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Discord over Heartland permit status

Fri, Apr 11th, 2003
Posted in Features

The Preston City Council met Monday evening, April 7, on a day when mother nature struck the area with a heavy spring storm. When it came time to discuss the Heartland Energy & Recycling plant and the action to rescind the Conditional Use Permit (CUP) of February 18, 2003, the misunderstanding the issue generated threatened to bring the storm inside.

Mayor Dave Pechulis said that we “got the cart before the horse once, and we're about to do it again.”

On February 18 the council voted to rescind the conditional use permit (CUP) issued by the council on May 20, 2002. This was based on legal advice from the legal firm of Kennedy and Graven. Mary Tietjen of Kennedy and Graven had found two areas where she believed the CUP was at odds with Minnesota statute: an environmental assessment worksheet (EAW) had not been issued by the Minnesota Pollution Control Agency (MPCA), and an environmental impact statement (EIS) had not been judged to be either necessary or unnecessary.

Since that time, the MPCA has accepted the EAW and didn't require an EIS.

The problem the council faced on Monday night seemed to be over the definition of “rescind.” The dictionary says revoke, nullify, or cancel.

The mayor and Council member Michael McGarvey understood that to mean that permitting process would need to start over from scratch. Meanwhile, Council member Jerry Scheevel's understanding of rescind was different. He believed that the process was somewhere in the middle, and that Heartland would not need to go through another public hearing.

Mayor Pechulis felt he had been misled.

Scheevel fired back that if there was any misleading, the mayor need only “look in a mirror.”

Several citizens aired their opinions and suggestions.

Kay Laging spoke of the right to vote on the Heartland issue. She expressed a desire for a special election which would be the only way to guage how people felt about the project. She read a petition calling for a referendom on the subject which will be circulated around town to help determine where citizens stand. The signed petitions will be presented to the council at the next meeting.

The city of Preston ordinance requires the City Planning & Zoning Commission to find the following before a CUP is issued:

"Some of the required Findings are the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purpose already permitted; not substantially diminish and impair property values; not impede the normal and orderly development and improvement of the surrounding vacant property; adequate facilities are being provided; adequate measures will be taken to prevent or control offensive odor, fumes, etc."

McGarvey said that he hadn't expected a problem. If the process starts over, then he is going to add conditions

Scheevel assumed that once the MPCA approved the project that no specific changes should be required. Scheevel sees many of the objections being raised to start the process over as delaying tactics. He cited a letter from Kennedy and Graven intended to clear up misunderstandings and concerns that stated that the “effect of the rescission was to put the City back to the position it was in immediately before the Council voted to approve the CUP.” The letter further stated that a CUP can only be revoked if “the applicant has violated the terms of the CUP; there was no basis to revoke the CUP.”

According to Kennedy and Graven there is a 60-day rule. Since the MPCA issued its findings on February 25, 2003, the City must now approve or deny Heartland's request within 60 days. This would be possible to do if the Planning & Zoning Commission, which meets on April 14, makes its recommendations, and the Council makes its final decision on April 21, their next meeting.

If the Commission makes a recommendation on the fourteenth, it can approve, deny or give conditional approval. They would need to adopt findings to support the recommendations and prescribe a time limit for the start and completion of the project.

Kennedy and Graven also state that the City is not “legally required to hold another public hearing.” They conclude that because of the 60-day rule there is not enough time for another public hearing. The suggestion of no further hearings on this issue caused considerable displeasure among the citizens present, many of whom were members of the SouthEastern Minnesotans for Environmental Protection (SEMEP).

McGarvey, who is a member of the Planning & Zoning Commission, stated that he was going to ask for a 60-day extension on April 14. There was mention made of changes in the plans of Heartland since the original application was submitted. Apparently, Heartland had intended to burn 20% wood to start and now plans are to use LP for that function.

Council member Heath Mensink saw the problem as pretty cut and dried. He believed that Planning and Zoning should see if the application is filled out properly, if not it would be invalid and the process would need to start over again. Council member Mike Gartner agreed. The public can attend the P & Z meeting on the fourteenth.

One last issue was raised by Mayor Pechulis, who was concerned that Fred Nagle, the city administrator, had asked Mary Tietjen of Kennedy and Graven to put together a “finding of fact” without the approval of the Council. Consequently, a motion was made to retain Kennedy and Graven for the “finding of fact” on the Heartland issue. It was approved.

Karen Reisner can be contacted at

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