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HomeMy WebLinkAbout12.D.2. Appeal of the Board of Adjustment and Appeals Determination for Shakopee Gravel, Inc.-Res. No. 6344 /2.0.;1-. CITY OF SHAKO PEE Memorandum CASE NO.: 05-120 TO: Mayor and City Council Mark McNeill, City Administrator FROM: Mark Noble, Planner I RE: Appeal ofthe Board of Adjustment and Appeals Determination on a Renewal of a Conditional Use Permit/Land Rehabilitation Permit for Shakopee Gravel, Inc. at 1650 Canterbury Road DATE: January 3,2006 INTRODUCTION Beverly Koehnen has filed an appeal of the Board of Adjustment and Appeals (BOAA) renewal of a Conditional Use PermitlLand Rehabilitation Permit for Shakopee Gravel, Inc., located at 1650 Canterbury Road. In her letter (Exhibit A), she notes the items that she believes were incorrectly addressed by staff and the Board. Ms. Koehnen's core contention is that the BOAA does not have the authority to take action on this CUP request, but that the City Council has reserved that authority for itself. A second major concern raised in her letter that by removing the term "renewal" from the approving resolution, the BOAA limited options open to the City. The Board of Adjustment and Appeals held a public hearing on the Conditional Use Permit/Land Rehabilitation Permit renewal request at its September 22, 2005 meeting, and at their November 3,2005 meeting, by a 6-0 vote; the Board approved the request with changes, The Board determined that the request did meet all of the criteria required for granting the renewal, contingent on complying with the conditions ofthe resolution. On December 6,2005, the City Council voted 4-1 (Terry Joos) to table this item to the December 20, 2005 meeting, with staff directed to check the 2002 Council meeting minutes to detennine whether the intent was to "review or renew" this request; and to prepare a resolution for possible action at the December 20, 2005 meeting. At the December 20, 2005 meeting, the City Council voted to continue this item to the January 3, 2006 meeting to allow staffto research issues raised by the Council. City Attorney Jim Thomson's has provided a letter dated December 29th that addresses the Council's concerns. Please review Mr. Thomson's letter and consider his determination when making a decision on this matter. ALTERNATIVES 1. Approve Resolution No. 6344, a resolution upholding the Board of Adjustment and Appeals determination on the Renewal of the Conditional Use Permit/Land Rehabilitation and Mining Permit for Shakopee Gravel, Inc., as provided. 2. Approve Resolution No. 6344, a resolution upholding the Board of Adjustment and Appeals determination on the Renewal ofthe Conditional Use Permit/Land Rehabilitation and Mining Permit for Shakopee Gravel, Inc., with revisions. 3. Uphold the appeal of the applicant, thereby denying the requested renewal, and direct staff to prepare a resolution for the Council's consent agenda that is consistent with that decision. 4. Table the appeal for additional information. ACTION REQUESTED Offer a motion consistent with the Council's wishes, and move its adoption. ~~ - . MarkNobl. . .. Planner I g: \cc \2006\01-03 \appealshakopeegravelcup.doc RESOLUTION NO. 6344 A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA, GRANTING THE RENEWAL OF AMENDMENT NO.4 TO CONDITIONAL USE PERMIT NO. CC-376 (AND SUBSEQUENT AMENDMENTS NO.1, 2 & 3) AND THE MINERAL EXTRACTION AND LAND REHABILITATION PERMIT TO OPERATE A MINE WITHIN THE MINING OVERLAY (MIN) ZONE WHEREAS, Shakopee Gravel, Inc., property owner and applicant, have filed an application for renewal of Amendment No.4 to Conditional Use Permit No. CC-376 (and subsequent amendments No.1, No.2 and No.3) under the provisions of Chapter 11, Land Use Regulation (Zoning), of the Shakopee City Code, Section 11.85, Subd. 2, for a Conditional Use Permit to operate a mine; and WHEREAS, this parcel is presently zoned Agricultural Preservation (AG) Zone with a Mining Overlay (MIN) Zone; and WHEREAS, the property upon which the request is being made is legally described as follows: The Northeast Quarter of the Northwest Quarter of Section 16, Township 115 North, Range 22 West, Scott County Minnesota. Also: the West Half of the Northwest Quarter of Section 16, Township 115 North, Range 22 West, Scott County, Minnesota, lying North and Easterly of the Northeasterly right of way line of the Chicago, Milwaukee, St. Paul and Pacific Railway. Also: That part of the Southeast Quarter of the' Northeast Quarter of Section 17, Township 115 North, Range 22 West, Scott County, Minnesota, lying Northeasterly of the Northeasterly right of way line of the Chicago, Milwaukee, St. Paul and Pacific Railway; and WHEREAS, notice was provided and on September 22, 2005, the Shakopee Board of Adjustment and Appeals conducted a public hearing regarding this application, at which it heard from the Community Development Director or his designee and invited members of the public to comment; and WHEREAS, on November 3, 2005, the Shakopee Board of Adjustment and Appeals approved the renewal of this application, and WHEREAS, Ms. Beverly Koehnen timely appealed the determination ofthe Board of Adjustment and Appeals; and WHEREAS, the City Council reviewed the appeal of Ms. Koehnen at their December 6, 2005, December 20,2005 and January 3,2006 meetings; and WHEREAS, the City Council reached the following findings with respect to the requested renewal of the Conditional Use PermitlLand Rehabilitation Permit: Finding #1: After reviewing the evidence in the record, the Council has concluded that with the conditions stipulated, the use will not be injurious to the use and enjoyment of other property in the vicinity. Finding #2: The Council finds that the renewal to the conditional use, mineral extraction and land rehabilitation permit, with the conditions stipulated, will not impede the normal and orderly development and improvement of surrounding property. Finding#3 : Adequate utilities, access, drainage and other necessary facilities exist to serve the site. Finding #4: The use, with the conditions stipulated, is consistent with the purposes of the Agricultural Preservation (AG) Zone and Mining Overlay (MIN) Zone. Finding #5: The use is consistent with the Comprehensive Plan guiding for the subject site. NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, AS FOLLOWS: That the decision of the Board of Adjustment and Appeals is hereby upheld, and the applicant's request for the renewal of Amendment No.4 to Conditional Use Permit No. 376 and the Mineral Extraction and Land Rehabilitation Permit is hereby granted, subject to the follOWing revised conditions: 1. The Shakopee Board of Adjustments and Appeals shall review the Conditional Use Permit and Mineral Extraction and Land Rehabilitation Permit annually to ensure that the owner/operator is in full compliance with all provisions ofthe Conditional Use Permit. Both pennits shall be renev/ed overy three years. The oGwner/operator shall apply for review and/or rcnc':/al prior to expiration of the period. no later than July 15th of each year. Applications for CUP and Mineral Extraction and Land Rehabilitation Permit review or renewal will include records of groundwater monitoring information. With each application for review rcne\val, the applicant shall submit a consolidated and updated operations plan. Notification of the meeting shall occur through use of the local newspaper and through notification to designated representatives ofthe neighborhood located within 350 feet of the Shakopee Gravel property. 2. Approval of a Conditional Use Permit rcne\Tlal or amendment is contingent upon Board of Adjustment and Appeals approval of the Mineral Extraction and Land Rehabilitation Permit. 3. Security fencing shall be used on the main access roads to control vehicular access to the mining and equipment area, and along the west property line any adjacent te existing residential development. 4. The applicant shall obtain a County Road Entrance permit from the Scott County Highway Engineer. 5. County Road weight restrictions shall be adhered to. Truck traffic shall be limited to the use of County Road 83 to Hwy. 169, Hwy. 101 and County Road 42. Absolutely no truck traffic from the mining operation shall be routed through the urban portion of the City of Shakopee. 6. Berms with a minimum height of eight (8) feet shall be built around the perimeter of each phase, installed at no greater than a 3:1 grade. Berms must be fully seeded to prevent erosion. 7. The mining operation shall maintain the following minimum setbacks: 100 feet from any residential or commercial property line; 500 feet from any residential or commercial structure that was in existence prior to commencement of mining, unless the written consent of all owners and residents or occupants of said structures is obtained; 30 feet from any road right-of-way. 8. All portable buildings must be approved by the Building Official. 9. The hours of operation of any aspect ofthe mining operation shall be limited to 8:00 a.m. to 5:00 p.m., Monday thru Friday. Truck loading operations within the pit shall be allowed from 7 a.m.-5 p.m., Monday thru Fridav. All other operations shall be allowed from 8 a.m.- 5 p.m., Monday thru Fridav. 10. Dust must be controlled by paving main access roads, watering haul roads and equipment and by any other means which will control adverse affects of dust on neighboring properties. 11. Noise emissions shall not exceed the State's noise limits~ as noted in Section 10.60 (Noise Elimination and Noise Prevention) of the Shakopee City Code, nor the MPC..^.. Standards. 12. Two propane tanks shall be permitted, one 325-gallon tank located next to the scale building and one IOO-pound tank located next to the maintenance/electrical building. The propane shall be used to heat these two buildings only. The propane tanks must be installed and maintained in accordance with State Fire Marshall Rules (Chapter 7510.3100 -7510.3280). There shall be no other fuel tanks on-site unless said tanks receive permit approval from the Minnesota Pollution Control Agency (MPCA) or other required agency. There shall be no use or storage of explosives except as approved in advance as a part of this conditional use and mining permit. 13. No direct exterior lighting shall be visible from adjacent properties or the public right-of-way. Two 125-watt high-pressure sodium security lights can be installed on the site and they must be located on the site as shown on the submitted plan. 14. Stockpiles of gravel shall be allowed to exceed 25 feet in height, but not exceed the height of the surrounding berms and shall be setback from the property lines so that visual impact is minimal from the surrounding property. 15. The applicant shall be responsible for reimbursing the City for all costs incurred in reviewing the permit through the life of the operation. 16. The revised Gravel Extraction Plan and the End Use Plan, as submitted by the applicant, shall be adhered to, without modifications, unless approved in advance by the Board of Adjustment and Appeals. 17. The applicant shall prepare in report form, a plan for operation, which if acceptable, shall be adopted by resolution as the Mining Permit. The Plan for Operation shall be comprised of 1) the submitted maps A, B, C; 2) the conditions ofthe approved permits 3) background information as contained in the memo prepared by Merila and Associates, Inc.; dated April 30, 1985. 18. The City's approval ofthe permits (CUP and Mining) is made in reliance upon the applicant's representations regarding the life ofthe operation (17 years). Any factors, or future developments which significantly delay the completion of the mining operation, may be viewed by the City as sufficient grounds to deny the three year renewal of the permit revoke both permits. 19. The Conditional Use and Mining Permits may be reviewed prior to the scheduled annual review, if the City receives comp.laints, supported by evidence indicating that the conditions oftffis these permit~ are being violated. Upon receipt of such complaints, or by the Board of Adjustment and Appeals' own initiation, the City shall schedule a public hearing, in accordance with the proper procedures for notice and publication. 20. If the Board of Adjustment and Appeals finds that the applicants have substantially, or repeatedly violated the terms of this agreement, the Board of Adjustments and Appeals may revoke said permit. 21. Expand the operation to include the 5 acre Rutt Farmstead. 22. Relocate the natural gas pipeline on the site. 23. Allow for the relocation of the central processing area. 24. Allow the final development grades to be between an elevation of764 at the bottom ofthe proposed ponds and 832 feet. 25. The operation should be mined in five phases, except as modified by any subsequent amendment to or renewal of the CUP and Mining permit. 26. The applicant shall establish a monitoring well on the subject site for ground water quality monitoring, and shall regularly (at least quarterly) record measurements from that well, which measurements shall be submitted with any application for review; renewal, or amendment.:. Mining extraction shall not exceed a depth greater than ten (10) feet above the established ground water MSL elevation. 27. The mining operations shall operate for 17 years beginning on January 16, 1996, and terminating on January 16, 2013. (new condition - previously attached to condition no. 26). 28. Provided that the applicant is granted access to future 17th Avenue, consistent with the end use development of the property, the applicant agrees to dedicate the right of way for future 17th A venue at no cost to the City and accept assessments based upon the end use development of the pro~erty. 29. The sanitary sewer along future 1 i A venue is shown, but not approved. Future extension of 1 ih Avenue will determine' the ultimate alignment and depth. The City Engineer shall determine and propose a mutually agreeable location and depth for the trunk sanitary sewer along future 17th Avenue. 30. Access spacing to future 17th A venue and CSAH 83 will be determined by Scott County, City of Shako pee and the applicant upon approval of the preliminary plat for the end use. 31. Material imported onto the site for reclamation and final site grading shall be monitored to ensure that it is environmet;ltally clean. Records shall be kept of all imported material and all ofthe necessary documentation shall be available. +he applicant will certify that the property is environmentally clean at the completion of each phase of the mining operation. The applicant will certify that the property meets any and all standards set by the MPCA or government board that regulates mine reclamation. 32. Material imported onto the site and used in the reclamation and final site grading shall only include soil materials of a bearing capacity sufficient to support development, as proposed in the End Use Plan. The depositing and compaction of materials shall be done in accordance with specifications prepared by a licensed geotechnical engineer. 33. The site shall be reclaimed in accordance with the End Use Plan and be available for development within one construction season following the completion of mining activities, if not before. 34. The storm sewer discharge along future 17th Avenue shall not exceed the design capacity in the CSAH 83 trunk storm sewer as determined by the City Engineer. The development of the subject property will necessitate the lowering ofthe storm sewer along future 1 ih A venue. The property owner shall pay the cost of lowering this trunk line. 35. No Construction cutting or filling in the Minnegasco Easement #1997-7, recorded as document #0393488, except as authorized by Minnegasco. 36. The applicant is to provide to the city an earthwork quantity calculation, to be completed by a Registered Professional Engineer or Registered Landscape Architect, and the applicant is to provide to the city on an annual basis the quantity of export and import materials. 37. If the mining operation intends to bring solid waste material onto the site, a solid waste license must first be approved by the Scott County Environmental Health Department. Adopted in session ofthe City Council ofthe City of Shakopee, Minnesota, held the day of , 2006. Mayor of the City of Shakopee ATTEST: City Clerk Prepared by: THE CITY OF SHAKOPEE 129 Holmes Street South Shakopee, MN 55379 JAMES J. THOMSON Attorney at Law Direct Dial (612) 337-9209 Email: jthomson@kennedy-graven.com December 29, 2005 Jack Y. Perry Briggs and Morgan 2200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Re: Shakopee Gravel, Inc. Conditional Use Permit Dear Mr. Perry: I reviewed your November 15,2005 letter concerning the 17"'"year durationallimit contained in the Shakopee Gravel Conditional Use Permit. I understand that the purpose of your letter is to ensure that the record reflects your opinion that the condition is not enforceable, but that your client is not asking that the condition be changed at this time. The issue over the validity of the 17-year durationallimit does not need to be resolved at this time. If, however, your client wants that condition changed sometime in the future, the City's position is that an amendm<:::nt to the conditional use permit is needed. Sincerely, James J. Thomson JJT:cr cc: Michael Leek JJT-273308vl SHl55-155 James J. Thomson 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 & _."".""..,." ." ". .'. -, "'.~~"".. "., " (612) 337-9209 telephone . I ' -"ff' (612) 337-9310 fax '. '. ". '.. ~,'.. jthomson@kennedy-graven.com CHARTERED TO: Mayor and City Council FROM: Jim Thomson, City Attorney ~y DATE: December 29, 2005 RE: Shakopee Gravel Conditional Use Permit - Court Decisions At the December 20, 2005 City Council meeting, a question came up with respect to whether any previous court decisions involving the Shakopee Gravel CUP might impact the City's ability to require renewal ofthe CUP every three years. There are two Court of Appeals' decisions involving the Shakopee Gravel CUP. The first one is a 1988 decision that arose out of the City Council's denial ofthe initial CUP application in 1985. The Court of Appeals concluded that the City Council acted improperly in denying the CUP, The Court ordered the City Council to approve it. By Resolution No. 376, the City Council approved the CUP on April 5, 1988 as required by the Court's order. The Resolution contained twenty conditions, one which was that the CUP be reviewed annually and renewed every three years. The Court opinion does not address the issue of whether the renewal condition was proper, because that issue was not part of the appeal. The second Court of Appeals' decision is a 1992 one that arose out of the installation ofa concrete plant on the property. The City contended that the CUP did not allow that use on the property, and the City Council revoked the CUP. The Court of Appeals concluded that the concrete plant was not authorized by Resolution No. 376. The Court held, however, that the City could not revoke the CUP simply because of the concrete plant operation. Instead, the Court held that the property could not be used for that purpose but the rest of the mining operation could continue. That case also does not address the validity of the renewal condition. The law with respect to conditional use permits is that they "run with the land," and they are not subject to "renewal" unless the applicant consents to it. Neither Court of Appeals' decision involving the Shakopee Gravel CUP changes the law with respect to that issue. The City Council has the authority to review conditional use permits. The purpose of such a review would be to determine whether the user is in compliance with the terms of the permit. Because the CUP in this case is being approved by the City Council, the review can occur at the City Councilleve1 if the Council chooses.