Township Meeting on GDP- Wed, Nov 10, 7PM - please attend!
Last month, the Rochester Township Board of Supervisors voted to postpone a vote on the Pavilion Estate developer’s General Development Plan (GDP), to be addressed at the upcoming meeting on Wednesday, November 10, at 7PM. Please call and/or email the Township Board members and attend the meeting! Click here to send them an email!
Even putting aside our concerns about the great blue heron rookery that is threatened by this proposed development, there are other reasons to deny this GDP.
Reason 1 to deny: Land Use Plan Amendment (LUPA) conditions have not been met.
On March 18, 2021 the Olmsted County Planning Advisory Committee recommended approval of the LUPA required for Pavilion Estate’s GDP with five conditions:
Conditions:
1. A drainage easement covering the floodplain areas surrounding Cascade Creek is required.
2. A sign easement is required for the placement of a subdivision sign, as shown on Lot 2 of the General Development Plan.
3. A Decorah Edge Study is required to be accepted and approved by the Olmsted County Soil and Water Conservation District (SWCD) Manager prior to future development of the property.
4. A wetland evaluation is required to be completed and approved prior to future development of the property.
5. Any future development of the subject property must be in accordance with the Migratory Bird Treaty Act and any legal direction from the courts.
To our knowledge, conditions 1 and 4 have not yet been formerly approved by Olmsted SWCD staff. The land owner has supervision of that staff as an officer of Olmsted Soil and Water Conservation District (SWCD), which we think constitutes a clear conflict of interest. We believe this conflict of interest must be resolved and that these conditions must be formerly approved to meet LUPA conditions 1 and 4 before the GDP can be approved. Please demonstrate that this has been done.
More important, condition 5 has certainly not been met. Condition 5 states that “any future development of the subject property must be in accordance with … any legal direction from the courts.” Given that two separate lawsuits related to this property and proposed development are currently awaiting trial, no one can presume to know what the future legal direction from the courts will be at this time. Thus, the approval of the GDP now is premature: condition 5 of the LUPA has certainly not been met.
The two pending lawsuits are:
Olmsted District Court case 55-CV-21-1546, which is a lawsuit based on the Minnesota Environmental Rights Act (MERA). Under MERA, citizens may bring suits for civil remedies where activities are interfering with their enjoyment of natural resources, including nesting sites. The law provides a comprehensive scheme under which anyone with sufficient interest in protecting land, water, air, wildlife, or any natural resources may bring suit to enjoin an action.
The applicant has spread the incorrect narrative that the court ruled in their favor — it did not. Judge King, in her ruling, did NOT deny the pending lawsuit. She only removed the TRO (Temporary Injunction Order). Judge King's decision to remove the TRO was based on the Migratory Bird Treaty Act still being in place. What the judge did elude to was that we have a prima facia case that MERA applies to this case. In other words, Judge King deferred a decision on MERA, the state's law applying to environmental cases, because the federal law was still in place at that time. We believe there are ample factual and evidential reasons to support that MERA claims will prevail.
2. The Minnesota Court of Appeals has accepted an appeal of the township’s decision not to order an Environmental Impact Statement for this property. If this appeal prevails, the developer may be required to “undo” any development they have done and return the land to its natural state. This could be very costly, and previous developers in this situation have sued the townships that approved their GDPs to recoup their costs.
Reason 2 to deny: The GDP is not in compliance with Rochester Township Land Use Plan.
A minimum of 3.5 acres is the recommended lot size for this sort of development in Rochester Township’s Land Use Plan.
Growth guidelines state that the township should “concentrate rural residential development with 3.5 acre average density lots beyond the practical limits of the Urban Service Area (USA)." The City of Rochester Department of Community Development (formerly the Planning Department) has established that the property is beyond the practical limits of the USA. This analysis was completed at the request of the applicant and demonstrates it was extremely improbable that the city would ever service this area, so a minimum of 3.5 acres is the recommended lot size for this sort of development.
Pavilion Estate’s development plan states that their average lot size is 2.9 acres. But actually, eight of the lots are just 2.2 acres or less (which is 40% smaller than 3.5 acres), with the remaining two lots at the end of the cul-de-sac being roughly 6 acres each, where most of the acreage is designated unbuildable land. Pavilion Estates has not offered a good rationale to support deviating from the township’s guidelines.
We believe that it is the township board’s duty and responsibility to deny any development plan that is out of compliance with the township’s own land use plan unless they can cite “specific findings of benefit to the township” from approving the project.
We can see no rational basis for the township board to allow ten lots on this land, and to allow lots smaller than 3.5 acres in size to happen. The only thing this would cause is an increase in the value of the development. It would just put more money in the developer’s pocket. It would not benefit the residents of the township or the township itself in any way.
Hundreds of township residents have clearly expressed their wish that the land not be developed at all. They believe it is more value to the township in its natural state. They value its ecosystem services, wildlife, and its impact on our quality of life. If it must be developed — the less the density, the better.
With global warming, 10-inch rainstorms will soon be a normal occurrence. Many private roads on steep slopes, like the proposed road for this development, will fail. And rain gardens, which don’t work unless they are properly constructed and continuously maintained (no small task), will be insufficient to manage drainage and prevent erosion. Rain gardens are no substitute for the combined power of the forest canopy, understory, ground cover and an intact forest ecosystem. When damage to the road and rain gardens and the resulting consequences occur, the township and county will be on the hook to help people in need. Thus, the development would violate Goal 7B1 of the township land use plan regarding development following principles of being site appropriate.
Neighboring landowners and many natural resource experts have demonstrated that the proposed GDP is not compatible with adjacent land use. Presently, land use is mature forest and wildlife habitat. It is not an accident or neglect that neighbors have maintained a contiguous forest ecosystem in neighboring lots. Thus, the development would violate Goal 7B2 of the township land use plan regarding site compatibility with adjacent land use.
Reason 3 to deny: Precedents matter — don’t set this one!
Months ago, Mr. Kitzmann expressed concern about setting a new precedent (that the board may later come to regret) if the board ordered an Environmental Impact Statement (EIS). Of course, we disagree about the EIS, but Mr. Kitzmann is right in his recognition of the power of precedents.
Now the board must consider whether to set another new precedent – the precedent of ignoring the recommendations of those entrusted to be the township’s planning and zoning commission.
If the township overrules its own zoning commission, it will be going against both tradition and standard procedure as heretofore the township has agreed with every proceeding advisory decision, be it from the county commission, county staff, TCPA, or their own planning & zoning commission. We think it would be unwise and undemocratic to set this new precedent.
We think the township board would be wise to deny the GDP now, and ask the developer to pause for a year, and then reapply with a development proposal that does not need variances and that will satisfy the zoning commission. A new development plan could more effectively addresses the particularities of this property — in road design, public safety access, housing density, drainage plans, erosion control, etc.
Otherwise, the board will be ceding its authority, and disregarding the diligent work of a commission the township itself appointed, in part to lessen the burden of responsibility on each township officer. By going against the planning and zoning commission, the township board may be opening the door to manipulation by other developers wanting greater variances from rules and policy going forward. The township board may also have trouble recruiting and maintaining a zoning commission if it is shown that diligent work is not respected.
A final point to consider: The opportunity & the gift
At the last township meeting, in a discussion about why some variances requested by the developers are granted, and some are not (resulting in a denial of the GDP), an example was given of the decision to grant an otherwise questionable variance because the developer was willing to give a gift of a $1 million road to the township. The road was a substantial gift to the township that made it worth it to approve the variance.
What this shows is that gifts to the township can play a role in the township board’s decision-making process as they seek the best real-world outcome for the township in land use decisions. So please consider this:
A group of private citizens wants to spend $1.5+ million to buy land that is home to treasured wildlife and forest ecosystems so they can donate it to the state to create a Scientific & Natural Area (SNA) that will be enjoyed by all for generations to come. Two of the adjoining neighbors are willing to donate their rookery land, worth say $500,000, to the SNA. At this point this represents essentially a $2 million gift to the township. But the gift will likely grow. Once the SNA application is approved, the state will offer a two-for-one match to raise money to buy land for the SNA, plus all donations are tax deductible. Some neighbors with forest land adjoining the proposed SNA have already expressed interest in possibly selling/donating their land to the SNA in the future. Thus, the Rochester Township SNA could grow to be a significant natural area for our township — which doesn’t have much natural contiguous forest left — all paid for by private citizens, and requiring no effort or expense from the township at all. This is an opportunity for our township!
Want to contact the Township Board prior to Wednesday’s meeting?
Photo by William Welke