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Home My WebLink About15.A.1. Appeal of the Board of Adjustment and Appeals Determination for Shakopee Gravel, Inc. 16~A, /, CITY OF SHAKOPEE Memorandum CASE NO.: 05-120 TO: Mayor and City Council Mark McNeill, City Administrator FROM: Mark Noble, Planner I RE: Appeal of the 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: December 6, 2005 INTRODUCTION Beverly Koehnen has filed an appeal of the Board of Adjustment and Appeals (BOM) renewal of a Conditional Use Permit/Land 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 BOM 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 BOM limited options open to the City. Over the years, staffhas reviewed all previous CUP resolutions related to Shakopee Gravel, Inc. ' s mining operations, and does not believe that. they evidence a reservation of final approval authority by the Council. Specifically, staff recently reviewed the February and November 1996 Council resolutions for such reservation of authority. These were Council resolutions because the BOAA's decision was at that time appealed by Ms. Koehnen, but they did reserve future authority to the Council. Regarding the renewal issue, staff consulted with the City Attorney, who advised that the City does not really have authority to require CUP renewals, since once approved a CUP runs with the land rather than the landowner. 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 ofthe criteria required for granting the renewal, contingent on complying with the conditions of the resolution. A copy ofthe September 22,2005 and the November 3,2005 staff reports to the Board of Adjustment and Appeals, which includes the draft resolution approving the request, are attached for the Council's reference. Additionally, although it is not part of an appeal application, staff has received a letter from Jack Perry, attorney with Briggs & Morgan and legal representative for Shakopee Gravel, Inc., in which he expressed Shakopee Gravel's position on ~he issue pertaining to the permit deadline. This letter is attached solely for the Council's information. I ALTERNATIVES 1. Uphold the determination of the Board of Adjustment and Appeals, and direct staff to prepare a resolution for the Council's consent agenda that is consistent with that decision. 2. 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. 3. Table the appeal for additional information. ACTION REQUESTED Offer a motion directing staffto prepare a resolution for action at the next meeting, and move its adoption. ~ Mark Noble Planner I g: \cc \2005\12-06\appealshakopeegrave1cup.doc &0\-\ ,,=,T (A ~/O~ . ~~7~~~~4t '~~.~'.~-~~~ .11 ~ ~ ~ 7;id- ~ ~~. .~. '. .~).~~;~ ... .~~ dvr..~ &.~ )Ik i ~.;to ~ ~ 1TN-1r'^ ~ ~ .' .. ..~. ~A-r ;i;k BoA=4~p . .. . ~ 'fi ~~ /'1 . ~1- \.{~.A-< ~ .~ ~ .T11.~);t/~_~ ..~~~j;,.~-0h.... ..~. .~_~<n-.~~ .;a /J'VYt ~ 7 ~~ ~ ~ O-d.vt- ~ 1 ~v.~ . ,#~~ oLt~f..~~,.(1 ~. : -JF3~ i~ . a. J(, &:~ ~ :11- 't . ~. -:&. ~w~ ~ ~ ~v-il(7 _ i!d~~~~~~.. :#-- J () '?r[~ 1, ~nft4 rr>-,~ CITY OF SHAKOPEE Memorandum CASE NO.: 05-100 TO: Board of Adjustment and Appeals FROM: Mark Noble, Planner I SUBJECT: Renewal of the Conditional Use Permit and Mineral Extraction and Land Rehabilitation Permit for Shakopee Gravel MEETING DATE: November 3, 2005 INTRODUCTION: Shakopee Gravel, Inc. has made application for a renewal of a Conditional Use Permit and a Mineral Extraction and Land Rehabilitation Permit for their operation located at 1650 County State Aid Highway (CSAR) 83. This item was reviewed by the Board on September 22,2005, with direction to staff to prepare a revised resolution for their review at a future meeting, based on comments that the Board made. Staffhave incorporated those comments into the draft resolution attached for their information and review. New language is underlined, with deleted language struck through. ALTERNATIVES 1. Accept the renewal of the permit, as revised. 2. Accept the renewal of the permit, subject to further modifications. 3. Continue the request for a renewal of the permit. STAFF RECOMMENDATION Accept the renewal ofthe permit, as revised. ACTION REQUESTED Offer a motion accepting the renewal of the Conditional Use Permit and a Mineral Extraction and Land Rehabilitation Permit as revised, and move its approval. Boaa-pcl2005/11-03/05100cupshakopeegrave1.doc RESOLUTION NO. PC 05-100 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 PERM:IT 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 NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF ADJUSTMENT AND APPEALS OF THE CITYOF SHAKOPEE, MINNESOTA, AS FOLLOWS: That 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 permits shall be rene'.ved every three years. The oOwner/operator shall apply for review and/or renevlal 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 rene\va! will include records of groundwater monitoring information. With each application for review renewal, 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 ofthe Shakopee Gravel property. 2. Approval of a Conditional Use Permit renevlal 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 '.yest property line any adjacent to 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 Shako pee. 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 of the 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 Friday. All other operations shall be allowed from 8 a.m.- 5 p.m., Monday thru Friday. 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 MPCA Standards. 12. Two propane tanks shall be permitted, one 325-gallon tank located next to the scale building and one 100-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 ofthis 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 ofthe 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 ofthe mining operation, may be viewed by the City as sufficient grounds to deny the three year rene'l/ul ofthe permit revoke both permits. 19. The Conditional Use and Mining Pemiits may be reviewed prior to the scheduled annual review, ifthe City receives complaints, supported by evidence indicating that the conditions of this 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 ofthis 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 ofthe central processing area. 24. Allow the final development grades to be between an elevation of 764 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 ofthe 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, renev/al, 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 ofthe property, the applicant agrees to dedicate the right of way for future 17th Avenue at no cost to the City and accept assessments based upon the end use development ofthe property. 29. The sanitary sewer along future 1 ih A venue is shown, but not approved. Future extension of 17th A venue 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 1 ih Avenue and CSAH 83 will be determined by Scott County, City of Shakopee and the applicant upon approval ofthe 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 environmentally clean. Records shall be kept of all imported material and all ofthe necessary documentation shall be available. The applicant will certify that tho 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 ofthe subject property will necessitate the lowering of the storm sewer along future 17th Avenue. 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 by the Board of Adjustment and Appeals of the City of Shako pee, Minnesota, this day of , 2005. Chairperson, Board of Adjustment and Appeals ATTEST: Community Development Director Prepared by: THE CITY OF SHAKOPEE 129 Holmes Street South Shakopee,~ 55379 CITY OF SHAKOPEE Memorandum CASE NO.: 05-100 TO: Board of Adjustment and Appeals FROM: Mark Noble, Planner I SUBJECT: Renewal ofthe Conditional Use Permit and Mineral Extraction and Land Rehabilitation Permit for Shakopee Gravel MEETING DATE: September 22, 2005 SITE INFORMATION Applicant: Shakopee Gravel, Inc. Location: West ofCSAH 83 and south ofCSAH 16. Current Zoning: Agricultural Preservation (AG) Zone, with a Mining Overlay. Adjacent Zoning: North: Rural Residential (RR)/ Agricultural Preservation (AG) Zone South: Urban Residential (R-1B)/ Agricultural Preservation (AG) zone East: Agricultural Preservation (AG) Zone/Planned Residential. District (PRD) West: Urban Residential (R-1B)/ Medium Density Residential (R-2) Zone Compo Plan: Single Family Residential/Miiring Overlay Area: 136 Acres MUSA: The site is not within the MUSA at this time. INTRODUCTION: Shakopee Gravel, Inc. has made application for a renewal of a Conditional Use Permit and a Mineral Extraction and Land Rehabilitation Permit for their operation located at 1650 County State Aid Highway (CSAH) 83. The subject property is located west ofCSAH 83 and south of CSAH 16, within the Agricultural Preservation (AG)/Mining Overlay (MIN) Zone (Exhibit A). Conditions of approval include a requirement that the permits be reviewed annually, and that they be renewed every three years. This item was scheduled for a public hearing at the September 8, 2005 Board meeting; however, the applicant requested a continuance to the September 22, 2005 meeting. That request was granted by the Board. Since that meeting, Planning staff has had several discussions with Parks and Recreation staff as well as several neighbors that reside west of the Shakopee Gravel operation. There were a number of concerns raised, including 1) concerns with the request for a 7:00 a.m. start time; 2) concerns with the grade/slope ofthe berms, and the fact thatthere is sand/water run-off into the resident's yards; 3) concerns with the levels of noise coming from the equipment used on this site; and 4) Parks and Recreation staff (staff support for the Environmental Advisory Committee) have commented on the DRO levels, requesting that the Board add a condition that an additional monitoring well be added in the NE comer of the property to monitor the groundwater contamination concentrations leaving the site to the NE, and that the applicant answer questions as to why DRO concentrations are being detected and where are they coming from. Staffhave already included a comment on a request for an additional monitoring well (see comments on condition no. 26). The other concerns have been shared with the applicant (staff have asked Shakopee Gravel to address the run-off situation, either by seeding andlor silt fencing the areas of concern, and ask that they monitor the berm along the west property line to ensure that the swales cut into the berms are carrying water runoff away from the neighboring properties) and the applicant is working to have responses by the Sept. 22nd Board meeting.. CONSIDERATIONS: Shakopee Gravel, me. received approval of a Conditional Use Permit and a Mineral Extraction and Land Rehabilitation Permit Amendment on May 21,2002 (Resolution No. 5727). The conditions listed in the resolution shall be considered in the review andlor renewal of the Conditional Use Permit and the Mineral Extraction and Land Rehabilitation Permit. The applicant's consultant has submitted several documents with the application, including letters concerning the groundwater monitoring report, a copy of the standard operating procedures for inbound material examination, and a project narrative, specifically addressing each condition of the approved Resolution No. 5727 (Exhibit B). m their response, they have asked for several changes, including changes to conditions # 1,2, 7, 9, 11, 17, 18,23,25,26,27. Those changes primarily pertain to the removal of the condition requiring a renewal ofthis permit every three (3) years (suggesting that the yearly review adequately provides the city an opportunity to monitor this property activity), allow for the business to start at 7:00 a.m. (presently, 8:00 a.m. is the permitted start time) to be consistent with other construction related activities in the city, and to remove the condition stipulating that this operation must be terminated by January 16, 2013, arguing that they be allowed to mine the property until the diminishing assets have been exhausted. The Board should review the applicant's comments as well as staff's comments in conducting the renewal of this permit. City Engineering has provided a memorandum that includes several conditions of approval (Exhibit C), primarily concerning future 1 ih A venue that will be extended from the west to CSAH 83. These conditions have been incorporated into the resolution. Shakopee Public Utilities continue to receive a copy ofthe quarterly groundwater test results. Their comments include that based on previously received information addressing ultimate development/reclamation, their water system planning is based on this property being located in the Normal Elevation (less than 825') Service District (Exhibit D). CenterPoint Energy Minnegasco commented that mining operations shall not excavate or disturb the integrity of the high pressure transmission pipeline along the north, east and west property lines. The Minnesota Pollution Control Agency provided a letter that addressed noise level limits for this property. A copy ofthat letter is attached for the Board's information (Exhibit E). Planning Staff has also reviewed each condition to verify whether the site is operating in compliance with the requirements. The conditions and staffs comments are as follow: 1. The Shakopee Board of Adjustments and Appeals shall review the Conditional Use Permit and Mineral Extraction and Land Rehabilitation Permitannually. Both permits shall be renewed every three years. Owner/operator shall apply for review and/or renewal prior to expiration ofthe period. Applications for CUP and Mineral Extraction and Land Rehabilitation Permit review or renewal will include records of groundwater monitoring information. With each application for renewal, the applicant shall submit a consolidated and updated operations plan. The Board should discuss whether the requirement for a renewal every three years shall remain, or whether it should be removed as requested by the applicant. Staff would be comfortable with the removal of the reference to the three year renewal, provided the annual review of this permit remains. Staff have attached the recent Groundwater Monitoring and Sampling Reports, and the Annual Groundwater Monitoring Summary for the Board's information. 2. Approval of a Conditional Use Permit renewal or amendment is contingent upon Board of Adjustment and Appeals approval of the Mineral Extraction and Land Rehabilitation Permit Again, staff would be comfortable with the elimination of the renewal requirement provided the annual review condition remains. 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 adjacent to existing residential development. Security fencing is installed along County Road 83. Chain linkfencing has also been installed along portions of the west property line adjacent to the residential developments. The applicant has also provided substantial berms and installed no trespassing signs adjacent to theresidential developments. 4. The applicant shall obtain a County Road Entrance permit from the Scott County Highway Engineer. This condition has been met. 5. County Road weight restrictions shall be adhered to. Truck traffic shall be limited to the use ofCqunty Roaq 83 tq 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. This condition is being met, although staff believes that due to the relatively recent construction of Hwy. 169, truck traffic undoubtedly utilizes this roadway for a number of their trips. 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. Staff believe that berms have been built consistent with this condition. 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; 30 feet from any road right-of-way. The applicant has suggested new language that they believe would eliminate some confusion with the present language. Staff is satisfied with the proposed language. Additionally, staff has and will continue to work with the applicant and the developers of the land surrounding this operation to ensure that appropriate road connections will be providedfor this area of the city as development occurs. 8. All portable buildings must be approved by the Building Official. This condition is presently being met. 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. The applicant has requested that they be allowed to commence business at 7:00 a.m. The Board should consider this request in their review of this application. 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. Staff has received no evidence that this condition is not being met. 11. Noise emissions shall not exceed the noise limits as noted in Section 10.60 (Noise Elimination and Noise Prevention) of the Shakopee City Code, nor the MPCA Standards. The applicant has suggested minor changes to the existing language. Staff does not have an issue with this proposed text change. 12. Two propane tanks shall be permitted, one 325-gallon tank located next to the scale building and one 100-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 part ofthis conditional use and mining permit. There exist two (2) diesel fuel tanks which are fastened to trailers. The trailers house the generators that run the mining equipment. These tanks are approximately 4 feet high, 6- 8 feet wide and 6-8 feet deep. There do not appear to be any additional tanks since staff conducted a site visit in May, 2002. 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. There exist two (2) light sources; one that is located near the equipment on the floor of the mining operation and one that is located outside the scale building. This second light source is visible only by traffic passing by the entrance driveway to the facility. 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. During a recent inspection, staff noted that there are piles of material visible above the berms. These piles are import material or overburden material which are intended to be utilized in the site reclamation. 15. The applicant shall be responsible for reimbursing the City for all costs incurred in reviewing the pennit through the life of the operation. There has been no cause to seek reimbursement for city costs in the review of this project to date. 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. The revised end use plan approved in May, 2002 is the one that the city staff will utilize in the ongoing review of this property. 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. This condition has been met. The applicant is requesting the elimination of this condition. The Board shall consider this request in their review of this application. 18. The City's approval ofthe permits (CUP and Mining) is made in reliance upon the applicant's representations regarding the life of the 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 ofthe permit. The applicant has proposed a significant change to the language of this condition. The Board shall review that proposed change and consider it in their review of this application. 19. The Conditional Use and Mining Permits may be reviewed prior to the scheduled annual review, if the City receives complaints, supported by evidence indicating that the conditions of this 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. Staff is not aware of any recent complaints filed in reference to this property. 20. If the Board of Adjustment and Appeals finds that the applicants have substantially, or repeatedly violated the terms oftms agreement, the Board of Adjustments and Appeals may revoke said permit. Staff is not aware of any violations of this agreement. 21. Expand the operation to include the 5-acre Rutt Farmstead. This parcel is included in the operation. Staff suggests that the Board consider whether it is appropriate to remove this.condition at this time, as the structure has been removed. 22. Relocate the natural gas pipeline on the site. This condition has been met. 23. Allow for the relocation of the central processing area. The applicant has provided a response as to why they do not plan, at this time, to relocate the central processing area. If in the future the processing area is moved, all conditions listed in this resolution, particularly those pertaining to setback requirements and nQise emission control requirements, will be reviewed for compliance. 24. Allow the final development grades to be between an elevation of764 at the bottom of the proposed ponds and 832 feet. This condition appears to be met. It does not appear that the floor of the operation has been lowered since the May, 2002 inspection. 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. This is the intent of the operation. The applicant has provided a minor change to the existing language, which staff is comfortable with provided the Board agrees with the removal of the permit renewal condition. 26. The applicant shall establish a monitoring well on the subject site for groundwater 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. The mine shall operate for 17 years be2innin2 on Januarv 16.1996. and terminatin2 on Januarv 16. 2013. Staff have received quarterly Groundwater Monitoring Reports and have shared them with the City Council, Shako pee Public Utilities Commission, and the Environmental Advisory Committee. The reports may be reviewed by contacting staff, and will be available to the Commission at the September 8,2005 meeting. The location of the soil- boring test site is in the northwesterly portion of the property. There has been a substantial amount of discussion concerning the readings on the diesel range organics (DRO's); however, staff's discussions with the State Department of Health and Shako pee Public Utilities Commission regarding the levels have yielded no apparent concerns at this time. Additionally, the applicant has provided a document from their engineering consultant that addresses the dro concentrations documented on this property. Staff suggests that the Board consider requesting. at least one additional monitoring well, to be located in the northeast area of the property, to ensure adequate documentation concerning this issue. The language in bold and underlined shall be changed to read as its own condition (see new condition no. 27), as discussed at last year's review of this project. 27. The mine shall operate for 17 years beginning on January 16, 1996, and terminating on January 16, 2013. The applicant has suggested a substantial change to this condition. The Board shall review the language suggested by the applicant and make a determination as to whether a change to the termination date is acceptable. 28. Provided that the applicant is granted access to future 1 ih Avenue, consistent with the end use development ofthe property, the applicant agrees to dedicate the right of way for future 1 ih A venue at no cost to the City and accept assessments based upon the end use development of the property. Additional review of this condition will occur as discussion for planning the extension of 17th Avenue occurs. City Engineering commented that the applicant must sign a waiver of assessment appeal for 1 ih Avenue improvements. 29. The sanitary sewer along future 1 ih Avenue is shown, but not approved. Future extension of 17th 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. Additional review of this condition will occur as discussion for planning the extension of 1 ih Avenue occurs. City Engineering commented that sanitary sewer shall be extended to the south side of 1 ih Avenue at CSAH 83 to serve this property. 30. Access spacing to future 17th Avenue and CSAH 83 will be determined by Scott County, City of Shakopee and the applicant upon approval of the preliminary plat for the end use. Further review will occur at or before the time of submittal of a preliminary plat application for this property. City Engineering commented that access spacing to 1 ih Avenue and CSAH 83 will be determined by Scott County and the City of Shako pee at the request of the City at no cost. 31. Material imported onto the site for reclamation and final site grading shall be monitored to ensure that it is environmentally clean. Records shall be kept of all imported material and all ofthe necessary documentation shall be available. The applicant will certify that the property is environmentally clean at the completion of each phase of the mining operation. The applicant has stated that they are keeping records consistent with this requirement. This information is available to the Board upon request to the applicant. 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. The applicant has stated that this condition is being met. City Engineering commented that no import of material shall be utilized for the final end use grading plan. 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. The applicant has stated that this condition is being met. 34. The storm sewer discharge along future .17th A venue 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 of the storm sewer along future lih A venue. The property owner shall pay the cost of lowering this trunk line. Additional review of this condition will occur as discussion for planning the extension of 17th Avenue occurs. City Engineering commented that the storm sewer discharge along 17th Avenue shall not exceed the design capacity in the CSAH 83 trunk storm sewer as determined by the City Engineer. 35. No Construction cutting or filling in the Minnegasco Easement #1997-7, recorded as document #0393488, except as authorized by Minnegasco. This condition appears to be met. CenterPoint Energy Minnegasco commented that mining operations shall not excavate or disturb the integrity of the high pressure transmission pipeline along the north, east and west property lines. 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. The applicant has provided the earthwork quantity calculations as required. 37. Ifthe 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. The property owner does not intend to bring solid waste material onto the site. The owner is aware of the requirement if they elect to pursue this further. ALTERNATIVES 1. Accept the renewal of the permit. 2. Accept the renewal ofthe permit, subject to modifications. 3. Continue the request for a renewal of the permit. STAFF RECOMMENDATION Accept the renewal of the permit, subject to modifications. ACTION REQUESTED Offer a motion accepting the renewal of Resolution No. 5727, with modifications, and move its approval. Boaa-pc/2005/09-22/05100cupshakopeegrave1.doc . FX-H 10'''' e, . CUP REVIEW 5-21-05 .. REVISED 8-3..05 RESPONSE BY SHAKOPEE GRA VEL INC. TO STATUS OF CONDITIONAL USE PERMIT RESOLUTION NO. 5727 A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOT~ GRANTING AMENDl\1ENT 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 OPE~TE A MINE WITHIN THE MINING OVERLAY (MIN) ZONE WHEREAS, Shakopee Grave~ Inc., property owner and applicant, have filed an application dated December 20, 2001, for an Amendment 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 (M1N) Zone; and WHEREAS, the property upon which the request is being made is legally described ~ 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 olway line of the Chicago, Milwaukee, St. Paul and Pacific Railway; and WHEREAS, notice was provided and on Nov. 4, 1993; Dec. 9, 1993; March 9, 1995; April 6,1995; May 4, 1995; June 8,1995; July6, 1995; August 3, 1995; and February 7, 2002, the Shakopee Planning Commission or the 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 ~e public to comment; and V1HERBAS, Ms. Beverly Koehnen timely appealed the detenninationofthe Board' of Adjustment and Appeals; and \VHEREAS, the City Council reviewed the appeal of Ms. Koelmen at it's meeting of May 7,2002; and W.HEREAS, the City Council reached the following findings with respect to the requested amendment and applicable ordinance criteria: Finding #1: After reviewing the evidence in the record. the Council has concluded that. not '1'ooei}'Ods:ny ~'idance t.1tst tho usa, with the conditions stipulated, the use will not be injurious to the use and enjoyment olother property in'the vicinity. Finding #2: The Council finds that the amendment 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 stipulateti 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 guidingfor the subject site. NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF S~OPEE, MINNESOTA, AS FOLLOWS: That the decision of the Board of Adjustment and Appeals is hereby upheld, and the applicant's request for 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 Permitannually. Both permits shall be renewed every three years. Owner/operator shall apply for review and/or . renewal prior to expiration of the period. Applications for CUP and Mineral Extraction and Land Rehabilitation Pennit review or renewal will include records of groundwater monitoring information. With each application for renewal, the applicant shall submit a consolidated and updated operations plan. Response: This condition is being met. In addition to the required application forms and fees, twenty-six copies of the Existing Condition Plan and one copy of all of the quarterly groundwater reports to date have also been submitted under separate cover. The applicant does not agree with the ptocess of renewirig the permits every three years. The applicant has maintained consistently that this Conditional Use Permit (CUP) remains valid as long as the conditions attached to the original permit are being met. ~he applicant has agreed with and has fully cooperated with the annual review process. Th~s'language was included in the original conditions in 1988, but it has not been enforced. Rather the annual reviews and periodic permit amendmentsfmodific~tions have provided more than adequate permit review. As documented by correspondence between the applicant's counsel and the City, there is, as well, significant question regarding the legality of what is effectively a durational restriction on the permits. Moreover, there are provisions in the City's ordinance regarding a CUP for altering, amending or reviewing a CUP, but there is nothing written about renewing a CUP (Section-ll.8S). The Board of Adjustment and Appeals (BOAA) may review the CUP periodically and may revoke the CUP if there are one or more Violations of the conditions that cannot be readily remedied. The applicant does not believe the permit renewal every three years adds any further protection than what is already required by ordinance '''I . . to preserve the health, safety, or welfare of the community or in order to implement the purposes of this [CUP] Chapter or the comprehensive I . " -, pan.. . . . .. . " . . . For these pragmatic and legal reasons the condition should be amended to read: "The Shakopee Board of Adjustments and Appeals shall review the Conditional Use Permit and Mineral Extraction and Land Rehabilitation Permi(annually. Owner/operator shall apply for review prior to expiration of the period. Applications for CUP and Mineral Extraction and Land Rehabilitation Permit review will include records of groun~water monitprfng information. With each application for review, the applicant shall submit a consolidated and updated operations plan illustrating the changes that have occurred since the previous submittal." 2. Approval of a_Conditional Use Permit renewal or amendment is contingent upon Board of Adjustment and Appeals approval of the Mineral Extraction and Land Rehabilitation Permit Response: This condition has been met. To reflect the proposed change to Condition 1, this condition should be amended to read: "Approval of a new Conditional Use Permit or amendment is contingentupon 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 adjacent to existing residential development. Response: This condition has been met as of May 16, 2003. 4. The applicant shall obtain a County Road Entrance permit from the Scott County Highway Engineer. Response: This condition has been met as of March 22, 1999. 5. County Road weight restrictions shall be adhered to. Truck traffic shall be limited to the use of COtiI1ty Roaq 8$ t,g 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. . - Response: The operation of the business is in compliance with this condition. 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. Response: This condition is being met. The berm along the west property line was ......pre:v.iously-extended.south..to screen .the northerly half.of.the miningope.ration. Topsoil and overbl;lrden material is being stripped on approximately 16 aC1;'es of the southwesterly portion of the property adjacent to the existing operation. Because the depth of overburden material is much deeper in the southern area of the site, it is necessary to increase the height of the berm in the mining setback area. This material is being temporarily stockpiled in a berm that ranges in height of eight (8) feet to twenty-five (25) feet along the west property line in the southwestern area. 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; 30 feet from any road right-of-way. Response: This condition is being met. The DOAA agreed at the last review in 2004 that this condition should be no more restrictive than Section 11.52 Mining Overlay Zone, Subdivision 6B Design Standards. To avoid confusion by others reading the document, the applicant requests this condition be amended to read: "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 m~st be approved by the Building Official. Respo.nse: This condition has been met. 9. The hours of operation of any aspect ofllie mining operation.shall be limited to 8:00 a,m. to 5:00 p.m., Monday thru Friday. Response: The applicant requests that this condition be amended to allow operations to start at 7:00 a.m. This is consistent with all other construction related activities in the City of Shakopee. This condition should be amended to read: "The hours of operation of any aspect of the mining operation shall be limited to 7:00 a.m. to 5:00p.m." 10.. Dust must ~e controlled by paving main access roads, watering haul roads and equipment andby any other means which will control adverse affects of dust on neighboring properties. Response: This condition is being met. 11. Noise emissions shall not exceed the noise limits as noted in Section 10.60 (Noise . ..... .... .....__Elimmation-and..Noise..P.xe:v.ention)..of.the..8hakopee..City Code"nor the.MPCA. . . . Standards. Response: This condition is being met. Since the City's noise limits cannot legally . be any more restrictive than the State's, this condition should be amended to \ read: "Noise emissions shall not exceed the S~ate's noise limits, as noted in Section 10.60 (Noise EIimination and Noise Prevention) of the Shakopee City .Code." 12. Two propane tanks shall be pennitted, one 325-gallon tank located next to the scale building and one 100-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 pennit approval from the IY.fumesota 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. Response: This condition has been met. 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. Response: This condition has been'met. 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. Response: This condition is being met. 15. The applicant shall be responsible for reimbursing the City for all costs incurred in reviewing the permit through the life of the operation. . Response: According to City Staff, "there has been no canse to. seek reimbursement for city costs in the review of this project to date." 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. Response: This condition has been met. The End Use Plan was revised pursuant to changes in the County Road alignments and authorized access points and 4isc~ssions with City Staff regarding future land use, not as a . result of action by the applicant. The Gravel Extraction Plan and End Use Plan was approved in 2002. According to City Staff, "the new end use plan is the one that the city staffwiII utilize in the ongoing review of this property." 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 of the approved permits 3) background information as contained in the memo prepared by Merila and . Associates, Inc.; dated Apri130, 1985. Response: This specific condition was satisfied in 1996. Therefore, Condition 17 can be deleted. The requirement for an updated and current plan for operation is provided for in Condition 1. 18. The City's approval of the permits (CUP and Mining) is made in reliance upon the applicant's representations regarding the life of the 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. Response: While an average extraction. rate can be determined over the period that the applicant has been operating themfne, it is impossible to predict the amount of material that can be sold in anyone year. For example, from' September 1, 1998 to December 31,2004, a period of 76 months, the applicant sold 2,230,016 cubic yards of material, an average of 29,342 cubic yards per month. Based on this average alone, the mining operation could easily be completed within the 17 year "life." But annual sales have ranged from 142,387 cubic yards in 1999 to 505,342 cubic yards in 2002; respective averages of11,866 cubic yards and 4Z,111 cubic yards. The applicant is thus concerned that future sales of material could potentially be more in keeping with sales in 1999 than in 2002. The applicant is also concerned that this condition as written unfairly burdens the applicant with any factors or future developments beyond the control of the applicant. The applicant is taking steps to better market its material and therefore complete the mining sooner, but its individual efforts may not be enough to combat external market forces. No business, especially one with diminishing . assets, should have t,o worry about selling more of its products than market conditions. allow within a limited time period. Indeed such condition is irreconcilable with Supreme Court precedent. The applicant will continue to keep the City informed of the amount of material sold and imported as 'required in the CUP, and it will also provide an estimate of the material believed to be remaining on site. The applicant will commit to taking steps to sell the material on the property and will share information with the City to illustrate the sta~s of its mining activities. This co.ndition should be amended to read: "The City's approval of the permits (CUP and Mining) is m~de in reliance upon the applicant's representations regarding the amount of material sold,. the amount of material imported and' an estimate of the material believed to be remaining on site. The average monthly extraction rate will be adjusted annually based on business activity and an estimated completion date for mining operations shall be provided at each yearly review. The applicant shall immediately notify the City of any factors or developments 'not currently addressed in the CUP which may significantly delay the completion of the mining operation." 19. The Conditional Use and Mining Permits may be reviewed prior to the scheduled annual review,ifthe c;ity receives complaints, supported by evidence indicating that the conditions of this permit are bei}:lg 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. Response: City staff has not received any complaints over the last eight years, but the applicant agrees that the City has the authority to review this permit at any time. 20. If the Board. of Adjustment and Appeals frods that the applicants have substantially, or repeatedly violated the tenus of this agreement, the Board of Adjustments and Appeals may revoke said permit. Response: City staff has not received any complaints over the last eight years. 21. Expand the operation to include the 5-acre Rutt Fannstead. Response: This condition has been met. The house has been removed. 22. Relocate the natural gas pipeline on the site. Response: This condition has been met. 23. Allow for the relocation of the central processing area. Response: The relocation of the central processing area would be an extremely expensive action. It is also true that due to the new residential development that the City has approved surrounding portions of this property, the moving of the processmg equipment would have the undesirable consequence of moving it closer to adjacent homes. At this point it appears that the central processing area will only be relocated if it is necessitated by reclamation for staged. development. 24. Allow the final development grades to be between an elevation of 764 at the bottom of the proposed ponds and 832 feet. Response: This condition is being met. . 25. The operation should be mined in five phases, except as modified by any subsequen~ amendment to or renewal of the CUP and Mining permit. Response: This condition is being met. Pursuant to the response to Condition 1, this condition should be'amended to read: "The operation should be mined in five phases, except as modified by any , subsequent amendment to 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. The mine shall operate for 17 years beginning on January 16, 1996, and terminating on January 16, 2013. Response: This condition is being met. The monitoring well is shown on the Existing Condition Plan near the northwest corner of the property. The last sentence should be deleted from this condition and stated as Condition 27. Subsequent conditions have been renumbered. . This condition sh~uld be amended to read: "The applicant shall establish a monitoring well on the subject site for ground water quality monitoring, and sh.all 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 mine shall operate for 17 years beginning on January 16, 1996, and terminating on January 16,2013. Response: The mining operation could be completed on January 16,2013 if the current average extraction rate of 29,342 cubic yards per month can be maintained until then. However, the applicant would like some assurance that the . mine will not be required to close prematurely. Pursuant to.the response to Condition 18, this condition should be amended to read: "The mine shall be permitted to operate until the diminishing assets have been exhausted. No additional imported material, other than what is necessary for site restoration, shall be permitted after one year following the completion of mining operations. Site restoration shall be completed at the end of the construc~ion season in the following year." 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 17tll A venue at no cost to the City and accept assessments based upon the end use development of the property. Response: The City's engineering consultant forwarded roadway plans and : profIles for 17th Avenue dated February 10, 2005 that proposes full access to the property at 1,349 feet west of the centerline of County Road 83. The proposed road profIle indicates that the elevation of 17th Avenue will be at least eight (8) feet below the existing berm along the north property line. The applicant reserves the right to reclaim excess topsoil and overburden material used to construct berms within the future right of way prior to dedication of any right of way. No fmal construction plans have been provided to the applicant for verification at this time. 29. The sanitary sewer along future 17th A venue is shown, but not approved. Future extension of 17th A venue will detennine the ultimate alignment and depth. The City Engineer shall determine and propose a mutually agreeable location and depth for tbe trunk sanitary sewer along future 17th Avenue. Response: In January, City Engineering Staff proposed extending utilities onto the property near the northeast corner instead of locating the utilities in the 11th Avenue right of way as proposed in the End Use Plan. City Engineering Staff was notified that installing utilities into the site at this time would interfere with mining operations and possibly limit future development opportunities. At that time, the applicant made a determination that aU utilities should remain within the future right of way. City Engineering Staff contacted the applicant on July 29, 2005 regarding the cost of lowering the estimated assessment if storm sewer could be extended to the property near County Road 83 instead of the proposed access indicated in the applicant's.End Use Plan, but did not mention lowering the assessment for sanitary sewer. The feasibility study for 17th Avenue has not been completed so the applicant is not fully aware of the assessments. The applicant is currently reviewing the impact 011 mining operations and future development and will be discussing the situation with City Engineering Staff. 30. Access spacing to future 17th Avenue and CSAH 83 will be determined by Scott . County, City of Shakopee and the applicant ~pon approval oithe preliminary plat for the end use. Response: Not applicable at this time. According to City Staff, "Further review wID occur at or before the time of submittal of a preliminary platapplication for this property." _. ..__~_3L.-MateriaLimp.orte.d_onto_the_site..for..r.e.c1amation..a.nd..:finaLsite_grading_shall..be_____... _. _. _ _ _ _._ monitored to ensure that it is environmentally clean. Records shall be kept of all imported material and all of the necessary documentation shall be available. The. applicant will certify that the property is environmentally clean at the completion. of each phase of the mining operation. Response: This condition is being met and this information is shared with City Staff during its annual review. 32. Material imported onto the'site and used in the reclamation and final site grading shaH 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. Response: This cOJJ.dition is being met. An engineering firm, has been retained by the applicant for reclamation consultation. All fill that is placed as part of the reclamation process is placed and compacted in accordance with accepted engineering standards to ensure the creation of acceptable bearing capacity to support future development. 33. The site shall be reclaimed in accordance with the End Use Plan and be available for development within OIle construction season following the completion of mining activities, ifnot before. Response: This condition is being met. 34. The storm sewer discharge along future 17th Avenue shall not exceed the design capacity in the CSAH 83 trunk stonn sewer as determined by the City Engineer. The development of the subject property will necessitate the lowering of the storm sewer along future 17th A venue. The property owner shall pay the cost of lowering this trunk line. Response: City Engineering Staff contacted the applicant on July 29, 2005 regarding the cost of lowering the estimated assessment if the storm sewer could be extended to the property near County Road 83 instead of the proposed access indicated in the applicant's End Use Plan. The applicant is currently reviewing the impact on mining opera,tions and future development and will be discussing the situation with City Engineering Staff. . , . 35. No Construction cutting or filling in the Minnegasco Easement #1997-7, recorded as document #0393488, except as authorized by Minnegasco. Response: This condition is being met. 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 . ..,,' ..,. .imp.ort..materials.. .'- ... ... . - -.. -, --, --.-..-.----.- .-.--.- ---- Response: This condition is being met on an annual basis. The operations area of the site is surveyed at the end of each year to identify the current mine face and stockpiles of aggregate products for sale. Annual sales ending December 31st of each year are reported to Scott County. The applic'ant has exported 277,696 loose cubic yards (LeY) from May 1 to December3!, 2004, and imported 26,752 LeY of material from May 1 to December 31,2004. The Existing Condition Plan illustrates the historic pit edges, restoration areas and stockpiles of various products as of December 15, 2004. New information is superimposed over the topographic mapping prepared from aerial-photography September 29, 2001. 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. Response: The applicant does not intend to brfug solid waste material onto the site. Adopted in session of the City Council of the City of Shako pee, Minnesota, held the day of , 2002. ... - '" .., .... .- '" ... Mayor_of.th.eCity..of.Shakopee... _ _ ._ _ . .. -. .. . .... ".-. . ATTEST: City Clerk Prepared by: THE CITY OF SHAKOPEE 129 HaImes Street South Shakopee,~ 55379 CERTIFICATION OF RESOLUTION NO. 5121 I, Judith S. Cox, City Clerk for the City of Shakopee, do hereby certify t#at the attached -is a true and correct copy of Resolution No.S727, presented to and adopted by the City Council of the City of Shako pee at a duly authorized meeting thereof held on the _ day of , 2002, as shown by minutes of the meeting in my possession. Dated this day of ,20 .. - Judith S. Cox . City Clerk SEAL . " INCOA!'O&ATBD August 3, 2005 City of Shakopee C/o Board of Adjustment and Appeals 129 Holmes Street South Shakopee, Minnesota 55379-1351 RE: Transmittal of requested infonnation related to city review of the Mineral Extraction and Land Rehabilitation Permit for Shakopee Gravel, Inc. Honorable Chair and Members of the Board: At the request of the city staffwe are submitting a list of property ovvners within the specified legal limits surrounding the Shakopee Gravel, Inc. property. This information is being requested in order to notifY these owners of the upcoming public hearing for the annual review of the subject permit. Property tax statements and a copy of the record of payment-are also submitted as evidence of ownership. / The language in the approved conditional use permit (cup) calls for the permit to be reviewed annually and "renewed" every three years. The last major evaluation of the permit occurred May 2 I, 2002. Since that time we have been implementing the reporting and review procedures that were authorized by the Board and they have worked very well. The question of permit review versus permit "renewal" has been a point of contention for some time. We continue to believe that a conditional use pennit is a land use permit that runs with the land and remains valid as long as the conditions established at the time of approval are being met. The City of Shakopee is completely within its authority to review this permit annually (or at any time) and has the authority to enforce the original conditions, but we do not accept the notion that the permit will lapse if a renewal is not applied for and approved. Although this permit was the source of con~iderable conflict in the beginning, we have been working hard to put that behind us and move forward in positive and constructive ways. To this end, we explored and mutually agreed to some new conditions of approval during the 2002 review and approval process. That particular occasion was somewhat unique because the End Use Plan approved with the initial permit had to be amended to accommodate changes in the surrounding Scott County and City of Shakopee roadway systems and to modify proposed land uses to be more compatible with surrounding properties and more realistic given the nature of adjacent roadways and access conditions. 300 FlRST AVENUE NORJH SUITE 210 MINNEAPOLIS, MN 55401 PHONE (612)339.3300 FAX (612)337-5601 , . The City Attorney has invited us to suggest some changes to the pennit language to settle this issue. We welcome that opportunity and appreciate'the suggestion. We met with city staff to discuss several issu~s and in p~icu1ar some of the original conditions that have either already been satisfied, or are otherwise no longer necessary, or beneficial. We also identified some . other modifications that would update and approve the conditional use pennit. None of these changes affect the substance of the city's authority, or alter the fundamental objectives of mining the valuable resources on the subject property, operating the mining with sensitivity to ............. . ..s.JJ.IT9.@.g~gJ~4.g~~~,-..Qg~9.~~~g,!~~...~g4.t.q..~~~~..~..P.Jg~.'y'~!~.~4..~P.:4...~.~.~.. ..... ...................... ... . .. .. ......".... ........................ ............. We look forward to working with you to improve the pennit, strengthen and clarifY the review procedure and facilitate the successful reclam~tion and end use of this important property. . Sincerely, Dahlgren Shardlow & Uban, Inc. r4-.~ John W. Shardlow, AICP President and Director of Planning . Page 2 ;:2::;:::!:';':~~~::':;:( ;Y!.C~<};j~I~;:(i:~:; !:)':~'!;,\~!?~::'?i,: :::}?:~}j7'.!}:::~tn:;;3.~;?i~~l~F:f;:'i~~!fr;~)J,: " '. '. ''''''''Atigust"'ll- 2,005"'.: .\ ...J..,. ..,' .........,'.....'. ...' . .,' ....,. ...,: .......,. '..... ...... .... " ,;."...., '... 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';. ,,:; .:::':,. ,.: .:<: ,\'i:, .::: :':.~>':-~::..,If.yQ:u::1i.av.e;'any .qu~~#ons re~afui:tiie.,:matel;iaI!,pies'e1ited:m..;tl:i:is .~adelldQiiih?le'ase:~e.el: .: :,' :\" .~,:::' :':. ~. '::: :", : :. '. .... "':-:~ . i'~ " ...... . :, iliI ~H:..;:. :0.. :. '6.....:.. '$'" ..... ';'1 :-.; . ;. ,.to. .~. ';.. ... ......~"'. .... :." '.:t :., ~.. I': ......:. . ...... .....~.... .~ r ...., :. "1' ... .": . .....':":..f . .,,:. ..... . .... '".. .. - '.'," '.freeto..c ,ong'at-:7 .3.:.9:78- 07. ..'..... : .' .' "". ,;.~ ... :'i.:~." .'... ' ...,.. .:.... ;-', :.' ';. ,,,:". ..... :' ..':" .., , ' ".!" ..... . ...,. : ' ,ft.\(;~ ';i' :.:~\:;'~~\~":: ;~:}(i~:: ':.': '.;/ \~::/;>~ '~}.nl :';:,~1 ?5 <~:.~,~~~.: / :.::.~,:>~.:{~.:<~:::~\.~:.:)E.~~. :.::::;.;.f.:\:;;.;::-,f: ,.),( .f:;,:::: :'(:!. .~t:~. :~:~~:f~~ ,,>':;~:E;~',!~::;:'; f-<< ::\:.:' '" ....Smcerely.. .... ,"I', .'..\..... ',' ....,..... .... .. ',' ...'.,.... ....,....... '... .. "'1' '.' .~..i:;~t;;,.;,:';:':.'/~>;:~:;j.;'.; .:: ~~};~: ;.;:~\;;:~::~.:<;~;:,'~.:?:r::~:\:..::::;~\\.~...,..:::!;;~>.::.';~{ :;,.,\:ii: {/.:.: '., .......:......'H. T:"S"'-" .,' '. .,,'.... ...,......:'~M k';.ts;"'C'l1iiis" 'I.'....",.' " '.' :.'. -,..,~..... ".' ,.. '.. .: ...., '~.: ..~ I:':.:::..:. ~:: "~:". . ..?l;l~. ~ I~. ,,~. ~~~~ ~.: :.::.....:(~..~:'.. '. ': t'~ ::/ ;:'.: ':':' ~: .~..::. :........~ .1. :: .~: . :'.~ .~~. . ~'~'" ~ " ~ l-;:: '.: '.:' .,~";i :/':< .~.:; :' ~;:~, ~:: :~': ~~: .~, ;.,:; : ::.:" '.:::. :.;.> .': r .::' ::'~: .~',.:~ : :" ...'...,'.~..;" ',.\':Hydrogeolog1st. ...,.....', ..... ',:.':: ".':,: ......sem0r:Hydr'Q10~s.t' '. ....',....:.::;..... ;:.'.... ,....' ,'. ....,;..;.,:!:...;., :.... '. . Standard Operating Procedures Title: Inbound Material Examination. purpose: This SOP is designed to provide guidelines for accepnng inbound materials. for till at the Shakopee Gravel facility. Necessary Equipment: Inbound Material Checklist Initial Evaluation Sheet Soil and Stratigraphic Analysis Chart Pr~cedure: 1. When Shakopee Gravel is contacted regarding accepting fill material, an Initial Evaluation Sheet will be used to document the souroe area, type of soil and relative quantity to be delivered. 2. The customer is infonned that only clean till is allowed and that Shakopee Gravel does not accept concrete, asphalt, or organio material (i.e. roots, sod, ect). 3. When the material arrives, it is inspected in the truck to ensure that the material is acceptable before it is even allowed into the pit. The cleanliness, quality, and type of material i$ documented. A Soil and Stratigraphic Analysis Chart is used to describe the fill material. If the material does not pass the initial inspection, the material is turned away. 4. If the material passes the initial inspection, the hauler is al1ow~ into the pit in an area designated for the type of material and by a Shakopee Gravel employee. 5. After the material is emptied into the designated area, a front end loader will spread out the material in a horizontal bed. If at this time macceptable material is discovered, the customer will be contacted to arrange pick up of any offending material. 6. All forms and questionnaires documenting the acceptance offill material in the Shakopee Gravel facility will be stored for documentation. C"p~... . ." . '". ',.... ~(':~';"" ~. .. .. ...' :vi:L' '. . . '.' . '. .JNC. Initial Evaluation Sheet Inbound Materials Contact Information Contact Name: Company Name: Address: Telephone Number: Material Infonnation TYpe ofMateria1: Compatibility; Quantity: Source: Date of Disposal: Additional Comments: Employee: Date: .1.. t\.(f-l \~" C- ~..' City of Shakopee Memorandum TO: Mark Noble, Planner I FROM: Jeff Weyandt, Assistant City Engineer SUBJECT: CUP Renewal For Mining Operations Pill NO.: 27-917002-0,27-916010-0,27-916010-1,27-916011-0 CASE NO.: 05100 DATE: August 24, 2005 The application indicates a request renew the e~sting CUP for mining operations. Recommendation After reviewing the above referenced application, we recommend approval subject to the following conditions: 1. The applicant must sign a waiver of assessment appeal for 17th Avenue improvements. 2. Sanitary sewer will be extended to the south side of 17th Avenue at CSAH 83 to serve this property. 3. Access spacing to 1 th Avenue and CSAH 83 will be detemrined by 'Scott County and ~e City of Shakopee upon final plan preparation. 4. 17th Avenue right-of-way and easements shall be dedicated by the applicant to 'the City of Shakopee at the request of the City at no cost. 5. No import of material shall be utilized for the final end use grading plan. 6. The storm sewer discharge along 17th Avenue shall not exceed the design capacity in the CSAH 83 trunk storm sewer as determined by the City Engineer. F1UG-25-212105 08:54 SHF1KOPEE PUBLIC UTILITIES 9524457767 P.12l9 E~+lle n- 0 , SHAKO PEE PUBLIC UTILITIES MEMORANDUM TO: Shakopee Community Development Department FROM: Joseph D. Adams, Planning and Engineering Director SUBJECT: STAFF REVIEW RECORD COMMENTS for: CUP Renewal for Mining Operation CASE NO: 05100 DATE: 8/24/05 COM:MENTS: Municipal water service is available subject to our standard terms and conditions. These include, but are not limited to: installing a lateral water main distribution system in accordance with utility policy, paying the associated inspections costs~ paying the Trunk Water Charge, and paying the Water Connection Charge. Underground electric service is available subject to our standard terms and conditions. . These include~ but are not limited to: entering into an Underground Distribution Agreement, granting any necessary easements, and paying the associated fees. Street Lighting installation is available subject to our standard tenns and conditions. These are contained in the current City of Shakopee Street Lighting Policy. Applicant must pay the associated fees. Applioant should contact Shakopee Public Utilities directly for specific requirements relating to their proj eot. Note: Based on previously received informatiol;1 addressing ultimate deveIopm~ntlrecIamation, Shakopee Public Utilities water system planning is based on this property being located in the Normal Elevation (less than 825') Service District. t')CHl~rr ~ Minnesota Pollution Control Agency August 12, 2005 Ms. Tami Vidmar Community Development Department City of Shakopee 129 Holmes Street South Shakopee;~ 55379-1351 Re: Review of City of Shakopee Conditional Use Permit Dear Ms. Vidmar: The Minnesota Pollution Control Agency (MPCA) appreciates that the city of Shakopee sends Conditional Use Permit (CUP) applications and renewals to the noise program for review and comment. Unfortunately, because there is no noise analysis accompanying these applications the MPCA can do little more than reference the state noise rule. To prevent any delays in the review of CUP's for the city of Shako pee, I would like to provide you with a summary of the MPCA noise rules and their applicability. Minnesota uses two different measurement metrics to defme its noise level limits, an LID and an LSD, both of which are measured in "AU weighted decibels (dBA), LID means the sOlmd level, expressed in dB (A), which is exceeded ten percent of the time for a op.e hour survey, as measured by test procedures approved by the . Commissioner. LSD means the sound level, expressed in dB (A), which is exceeded 50 percent of the time for a one-hour survey. The state noise rules are based on the land use activity at the location of the receiver. The residential noise level limits are as foHows: Daytime .Nighttime (7:00 a.m. to 10:00 p.m.) (10:00 p.m. to 7:00 a.m.) Lso LID LSD LIO 60 dBA 65 dBA 50 dBA 55 dBA For areas that are developed, it is the responsibility of the developer and the governmental unit,that has land use authority to ensure that the state noise rules are not exceeded. On CUP's, it should be noted that it is the responsibility of the developer to comply with the state noise rules. It is the responsibility of the city of Shakopee to ensure areas that are rezoned or developed do not have existing noise levels that would be higher' than what is allowed for the new land use. Please contact me if you need any further assistance regarding this , case at (651) 296-7898. s~~ ::.--- ,A-r.-' .Z............- /""~ ,," Brian Timerson Air Assessment & Environmental Data Management Section Environmental Analysis & Outcomes Division BT:jae Enclosure 520 Lafayette Rd, N.; Saint Paul, MN 55155-4194; (651) 296.6300 (Voice); (651) 282.5332 (TTY); www,pca.state.mn,us SI. Paul' Brainerd · Detroit Lakes · Duluth · Mankato · Marshall · Rochester · Willmar .-...._11"\__............:.... 1:'__1"".,........ c..:....,....., "'1"\ ..~,..",..r~,.., r"lCllI"\Ol' f't""in+ol"l"" !:It I~~u:::t ~n r"H~"~Ant ilh.c::m:: frnm n~nAr recvded bv consumers. CITY OF SHAKOPEE Memorandum To: Mark Noble, Project Manager From: Ryan Hughes, Natural Resource Specialist Subject: CUP Renewal for Mining Operation Shakopee Gravel Date: September 19, 200S INTRODUCTION The following are Environmental Advisory Committee recommendations for approval of the CUP Renewal for Mining Operations at Shakopee Gravel. DISCUSSION Shakopee Gravel, Inc. is completing groundwater monitoring and submitting a quarterly report to the City as a condition to approval ofthe Conditional Use Permit (CUP) and Mineral Extraction and Land Rehabilitation Permit obtained in 2002. Since the discussion ofthis issue at the July 13, 2005 EAC meeting an addendum to the quarterly report has been submitted to the City. Additionally, a summary of the groundwater monitoring and sampling and the Shakopee Gravel Standard Operating Procedures has been submitted to the City for review. Based on a discussion of this item at the September 14, 200S EAC meeting, the EAC and City Staff recommend an additional well be installed, an annual report be submitted for the inbound materials, and additional information related to the groundwater levels in the area be provided. These recommendations and background information related to the recommendations are discussed further in the next section. STAFF RECOMMENDATIONS 1. The applicant install an additional monitoring well in the NE comer of the site to monitor contaminates leaving the site. HDR Engineering determined groundwater flows from the site are in anorth or northeasterly direction. An additional monitoring well in the NE comer of the site will provide additional data related to contaminants leaving the site. 2. The EAC request an annual report summarizing the inbound materials deposited at the site. The significance ofthis information is to review Shakopee Gravel records related to their Standard Operating Procedures, specifically the fuitial Evaluation Sheet for fubound Materials. 3. The EAC request additional information pertaining to water levels in the existing monitoring well in the NW comer. Specifically, the EAC request the applicant research why the monitoring well was dry during the July 28, 2005 sampling event. The applicant's consultant stated they will continue to monitor the water levels in the well to evaluate if this occurrence was merely a fluctuation or if it is indicative oflong term change. This issue should be addressed immediately due to the significance of the potential long term alteration of groundwater levels. ,- .l 2200 IDS CENTER BO SOUTH EIGHTH STREET MINNEAPOLIS. MINNESOTA 55402 BRIGGS MORGAN TELEPHONE (612) 977-8400 AND FACSIMILE (612) 977-B650 PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL (612) 977-8497 WRITER'S E-MAIL jpeuy@briggs,c01U ",,, - - . . --- .. ,.. . ~ - . -. - OG~ November 15,2005 'If"w<tr"'I'yrn "')" 1 I.: 2 D ~~i ~ ~ !~.. ~. ~~ iL~ l';{. ',~ ." \) . ,. City of Shakopee Board of Appeals and Adjustment Shakopee City Hall 129 S, Holmes St. Shakopee, MN 55379 Re: Shakopee Gravel, Inc. Dear Board: Shakopee Gravel expresses its gratitude to the City of Shakopee Board of Appeals and Adjustments (Board) for working through all but one of the issues with its mining permits. The sole remaining issue is with the 1996 conditional use permit (CUP) condition nos. 18 and 27 - that is, the 17-year durational restriction on the permit, which (if enforced) would cause the permit to expire on January 16, 2013. Shakopee Gravel is aggressively working to exhaust its pennitted aggregate deposit by this permit deadline. But, in case it is not able to do so, Shakopee Gravel is compelled to clarify in writing its position that this permit deadline is ultra vires, unenforceable and unwise. A. THE DURATIONAL LIMIT IS PER SE ULTRA VIRES The durationallimit in CUP condition nos. 18 and 27 is contrary to state statute. Minn. Stat. 9 462.3595 provides in full as follows: Subd.3. Duration. A conditional use pennit shall remain in effect as long as the conditions agreed upon are observed, but nothing in tlus section shall prevent the municipality from enacting or amending official controls to change the status of conditional uses. (Bold in original; emphasis added); see also Shakopee Zoning Ord. 9 11.85, subd. 9 ("[a] conditional use permit shall remain in effect. so long as the conditions agreed upon are observed") (emphasis added). Strikingly, Board has to date been unable to cite to any MilU1esota case in which such a "durational" restriction was upheld. Equally telling, Board conspicuously ignores the previously cited MilU1esota Attorney General's Office's opinion that is directly on point. Op. Atty. Gen. No. 59a-32, February 27, 1990. The opinion specifically rejected the City of Ham Lake's argument SAINT PAUL OFFICE II FIRST NATIONAL BANK BUILDING II WWW.BRIGGS.COM MEMBER - LEX l'vlUNDl. A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS , BRIGGS AND MORGAN City of Shakopee November 15, 2005 Page 2 that such CUP durational restrictions were valid and enforceable because the CUP holders agreed to the time limits on their CUP. The opinion explained as follows: [Slection 462.3595 does not appear to us to contemplate the imposition of time limitations on permits issued thereunder. The "conditions" upon which such penuits may be issued are to be tied to the "standards and criteria" set f01ih in the ordinance. We do not view time limitations as within the intended scope of the "standards and criteria" to which the statute alludes. That telminology refers, instead, to the norms laid down by the ordinance to assure that particular uses will not be detlimental to public health, safety or general welfare in the areas in which they are allowed. So long as these norms are satisfied, the permit must, by the terms of the statute, remain in effect. Where the Legislature has intended to authorize the issuance of time-limited land use permits, it has made that intent quite clear. See Minn. Stat. S 462.3597 (Supp. 1989) relating to interim uses. Id. at 3 (citations omitted; emphasis added). Stated otherwise, Board has no authority to impose time limits on Shakopee Gravel's CUP. B. THE DURATIONAL LIMIT IS OTHERWISE UNENFORCEABLE Mining CUPs are otherwise protected against such durational restrictions. Nearly one- half century ago, the Milmesota Supreme Court recognized that aggregate deposits are "diminishing assets" and that, as such, by their very nature they need to continually expand in order to stay in business. Hawkins v. Talbot, 248 Minn. 549, 552, 80 N.W.2d 863, 865 (1957). Accordingly, the Court held that even a mining operation, which was but a preexisting non- conforming use, can expand to the bOlmdaries of its aggregate deposit. Id. at 866. If a preexisting non-conforming mining operation can expand to the perimeter of its aggregate deposit, then so too can a fully-permitted mining operation. To date, Board has yet to identify any case that questions -let alone overturned - Hawkins. C. THE DURATIONAL LIMIT IS ALSO CONTRARY TO PUBLIC POLICY Thereis a growing recognition of the need for local government to authorize the mining of the few remaining metropolitan aggregate deposits, of which Shakopee Gravel is one. This need is summarized as follows: Construction aggregate producers and their largest customers in the construction sector have recognized for many years that the aggregate resources available for mining within the seven-county metropolitan area are rapidly diminishing. The ultimate reason for this is urbanization, which on the one hand increases the demand for construction aggregates, and on the other, tends to remove aggregate- bearing lands from production through land development and zoning decisions BRIGGS AND MORGAN City of Shakopee November 15, 2005 Page 3 that preclude mining. When sources of aggregate are eliminated locally, and become more remote from places of need, the costs of construction rise significantly. This is mainly because of the increased cost associated with aggregate transportation. Construction aggregates are sand, gravel, and crushed rock-bulk granular materials that are used in building and landscaping projects of all sizes and kinds. Sand and gravel are mined from glacial or alluvial deposits. This matelial, commonly called "natural aggregate," is widespread in the state. Natural aggregate constitutes the largest fraction of aggregate produced. Only some of it, however, is of high-enough quality for the more demanding uses. Crushed carbonate rock (limestone and dolostone or dolomite) is mined from bedrock strata in the seven-county metropolitan area and in southeastern Minnesota, and is referred to as "bedrock aggregate." The highest-quality deposits of sand and gravel in the seven-county metropolitan area were laid down about 15,000 to 20,000 years ago by meltwater from a glacial lobe that advanced from the northeast through the Lake Superior basin during the last glaciation. The Superior~lobe gravels contain abundant particles of strong, non-reactive crystalline rock, and only minor amounts of undesirable rock types such as shale or sulfide-bearing slate. During the last glaciation, the southern edge of Superior-lobe ice lay for some time across central Washington, northern Dakota, and eastern Hennepin counties. Sand and gravel deposits laid down by meltwater from the Des Moines lobe contain particles of shale, and are therefore of lower quality as construction aggregate. Most of the near-surface Superior- lobe gravel deposits in Hennepin and Ramsey counties are now largely depleted or are no longer available for mining. The availability of the best remaining Superior-lobe sand and gravel deposits in eastern Washington and central Dakota counties, is threatened by suburban sprawl. The only bedrock deemed valuable as a source of aggregate in the seven-county metropolitan area is dolostone (sometimes termed dolomite) of the Prairie du Chien Group. Geologically suitable bedrock from the Prairie du Chien Group is rapidly being depleted or otherwise made unavailable for mining in the area of historic quarrying along the Minnesota River valley from Burnsville to Chaska. The only volumetrically significant alternative Prairie du Chien bedrock resources are in the southern and southeastern portions of Dakota and Washington counties. BRIGGS AND MORGAN City of Shakopee November 15,2005 Page 4 Major Conclusions 1. The seven-county metropolitan area originally contained about 5.7 billion tons of aggregate resources that meet, or would have met, the specifications of an economically viable resource by today's definitions. This geological endowment included 1.7 billion tons of Superior-lobe gravel (excellent to good quality), 1.5 billion tons of Des Moines-lobe gravel (good to fair quality), and 2.5 billion tons of quarryable dolostone bedrock (excellent to good quality). 2. The present total resource base (year 2000) is approximately 1.7 billion tons. 3. The present resource base will be effectively exhausted by 2029, based on realistic urban-growth scenarios that assume no fundamental changes in present land-use policies or pit and quany design. 4. It is highly probable that resources of high-quality Superior-lobe gravel will be exhausted before the other aggregate categories. This will lead to increased aggregate imports and more vigorous development of available dolostone bedrock resources. 5. The area of dolostone quarries along the Minnesota River valley from Burnsville to Chaska has very limited potential for expansion. Dolostone resources in southern and southeastern Dakota and Washington counties will become increasingly attractive alternatives for new quarries. Southwick, D.L., Jouseau, M., Meyer, G.N., MossIer, J.H., and Wahl, T.E., 2000, Aggregate Resources Inventory of the Seven-County Metropolitan Area, Minnesota: Minnesota Geological Survey Information Circular 46 at 91 (emphasis added). The Metropolitan Council in 2001 similarly noted that the "Metropolitan Area is rapidly depleting its aggregate resources." Rural Issues Work Group, Executive Summary, Item No. 2001-439 (Oct. 10,2001) at 1. The WorkGroup further observed that local actions threaten the maximization of existing aggregate resources. The Work Group specifically recommended that the Council revise its rules and "use them to protect significant aggregate sites when proposed local actions would preclude future extraction ofthe resources." Id. The Minnesota Legislature has likewise recognized the critical need to manage aggregate deposits wisely by forming the Aggregate Resources Task Force under the 1998 Laws of Minnesota, chapter 401, section 50. The Task Force, comprised of 12 legislators and citizens, delivered its report to the Legislature in February 2000. The TaskForce noted that "local opposition to mining is often pitted against regional resource needs." Aggregate Resources Task Force, Final Report to the MilU1esota Legislature at 1 (Feb. 1, 2000). "The typical result is that BRIGGS AND MORGAN City of Shakopee November 15,2005 Page 5 the regional needs are often given lip service, but usually ignored." [d. The Task Force summarized its conclusions, in part, as follows: With demand increasing, the supply and demand balance is critical. A dilemma is drawing near because aggregate resources are a finite natural resource and locally available reserves are dwindling in many areas of the state. Regional trade centers and the metropolitan areas are witnessing the depletion of resources at a rapid rate, covered by urban and suburban development, precluded from development by local planning and zoning, or opposed by residents objecting to mining and the increased truck traffic needed to deliver commodities to the marketplace. Mine operators supplying the Seven County Metropolitan Area, have permitted reserves estimated to last only about thirteen years based on the current demand. The critical issues for the state are to maintain local availability of construction aggregates at reasonable costs; to protect these resources for future use; to provide consistent environmental guidelines for local permitting of aggregate mining; and to deliver resources to the market without undue impact to the state's citizenry. * * * * The Aggregate Resources Task Force recognizes that the consequences of depletion of the construction aggregate resources will have a serious impact on the growth and economic vitality of the state. Aggregate resources are fundamental for the public good. If aggregate. resources are not properly identified and managed. both the environment and the public will suffer detrimental consequences. [d. at v & x (emphasis added). In a special session the next year, the Legislature amended Minn. Stat S 473.859, subd. 2 to require that local comprehensive plans address aggregate resources. [d. ("[a] land use plan shall also include the local government's goals, intentions, and priorities concerning aggregate and other natural resources"). BRIGGS AND MORGAN City of Shakopee November 15,2005 Page 6 Iu sum, the permit durationallimit is unenforceable as both contrary to the law and public policy. Shakopee Gravel will revisit this issue if it becomes apparent that it cannot fully mine the aggregate deposit by the permit deadline. Sincerely, JYP/kg cc: J. Thomson B. Notermann L. Busch J. Speer L. Agrimonti 1840208v3 < - ~. ''1CG-CL7~, Is fj I '" tt/'4~ {) u + QUESTIONS for SEPTEMBER 8, 2005 BOARD OF ADJUSTMENT & APPEALS 1. Why was Minnesota Pollution Control Agency only asked for noise level review and comments? Why weren't they asked for their opinion on the ground water contamination by carcinogenic diesel fuel? Also, has the Department of Natural Resources been advised of the diesel fuel contamination? 2. Why hasn't Shakopee had Scott County Environmental Health review this contamination? 3. Why does the SPUC form letter only address future service elevation? Why not ORO pollution? 4. What is Soil & Stratigraphic Analysis Chart? Is chemical content of soil checked? 4. Why not sample the well for the 3rd Quarter of 2005? Water should be monitored for breakdown of.ORO to Benzene, Toluene, etc. I have seen a white fuel oil truck near the west end of the pit. (December, 2004) . ,'" December 6, 2005 Testimony Outline I. The main reason I appealed the decision of the Board of Adjustment and Appeals, is so the City Council can be involved in the decision making. At the May 21, 2002 Council meeting, several Council members said they wanted the 2003 review of the gravel pit permit brought back to them, rather than to the BOM. Councilor Bob Sweeney stated it most plainly: "...assumes this will be seen back in Council rather than Planning Commission where we can get bamboozled for a while." II. I will now mention the condition number of Resolution No, 5727 to be considered and then turn the discussion over to you. #1 Permit renewal -- I asked an Real, Estate & Land Use Attorney if requiring' a CUP renewal is "legal". The answer was, "Absolutely[" I then asked if Jack Perry's statements saying there is no Supreme Court or other higher court opinion that allows for renewal is because no one has ever questioned the legality of requiring renewals? If it is just accepted practice? The answer was, "Probably". #2 Mineral Extraction and Land Rehabilitation Permit & #17 'Plan for Operation - Shakopee's Mining Ordinance appears the same as it was in 2002. The Mining Permit IS the Plan for Operation. What an Operator submits becomes their mining permit. A Plan of Operation consists of: 1. Map A - shows the exhibiting conditions, before mining, with contour lines every two feet. Map B - shows the proposed Operation/Gravel Extraction Plan Map C - Map of the End Use Plan 2. Conditions of the CUP itself 3. Background information from Merila #3 Security fencing - was a huge concern of the people to the west of the pit. #6 Berms -- Violation of 3:1 slopes Berms washed down into neighbors' yards #9 Hours of Operation - Shakopee has remained firm and consistent by keeping the original condition intact because the pit opened up in a residential area. '" . #16 "Map B" and "Map e" wording was left out in the February 7, 2002 Mark Noble memo to the BOAA. Amendment 3 was left out in its entirety during the 2002 renewal. It reads: The operators shall comply with the standards and plans outlined in the document submitted by the applicant and titled, Fischer Aggregates, Inc. CUP, Shakopee, August 1995, with the following modifications and additions - (the list has itams a through u) #26 Monitoring Well- Diesel Range Organics Hennepin Regional Poison Center Information - At 0.4 - 0.5 ppm you can begin to taste it. Maximum Contaminant Level is a standard set by EPA: Benzene MCL 0.005 mg/L Toluene MCL 1 mglL EthylBenzene MeL 0.7mg/L #30 Monitoring of Imported Material - The February 28, 2002 .DSU letter says: "Dirt inspectors are the weigh station operator and bulldozer operators." Visual inspection onlyl III. Other concerns: The wording City Council was changed, every time it appeared, to Board of Adjustment and Appeals in the Resolution that was part of the April 4, 2002 Memorandum for the table. There was a Condition #18, an Environmental Assessment Worksheet requirement, that was dropped with the May 21, 2002 version of the Resolution. 3,750,000 cubic yards, as the maximum amount to be removed from the site, was deleted as part of the February 6, 1996 Resolution version. Now the pit attorney is talking about the value of Shakopee bedrock. ,This deletion, along with an ambiguous permitted depth to mine (10 feet above the established ground water MSL elevation), could be disastrous in the future.