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LAI2IC1N. lIOFFMAN. DALY C` I.I\U(;Itl-:\. I:r>>. Mavor Butler and City Council Members September 8, 1986 Page 2 currently pending before the City Council. 1. The City has no jurisdiction over the installation and use of the geo-thermal heating and cooling system for Mr. 01rich's residence. The appropriation of ground r for a geo-thermal heating and cooling system is excl.usive.l, within the jurisdiction of the Minnesota Department of Natural Resources. That en,-ity, acting pursuant to authority granted to it by the State Legislature, has adopted a permit process to control facilities such as the one Mr. Ulrich is installing. Our client has fully complied with that process; and, in fact, he has received a permit authorizing installation of the well, and the appropriation and discharge of ground water for the system. The well has already been installed, all necessary permits having been obtained in advance. Orono, of all municipalities, should understand the limitation on the scope of its power in light of its experience in Welsh v. City of Orono, 355 N.W.2d 117(Minn. 1984). In the present case, as in that one, the DNR has exclusive control, there being neither express nor implied power of the City to regulate the subject matt-er. On this oasis, we object to any further del&y in the C'ity's permitting process. Furthermore, we object to any attempt by t) City to regulate our client's geo-thermal system indirectly t„ )ugh the withholding of a permit for an underground lischarge pi a into Lake Minnetonka. The City cannot do indirectly wnA, it cannot do directly, and that is regulate the installation of a geo-thermal facil'ty. The only issue remaining is the manner of discharge of the >'.er after it has circulated through the geo-thermal system. A request s been made to the City to allow construction of a pipe within theJ foot set back from Lake Minnetonka to carry the discharge water into Lake Minnetonka. This pipe is similar to the drain pipe which has been installed to direct water away `rom the foundation of the principle residence. 2. The only issues before the City are the issuance of a use permit and variance for the installation of a pipe across the 75 foot set back area from Lake Minnetonka. Section 10.03, Subdivision 19 of Orono's zoning ordinance requires a use permit to excavate within the 0-75 foot lakeshore protected area. Subdivision 8 specifically forbids any excavations or structures within that. distance without a variance.