05-08-01 Special
CITY COUNCIL MINUTES
Richfield, Minnesota
Special City Council Meeting
May 8, 2001
CALL TO ORDER
The meeting was called to order by Mayor Kirsch at 6:00 p.m.
ROLL CALL
Members Present:Martin Kirsch, Mayor; Susan Rosenberg; Gertrude Ulrich; John Enger;
and Sue Sandahl.
Staff Present:Samantha Orduno, City Manager;Deborah Guiher, Deputy City Clerk;
Bruce Palmborg, Community Development Director; and Corrine
Thomson, City Attorney.
Item # ICONSIDERATION OF CITY COUNCIL POLICY ON BEST BUY’S INDIRECT
SOURCE PERMIT
City Manager Orduno stated that tonight’s meeting was called by Mayor Kirsch and
Council Member Sandahl to address the issues of the Indirect Source Permit being
considered by the Minnesota Pollution Control Agency (MPCA) on May 22, most notably in
response to a letter written by Council Member Enger to the MPCA, with a request by
Council Member Sandahl that the Council consider a letter she had asked the City Manager
to draft.
Council Member Sandahl stated she was concerned when she received information
regarding Council Member Enger’s letter to the MPCA dated May 2, which accuses the City
of engaging in illegal activity with respect to the Best Buy development and the Indirect
Source Permit. To Council Member Sandahl’s knowledge Council Member Enger didn’t
contact the City Manager, the City Attorney or the Mayor to express his concerns with issues
happening in the City. Instead he took independent action to write a letter directly to a State
agency accusing the City of engaging in illegal activity.
Special Council Meeting Minutes-May 8, 2001
2-
Special Council Meeting Minutes-May 8, 2001
3-
Mr. Rockenstein continued that on April 26, Ms. Lynn called saying the Assistant
Attorney General was reviewing the issue and believed some of the activities shouldn’t be
undertaken. At that time Tim Murnane of Opus was called. A decision was made to stop
work on the site immediately. Not all work was stopped because of safety issues involved.
There were freestanding walls that weren’t supported, some joists that were loose and the
site needed to be fenced. The safety issues were addressed, the debris on site was cleaned
up and the site fenced. No other work was performed. A letter from the MPCA explaining
what could and couldn’t be done was received the following Monday. Work was stopped
before the letter arrived. Mr. Rockenstein stated they wanted no confusion with MPCA as to
what they were doing on the site.
Council Member Sandahl asked Mr. Rockenstein how long he has been engaged in
this type of work.
Mr. Rockenstein stated it has been 16 years.
Council Member Sandahl asked if Mr. Rockenstein was comfortable understanding
what the MPCA was authorizing and not authorizing at that time.
Mr. Rockenstein answered yes.
Council Member Enger asked Mr. Rockenstein if it wasn’t true that Assistant Attorney
General Peter Tester determined that Best Buy couldn’t undertake most of the activity in the
letter of April 16.
Mr. Rockenstein stated that was correct.
Council Member Enger asked Mr. Rockenstein the following: Are you fully aware of
what the Rules are and what the Minnesota Rules are regarding the ISP and do you
understand the definition of demolition, construction, grading and excavating?
Mr. Rockenstein stated yes.
Council Member Enger read the Rule taken from the PCA Permits and Certification
section. He then asked Mr. Rockenstein how he could think it was ok without written
permission from the PCA to allow demolition activities, when it clearly states in this Rule that
it is illegal.
First, Mr. Rockenstein clarified the correct Rule Council Member Enger was
questioning in regard to an Indirect Source Permit. Next, Mr. Rockenstein said the answer to
Council Member Enger is simple. He believed the MPCA had given permission to do so.
Council Member Enger questioned the authority of Ms. Mary Hoffman Lynn of the
MPCA.
Mr. Rockenstein stated that Ms. Lynn didn’t do this on her own authority. She
discussed it with her supervisor and others within the agency. He had been told it had been
discussed and that it was okay to proceed.
Special Council Meeting Minutes-May 8, 2001
4-
Council Member Enger asked where written documentation to that particular
conversation with Ms. Lynn was. Without it, there is no way of knowing the conversation
took place.
Mr. Rockenstein responded that there is no written documentation. He stated that he
gave his word that it took place. Mr. Rockenstein also agreed with Council Member Enger
that this occurred between April 12 and April 13.
Council Member Enger read the Rule regarding commencing construction. He again
stated this relates back to the permits that are required. No action should be taken until the
permit is granted. He believes the MPCA stated that in their letter of April 27. On April 16,
Mr. Rockenstein wrote a letter to the MPCA outlining the planned action on this site. Council
Member Enger asked Mr. Rockenstein why activity commenced on the site on April 17 before
receiving a written response from the MPCA.
Mr. Rockenstein again stated he believed he had been authorized to proceed.
Council Member Sandahl explained that the confirming letter of April 16 written by Mr.
Rockenstein to Ms. Lynn is very typical. She stated that a means of confirming a
conversation is to state in a letter “this is confirming what took place”. Council Member
Sandahl stated that in reading the letter of April 16, it says Mr. Rockenstein is confirming his
oral permission. That was the understanding, and he didn’t receive an immediate response
from the MPCA saying that was incorrect. The assumption is that he had the conversation
with them and they orally agreed he could proceed. He confirmed it in writing and didn’t
receive an immediate response from the MPCA, to the contrary, until they received an
objection from Walser’s attorney.
Council Member Enger said Walser’s attorney wrote a letter April 26, the same day
the Assistant Attorney General responded to the letter. He believes it is stated in Mr.
Rockenstein’s affidavit or in a letter from Ms. Lynn that the Attorney General wouldn’t be
available to consider this issue for some time. Minnesota Rules state permission is needed
from the State before you can proceed. In an April 23 telephone conversation, Ms. Lynn told
Mr. Rockenstein the Assistant Attorney General said most of the activity couldn’t be
undertaken. This was put in letter form dated April 27 stating what activities could take place
on the site. No demolition would have been allowed on the site until or before May 22.
Council Member Enger stated that it was careless of all parties involved to proceed without
proper authorization from the State of Minnesota.
Mr. Rockenstein stated the dispute is over whether there was proper authorization
and there is obvious disagreement. As Council Member Sandahl indicated, Mr.
Rockenstein’s letter of April 16 was a confirming letter to an authorization that he had
received, and it wasn’t until the 26th that it was indicated to him that the items in his letter
were not approved. Work stopped immediately with the exception of the safety issues. The
letter, although dated April 27, did not arrive until Monday, April 30. Work continued on the
27th only to address the safety issues, and some work was done the following week again
only to clean up the site, put the fence in and finish out the safety issues.
Council Member Enger stated that they tore down two buildings on Monday or
Tuesday of the following week. He had pictures for the Council Members to review. Some
Special Council Meeting Minutes-May 8, 2001
5-
of these pictures were taken on the 27th and 28th. Both dates show buildings in place.
Today those buildings are gone.
Mr. Rockenstein said he can’t speak to that. He was not on the site.
Council Member Enger asked if the Council would like to discuss the pictures.
All Council Members answered no. Council Member Ulrich stated that she has looked
at the pictures and didn’t feel discussion was needed. She has driven by the site and
understands what happened there. The pictures are self-explanatory.
Council Member Sandahl asked Mr. Rockenstein, if in his opinion, the MPCA shifted
in their position with respect to what could or couldn’t be done on this site. She confirmed
that Mr. Rockenstein’s initial understanding was that permission was granted for those things
that were undertaken and that later written notice was received denying that permission.
She asked if, at that point, work ceased?
Mr. Rockenstein said yes, that was correct. The work actually ceased before
receiving the written notice.
Council Member Sandahl asked Mr. Rockenstein if he stated that the continuation of
the work was for safety reasons and to complete the work that was authorized.
Mr. Rockenstein said that was his understanding that the additional work that was
done on the site. He said if the Council wished, someone was present that could speak to
that issue.
Tim Murnane, Vice-President of Real Estate Development for Opus, restated what Mr.
Rockenstein said. He said, as soon as Mr. Rockenstein called and said, in his opinion, the
rules had changed, work stopped. Shortly thereafter, the construction crew said that
because demolition had started, unsafe conditions existed. Those conditions were
remedied. Mr. Murnane introduced George Spevacek as the Senior Project Manager who
will be building the Best Buy project and will oversee all construction related activities.
George Spevacek explained that for safety reasons, they proceeded on Friday,
Monday, Tuesday and Wednesday to knock walls down that could have blown down in the
wind and removed joists that could have fallen down and injured workers or the public. No
more demolition work continued on the main Wally McCarthy building.
Council Member Enger asked what kind of demolition work was done on the Wally
McCarthy building and what building was knocked down by mistake before Monday, Tuesday
or Wednesday.
Mr. Spevacek said they did not knock down any building by mistake.
Council Member Enger stated there wasn’t a permit to knock down 7708 Logan
Avenue.
Special Council Meeting Minutes-May 8, 2001
6-
Mr. Spevacek stated the demolition contractor took out three demolition permits for
three buildings. Later, it was found out that an incorrect address on the car wash building
was listed. There were actually four addresses for the Wally McCarthy site.
Council Member Enger asked if they were in the process of knocking down two
buildings at the same time.
Mr. Spevacek said there are three buildings on the site: the main building, the car
wash building and the Abra auto building. Work on the car wash building and the Abra
building was done at the same time.
Council Member Enger asked what was unsafe about the Abra building on April 27.
Mr. Spevacek said the roof deck was removed and some of the bar joists were
removed and loosened up. The rest of the bar joists were removed and the walls taken done
to rectify the safety hazard.
Council Member Enger asked the name of the company that Mr. Spevacek works for.
Mr. Spevacek replied, Opus.
Council Member Enger asked if Veit ever worked on a project that has involved an
Indirect Source Permit.
Mr. Spevacek said he couldn’t answer that. He didn’t know.
Council Member Enger asked if Mr. Murnane or Mr. Rockenstein would have any
knowledge of whether or not an ISP had been issued for any previous work that they had
done on a commercial site.
Mr. Spevacek said he didn’t know. Council Member Enger would have to ask them.
Again Mr. Spevacek stated that a mistake had been made; the intent was to get three
demolition permits for three buildings.
Council Member Sandahl said she understood how confusing it could be not realizing
a building has two addresses and it was possible to be confused. She commented that it
was an honest mistake.
Council Member Ulrich also discussed another situation very similar which has lead to
confusion over the years. She also understood how these things can happen.
Council Member Enger questioned if there was any asbestos found in either of the
two buildings at 7725 Morgan and 7708 Logan.
Mr. Spevacek said in the car wash there was none. In the Abra building there was
some non-friable asbestos in the floor tile.
Special Council Meeting Minutes-May 8, 2001
7-
Council Member Enger questioned if there were proper permits for the asbestos
testing and if the asbestos was abated.
Mr. Spevacek said there is no permit required for asbestos testing, and proper
notification had been made. He said there are about 270 square feet of the asbestos floor
tile that is non-friable. The regulations allow floor tile to remain in place and be removed
with the concrete floor slab. The floor slab was not removed and the floor tile was still there.
When activities are allowed to commence, that concrete slab and floor tile would be removed
and taken to an approved landfill.
Council Member Enger asked when the asbestos testing was completed and who did
it.
Mr. Spevacek said he believes the destructive testing was completed in March and
the company name that did the survey was Applied Environmental Sciences.
Council Member Enger asked if they will do the removal of the asbestos from the
other building.
Mr. Spevacek said no. Applied Environmental Sciences is doing all of the asbestos
surveys. They do not do removal.
Council Member Sandahl asked Council Member Enger if he took the photos that he
distributed to the Council Members.
Council Member Enger said no, he didn’t. He said both Deb Nordmarken and Bob
Hall took them.
Council Member Sandahl asked Council Member Enger why he didn’t consult the City
Attorney if he had concerns about the legal issues.
Council Member Enger said he had talked to City Manager Orduno. He then called
the MPCA. Ms. Lynn said they weren’t allowed to do anything except perform destructive
pre-demolition asbestos testing. That was when he wrote the letter.
Council Member Sandahl asked Council Member Enger what brought this to his
attention.
Council Member Enger said he drove by the site and knew they hadn’t received an
Indirect Source Permit.
Council Member Sandahl asked why he didn’t ask the City Attorney for their opinion
since they represent the City.
Council Member Enger asked why the City Attorney didn’t call him questioning his
motives when Mr. Rockenstein’s firm wrote him the letter with the threat of legal action.
Council Member Sandahl asked Council Member Enger what his motives were.
Special Council Meeting Minutes-May 8, 2001
8-
Council Member Enger said if this project is done, he wants to see that it is done
properly and with the authority of the State of Minnesota and the City of Richfield.
City Attorney Thomson responded to Council Member Enger’s question. She said she
didn’t call him when he received a letter, because she was not aware that there was any
letter.
Council Member Enger said he would have thought that when the City received the
letter they would have informed the City Attorney that there was a threat of legal action
against one of its Council Members and there would have been discussion.
Council Member Sandahl stated her concern that Council Member Enger’s
independent actions are generating a threat of legal action. It would be appropriate if
Council Member Enger had strong concerns about illegal activities going on, that he would
let the City Council know about it. Council Member Enger didn’t contact the Council, didn’t
try to schedule a special meeting and didn’t call the City Attorney.
Council Member Rosenberg asked if a Council Member does act on his own like this
without the support or knowledge of the other Council Members and is threatened with a suit
by an organization like Best Buy and Opus, is the City responsible financially for this type of
expense?
City Attorney Thomson said she hadn’t seen the letter and couldn’t answer until she
has reviewed the facts. If this is something the Council has a concern about, it can be
looked into.
Council Member Sandahl said it would be important to know this information as a
Council and would like it checked out.
Mayor Kirsch asked if the City Attorney would check into it.
City Attorney Thomson answered she would.
Council Member Sandahl stated she had requested that City Manager Orduno draft a
letter to the Minnesota Pollution Control Agency (MPCA) as to the position of the remaining
City Council Members. She said it wasn’t appropriate that, if in fact they disagreed that the
City acted inappropriately, that Council Member Enger’s letter be the only letter coming from
the City of Richfield. She also requested the letter be considered as part of the comments
received regarding the Indirect Source Permit.
City Manager Orduno stated that in her conversation with Ms. Lynn she had informed
her that she would be presenting a letter to the City Council tonight for their consideration
and if that letter was approved, in whatever form, she would then be faxing it to her. Ms.
Lynn said she would accept it as long as it was received before Friday.
Council Member Sandahl said she had reviewed the letter and feels the letter
accurately reflects what happened.
M/Sandahl, S/Kirsch that the Council adopt the letter.
Special Council Meeting Minutes-May 8, 2001
9-
Council Member Ulrich stated since learning about Council Member Enger’s letter she
has been very disheartened and disturbed. She also stated that Mr. Rockenstein is a man of
integrity, intelligence and she would take his word for anything.
Mayor Kirsch thanked Council Member Sandahl for getting this put together. He said
it is not good that we have a member of the City Council that had not consulted with the rest
of us on some action.
Council Member Enger asked if a whistle blower normally confers with those he was
blowing the whistle on.
Council Member Rosenberg asked who he was blowing the whistle on.
Council Member Enger answered the City of Richfield, Opus and Best Buy.
Council Member Enger said he was a representative of the City of Richfield. He didn’t
authorize the permits. He did not authorize Opus, Best Buy and Veit to undertake demolition
at the site without proper authorization. All he was asking for from the MPCA was that they
undertake an investigation and determine if authorization was granted for the work that was
done. If it was, so be it. If it wasn’t, then they should be punished under the law. While the
City had authority to issue the demolition permit, it also had authority to suspend that permit
in order to avoid unnecessary questions about the permit while the ISP project was
underway. The City should have never issued the permit.
Mayor Kirsch said that in all of the phone conversations the MPCA had with Mr.
Rockenstein, they never told him to cease work. They only promised that a letter was forth
coming. If Ms. Lynn had a major concern, she certainly would have advised them to cease
immediately. She didn’t do that.
Council Member Sandahl was concerned that Council Member Enger’s assumption
was that he was a whistle blower and that the other members of the Council had no interest
in what his concerns were. She disagreed with that position. She stated that issues need to
be raised at the Council level as opposed to taking independent action with a State Agency
on behalf of the City as an individual without consulting the City Attorney or the City Council.
Council Member Enger said he didn’t think that his action could wait even a day.
Council Member Rosenberg said a Special Meeting could have been called.
Council Member Enger said when he talked to Ms. Lynn he wrote the letter that day
because he wanted the project to cease. It didn’t have proper permits to go forward.
Motion carried 4-1. (Enger opposed.)
Council Member Enger said he will be sending another letter in response to the MPCA
regarding the City.
Special Council Meeting Minutes-May 8, 2001
10-
ADJOURNMENT
The meeting was adjourned by unanimous consent at 6:52 p.m.
Date Approved: _________________
Martin J. Kirsch
Mayor
Deborah J. GuiherSamantha Orduno
Deputy City ClerkCity Manager