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Email commentary from Steve Chelesnik

January 6, 2006
E-mail commentary from Steve Chelesnik to other Save Bent Creek volunteers

" Everyone seems to legitimately have their own opinion as to how our Bent Creek situation will come out and those opinions are probably pretty significantly impacted by their own special interest and emotion investment. I have tried to be as objective as possible as we have moved through this process, although I obviously have my own special interest and emotional investment to balance. I've also had experience dealing with legal matters generally and with municipalities so I know better than to get too high or too low based upon any one event. That having been said, Tuesday night's meeting was a really significant victory for our side and I believe the deck is now stacked in our favor for good reason. Let me explain.

An owner can sell their property to anyone they choose at any time for whatever price they want with very few exceptions. That is an owner's right. If the current owner doesn't want to own a private golf course anymore as their representatives stated to the media, they have every right to sell to whomever they choose. The ability to sell the property should be distinguished, however, from the ability to develop it. In order to develop the property, the property will need to be rezoned and there will need to be a host of related approvals required for any specific development. It is unlikely most developers are going to want to pay a premium for the property based on its developable value without some assurance that they will be able to get approval from the City for the development they have in mind. You normally get that assurance by working with the City in advance of making a firm purchase commitment, often as a condition of obtaining financing.

My sense is the City Council and Staff are currently opposed to developing this property based upon the legitimate concerns we have raised and for other good reasons. Their primary concern, as it should be, is whether they have a solid legal basis to deny a rezoning request by a prospective developer. That is why Tuesday's meeting and the City attorney's legal opinion where so critical. If the opinion had been that the Council had no legal basis to deny such a request, we would have been more or less dead in the water. If the opinion had been weak with the City attorney hedging his comments as to whether or not the City had a defensible legal basis to oppose development, I would have been advocating retaining legal counsel of our own quickly to see if we could turn the tide somehow. Instead, the City's attorney gave an opinion that was virtually 100% in our favor on every potential legal point of contention. I had hoped for an opinion like this and thought one was justified in light of the factual record, but you rarely get everything you are looking for in these situations so I was somewhat surprised and very pleased.

The opinion essentially stated the City would be well within its governmental authority to deny a rezoning request based upon the Edenvale PUD history and other consistently applied factors, although it stated that an appropriate process must first be followed. Any formal development proposal and rezoning request will be analyzed by City Staff who will make recommendations to the Council. The Council will in turn refrain from making a decision until after public meetings on the subject have been held. We would be given additional opportunities to express our concerns during this process. Based upon everything I know and believe about the City Council and Staff's views on this subject and the legal opinion, I think a denial is the overwhelmingly likely outcome and I can't conceive of an event that would materially change that scenario at this time. Obviously, monitoring events as they unfold and keeping an eye out for significant changes is important as we move forward.

Assuming the City denies a rezoning request, the next question becomes whether or not there is a reasonable legal basis for a developer to challenge that denial in court. The opinion was equally strong on this point. It essentially stated that the weight of applicable state and federal case law in each of the likely areas of attack is solidly behind the City under virtually any reasonable argument(s) a developer could put forth in support of overturning a denial of a rezoning request. This is very significant because it provides the City with the courage to not only deny a rezoning request, but also a reasonable belief that they will be able to prevail in court against any subsequent legal attack by a prospective developer. A developer would then have to be willing to make a commitment to spend a significant amount of time and money on a legal challenge with uncertain results at best. I question whether most developers are willing to make that investment in the face of determined City and community opposition, but anything is possible when there is enough money at stake.

Many people in municipal government circles in Minnesota believed Eagan made a poor decision in the Carriage Hills case. Although Eagan's legal position was much weaker than Eden Prairie's would be due to some very significant differences in the factual history of the respective properties, many thought Eagan should have pressed on in defending that litigation and that they set a bad precedent by caving in to the developer. Those same people are eager to see that wrong righted and will likely support Eden Prairie in their defense of any legal challenge they may face in the case of Bent Creek. That support would be in addition to the support of the Eden Prairie community and special interest groups who favor preserving open space.

The party in the best position to fight a developer who wants to bulldoze Bent Creek is the City. They are on the front line, they have the most leverage in dealing with the developer, and they will enjoy the most influence with and sympathy from the courts in most cases. That is why our main objective from the beginning has been to get the City to be willing to step up and fight the good fight if it comes to that for all of the reasons we have articulated. We have been very successful on this front to date. We certainly have to stay on top of the situation and be ready to respond to whatever comes up, but we are clearly on the right path and the City is where it needs to be to deny a development/rezoning request if and when one is formally put on the table.

[The City Council hears] our voices and they respond to our support for making tough decisions. That means continue your e-mails to Council members urging them to do the right thing and oppose development of the Bent Creek golf course."

Steven A. Chelesnik Save Bent Creek Volunteer

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