ryan has not asked the City to issue it a CUP and the City has not construed that Resolution as requiring it to do so; WHEREAS: On December 19, 2006, the City Council authorized an amendment to the Settlement Agreement; WHEREAS: Section B of the Settlement Agreement and Release (and Amended Settlement Agreement and Release) provide in part that "[t]he parties agree that the City will rescind the cancellation of the Conditional Use Permit after Ryan completes the preconditions listed in Paragraph C of this Agreement;" WHEREAS: The question of whether Ryan has satisfied the preconditions listed in Paragraph C as amended is ripe and is before the City for determination; WHEREAS: City staff has closely monitored Ryan's efforts to satisfy the Section C preconditions; WHEREAS: In a brief filed on behalf of the Shakopee Mdewakanton Sioux Community ("SMSC") on December 12, it has been argued, for the first time, that Resolution 05-134 not only authorized the execution of a Development Agreement with Ryan but actually granted Ryan a new conditional use permit; WHEREAS: The City Council wishes to clarify its intention behind Resolution 05-134 and correct any impression that the approval of that Resolution granted Ryan a Conditional Use Permit; NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. In adopting Resolution 05- 134, it was not the intention of the City Council to grant to Ryan a conditional use permit or to otherwise contradict the provisions of the Settlement Agreement and Release approved in conjunction with approval of that Resolution, but was solely to authorize the Mayor and City Manager to execute a Development Contract on behalf of the City. 3. For the purpose of clarification, and to make it clear that Resolution 05-134 did not grant to Ryan a conditional use permit, the City hereby rescinds the second "whereas" clause and second numbered paragraph of Resolution 05-134. 4. Based on the investigation performed by City staff, including the review of Ryan's submissions to the City, and multiple site visits by City staff, the City Council hereby finds that the preconditions in Section C of the Amended Settlement Agreement and Release have now been satisfied, and in a timely fashion. R:\RESOLUTI\PLANRES\ 121905 ryan resolution DOC _.~-.....-_~..,-_.. --"-~>~~"',--~-----..~~-~'-.....,...-~.,--"'".._-_..._-'-"~---"-,~.~,,',"-,^.,---_.~, 5. The City Council further finds that the project that would be permitted by the rescission of the cancellation of CUP 01-19 has not substantially changed since the environmental review for the project was performed in 2000 and analyzed in 2000 and 2001. 6. The City Council further finds that the delay in the commencement and completion of the project did not result in any substantial change in the project itself. 7. The January 2004 cancellation of CUP 01-19 is hereby rescinded. PASSED AND ADOPTED THIS 19TH DAY OF DECEMBER, 2005. Hauaen Hauaen Flemina Flemina leMair leMair Petersen Petersen Zieska Zieska YES NO Frank Boyles, City Manager R:iRESOLUTIIPLANRES\121905 ryan resolutiQnDOC