HomeMy WebLinkAbout13.D.1. Appeal of the Board of Adjustment and Appeals Determination
13. D.L
CITY OF SHAKO PEE '
Memorandum
CASE NO.: 06-089
,.
/ TO: May.or and City C.ouncil
MarkMcNeill, City Administrat.or
FROM: Mark N.oble, Planner II
SUBJECT: Appeal .of the Board.of Adjustment and AppeakDeterriiihafi.onoii'Review .of the
C.onditi.onal Use Permit and Mineral Extracti.on and Land Rehabilitati.on Permit for
Shak.opee Gravel
MEETING DATE: November 8, 2006
REVIEW PERIOD: July 19 - N.ovember IS, 2006 (Applicant has waived the review deadline)
'INTRODUCTIONIDISCUSSION:
Shakopee Gravel, Inc,(SGI) has made applicati.on far an appeal of the annual review .of a Conditi.onal Use
Permit and Mineral Extracti.on and Land Rehabilitation Permit far their .operation l.ocated at 1650 C.ounty
State Aid Highway (CSAR) 83, They are appealing the B.oard.of Adjustment and Appeals approval.of
Resoluti.on No.PC06-075, which was approved withrevisi.ons.on Oct.ober 19,2006. The Board c.onducted a
public hearing .on September 7, 2006, and after extensive discuss ian, c.ontinued the review t.o the meeting .of
Oct.ober S, 2006, with directi.on t.o SGI t.o c.onduct a neighb.orh.o.odmeeting t.o discuss a number .of issues and
t.o share the results from that meeting with the B.oard at their Oct.ober Sth meeting. The neighborh.o.od
meeting was held on M.onday, Oct.ober 2,2006.. After discus sian with the neighb.ors, applicant and staff at
the October Sth B.oard meeting, the B.oard continued this item t.o October 19, 2006 to allow the neighb.ors t.o
reach consensus .on their preferred berm height and slape alternative, Acc.ompanying this memorandum is a
spreadsheet pr.ovided by .one .of the neighbors, Amy Burke. This spreadsheet suggests that a larger number
of residents resp.onding preferred leaving the berm at 'its ,present height and slope, pr.ovided additi.onal trees
, were planted al.ong the entire stretch .of their devel.opment.
The applicant has submitted a 10 page narrative (and 31 pages.of supp.ortingd.ocuments) that addresses their
p.ositi.on.on the C.onditi.onal Use Permit and Mineral Extracti.on and Land Rehabilitati.on Permit. The City
Attorney has provided a letter in resp.onse to their narrative,
ALTERNATIVES
1. Uph.old the determinati.on .of the B.oard.of Adjustment and Appeals, and direct stafft.o prepare a
resolution far the C.ouncil' s' c.onsent agenda that' isc.onsistent with that decisi.on.
2. Uph.old the appeal .of the applicant, thereby granting the requested CUP, and directstafft.o prepare a
res.olution far the C.ouncil's c.onsent agenda that is consistent with that decision.
3. Table the appeal far additi.onal information,
ACTION REQUESTED
Offer a m.oti.on directing staff t.o prepare a resoluti.on far acti.on at he next meeting, and m.ove its ad.opti.on.
.,
{~ ~
CITY OF SHAKOPEE
Memorandum
CASE NO.: 06-075
TO: Board of Adju~tment and Appeals
FROM: Mark Noble, Planner II
SUBJECT: Review of the Conditional Use Permit arid Mineral Extraction and Land'
Rehabilitation Permit for Shakopee Gravel
MEETING DATE: October 19, 2006
REVIEW PERIOD: July 19-,-November 15,2006 (Applicant has waived the review deadline)
INTRODUCTION/DISCUSSION:
Consistent with the City's conditions of CUP approval, Shakopee Gravel, Inc.(SGI) made
application for annual review ofa Conditional Use Permit and a Mineral Extraction and Land
Rehabilitation Permit for their operation located at 1650 County State. Aid Highway (CSAH) 83,
The Board conducted a public hearing on September ],7006, and after considerable discussion
continued the review to the meeting of October 5, 2006, with direction to SGI to conduct a
neighborhood meeting to discuss a number of issues andto share the results from that meeting
with the Board at their October 5th meeting. The neighborhood meeting was held on Monday,
October 2,2006. After discussion with the neighbors, applicant and staff at the October 5th
Board meeting, the Board continued this item to the October 19' 2006, to allow the Neighbors
reach consensus on their preferred berm height and slope alternative.
Accompanying this memorandum is a spreadsheet provided by one ofthe neighbors, Amy Burke,
This spreadsheet suggests that a larger number of residents responding prefer leaving the berm at
its present height and slope. Because there is another scheduled neighborhood meeting on
Thursday evening, October 12, this result may change. Any change will be reported to the Board
at the meeting.
Also accompanying this memorandum is a draft resolution for consideration by, and based on the
Board's direction at the October 5th meeting, In January of this year, when Council approved the
current CUP resolution, it expressed a desire to have the Council review information submitted
for the annual review, To address this, staff suggests directing staff to place the item on the
Council's agenda for review before recording the current CUP resolution.
H:\BOAA-PC\2006\1 0-1 9\ShkpeGrv1 review (06-075) rev RML.doc
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~.
ALTERNATIVES:
L Accept the review 6fthe permit and approve Resolution No. 06-075 with amendments as
presented, and direct staffto place the item on the next available Council agenda for review
before recording th~resolution.
2; Accept the reviewofthepermit and approve ResolutionNo. 06-075 with additional
revisions and direct staffto place the item on the next availab1eCouncil agenda for review
before recording the resolution,
3. Continue the review of the permit.
STAFF RECOMMENDATION:
Staff recommends altemativeno. 1 or 2.
ACTION REQUESTED:
Offer and pass a motion accepting the review of the permit and approve Resolution No; 06'-07 5
with amendments as presented, and directing staff to place the item on the next available Council
agenda for review before recording the resolution.
Mark Noble
Planner IT
H:\BOAA-PC\2006\10-19\ShkpeGrvl review (06-075) rev RML.doc
.. James J, Thomson
470 US Bank: Plaza
200 South Sixth Street
Minneapolis MN 55402
&
t_ (612) 337-9209 telephone
(612) 337-9310 fax
jthomson@k:ennedy-graven.com
CHARTERED
TO: Mayor and City Council
FROM: James Thomson, City Attorney~
DATE: November 3,2006
RE: Shakopee Gravel CUP
I reviewed the October 28,2006 letter from Jack Perry, the attorney for Shakopee Gravel, Inc.,
appealing the October 19, 2006 decision of the Board of Adjus1ments and Appeals. Mr. Perry
raises two legal issues with respect to the appeal. I will address those issues separately.
Issue #1: Has Shakopee Gravel's Conditional Use Permit been approved without.
conditions by operation of law because Shakopee Gravel's 2005 CUP renewal application
was not acted upon in a timely manner pursuant to Minn. Stat. ~ 15.99, subd. 2?
I addressed this issue in my January 30, 2006 letter to Mr. Perry, and a copy of my letter is
attached as Exhibit H to Mr. Perry's recent letter. In my letter, I concluded that even if the City
Council had to act on the 2005 appeal within 120 days of the initial application, there is no
dispute that the Board of Adius1ments and Appeals acted in a timely manner. Therefore, even if
the Council's action was not timely, the Board's action was. The conditions imposed by the
Board would therefore still be valid, and there would be no basis for his contention that the CUP
would be approved "without conditions."
fu addition to the point that I raised in my January 30, 2006 letter, there is an additional reason
why the CUP would not be deemed approved without conditions. Mr. Perry's cOlltention that the
CUP would be approved without conditions ignores the fact that there have been previous CUPs
approved for the mining operation. Those CUPs have been recorded against the property and
contain numerous conditions, many of which are similar to the ones that were part of the 2005
application process.. . At a minimum, those preexisting CUP approvals. are still valid and binding
on Shakopee Gravel even if the City did not act timely on the 2005 application.
Issue # 2. .Is the durational restriction in the CUP valid and enforceable?
Minnesota Statutes, Section 462.3595, subdivision 3 states that a "conditional use permit shall
remain in effect as long asthe conditions agreed upon are observed." Section 11.85, subdivision
9 of the City Code contains a similar provision.
30D909v1 JJT SH155.169 1
There are no Minnesota court decisions interpreting the statutory provision. There is, however, a
Minnesota Attorney General's Opinion, which is cited in Mr. Perry's letter, in which the Attorney
General concluded that a city council does not have the authority to impose durational
restrictions on a CUP, The issue before the Attorney General in that opinion was the validity of a
city ordinance that required "annual review" of CUPs and authorized the city to terminate a CUP
regardless of whether the conditions in the permit had been met. The Attorney General
concluded that such a provision was invalid because it conflicted with Section 462.3595, subd. 3.
The issue in this case does not concern "reviewal" of a CUP. Rather, the issue involves a
condition, which had been previously agreed to by the City and the applicant, that the CUP would
have a specific expiration date. The Attorney General acknowledged. that courts in other
jurisdictions have concluded that CUPs may include durationallimitations that are related to the
nature of the specific use in question. Nevertheless, the Attorney General concluded that the
language in Section 462.3595, subd. 3 applies only to "standards and criteria" contained in a
CUP, not to durational limits.. The Attorney General cited no court decisions to support that
conclusion.
In short, Minnesota law is unclear on the issue of whether a durationalliriritation on a CUP is
valid in a situation where the durationallimitation is reasonably related to the type of use and the
applicant has agreed to the durationallimitation. In my opinion, there is a reasonable basis for
the City Council to conclude that such a durationallimitation is valid and enforceable.
Mr. Perry also contends that mining CUPs are protected against durational restrictions because
mining aggregate deposits are "diminishing assets." Mr. Perry cites a Minnesota Supreme Court
decision, Hawkins v. Talbot. 80 N.W.2d 863 (Minn. 1957), to support his conclusion. That case,
however, had nothing to do with durational restrictions. Rather, the case addressed the issue of
whether a preexisting non-conforming mining operation could expand to the boundaries of its
aggregate deposit. The court concluded that it could, because such a use was not an unlawful
expansion of a non-conforming use. That issue is not involved in this case.
Finally, Mr. Perry contends that the durational limitation is contrary to public policy. In this
portion of his letter, Mr. Perry cites no court decisions to support the proposition that a durational
limitation is invalid simply because the Metropolitan Council or the state legislature has
concluded that such uses are diminishing in the metropolitan area and that it is critical for the
state to maintain local availability of construction aggregates at a reasonable cost. In this case,
there has been no showing that the durationallimitation is contrary to any public policy of the
state.
Conclusion
1. Even if the City did not act timely on the appeal of the 2005 CUP application, the
conditions imposed by the Board of Adjustments in 2005 are valid. ill addition, the
conditions imposed by the previous CUP approvals are still binding.
2. The law in Minnesota is unclear as to whether durationallimits on a CUP are valid.
There is a reasonable basis for the City Council to conclude that they are.
300909vl JIT SH155-169 2
d
Last Option 1 - ... Option Option
First Name Name Address Leave 22:1 33:1
Jameyand..Gina Boots 1856 Omega Drive 1
Shawn and Kristin Brennan 1809 Wyndam Drive 1
Rich and Jennifer Briggs 1816 Wyndam Drive 1
Mike and Amy Burke 1825 Wyndam Drive 1
Brent and Sarah Dingel . 1844Wyndam Drive 1
Jon and Shelly Greenwo 1814 Omega Drive 1
Matt and Chrissy Haefner 1865 Wyndam Drive 1
Kent and Debbie Hemann 3077 Glacier Drive 1
Mark and Gail Hill 1829 Wyndam Drive 1
Jim and Karen Johnson 1853 Wyndam Drive 1
Zach and Kristen Knox 1853 Omega Drive 1
Vlodimin Kuzretof 1845 Wyndam Drive 1
Sam and Amy Meckey 1828 Wyndam Drive 1
Corey and T ana Meier 1847 Omega Drive . 1
Jeff and Julie Nawrocki 1841 Omega Drive 1
Andy Nguyen 1837 Wyndam Drive 1
Nanith and Uk Nom 1820 Wynd am Drive 1
Tim and Sandy Olene 2929 Glacier Drive 1
Jay Paik 1857 Wyndam Drive 1
Jon and Denise Radke 1808 Wyndam Drive 1
Mark and T ami Rasmuss 1833 Wyndam Drive 1
Tony and Dana Robran 1821 Wyndam Drive 1
Richard and Sethany Roth 1836 Wyndam Drive 1
Rob and Tracy Runchey 1869 Wyndam Drive 1
Keith and Karen Sandstro 18 Wyndam Drive 1
Scott and Janelle Swanson 2875 Thrush Street
T. K. and Belinda Takang 1861 Wyndam Drive 1
Dave and Kari Valentin 1805 Wyndam Drive 1
Paul and Kelly VanMaar 1824 Wyndam Drive 1
TOTAL 18 5 5
RESOLUTION NO. PC06-075
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA, GRANTING THE
RENEWAL OF AMENDMENT NO.4 TO CONDITIONAL USE PERMIT NO. CC-376
(AND SUBSEQUENT AMENDMENTS NO.1, 2 & 3) AND THE MINERAL
EXTRACTION AND LAND REHABILITATION PERMIT TO OPERATE A MINE
WITHIN THE MINING OVERLAY (MIN) ZONE
WHEREAS, Shakopee Gravel, Inc., property owner and applicant, have filed a review
application of Resolution No. 6344, which was 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 7, 2006, 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 ofthe public to
comment; and
WHEREAS, on October 19, 2006, the Shakopee Board of Adjustment and Appeals
approved the review of this application, and
WHEREAS, the Board of Adjustment and Appeals reached the following findings with
respect to the requested review of the Conditional Use Permit/Land Rehabilitation Permit:
,
Finding #1: After reviewing the evidence in the record, the Board has concluded that
with the conditions stipulated, the use will not be injurious to the use and
enjoyment of other property in the vicinity.
Finding #2: The Board finds that the renewal to the conditional use, mineral extraction
and land rehabilitation permit, with the conditions stipulated, will not
impede the normal and orderly development and improvement of
surrounding property.
Finding#3: Adequate utilities, access, drainage and other necessary facilities exist to
serve the site.
Finding #4: The use, with the conditions stipulated, is consistent with the purposes of
the Agricultural Preservation (AG) Zone and Mining Overlay (MIN) Zone.
Finding #5: The use is consistent with the Comprehensive Plan guidingfor the subject
site.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF
ADJUSTMENT AND APPEALS OF THE CITY OF SHAKOPEE, MINNESOTA, AS
FOLLOWS:
That the review of Resolution No. 6344 is hereby approved, 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 of the Conditional
Use Permit. The owner/operator shall apply for review no later than July 15th of
each year. Applications for CUP and Mineral Extraction and Land Rehabilitation
Permit review will include records of groundwater monitoring information. With
each application for review, 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 of the
neighborhood located within 350 feet of the Shakopee Gravel property. The
findings of each annual review by the Board of Adjustments and Appeals shall be
reported directly to the City Council.
2. Approval of a Conditional Use Permit 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 any adjacent residential development.
Additionally, the applicant shall install fencing adjacent to other developing
properties within 90 days (depending on weather conditions) of the time a final plat
for those properties is recorded.
4. The applicant shall obtain a County Road Entrance permit from the Scott County
Highway Engineer.
5. County Road weight restrictions shall be adhered to. . Truck traffic shall be limited
to the use of County Road 83 to Hwy. 169, Hwy. 101 and County Road 42.
Absolutely no truck traffic from the mining operation shall be routed through the
urban portion of the City of Shakopee.
6. Design/maintenance treatment of the berm adjacent to the residential properties along
Shakopee Gravel Inc.'s west property line shall be consistent with the following
additional conditions:
a. Maintenance of a 1:1 slope for the berm adjacent to the homes in Wyndham Ponds
(including regarding where necessary on the north end. i.e. first 4 properties) to
remedy those spots where erosion may have occurred.
b. Removal of the berm. or returning the berm to 3:1 slope along Southern Meadows
as outlined at the public hearing meeting preceding the October 19th meeting.
c. Removal of the weeds using the steps outlined by the Scott County Weed
Inspector.
d. Stabilization of the slopes. establishment of plant/turf cover, and mowing at least
once a year or as needed more than that to maintain a suitable appearance.
e. Planting of the no. of trees (302) offered by Shardlow /DSU on the SG I property
in the alternatives presentation thq put together for the neighborhood. Those
trees should be located a minimum of ten (10) feet off the property line.
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. 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.
12. Two tanks for the storage of fuel shall be permitted on-site. The 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 apart of this conditional use and mining permit.
13. No direct exterior lighting shall be visible from adjacent properties or the public
right-of-way. Two 125-watt high-pressure sodium security lights can be installed
on the site and they must be located on the site as shown on the submitted plan.
14. Stockpiles of gravel shall be allowed to exceed 25 feet in height, but not exceed the
height of the surrounding berms and shall be setback from the property lines so that
visual impact is minimal from the surrounding property.
15. The applicant shall be responsible for reimbursing the City for all costs incurred in
reviewing the permit through the life of the operation.
16. The revised Gravel Extraction Plan and the End Use Plan, as submitted by the
applicant, shall be adhered to, without modifications, unless approved in advance
by the Board of Adjustment and Appeals.
17. The applicant shall prepare in report form, a plan for operation, which if acceptable,
shall be adopted by resolution as the Mining Permit. The Plan for Operation shall
be comprised of 1) the submitted maps A, B, C; 2)the conditions of the 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 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 revoke both
permits.
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 ofthese permits are being violated. Upon receipt of such
complaints. the Board of Adiustment and Appeals' shall review the complaints to
determine whether it should schedule a public hearing. in accordance with the
proper procedures for notice and publication.
20. If the Board of Adjustment and Appeals finds that the applicants have substantially
or repeatedly violated the terms of this agreement, the Board of Adjustments and
Appeals may revoke said permit.
21. Allow for the relocation of the central processing area.
22. Allow the final development grades to be between an elevation of 764 at the bottom
of the proposed ponds and 832 feet.
23. The operation should be mined in five phases, except as modified by any
subsequent amendment to the CUP and Mining permit.
24. 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 or amendment. Mining extraction shall not exceed a depth greater than ten
(10) feet above the established ground water MSL elevation.
25. The mining operations shall operate for 17 years beginning on January 16, 1996,
and terminating on January 16,2013.
26. Provided that the applicant is granted access to future .17th A venue, consistent with
the end use development of the property, the applicant agrees to dedicate the right
of way for future 17th A venue at no cost to the City and accept assessments based
upon the end use development of the property.
27. The sanitary sewer along future 17th Avenue 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 1 ih Avenue.
28. 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.
29. 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 of the necessary documentation shall be available. The
applicant will certify that the property meets any and all standards set by the MPCA
or government board that regulates mine reclamation.
30. 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.
31. 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.
32. 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 17th A venue. The property owner shall pay the cost of lowering
this trunk line.
33. No Construction cutting or filling in the Minnegasco Easement # 1997-7, recorded
as document #0393488, except as authorized by Minnegasco.
34. 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.
35. If the mining operation intends to bring solid waste material onto the site, a solid
waste license must first be approved by the Scott County Environmental Health
Department.
Adopted in session of the City Council of the City of Shakopee,
Minnesota, held the day of , 2006.
Mayor of the City of Shakopee
ATTEST:
City Clerk
Prepared by:
THE CITY OF SHAKOPEE
129 Holmes Street South
Shakopee, MN 55379
r.
- CITY OF SHAKOPEE *(p
Memorandum
CASE NO.: 06-075
TO: Board of Adjustment and Appeals
FROM: Mark Noble, Planner II
SUBJECT: Review of the Conditional Use Permit and Mineral Extraction and Land
Rehabilitation Permit for Shakopee Gravel
MEETING DATE: October 5, 2006
REVIEW PERIOD: July 19 - November 15,2006 (Applicant has waived the review deadline)
INTRODUCTION:
Shakopee Gravel, Inc. has made application for annual review 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. A condition of approval includes a requirement that the permits
be reviewed annually. The Board conducted a public hearing on September 7, 2006, and after
considerable discussion on this application, they approved a motion to continue the review of the
permit to October 5,2006, with it stipulated that the applicant conduct a neighborhood meeting
to discuss a number of issues and to share the results from that meeting with the Board at their
October 5th meeting. The neighborhood meeting has been scheduled for Monday, October 2,
2006; therefore, staff does not have any new information concerning the applicant's and
neighborhood's positions to share with the Board at this time. Staff anticipates that the
applicant's representatives and the neighborhood representatives will be in attendance at the
October 5th meeting, and will be available to share the outcome from the neighborhood meeting.
CONSIDERATIONS:
Shakopee Gravel, Inc. most recently received approval of an amendment to the conditional use
permit and a Mineral Extraction and Land Rehabilitation Permit Renewal on January 3, 2006
(Resolution No. 6344). Theconditions contained in the resolution arelisted below, with
Planning Staffs review/comments following in italics. The Board should review the applicant's
information, information provided by staff, . as well as comments, information,. and testimony
provided by the public in conducting the review of this pe.rmit.
The conditions and staffs comments are as follow:
1. TheShakopee 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 of the Conditional Use Permit.
The owner/operator shall apply for review no later than July 15th of each year.
Applications for CUP. and Mineral Extraction and Land Rehabilitation Permit review will
include records of groundwater monitoring information. . With each application for
review, the applicant shall submit a consolidated and updated operations plan. . .. .... ...... .
Notification of the meeting shall occur through use of the local newspaper andt%ollgh<;'F.."" ,.
notification to designated representatives ofthe neighborhood located within 350feetof ' "
the Shakopee Gravel property. The fmdings of each annual review by the Board of
Adjustments and Appeals shall be reported directly to the City Council.
This condition is presently being met.
2. Approval of a Conditional Use Permit amendment is contingent upon Board of
Adjustment and Appeals approval of the Mineral Extraction and Land Rehabilitation
Permit.
The Board has previously approved the Mineral Extraction andLandRehabilitation
Permit and conditional use permit. In the event the Board determines that the CUP
should be amended, it may be appropriate to re-affirm the approval of the Mineral
Extraction and LandRehabilitation Permit.
3. Securityfencing shall be used on the main access roads to control vehicular access to the
mining and equipment area, and along any adjacent residential development.
Security fencing is installed along County Road 83 and along the residential
developments adjacent to the west of the site. Due to construction offuture 1 ih Avenue
to the north, that chain link fence was removed and relocated along the south property
line of the site. The contractor for the 17th Avenue project has installed the required
silt/erosion control fencing at this time. Once thatproject is completed, fencing will be
required to be reinstalled and will be accomplished through a coordinated effort between
the 17th Avenue project contractor and Shako pee Gravel Inc.
There is still a segment of the site along the south property line adjacent to Thrush Street
that is not completely enclosed with afence, with residential development presently
occurring in that vicinity. The applicant has been in contact with staff regarding the
completion of the installation of that fencing in the near future, and has indicated their
agreement to install fencing adjacent to other developing properties within 90 days
(depending on weather conditions) of the time a final plat for those properties is
recorded. TheBoard shall consider whether this is an acceptable time frame and
process, or whether it should be revised.
4~The applicant shall obtain a County Road Entrance permit from theScott County
Highway Engineer.
Scott County has previously provided staff a copy of an application for access driveway
or entrance permit, dated March 22, 1999, which was a request to widen the existing
entrance and black top the entrance.
5. County Road weight restrictions shall be adhered to. Truck traffic shall be limited to the
useof County Road 83 to Hwy.l Oland 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 presently being met.
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.
On behalfofthe City,WSB and Associates surveyed the berm. Aportton of the berm at
the southwest corner and southern edge of the property are still under construction. The
survey information demonstrates that much of the berm slope is between 1.07: 1 and2:1,
rather than 3:1. The majority of the berm is approximately 25 feet in height, with some
portions slightly exceeding that height. On those portions of the berm that the applicant
reported were seeded, there are areas where the seeding was not established, and either
erosion-has occurred or invasive plant species have taken over. A Noxious Weed
Inspection Report was distributed to Shako pee Gravel Inc. on August 17, 2006 because of
the presence of Hemp along the western border of the site, adjacent to theresidential
area. Shako pee Gravel Inc. was directed to mow the. Hemp within 10 days of the notice
to prevent/reduce the spread of the noxious weed. Shakopee Gravel have cut the weeds,
and have stated that they will cut the weeds a second time and will follow that cutting
with applying a weed killer and reseeding in a manner that has been discussed with and .
approved by the Scott County Agriculture Inspector.
The applicant has askedfor the opportunity to develop a specific plan for possible re-
shaping and stabilizing of the berm, reseeding, and long-term maintenance of the berm
and seeded plant material. This issue will be discussed at the October 2nd neighborhood
meeting, with results to be shared at the October 5th Board meeting.
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.
Mining operations (i. e. the extraction, processing and removal of sand, gravel, rock or
other material) is not occurring within 100 feet of any residential or commercial property
lines.
8. All portable buildings must be approved by the Building Official.
This condition is presently being met.
9. 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.
The applicanthas represented that they are in compliance with this condition, and staff
has received no evidence to the contrary. The. City has been constructing the extension of
17th Avenue along the northern side of the site, and construction vehicles from that
project have been operating in the area, along with construction vehicles for the
residential development located adjacent to the south of the site.
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 a number of complaints regarding dust blowing into residences located
west of the site. The dust appears to be a result of the scraper machine that is building
up the berm along the southwest portion of the site. Construction of the berm. in this area
of the site is nearing completion.
11. Noise emissions shall not exceed the noiselimits as noted inSection 10.60 (Noise
Elimination and Noise Prevention) of the Shakopee City Code, nor the MPCA Standards.
Staff has received a number of complaints regarding noise. Staff believes the source of
the noise to be the scraper machine beingused to construct the berm. As noted above,
this activity is nearing completion. Staff has received no evidence thai noise levels are
being exceeded after 5p.m. Staffhas not taken sound readings in the area.
12. Two propanetanks 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 heatthesenvopuildings only. The propane tanks must be
installed and maintained in accordance with State Fire Marshall Rules (Chapter
7510.3100 -7510.3280). There shall be 110 other fuel tanks on:-site unless said tanks
receive permit approval from the Minnesota Pollution control Agency (MPCA) or other
required agency. There sllallbe no use or storage of explosives except as approved in
advance as part of this conditional use and mining permit.
There exist two (2) diesel fuel tankswhich are fastened to trailers. The trailers house the
generators that run the mining equipment. These tanks are approximately 4 feet high, 6-
8feet 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 beinstalled 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, staffnoted that there are piles of material visible above the
berms. These piles are import 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 permit through the life of the operation.
The City will be seeking reimbursementfor city costsfor the recently completedsurVey of
the berm located in the southwest portion of this property.
16. The revised Gravel Extraction Plan and the End Use Plan, as submitted by the applicant,
shall be adhered to, "withollt 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 staffwill continue
to utilize in the ongoing review of this property.
17. The applicantshall 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 April 30, 1985.
This condition has been met. Shakopee Gravel, Inc., is the operator of the mine.
18. The City's approval ofthe permits (CUP and Mining)is made ill 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.
This condition has been met. However, it appears to staff that this condition should be
amended to delete the language referring to a "three year renewal" as the City does not
have the authority (as was discussed with the recent amendment to the CUP) to require a
renewal of a cUP.
19. The Conditional Use and Mining Pennits 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 [or notice and publication.
Apublic hearing was held on September 7, 2006, with the Board continuing the review to
October 5, 2006. Staffsuggests a change in the language of this condition. Asa
practical matter, as written, the condition would require the City to set a public hearing
any time a complaint is received. This negates the language regarding the Board setting
a public hearing at its own initiation. Itwould be appropriate to re-phrase the condition
to have complaints brought to the Board, and have the Board determine whether to set a
public hearing on complaint(s).
20. If the Board ofAdjustmenta1l<l Appeal~}in<is,tl?-atthe applicants have substantially, or
repeatedly violated the terms of this agreement, the Board of Adjustments and Appeals
may revoke said permit.
This condition is simply a statement of the Board's authority, and requires a factual
determination by the Board as to whether there are sub.$,tqntial,Qrrep~gtecl.Ylplations.
21. Allow for the relocation of the central processing area.
At this time, staff is not aware of any immediate plans to relocate the central processing
area further to the west on the property. The operator is aware that if the processing
area is moved, that all conditions listed in this resolution, particularly those pertaining to
setback requirements and noise emission control requirements, will be reviewed for
compliance.
22. Allowthe final development grades tobe between an elevation of764 at the bottom of
the proposed ponds and 832 feet.
The applicant is aware that the grade of the final development of this property shall
occur within the elevations noted.
23. 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. They are principally mining the area of the 3rd phase,
with some mining occurring in the area of the fourth phase.
24. 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 applicant was directed by the Board at their September 7th meeting to provide a
survey that verifies the elevation of the ground water level and the elevation of the floor
of the mining operation. Staff has not yet been provided with that information.
25. The mine shall operate for 17 years beginning on January 16, 1996, and terminating on
January 16, 2013.
The applicant has requested that this condition be modified to read asfollows;
The mine shall operate for 17 years beginning on January 16, 1996, and terminating on
January 16, 2013, based on an average extraction rate of 29,000 cubic yards permonth.
At the annual review, the termination date will be adjusted toreflect the actual average
extraction rate. The Board shall consider whether this change is acceptable, whether
there should be some other modification to this condition, or whether it should remain in
its current state.
26. Provided that the applicant is granted access to future 1 ihA venue, consistent with the
end use development of the 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 construction of the extension of 17th
Avenue continues.
27. The sanitary sewer along future 17th Avenue is shown, but not approved. Future
extension of 1 ih Avenue will determine the ultimate alignment and depth. The City
Engineer shall determine and propose a mutually agreeable location and depth for the
trunk: sanitary sewer along future 1 ih Avenue.
Additional review of this condition will occur as construction of the extension of Ith
Avenue continues.
." ,"-
28. Access spacing to future 1 ih 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.
29. Material imported onto the site for reclamation and [mal site 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 meets any and all standards set by the MPCA or government board that
regulates mine reclamation.
The applicant has provided information that pertains to this condition.
30. 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.
31. 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.
32. The storm sewer discharge along future 1 ih Avenue shall not exceed the design capacity
in the CSAH 83. trunk storm .sewer as determined by the City Engineer. The development
of the subject property will necessitate the lowering ofthe storm sewer along future 1 ih
Avenue. The property owner shall pay the cost of 100yering this trunk line.
Additional review of this condition will occur as construction of the extension of 1ih
Avenue continues.
33. No Construction cutting or filling in the Minnegasco E~ement #1997-7, recorded as
document #0393488, except as authorized by Minnegasco.
This condition appears to be met.
34. . 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 isto 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.
35. lfthe 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 review of the permit.
2. Accept the review of the permit, subject to modifications.
3. Deny the review of the permit.
4. Continue the review of the permit.
STAFF RECOMMENDATION
Consider the comments presented by staff, the applicant, and the neighborhood property owners,
and make the appropriate determination.
ACTION REQUESTED
Offer a motion consistent with the wishes of the Board, and move its approval.
~
.......- ./. /'
/t] -;1 . . .... ...
Mark Noble I .'
I
Planner II V
Boaa-pc/2006/1 0-05/shakopeegravelreview .doc'
."
"
. ~~~
30Q FIRST AVE N TEL: 612-339.3300 COMMUNITY PLANNING
SUITE 210 FAX: 612-337.S601 lAND PLANNING ~~~
MINNEAPOLIS, MN WEB: DSUPlAN.COM URBAN DESIGN
55401-2609 LANDSCAPE .ARCHITECTURE
MARKET RESEARCH DSU
MEMORANDUM
DATE: 1 0/02/06
TO: Neighboring Property Owners
FROM: Shakopee Graveline. Representatives
RE: Summary of Potential Landscaping Alternatives Associated With Different Berm Options
""-"''''''' , ,. ..._.._ u.....,. ~"'... _ ~ ~~...- . --...---"'........... ..... ......._--~
The resolution of the size and shape of the landform between your property and the active mining area
within the Shakopee Sand & Gravel mine is the primary issue to be discussed at the continued Board of
Adjustment & Appeals (BOAA) meeting..Thursday, October 5. This memorandum contains a summary of
relevant information and explores the possibility of utilizing permanent landscaping both as a way of
improving the screening and buffering of your property while the mining activities continue and to
provide a permanent landscaped edge between you and the future residential development.
INFORMATION:
The material that has been placed within the required 100 ft. setback is material that will be used to fill
in the mining area to reclaim it for its future use after the mining is completed, This reclamation
material needs to be stored somewhere on the property during the. mining operations. The SGI
conditional use permit (cup) identifies "stockpiles" and stipulates a25 ft. maximum height. In previous
reviews ofthe permit, the BOAA has agreed that the term stockpile refers to piles of processed
(marketable) materials and not to the reclamation materials.
The cup also requires the installation and maintenance of a berm of a minimum height of 8 ft. with a
3:1 slope, covered with an acceptable seed mix. A berm constructed to these specifications exists in
many areas around the perimeter of the property. For several years, SGI has been storing reclamation
material within the setback .area and there has been no objection raised during the annual review of the
cup. This material is stacked in piles higher than 8 ft and provides more noise attenuation and visual
screening. It also serves as more of a deterrent to anyone seeking to enter the property.
It is clear froin correspondence and testimony that some of the neighbors are convinced that the right
course of action is to remove the bulk of this material, build a 3:1 berm to a height of 8 ft. and seed and
maintain it in this condition. That is one of the options available to the BOAA and if that is what
they decide, SGI will comply.
There are obviously costs associated with moving this material and it will take time and grading activity
to complete the work. The smaller berm will provide significantly less visual screening and noise
buffering. It will also be very easy to traverse the area and walk to the very dangerous edge of the mine
face. You may understandably conclude that the cost is not your problem and we agree, but we would
like to see if there may be some options available to us that could allow more reclamation material to
remain in place and the screening accomplished with permanent landscaping.
,
, ~"L
300 FIRST AVE N TEL: 612'339'3300 COMMUNITY PLANNING
SUITE 210 FAX: 612'337'5601 LAND PLANNING ~~~
MINNEAPOLIS, MN WEB: DSUPlAN.COM URBAN DESIGN
55401.2609 LANDSCAPE ARCHITECTURE
MARKET RESEARCH DSU
ALTERNATIVES:
In every case, the weeds will be controlled and vegetation maintained on both sides of the berm to .
control dust. We are also not interested in pretending that an important part of the consideration for
SGI is the cost of moving the reclamation material. Simply stated, the less we have to move, the more
cost savings we will have to support the cost of permanent landscaping along this edge.
Alternative One: Existing Landform
In this alternative, we would establish acceptable vegetation onboth sides of the berm. The property
line along your homes is approximately 2,270 feet in length. We would propose to install a combination
of deciduous and coniferous trees, in a staggered fashion, coordinated with your existing landscaping
every 15 ft. This would result in a total of 302 trees being planted.
Alternative Two: 2:1 Slope
The second alternative would involve grading the reclamation materials to maintain a 2:1 slope. The
. . cost saving associated with this option would justify paying for the installation of 152 trees.
Alternative Three: 3:1 Slope
Alternative Three would be the removal of the majority of the reclamation material and the construction
(If a 3:1 slope.
CONSIDERATIONS:
I
The selection of either of the first two alternatives would require the approval of all of the property
owners. Conceivably a property owner could go along with the idea and decline the landscaping, but
the idea will definitely not work if there is widely different opinions represented among the abutting
property oV\fners.
We would like to present thes~ alternatives to you and then give you some time to talk among
yourselves in private. We can mutually present our information and your responses to the BOAA. Thank
you for yourconsideration.
300 FIRST AVE N TEL: 612-339-3300 COMMUNITY PLANNING ~~~
SUITE 210 FAX: 612-337-5601 LAND. PLANNING 71~~
MINNEAPOLIS, MN WEB: DSUPLAN.COM URBAN DESIGN
55401-2609 LANDSCAPE ARCHITECTURE
MARKET RESEARCH DSU
MEMORANDUM
DATE: 1 0/2/06
TO: Neighboring Property Owners
FROM: Shakopee Graveline. Representatives
RE: Summary of Dakota County Noxious Weed Control Program Recommendations
.---"'.. -----~~...-- . -"""....
As you may have heard at the Shakopee Board of Adjustment & Appeals meeting, we have been in
contact with Dakota County and we are following their direction for the eradication of the noxious
weeds that have grown within our setback area. The following is a summary of their directives:
. Cut the weeds to height of 6"
. leave cut material in place
. Spray for broadleaf and noxious weeds in the Spring
. Overseed with MnDOT #250 seed mix
. Mow the area twice per year for maintenance.
We are sharing this information so you are aware of the required approach to eradicate these weeds
and replace them with an acceptable ground cover.
300 FIRST AVE N TEl: 612-339-3300 COMMVNITY PLANNING ~~
SUITE 210 FAX: 612-337-5601 LAND PLANNING 1~~
MINNEAPOLIS. MN WEB: DSUPLAN.COM URBAN DESIG N
55401. -2609 LANDSCAPE ARCHITECTURE
MMKET RESEARCH DSU
MEMORANDUM
DATE: 10/5/06
TO: Board of Adjustment and Appeals
FROM: Shakopee Graveline. Representatives
-- ~'- '"' ., Rf;:.. ,.Summary of Bedrock/Static Water levels per County W(llllndex Online Reports
As requested by the Board at its September 7th meeting a survey that verifies the elevation of the groundwater
level and the elevation of the floor of the mining op~ration was undertaken. A survey of County Well Index
Online Reports shows that the static water level ranges from 11 feet to 13 feet below bedrock. Condition 24
states in part: "Mining extraction shall not exceed a dept~ greater than ten (10) feet above the established
ground water MSl elevation."
SGI has no intention of mining below bedrock because there is no available product to sell.
UnioueWell No. Address Ground Bedrock Groundwater
228356 1650 CR 83 817 750 NA
228357 1650 CR 83 825 747 NA
228358 1650 CR 83 832 757 NA
250093 1776CR83 833 752 NA
510437 1650 CR 83 816 754 741
572689 1776 CR 83 831 745 734
674159 1650 CR 83 826* 752 739
*Elevation of SGI monitoring well per topographic survey
-
Print Map Page 1.0f 1
CWI (tOnline
The Minnesota CountyWelllridex
M~D~';"II(t/jdHd1' ~afEmim:m_HeSt, ~(cJm
. " .. . .
Well Log Report - 00228356 Page I of I
Minnesota Unique Well No. MINNESOTA DEPARTMENT OF HEALTH
I I County Scott WEll AND BORING Entry Date 0311811994
228356 Quad Eden Prairie ECO. . Update Date 02108/1996
Quad 10 104C R RD Received Date
Minnesota Statutes Cha ter 103/
We!l Name TEST HOLE 1 Well Dept/l Dept/l Complete<! Date Well Completed
Township Rsnge D1r Section Subsections Field Located MGS 80 It. 80 It. 05/19/1981
115 . 22 W 18 BBABAD Elevation 817 It. Drlliin Method
Well Address
SHAKOPEE MN Drilling Fluid Well Hydrofraeture<l? Ves No
From Fl to Fl
Geological Material Color Hardness From To
SAND, CLAY, LOAM, TOPSOil 0 5 Use Test well
MEDIUM SAND & GRAVEL 5 20
COARSE SAND & GRAVEL 20 25
MEDIUM SAND & GRAVEL 25 30 Casing Type Joint Drive Shoe? No AbovelBelow It.
MEDIUM SAND & GRAVEL, CLAY 30 45
MEDIUM SAND & GRAVEL 45 60 '.
COARSE SAND & GRAVEL BO 65 Casing Diameter WeIght Hole DIameter
CLAY, GRAVEL & COARSE SAND 65 67
LIMESTONE 67 80
Open Hole from It. to ft.
Screen
Diameter Slot/Gauze Length Set Between
static Water Level
It. from Date Measln'ed
PUMPING LEVEL (below land surface)
ft. after hrs. pumping g.p.m.
Well Head Completion
Pitiess adapter manufaelurer Model
r:J Casing Protection [.j 12 in. abava grade
At-grade (Envronmental Wells and Borings ONLY)
Grouting Intormation Wall Grouted? No
No
REMARKS
MG.S. NO. 1749.
Volts
Material
Abandoned Wells Does property have any not in use and net seale<! well(s)?
as No
Varfance Was a veriance granted from the MDH for this well? No
Cuttings Ves Wall Contractor Cerllfleation
First Bedrocl< Prairie Du Chien Group Aquifer 2I2~
Last Strat Prairie.Du Chien Group Depth to Bedrock 67 It. lie. Or Reg. No.
County Well Index Online Report 228356 printe~~~~~~~
Well Log Report - 00228357 Page I of J
Minfl6sota Unique WeN No. MINNESOTA DEPARTMENT OF HEALTH
I I County Scott WELL AND BORING Entry Date 03/18/1994
228357 Eden Prairie RECORD Update Date 02108/1996
Quad
Quad 10 104C Received Date
Minnesota Statutes Cha ter 1031
Wen Name TEST HOLE 2 Wen Depth Depth Completed Date Wen Completed
Township Range Dlr Section Subsections Field Located MGS 80 It. 80ft. 05/19/1961
115 22 W 16 BADBBB Elevation 625 It. Drlllin Method
Well Address
SHAKOPEE MN Drilling Fluid Wen Hydrofractured? C..] Ves.. [.J No
From Fl to Fl
Geological Material Color Hardness From To
TOPSOIL 0 5 Use T esl Well
FINE SAND & GRAVEL 5 10
MEDIUM SAND & GRAVEL 10 50
COARSE SAND & GRAVEL 50 55 Casing Type Joint Drive Shoe? No AbovelBelow It.
MEDIUM SAND & GRAVEL 55 60
FINE SAND & GRAVEL 60 70 Casing Diameter Weight Hole Diameter
COARSE SAND & GRAVEL 70 75
COARSE SAND & GRAVEL & CLAY 75 78
LIMESTONE 78 80
Open Hole from It. to It.
Screen
Diameter Slot/Gauze Length Set Between
Static Water Leve'
It. from Dal. Measured
PUMPING LEVEL (below land surtace)
It. after hrs. pumping. g.p.m.
Wen Head Completion
Pitiess adapter manufacturer Model
["'.1 Casing Protection 12 in. above grade
At-grade (Environmenfal Wens and Borings ONL V)
Grouting Information Wen Grouted?
No
REMARKS
M.G.S. NO. 1750.
HP _ Volts
T e Material
Abandoned Wens Does property have any not in use and not sealed wen(s)?
es No
Variance Was avariance granted from the MDH for this well?
Cullings Yes wen Contractor Certification
First Bedrock Prairie Ou Chien Group AqUifer 2lli2
Last Strat Prairie Du Chien Group Depth to Bedrock 78 It. Uc. Or Reg. No.
County Well Index Online Report 228357 Printed 10/4/2006
HE-01205-07
Well Log Report - 00228358 Page 1 of 1
Minnesote Unique We/lNo. MINNESOTA DEPARTMENT OF HEALTH
I I County Scott WELL AND BORING Entry Date 03/16/1994
228358 Qued Eden Prerie RECORD Update Date 02/0811996
Quad /0 l04C Received Date
M/nnesota Statutes Cha ter 103/
Well Name TEST HOLE 3 Well Depth Depth Completed Date Well Completed
Township ""lJlIe,,8ir.Section.Subsections Field Located MGS 80 ft. 80ft. 05/19/1981
115 22 W 16 BCACDD Elevation 832 ft. Drlllin Method
Well Address
SHAKOPEE MN Drilling Fluid Well Hydrolractured? r.l Yes No
From Fl to Fl
Geological Material Color' Hardness From To
SOIL 0 2 Use Test well
CLAY 2 10
MEDIUM SAND & GRAVEL 10 25
FiNE SAND & GRA VEiL 25 35 Casing Type Joint Orive Shoe? No Above/Below ft.
COARSE SAND & GRAVEL 35 40
FINE SAND & GRAVEL & CLAY 40 47 Casing Diameter Weight Hole Diameter
FINE SAND & CLAY 47 50
CLAY & FINE SAND 50 55
CLAY 55 62
FINE SAND 62 72
GRAVEL & CLAY 72 75
LIMESTONE V.HARD., 75 80.
Open Hole from It. to It.
Screen
Diameter Slot/Gauze Length Set Between
stalle Water Level
ft. frem Dale Measured
PUMPING LEVEL (below land surface)
It. after hrs. pumpin9 9.p.m.
Well Head Completion
pme.. adapter manufaclurer Model
o Casing Protection 12 in. above grade
Atilrade (Env.onmenlal Weils and Borings ONLY)
Grouting Inlormation Well Grouted? No
Nearest Known Source of Contamination
_feet ~direction _type
Well disinfected upon completion? No
REMARKS
M.G.S. NO. 1751.
..m T Material
Abandoned Wells Doos property have any not in Use and not seaied weil(s)?
as No
Variance Was a variance granted from the MDH for this well? Yes [2] No
Cuttings Yes Well Contractor Certification
First Sedrock Prairie Du Chien Group Aquifer ~7259
Last Strat Prairie Du Chien Group Depth to Bedrock 75 It. Uc. Or Reg. No.
County Well Index Online Report 228358 Printed 10/4/2006
HE.01205.(17
Well Log Report - 00250093 Page I of I
Minnesote Uniaue Well No. MINNESOTA DEPARTMENT O~ HEALTH
I 250093 ] County Scott WELL AND BORING Entry Data 02115/1996
Eden Prane RECORD Update Date 0513011996
Quad
. Quad 10
I04C, Received Date
Minnesota Statutes Cha ter 1031
Wen Name Wen Depth Depth Completed Date Wen Completed
Township Range Dlr Section Subsections ~ield located MGS 112 It. 112ft.
115 22 W 16 BOA BAD Elevation 833 ft. Drlllin Method-
Wen Address
1776 CANTERBURY DR Drilnng ~Iuld
SHAKOPEE MN Wen Hydrofraclured? Ves No
- From Ft to Ft
Geological Material Coior Hardness From To
GLACIAL DRIFT 0 81 Use Domesfic
PRAIRIE DU CHIEN GROUP 81 112
Casing Type Steel{blackorlowcarbon) Jaint Noinfonnation
es rl No AbovelBelow 0 ft.
Casing Diameter Weight Hole Diameter
4 in. to 91 ft. Ibs.lft.
Open Hole from 91 It to 112 It
Screen NO Make Type
Diameter Slot/Gauze length Set Belween
static Water Level
It from Dale Measured
PUMPING lEVEL (below land sunace).
ft. after hrs. pumping . g.p.m.
Wen Head Completion
Plness adapter manufacturer Model
e'.] Casing Protecoon r; ";
L .! 12 in. above grade
r:J Atilrade (Environmental Weils and Borings ONL V)
Grouting Inlonnation Well Grouted? No
No
REMARKS
GAMMA LOGGED 10-12-1995. Pump Nollnstalled Date Installed
Manufacturer's name Model number ,.,. HP lL Volts
Len of dro Pi . i1. C . .m T e Material
Abandoned Wens Does property have any not in use and not sealed well(s)?
es No
Variance Was a variance granted from the MDH for this well? No
Borehole Geophysics Ves WeilContractor Certification
First Bedrock Prairie Du Chien GrOup Aquifer Prairie Du Chien Group MQS
Las! stra! Prairie Do Chien Group Depth to Bedrock 81 ft. Uc. Or Reg. No.
County Well Index Online Report 250093 Printed 10/4/2006
HE-0120s.lJ7
Well Log Report - 00510437 Page 1 of 1
Mnnesota Uni ue We" No. MINNESOTA DEPARTMENT OF HEALTH
510437 County Scott WELL AND BORING Entry Date 0612911992
Quad Eden Prairie RECORD Update Date 03/11/2005
Quad 10 l04C Received Date
Minnesota Statutes Cha ter 1031
We" Name SHAKOPEE GRAVEL INC. We" Depth Depth Completed Date We" Completed
Township Range Dir Section Subsections Field Located MGS 300 ft. 300ft. 0810311990
115 22. W 16 BAOBAB Elevation 816 ft. Drillin Method Non-s ecffied Rot
Well Address
165083 CR Drilling Fluid We" Hydrotraclured? [J Ves
SHAKO PEE MN 55379 No
Bentonite . From Ft to Ft
Geological Material Color Hardness From To
GRAVEL 0 42 Use Indusbial
SAND 42 58
SAND. GRAVEL 58 62
LIMESTONE 62 200 Casing Type steel (black or low carbon) Joint Welded Drive Shoe?
JORDAN, BEDROCK WHITE MEDIUM 200 300 es [] No AboveJBelow 1 ft.
Casing Diameter Weight Hole Diameter
24 in.to 25 ft. 94..62 Ib..Ift. 24 in. to 25 ft.
18 in. to 68 It. 70.59 Ibs./It. 22 in. to 68 ft.
Open Hole from 200 fI. to 300 fl..
Screen NO Make Type
Diameter Slot/Gauze Length Set Between
StaUc Water Level
75 fI. from Land surface Date Measured 08/03/1990
PUMPING LEVEL (below land surface)
130 fI. after 32 hrs. pumping 1000 g.p.m.
Well Head Completion
Pille.. adapter manulaolurer Model
rl Casi~g Prot~ction ....- 812 in. abo.ve grade
At-grade (Env;-onmental Wells and Borings ONLY)
Grouting Information WellGro.uled? [vi "es
Grout Material: Neat Cemenl from 0 10 68 ft. 3 yrds.
Graul Malerial: Neal Cemenl from 0 10 200 ft. 8 yrds.
No
REMARKS Pump Nollnstalled Dale Installed 08/1611990
SUB-GONTRACTED DRILLING TO BERGERSON-CASWELL. Manufacture(s name GRUNOEQS. Modelnumber~
ANTERBURY PIT CO RDS 83 & 16 __ HP 4!L Volts <lOO
length of drop Pipe :ll!LfI. Capacity Z2Lg.p.m
T ~ Material Steel bl~ or low carbon
es No
Variance Was a variance granted from the MDH for this well? ["J . Ves f:~.i No
Well Contractor Certification
First Bedrock Prairie Du Chien Group Aquifer Jordan I~5Q
Last Sltal Jordan Depth to Bedrock 62 ft. Uc. Or Reg. No.
County Well Index Online Report 510437 Prinled 10/4/2006
HE-01205-07
Well Log Report - 00572689 Page 1 of 1
Minnesota Uni ua Well No. MINNESOTA DEPARTMENT OF HEALTH
572689 County Scott WELL AND BORING Entry Date 06/12/1996
Quad Eden Prairie RECORD Update Date 10/19/2004
Quad 10 104C ~ecelved Date
Minnesota Statutes Cha ter 1031
Well Name FITCH, ANNE Well Depth Depth Completed Date Well Completed
Township Range Olr Section Subsections Field Located MGS 280 ft. 280ft. 11/13/1995
115 22 W 16 BDAABO Elevation 831 It. Drillin Method Non-s cffied Ro
Wen Address
1776 CANTERBURYRD S Drilling Fluid Well Hydiolractured? Yes [;No
MN
Bentonite From Ft to Ft
Geological Material Color Hardness From To
TOPSOIL BLACK MEDIUM 0 4 Use Domestic
GRAVEL & SAND VARIED MEDIUM 4 55
MEDIUM SAND VARIED. MEDIUM 55 70
CLAY BROWN MEDIUM 70 82 Casing Type Steel (blacl< or low carbon) Joint No inlormation Drive Shoe? i~.:
SAND & GRAVEL VARIED MEDIUM 82 86 F'
LIMESTONE TAN HARD 86 209 es i......J No Above/Below ft.
SANDSTONE WHITE MEDIUM 209 280
Casing Diameter Weight Hole Diameter
8 in. to 87 It. Ibs.lft. 12 in. to 87 It.
4 in. to 220 It. Ibs.lIt. 8 in. to 220 It.
Open Hole from 220 It to 280 It
Screen NO Make Type
Diameter Slot/Gauze Length Set Between
static Water Level
97 It from land surface Date Meaoored 11/13/1995
PUMPING LEVEL (below land surface)
97 It after 3 hrs. pumping 30 g.p.m.
Well Head Completion
Pitiess adapter manufacturer WHITEWA TER Model S-5-4
LJ Casing Protection 12 in. above grade
At.grade. (Environmental WeUs and Borings ONL YI
Grouting Inlormation Well Grouted? Yes El No
Grout Material: Neat Cement from to 212 ft. 13 yrds.
Nearest Known. Source 01 Contamination
~Ieet Ldireclion Sg~hkLtype
Well di~nlected upon completion? iYJ Yes LJ No
NO REMARKS
es No
Variance Was a variance granted from the MDH for this well? EVe. L~j No
Well Contractor Certification
First Bedrock Prairie Du Chien Group Aquifer Jordan l."l2N
Last Strat Jordan Depth to Bedrock 86 It. Uc. Or Reg. No.
County Well Index Online Report 572689 Printed 10/4/2006
HE-01205-07
Well Log Report - 00674159 Page 1 of 1
Mnnesote Unl ue Well No. MINNESOTA DEPARTMENT OF HEALTH
674159 County . Scott WELL AND BORING Entry Date 0810512002
Quad . Update Date 03/11/2005
Quad 10 RECORD Received Date
Minnesota Statutes Cha ter 103,.
Well Name SHAKOPEE GRAVEL Well Depth Depth Completed Date Wen Completed
Township Range Dir Section Subsections Field Located 91 It. 91 It. 04/26/2002
115 22 W 9 ODD Elevation It. Dnllin Method Non- cified Rot
Well Address
165083 CR Drilling Fluid Yes [\2) No
SHAKOPEE MN 55379 Well Hydrolractured?
Benton.e From FL to Fl
Geological Material Color Hardness From To
BRN SANDY CLAY BROWN 0 14 Use Monllor well
SAND & GRAVEL BROWN 14 29
GRAVEL & ROCKS BROWN 29 34
GRAVEL CLAY BROWN 34 62 Casing Type Steel (black or low carbon) Joint Threaded Drive Shoe?
GRAVEL BROWN 62 74
LIMESTONE YELLOW HARD 74 91 es !,,"-i No AboveJBelow ft.
Casing Diameter Weight Hole Diameter
4 in. to 77 ft. 11 Ibs./ft. 8 in. to 75 It.
4 in. to 91 It.
Open Hole from 75 ft. to .91 ft.
Screen NO Make Type
Diameter Slot/Gauze length Set Between
Static Water Level
87 ft. from Land surface Date Measured 04126/2002
PUMPING LEVEL (below land surface)
It. after hrs. pumping g.p.m.
Well Head Completion
Pitless adapter manufacturer Model
ivl Casing Protection Y 121n. above grade
At-gradelEnvironmental Wells and Borings ONLY)
Grouting Inlormation Well Grouted? Ri?1 Yes No
Grout Material: Hi9h solids bentonite from 0 to 75 ft. 6 bags
Yes ~! No
NO REMARKS
Abandoned Wells Does property have any not in use and not sealed weU(s)?
es ~ No
Variance Was a variance granted from the MOH for this well? No
Well Contractor Certification
First Bedrock Aquller Q2500
Last Strat Depth to Bedrock It. Uc. Or Reg. No.
County Well Index Online Report 674159 Printed 10/5/2006
HE-Ot205-07
2200 IDS CENTER
1;
&0 SOUTH EIGHTH STREET
: MINNEAPOLIS, MINNESOTA 55402
BRIGGS MORGAN TELEPHONE (612) 977-&400
AND FACSIMILE (612) 977-&650
PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL
(612) 977-8497
WRITER'S E-MAIL
jperry@briggs.com
October 28, 2006
VIA MESSENGER
City of Shakopee City Council
A TTN: Zoning Administrator
Shakopee City Hall
129 S. Holmes St.
Shakopee, MN 55379
Re: Shakopee Gravel, Inc.
Dear City Council:
Shakopee Gravel hereby appeals the October 19, 2006 decision of the Board of
Adjustment and Appeals (Board) to approve the review of Shakopee Gravel's 1996 conditional
use permit (CUP) without eliminating condition nos. 18 and 27 therein, which purport to place a
durational restriction on the CUP that (if enforced) would 'cause the permit to expire on
January 16,2013. The Board's decision is erroneous for a number of reasons. First, Shakopee
Gravel's CUP was approved, without conditions, by operation of law due to the City's failure to
timely approve or deny Shakopee Gravel's May 20, 2005 CUP renewal application within the
deadlines set forth in Minn. Stat. S 15.99, subd. 2. Second, regardless of whether Shakopee
Gravel's CUP was approved pursuant to S 15.99, subd. 2, the purported durational restrictions
approved by the Board are invalid and unenforceable because it is ultra vires, unenforceable and
contrary to public policy. As such, the Board's decision should be reversed and the City should
issue the CUP without conditions.
I. SHAKOPEE GRAVEL'S CUP HAS BEEN APPROVED, WITHOUT
CONDITIONS, BY OPERATION OF LAW
A. BACKGROUND
On May 20, 2005, Shakopee Gravel submitted to the City its every three-year permit
renewal CUP application.
On May 27,2005, the City informed Shakopee Gravel that its application was incomplete
because it did not include a list of names and addresses of the owners of all properties within 350
feet of the subject property. The City required the neighbors' notice information because it
SAINT PAUL OFFICE. FIRST NATIONAL BANK BUILDING. WWW.BRIGGS,COM
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BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 2
asserted that the three-year "renewal" provision in Shakopee Gravel's CUP required Shakopee
Gravel to apply every third year for an entirely new CUP.
On May 31, 2005, Shakopee Gravel objected to the City's request. Shakopee Gravel
argued that the City was "threatening to transform Shakopee Gravel's perfunctory three-year
permit renewal process into a full-blown CUP permit application gauntlet." Ex. A. Relying on
its June 9, 2003 letter to the City, Shakopee Gravel reiterated that such a procedure effectively
imposes an illegal CUP durational restriction. Id.
On June 9, 2005, the City responded to Shakopee Gravel's objection. Ex. B. The City
did 110t deny that the three-year "renewal" provision imposed an effective durational restriction.
Ex. B. The City nevertheless defended the CUP durational restriction as follows:
I have previously considered your legal position as set forth in your June 9, 2003
letter. In my opinion the condition requiring a renewal every three years is valid
because your-client agreed . to it. Consequently, the requirement in Minn. Stat.
S 462.3595, subd. 3 is met.
Id. (emphasis added). The City Attorney, however, informed Shakopee Gravel that he would
recommend to the City that the "renewal" restriction be struck if Shakopee Gravel subjected
itself to the City demanded full-blown CUP requirements.
On July 5,2005, Shakopee Gravel acquiesced. Shakopee Gravel provided the City with
the requested names and addresses, thereby completing its CUP renewal application. The City
did not inform Shakopee Gravel within 15 days (or at any time thereafter) that its revised CUP
submission was in any way incomplete. Pursuant to Minn. Stat. S 15.99, subd. 2, the City thus
had 60 days to approve or deny Shakopee Gravel's CUP application. The City did not notify
Shakopee Gravel in writing that it was extending, pursuant to Minn. Stat. S 15.99, subd. 3(t), its
time to act on Shakopee Gravel's CUP application. Shakopee Gravel did not otherwise agree to
such an extension pursuant to Minn. Stat. S 15.99, subd. 3(g). The City's statutory deadline to
act on Shakopee Gravel's requested CUP was thus September 5,2005.
On September 5,2005, the 60-day statutory deadline expired without a decision from the
City on Shakopee Gravel's requested CUP. The City's Board of Adjustment and Appeals did not
even hold its first and only public hearing on . Shakopee Gravel's requested CUP until
September 22,2005, or 17days after the 60-day deadline expired. And the Board did not act on
the CUP application until November 3, 2005, or 59 days too late. On November 3, the Board
approved the CUP. While the Board-approved CUP struck the "renewal" provision, the Board
retained (over Shakopee Gravel's objection) the 17-year CUP durational restriction.
On November 15, 2005, Shakopee Gravel "expresse[d] its gratitude to the. . . Board for
working through all but one of the issues with its mining permits." Ex. D. Shakopee Gravel
"
BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 3
notified the Board, however, that "[t]he sole remaining issue [wa]s 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." With regard to this
CUP durational restriction, Shakopee Gravel explained to the Board as follows:
Shakopee Gravel is aggressively working to exhaust its permitted 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 is [1] ultra
vires, [2] unenforceable and [3] unwise.
(Brackets & emphasis added).
Because of an appeal to the City Council by Beverly Koehnen of the Board's approval of
Shakopee Gravel's requested CUP, the City's final decision on the requested CUP was delayed
another 61 days. On January 3, 2006, or 120 days after its statutory deadline to do so, the City,
_.. __-----1h1:illlgh its City_C~>unci1, finally-1lp.p.roved the CUP.--R.\lt, like the Board, the City Council ---
retained the 17- year CUP durational restriction.
Before the City Council finally issued the City's conditional approval of Shakopee
Gravel's requested CUP, Shakopee Gravel informed the City that its requested CUP was
automatically approved under Minn. Stat. 9 15.99 because of the City's untimely decision on the
request. At the December 20, 2005 City Council meeting, Shakopee Gravel explained to the
City Council its statutory entitlement to its unconditional CUP. Ex. E.
The City did not refute Shakopee Gravel's position. The City instead sent a
December 29,2005 letter to Shakopee Gravel, wishfully asking Shakopee Gravel to confirm that
it "is not asking that the [CUP durational] condition be changed at this time." Ex. F. But,
Shakopee Gravel did not then or since make such a confirmation.
B. THE CITY'S FAILURE TO TIMELY ACT COMPELS THE ISSUANCE
OF SHAKOPEE GRAVEL'S CUP WITHOUT CONDITIONS
Because of the City's failure to timely act on Shakopee Gravel's CUP renewal
application, the CUP has been approved without conditions. Courts have found S 15.99's 60-day
deadline to be plain and unambiguous, and they have strictly construed its dictates. The Court of
Appeals explained in Northern States Power Co. v. City of Mendota Heights, 646 N.W.2d 919,
924-25 (Minn. App. 2002), that:
Because this statute is unambiguous, this court must "give effect to the statute's plain
meaning." Am. Tower, 636 N.W.2d at 313 (quotation omitted). While automatic approval of a
permit application is an extraordinary remedy, Minnesota appellate courts have shown no
reluctance to grant this remedy and enforce the provisions of section 15.99 when a city has failed
to satisfy its clear requirements. See, e.g., id. (holding that city required to issue CUP under
,.
BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 4
section 15.99, when city failed to make decision within 60 days of submission of application and
failed to obtain extension); Kramer v. Otter Tail County Bd. of Comm'rs, 647 N.W.2d 23, 24
(Miml. App. 2002) (holding that if agency fails to. approve or deny zoning application within 60-
day limit imposed by section 15.99, applicant is entitled to writ of mandamus); Demolition
Landfill, 609 N.W.2d at 281 (holding that because city council's rejection of resolution granting
permit not equivalent to denial of permit application, permit is deemed approved under section
15.99. (Emphasis added). Indeed, earlier this year, the Court of Appeals affirmed the
Legislature's further expansion of S 15.99's requirement. See Veit Company v. Lake County,
Minnesota, 707 N.W.2d 735 (Minn. Ct. App. 2006) (Ex. G).
The City has admitted that it only "had until November 25,2005 (120 days from July28,
2005) to act on [Shakopee Gravel's CUP] application." Ex. H. But, in order to conclude that it
"act[edJ on [Shakopee Gravel's CUP] application" by November 25, the City necessarily argues
that the Board of Adjustment's November 3, 2005 approval of Shakopee Gravel's CUP with
conditions "is valid because it was adopted before the end of the review period." The Minnesota
Court of Appeals has, however, already rejected such an argument. See Moreno v. City of
Minneapolis, 676 N.W.2d 1,5-6 (Minn. App. 2004). Where, as here, the decision of an inferior
body of a municipality is appealed pursuant to the municipality's internal appeal process to the
municipality's city council, Moreno determined that the statutorily required decision is not made
until the city council rules on the appeal. Id. at 5-6. And, because the City Council did not
finally rule until January 3, 2006 on Beverly Koehnen's appeal of the Board of Adjustments'
approval with conditions of Shakopee Gravel's CUP, the mining CUP was automatically
approved without conditions on November 25,2005.
In Moreno, the Minneapolis Institute of Art (MIA) applied to the City of Minneapolis
"for a [planned unit development] [C]PUD[,] to add the new wing" to its museum. Id. at 3. "The
city considered the application complete on July 23, 2002, with a 60-day deadline of
September 23, 2002." Id. On September 9, 2002, "the planning commission approved the MIA's
application subject to the conditions recommended by the planning department." Id. A citizen,
Paul Smith, then exercised his right under the city code to appeal this PUD approval to the city
council. Id. The city council concluded that this appeal effectively constituted "a new zoning
application, thereby permitting a new section 15.99 time period," or an extended deadline to
January 17,2003. Id. "On December 13,2002, the city council denied Smith's appeal." !d. at 4.
The Court of Appeals disagreed with the city. The court dismissed any relevance to the
planning commission's September 9, 2002 CUP approval with conditions. The court instead held
that because the city council did not decide Smith's appeal within the 60-day deadline, "the
MIA's application was automatically approved by operation of Minn. Stat. g 15.99." Id. at 6.
The court explained its holding as follows:
We recognize that automatic approval of a permit application may sometimes be a
harsh, extraordinary remedy, e~pe9ially where, as in this case, the city must act
,
BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 5
promptly after an internal administrative appeal. But as the MIA rightly observes,
if a city has an internal process that permits appeals, then it must structure its
appeal process in. a manner which permits a decision by the city before the
expiration of the deadline. The alternative is to risk approval by operation of
section 15.99. Thus, if an internal administrative appeal is filed on day 56, as was
the case here, the city can still engage in a thoughtful consideration of the appeal
simply by putting in place a system that permits city officials to promptly extend
the deadline an additional 60 days.
Id. (emphasis added). The court further explained as follows:
[T]he planning commission's approval of a zoning application is not the final
decision of the city. Although the Minneapolis city ordinances give the planning
commission the authority to approve zoning applications,. final approval or denial
of an application does not occur until the city council has approved or denied the
application after an appeal. M.C.O. S 525.180. While it is true that in some cases
the decision of the planning commission will be final because there is no
challenge to its decision, if the decision is challenged, the application is not
finally approved until the challenge is resolved by the city council.
Id. at 5-6 (emphasis added).
Moreno is virtually identical to this situation. Both the Minneapolis ordinance and the
Shakopee ordinance provide that decisions of the initial zoning body are "final subject to appeal
to the City CounciL" See M.C.O. S 525.180; Shakopee City Ordinance S 11.85, subd. 4(a). Both
the Minneapolis planning commission in Moreno and the Board here rendered decisions within
the statutory deadline. In both cases, the cities' ordinances allowed for appeals. And, as in
Moreno, an appeal was taken to the City Council here by Beverly Koehnen. Most significantly,
like in Moreno, the City Council did not rule on the application within the time the statute
allowed. In fact, the City Council did not deny Koehnen's appeal and thereby finally approve of
Shakopee Gravel's CUP until January 3, 2006, or 39 days too late. Consequently, Shakopee
Gravel's "application was automatically approved by operation of Minn. Stat. S 15.99." Id. at 6.
Furthermore, the City is without authority to affect the approval. As recently held by the
Court of Appeals, "[0 ]nce an application is approved by operation of law under Minn. Stat.
S 15.99, subd. 2, the local government unit loses jurisdiction over the application, and any
attempt to act on the application is invalid." Breza v. City of Minnetrista, 706 N.W.2d 512, 515
(Minn. App. 2005) (holding that an application for wetland exemption was automatically
approved to the extent permitted by statute when the city did not act within the requisite 60
days). Accordingly, the City's attempted imposition of conditions on Shakopee Gravel's CUP
fails; the CUP has been automatically approved by operation of law without conditions.
" ,..
BRIGGS AND MORGAN.
City of Shakopee
October 28, 2006
Page 6
II. THE PURPORTED DURATIONAL RESTRICTION IS INVALID AND
UNENFORCEABLE
Regardless of whether Shakopee Gravel's CUP has been approved without conditions, the
imposition of the purported durational restriction in condition nos. 18 and 27 is invalid and
unenforceable as a matter oflaw.
A. THE DURATIONAL LIMIT IS PER SE ULTRA VIRES
First, 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 permit shall remain in effect as long as the
conditions agreed upon are observed, but nothing in this 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. S 11.85, subd. 9 ("[a]
conditional use permit shall remain. in effect so long as the conditions agreed upon are
observed") (emphasis added).
Neither the Board nor City staff have to date been able to cite to any Minnesota case in
which such a "durational" restriction was upheld. Moreover, there is a Minnesota 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 that CUP durational
restrictions were valid and enforceable because the CUP holders agreed to the time limits on
their CUP. The opinion explained as follows:
rSlection 462.3595 does not appear to us to contemplate the imposition of time
limitations on permits issued thereunder. The "conditions" upon which such
permits may be issued are to be tied to the "standards and criteria" set forth 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. terminology refers,
instead, to the norms laid down by the ordinance to assure that particular uses will
not be detrimentaUo 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. 9 462.3597 (Supp. 1989) relating to interim uses.
Id. at 3 (citations omitted; emphasis added). Stated otherwise, the Board had no authority to
impose time limits on Shakopee Gravel's CUP.
,
BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 7
B. THE DURATIONAL LIMIT IS OTHERWISE UNENFORCEABLE
Mining CUPs are otherwise protected against such durational restrictions. The
Minnesota Supreme Court has long 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 boundaries 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. The Board and City
Council cannot identify any case that questions - let alone overturns - Hawkins. Thus, the
purported durational restriction is unenforceable as a matter of law.
C. THE DURATIONAL LIMIT IS ALSO CONTRARY TO PUBLIC POLICY
There is 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
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 material,
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."
BRIGGS AND MORGAN
City of Shakopee
October 28,2006
Page 8
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 volumetric ally significant alternative Prairie du Chien bedrock resources
are in the southern and southeastern portions of Dakota and Washington.counties.
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 quarry 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.
''.-.
BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 9
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 Work Group 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 of the 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 Task Force noted that "local
opposition to mining is often pitted against regional resource needs." Aggregate Resources Task
Force, Final Report to the Minnesota Legislature at 1 (Feb. 1, 2000). "The typical result is that
the regional needs are often given lip service, but usually ignored." Id. 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.
****
, \
BRIGGS AND MORGAN
City of Shakopee
October 28, 2006
Page 10
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.
Id. 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.
Id. ("[a] land use plan shall also include the local government's goals, intentions, and priorities
concerning aggregate and other natural resources"). Thus, the need for aggregate mining
operations like Shakopee Gravel's cannot be gainsaid. Accordingly, the imposition of an
arbitrary durational restriction on Shakopee Gravel's CUP is contrary to public policy and,
therefore, void.
IU:--CONCLUSTON
In sum, the permit durationallimit is unenforceable as both contrary to the law and public
policy. Shakopee Gravel thus respectfully requests that the City Council reverse the Board's
decision and issue the CUP without conditions, particularly condition nos. 18 and 27.
Sincerely,
C~ei/y rL--
JYP/JRA
Enclosures
cc: B. Notermann
1. Busch
1. Speer
1957438v2
,:~
2200 IDS CENTER
80 SOUTH EIGHTH STREET
MINNEAPOLIS. MINNESOTA 55402
BRIGGS AND MORGAN TELEPHONE (612) 977-8400
FACSIMILE (612) 977-8650
PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL
(612) 977-8497
WRITER'S E-MAIL
jperry@briggs.com
January 20, 2006
City of Shakopee
City Council
Shakopee City Hall
129 S. Holmes Street
Shakopee, MN 55379
Re: Shakopee Gravel's CUP
Dear Councilmembers:
By letter dated December 29, 2005, the CIty Attorney fOrtheetty of-S-lrak~lp-e-e-C-eity) --
purportedly seek clarification that, with regard to "the 17-year durationallimit contained in the
Shakopee Gravel Conditional Use Permit" (CUP), Shakopee Gravel "is not asking that the
condition be changed at this time." Ex. F. The City Attorney's letter was in truth a desperate
attempt to circumvent the City's automatic unconditional approval under Minn. Stat. ~ 15.99 of
Shakopee Gravel's requested CUP. As the City (especially its City Attorney!) is well aware,
Shakopee Gravel is now and has been since at least June 9, 2003 (Ex. A, Attach.) "asking that
the [CUP durational] condition be" eliminated. Indeed, as Shakopee Gravel represented at the
December 20, 2005 City Council meeting, Shakopee Gravel's CUP was automatically approved
under ~ 15.99 on September 5,2005 without the duration81 restriction or any other restriction.
A. BACKGROUND
On May 20, 2005, Shakopee Gravel submitted to the City its every three-year permit
renewal CUP application.
On May 27, 2005, the City informed Shakopee Gravel that its application was incomplete
because it did not include a list of names and addresses ofthe owners of all properties within 350
feet of the subject property. The City required the neighbors' notice information because it
argued that the three-year "renewal" provision in Shakopee Gravel's CUP required Shakopee
Gravel to apply every third year for an entirely new CUP.
On May 31, 2005, Shakopee Gravel objected to the City's request. Shakopee Gravel
argued that the City was "threatening to transform Shakopee Gravel's perfunctory three-year
permit renewal process into a :full-blown CUP permit application gauntlet." Ex. A. Relying on
its June 9, 2003 letter to the City, Shakopee Gravel reiterated that such a procedure effectively
imposes an illegal.CUP durational restriction. ld.
SAINT PAUL OFFICE. FIRST NATIONAL BANK BUILDING · WWW.BRIGGS.COM
MEMBER - LEX MUNDI. A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS
.
.., .~
BRIGGS AND MORGAN
City of Shakopee
January 20,2006
Page 2
On June 9, 2005, the City responded to Shakopee Gravel's objection. Ex. B. Tellingly,
the City did not deny that the three-year tlrenewal" provision imposed an effective durational
restriction. Ex. B. But the City nevertheless defended the CUP durational restriction as follows:
I have previously considered your legal position as set forth in your June 9, 2003
letter. In my opinion the condition requiring a renewal every three years is valid
because your client agreed to it. Consequently, the requirement in Minn. Stat. ~
462.3595, subd. 3 is met.
ld. (emphasis added). The City Attorney, however, informed Shakopee Gravel that he would
recommend to the City that the "renewal" restriction be struck if Shakopee Gravel subjected
itself to the City demanded full-blown CUP requirements.
On July 5,2005, Shakopee Gravel acquiesced. Shakopee Gravel provided the City with
. the requested names and addresses, thereby completing its CUP renewal application. The City
dicl-net-inferm-Shak-Gpee-Gr-a-v-eLwithin-l.Lda}ffi-(.QLat any time thereafter) that. its revised
submission was in any way incomplete. Purs.uant to Minn. Stat. ~ 15.99, subd. 2, the City thus
had 60 days to approve or deny Shakopee Gravel's CUP application. The.City did notnotify
Shakopee Gravel in writing or orally that it was extending, pursuant to Minn. Stat. ~ 15.99, subd.
3(t), its time to act on Shakopee Gravel's CUP application. Shakopee Gravel did not otherwise
agre,e to such an extension pursuant to Minn. Stat. ~ 15.99, subd. 3(g). The City's statutory
deadline to act on Shakopee Gravel's requested CUP was thus September 5, 2005.
On September 5,2005, the 60-day statutory deadline expired without a decision from the
City on Shakopee Gravel's requested CUP. The City's Board of Appeals and Adjustments
(Board) did not even hold its first and only public hearing on Shakopee Gravel's requested CUP
until September 22, 2005, or 17 days after the 60-day deadline expired. And the Board did not
act on the CUP application until November 3, 2005, or 59 days too late. On November 3, the
Board approved the CUP. While the Board-approved CUP struck the "renewal" provision, the
Board retained (overShakopee Gravel's objection) the 17-year CUP durational restriction.
On November 15, 2005, Shakopee Gravel "expresse[d] its gratitude to the. . . Board for
working through all but one ofth~ issues with its mining permits." Attach. D. Not surprisingly,
tl[t]he sole remaining issue [wa]s with the 1996 conditional use permit (CUP) condition nos. 18
and 27 - that is, the 17-year durational restriction on the pennit, which (if enforced) would
cause the permit to expire on January 16, 2013." With regard to this CUP durational restriction,
Shakopee Gravel explained to the Board as follows:
Shakopee Gravel is aggressively working to exhaust its permitted 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 is [1] ultra
vires, [2] unenforceable and [3] unwise.
., .
. ,
BRIGGS AND MORGAN
City of Shakopee
January 20, 2006
Page 3
(Brackets & emphasis added).
Shakopee Gravel was forced to clarify in writing its opposition to the CUP durational
restriction because of the City's position regarding the preexisting three-year "renewal"
provision. Specifically, Shakopee Gravel had to clarify its opposition to the CUP durational
restriction so that the City could not come back later and argue that Shakopee Gravel "agreed to
it" (Ex. B) or "consent[ed] to it" (Ex. P). Even without its November 15 letter, the City would
have had an extremely difficult time. arguing that Shakopee Gravel accepted the 17-year CUP
durational restriction. Shakopee Gravel objected to any CUP durational restriction even before it
begrudgingly submitted its complete "renewal" CUP application. Attachs. A & C.
Because of an appeal to the City Council by Beverly Koehnen of the Board's approval of
Shakopee Gravel's requested CUP, the City's final decision on the requested CUP was delayed
another 61 days. On January 3,2006, or 120 days after its statutory deadline to do so, the City,
through its City Council, finally approved the CUP. But, like the Board, the City Council
retained the 17-yt;;aJ. CUP durntional-restriclien.
Before the City Council finally issued the City's conditional approval of Shakopee
Gravel's requested CUP, Shakopee Gravel informed the City that its requested CUP was
automatically approved under Minn. Stat. ~ 15.99 because of the City's untimely decision on the
request. At the December 20, 2005 City Council meeting, Shakopee Gravel explained to the
City Council its statutory entitlement to its unconditional CUP.
Unable to refute Shakopee Gravel's contention, the City did not even attempt to argue
otherwise. The City instead sent a December 29, 2005 letter to Shakopee Gravel, wishfully
asking Shakopee Gravel to confirm that it "is not asking that the [CUP durational] condition be
changed at this time." Ex. P.Of course, Shakopee Gravel did not then or since make such a
confinnation. .
The City had no jurisdiction to impose any conditions on the CUP after the City's
statutory deadline to act. on the requested CUP expired on September 5, 2005. As recently held
by the Court of Appeals, "[o]nce an application is approved by operation of law under Minn.
Stat. S 15.99, subd. 2, the local government unit loses jurisdiction over the application, and any
attempt to act on the application is invalid." Breza v. City of Minnetrista, 706 N.W.2d 512, 515
(Minn. App. 2005) (holding that an application for wetland exemption was automatically
approved to the extent pennitted by statute when the city did not act within the requisite 60
days). Accordingly, the City's attempted imposition of conditions on Shakopee Gravel's CUP
fails; the CUP is unconditional.
" " <::ilo
BRIGGS AND MORGAN
City of Shakopee
January 20,2006
Page 4
B. ANALYSIS
The courts have found 9 15.99's 60-day deadline ~to be plain and unambiguous, and they
have strictly construed its dictates. The Court of Appeals explained in Northern States Power
Co. v. City of Men dot a Heights, 646 N.W.2d 919, 924-25 (Minn. App. 2002), that:
Because this statute is unambiguous. this court must "give effect to the statute's
plain meaning." Am[ericanJ Tower, 636 N.W.2d at 313 (quotation omitted).
While automatic approval of a permit application is an extraordinary remedy,
Minnesota appellate curts have shown no reluctance to grant this remedy and
enforce the ;rovisions of section 15.99 when a city has failed to satIsfy its clear
requirements. See, e.g., id. (holding that city required to issue CUP under section
15.99, when city failed to make decision within 60 days of submission of
application and failed to obtain extension); Kramer v. Otter Tail County Bd. of
Comm'rs, 647 N.W.2d 23, 24 (Minn. App. 2002) (holding that if agency fails to
approve or U~IlY WIling applieation--wi-thifl.-6G-day limit-imposed by section ] ~ 99,
applicant is entitled to writ of mandamus); Demolition Landfill [Services, LLCJ,
609 N.W.2d at 281 [(Minn. App.)] (holding that because city council's rejection
of resolution granting permit not equivalent to denial of permit application, permit
.is deemed approved under section 15.99.
(Emphasis added). Indeed, just this week, the Court of Appeals affIrmed the Legislature's further
expansion of S 15.99's requirement. See Veit Company v. Lake County, Minnesota, _ N.W.2d
_, No. A04-1958 (Minn. App. Jan. 17,2006) (Ex. G).
Without more, then, Shakopee Gravel has its CUP without conditions.
Sincerely,
..-.....-.-.-)
/"
" / L
-.........- .' /'"
"'7/ ~ "''7 { .-.....
Jack Y. Perry
JYP /kg
Enclosures
cc: J. Thomson
B. Notermann
L. Busch
1864965v2
, . .......,
.; .,,- 2200 IDS CENTER
30 SOUTH EIGHTH STREET
MINNEAPOLIS. MINNESOTA 55402
,BRIGGS MORGAN TELEPHONE (612) 971-8400
AND FACSIMILE (612) 977-8650
PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL
. . (612) 977-8497
WRITER'S E-MAIL
jperry@briggs.com
May 31,2005
VIA FAX VIA FAX
R. Michael Leek Jim Thompson
Community Development Shakopee, City Attorney
~ity of Shakopee 129 Holmes Street South
129 Holmes Street South Shakopee, MN 55379-1351
Shakopee, MN 55379-1351
Re: Shakopee Gravel, Inc.
Gentlemen:
. Sliakopee Gravel, mc. is understandably confused. City of Shakopee appears to
Shakopee Gravel to be again threatening to transform Shakopee Gravel's perfunctory three-year
permit renewal process into a full-blown CUP permit application gauntlet. My response two
years ago is attached. Attach. A. The law has not changed.
If Shakopee Gravel is misinformed regarding the City's intent to subject Shakopee
Gravel to a full-blown permitting process, then it apologizes. But, if Shakopee Gravel
accurately ,understood the City's intent to J;UIl Shakopee Gravel through the full permitting
process, then the City must explain to Shakopee Gravel how it can legally make such a demand
on Shakopee Gravel. Shakopee Gravel and City did that drill 17 years ago, costing each side
serious time and expense.
Please call.
JYP/kg
Attach.
cc: B. Notermann
L. Busch
J. Speer
177SISlvl
SAINT PAUL OFFICE. FIRST NATIONAL BANK BUILDING. WWW.BRIGGS.COM EXHIBIT A
MEMBER - LEX MUNDI. A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS
..,.........., ......-'.. 2200 IDS CENTER
.
, . ..
50 SOUTH EIGHTH STREET
, ; MINNEAPOLIS. MINNESOTA 55402
MORGAN TELEPHONE (612) 977-MOO
, BRIGGS AND FACSIMILE (612) 977-8650
PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL
(612) 977-8497
WRITER'S E-MAIL
jperry@briggs.com
June 9, 2003
VIA FAX
R. Michael Leek
Community Development
City of Shakopee
129 Holmes Street South
Shakopee, MN 55379-1351
Re: Shakopee Gravel, Inc.
Bear Mike.
In 1988, the City of Shakopee (Shakopee) was found by the Minnesota Court of Appeals
to have arbitrarily and capriciously denied Scott County Lumber Co.'s, now d/b/a Shakopee
Gravel (Shakopee Gravel) conditional use permit (CUP) for its aggregate extraction operation.
Scott County Lumber Co. v. City of Shako pee, 417 N.W.2d 721 (Minn. Ct. App. 1988), review
denied (Minn. Mar. 23, 1988). Shakopee Gravel's mining CUP is, according to the Min,nesota
Supreme Court, "a constitutionally protected property interest." Northpointe Plaza v. City of
Rochester, 465 N.W.2d 686,689 (Minn. 1991).
Shakopee's June 2, 2003 letter nevertheless suggests ~at Shakopee Gravel's
"constitutionally protected property interest" in its mining CUP is, with any miniscule
operational or design change, subject not just to annual and every third-year administrative
"review andlor renewal." Rather Shakopee's annual and every tlurd-year "review and/or
renewal" of Shakopee Gravel's mining CUP is, according to Shakopee, a full-fledged permit
application. In other words, Shakopee reads the permit provision for periodic "review and/or
renewal" of Shako pee Gravel's CUP as a durationallimit,..aUowing Shakopee complete discretion
on each "review and/or renewal" to either continue or terminate Shakopee Gravel's
"constitutionally protected property interest." Shakopee's interpretation of Shakopee Gravel's
mining CUP is ,not only absent from the permit but it is also illegal.
City's May 21,2002 CUP provides in relevant part as follows:
SAINT PAUL OFFICE. FIRST NATIONAL BANK BUILDING. www.BRIGGS.COM Attachment
MEMBER - LEX MUNDI. A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS
,.......:;., ,r '\
. ..
~ ,~
BRIGGS AND MORGAN
R. Michael Leek
June 9, 2003
Page 2
1. The Shakopee Board of Adjustments and Appeals shall review the
Conditional Use Permit and Mineral Extraction and Land Rehabilitation
Permit annually. 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 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.
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.
Tellingly, nothing in these paragraphs even suggests that the periodic "review and/or renewal" of
Shakopee Gravel's mining CUP requires a full-fledged permit application. To the contrary, the
Board of Adjustment and Appeal (Board) is not even authorized to determine full permit
submIssions. ~HAKOPEE,MINN. ORDINANCE ~ 11.84, suoa:-l
Moreover, because the State seeks to protect private property interests, such CUP
provisions which restrict private property rights are to be construed in favor of the applicant and
against the zoning body. Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. 2003);Frank's
Nursery-Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). This rule of
construction does not allow these permit conditions to require annual and every third year a full-
fledged permit application, which effectively constitutes a durationallimit on the CUP.
There is, in any event, nothing ambigUOUS about the statutory bar to such durational
restrictions on CUPs. Minn. Stat..~ 462.3595, subd. 3 provides:
A conditional use permit shall remain in effect as long as the conditions agreed
upon are observed. but nothing in this section shall prevent the municipality from
enacting or amending official controls to change the status of conditional uses.
(Emphasis added). The 1990 Attorney General confirmed the same. Op. Atty. Gen. 59A-32.
The Attorney General Opinion "conclude[ d] that "under section 462.3595, a municipality may
not enact or enforce ordinance provisions for conditional use permits which allow it to terminate
permits regardless. of whether or not the conditions agreed upon are observed." The Attorney
General explained its opinion as follows:
It seems clear that an ordinance which would allow a municipality to terminate
such a permit regardless of whether or not the conditions agreed upon were
observed would be in direct conflict with the statute and. as such. beyond the
power of the municipality to enact or enforce. See generally 13A Dunnell Minn.
Digest 2d Municipal Corporations, ~ 4.04c (3d ed.1981) relating to conflicting
..-,..... /~--..
, ...
'.
BRIGGS AND MORGAN
R. Michael Leek
June 9, 2003
Page 3
statutory and ordinance provisions. Moreover, it would sanction a procedure
tantamount to the arbitrary denial of permits referred to in Zylka [v. City of
Crystal] :
While the administering body, be it the council itself or a planning
commission to which power to act is delegated, has broad
discretionary power to deny an application for a special-use permit,
it cannot do so arbitrarily. A denial would be arbitrary, for
example, if it was established that all of the standards specified by
the ordinance as a condition to granting the permit have been met.
283 Minn. 192, 196, 167 N.W.2d 45,49 [(1969)] (footnote omitted).
(Emphasis & brackets added).
Minine CUPs are otherwise protected against such durational restrictions. Nearly one-
half century ago, the Minnesota Supreme Court recognized that aggregate deposits are
"diminishing assets," that by their very nature 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 a preexisting non-conforming use, can
expand to the boundaries of its aggregate deposit. Id~ at 866. The Court further held that even
preexisting non-conforming mining operations may, without zoning approvals, modify its
extraction process and equipment consistent with standard industry practice. ld. at 866-67.
If a pree#sting non-conforming mining operation can expand to the perimeter of its
aggregate deposit, then so too can a fully-permitted mining operation. Likewise, if a preexisting
non-conforming mining operation can modernize its equipment and extraction processes without
local zoning approvals, then so too can a pennitted mining operation add Shakopee-requested
aesthetic improvements such as fencing without being subject to a full-fledged permit application
process.
To be clear, Shakopee Gravel will continue to cooperate fully and completely with
Shakopee's administrative "review and/or renewa1." But Shakopee Gravel will resist any attempt
by Shakopee to convert this administrative process into a full-fledged pennit application. Hence,
Shakopee Gravel's submissions are compiete.
Sincerely,
--j
/-
C ~~ L,~
J ck Y. Perry
JYPlkg
........ /.-.....,
.
; ,.
1;1::
BRIGGS AND MORGAN
. R. Iyfichael Leek
June 9, 2003
Page 4
cc: B. Notermann
L. Busch
J. Shardlow
J. Asmus
1537424v2
.--""\ 7-",
~t. "f P
'If d 4, J.5. Bank Plaza
J.~enne y 200 South Sixth Street
Minneapolis. MN 55402
..
(612) 337-9300 telephone
. . (612) 337-9310 fax
C H ART ERE D http://www.kennedy-graven.com
JAMES J. THOMSON
Attorney at Law
Direct Dial (612) 337-9209
Email: jthomson@kennedy-graven.com
June 9, 2005
By Facsimile - To Follow by U.S. Mail
. Jack Y. Perry
Briggs and Morgan
2200 IDS Center
80 South Eighth Street
Minneapolis, MN. 55402
Re: Shakopee Gravel, Inc.
Dear Mr. Perry:
I am responding to your May 31, 2005 letter concerning the process to be followed in renewing the
Conditional-UsePermitJor Shakopee Gravel, Inc. The Conditional Use Permit that is currently in
effect states that the permit must be "renewed" every three years. ill my opinion, a "renewal" must
follow the same process, including a public hearing, as the original grant of the Conditional. Use
Permit. ill the paSt two years, the City was "reviewing" the Conditional Use Permit. A "review" is
not the same as a "renewal."
I have previously considered your legal position as set forth in your June 9, 2003 letter. ill my
opinion the condition requiring a renewal every three years is valid because your client aereed to it T
Consequently, the requirement in Minn. Stat. 9 462.3595, subd.3 is met.
The .City intends to proceed with schedu1ing.a.p~plic heariitg for the renewa~ of the Conditional Use
Permit. . .
Sincerely,
atf
'.. t.~._
.. ) es.Thomson . -
JJT:cr .-
cc: Mark McNeill
Michael Leek
JJT-263899vl EXHIBIT B
SH155-155
. 2200 IDS CENTER
, 80 SOUTH EIGHTH STREET
MINNEAPOLIS. MINNESOTA 55402
MORGAN TELEPHONE (612) 977-8400
BRIGGS AND FACSIMILE (612) 977-8650
PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL
(612) 977-8497
WRITER'S E-MAIL
jperry@briggs.com
June 24, 2005
James 1. Thomson
Kennedy & Graven
470 U.S. Bank Place
200 South Sixth Street
Minneapolis, MN 55402
Re: Shakopee Gravel
Dear James:
City's June 9 letter IS largely non-responsive toShakopt':e Gravers May 31 letter.
A. SHAKOPEE GRAVEL'S REASONABLE REQUEST
Shakopee Gravel's May 31 letter did not. as City's response letter disingenuously
suggests, challenge the condition in its CUP that requires the permit to be "renewed" every three
years. To the. contrary, Shakopee Gravel instead expressed. its narrow concern. that "City of
Shakopee appears to Shakopee Gravel to be again threatening to transform Shakopee Gravel's
perfunctory three-year permit renewal process into a full-blown CUP permit application
gauntlet." (Emphasis added). Shakopee Gravel noted that it "and City did that 001117 years
ago, costing each side serious time and expense." Believing that neither party wished to relive
their litigious past, Shakopee Gravel insisted that "[i]f Shakopee Gravel accurately understood
the City's. intent to run Shakopee Gravel through the full permitting process,. then the City must
explain to Shakopee Gravel how it can legally make such a demand on Shakopee Gravel."
(Emphasis added).
B. CITY'S NON-RESPONSIVE RESPONSE
Without citation to any authority, City responded that "a 'renewal' must follow the ~
process. including a public hearing, as the original grant of the Conditional Use Permit."
(Emphasis added). As City is well aware, the "same process" employed for the "original grant"
of the CUP constitutes a massive undertaking. It triggers not only public hearings but also
environmental review and judicial appeal rights that can be exercised by City and the NIMBY
opponents. It appears, therefore, that City takes the untenable position that every three years
Sh~opee Gravel and City must engage in a full-blown pennit reapplication process, complete
with all of the environmental, land use and judicial review of a new use application. Indeed City
SAINT PAUL OFFICE. FIRST NATIONAL !lANK BUILDING · WWW.!lRIGGS.COM EXHIBIT C
MEMBER - LEX MUNDI. A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS
BRIGGS AND MORGAN
James J. Thomson
June 24, 2005
Page 2
contends that renewal of a CUP is synonymous with an application for a new CUP, with
termination of the CUP as the consequence for the lack of an approved renewal.
City did not take this position over the first decade of the CUP, and City's current stance
is not supported by its stated rationale. City's stated rationale for its position is, in its entirety, as
follows:
ill the past two years, the City was "reviewing" the Conditional Use Permit. A
"review" is not the same as a "renewal.
Stated otherwise, City contends that the "renewal" requirement mandates a full-blown permit
reapplication analysis solely because "'review' is not the same as a 'renewal.'"
C. APPLICABLE RULES OF CONSTRUCTION COMPEL SHAKO PEE GRAVEL'S
INTERPRETATION
City does not deny Shakopee Gravel's assertion that "such CUP proVISIons which restrict
private property rights are to be construed in favor of the applicant and against the zoning body."
(Citing Yang v. County of Carver, N.W.2d 828,832 (Minn. 2003); Frank's Nursery Sales, lnc.v.
City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980)). And, even without construing the CUP
condition in favor of Shakopee Gravel,. the rules of construction compel Shakopee Gravel's
interpretation of "renewal" as a perfunctory administrative procedure to confirm Shakopee
Gravel's continued compliance with its CUP conditions, not as a full-blown reapplication
procedure.
1. Construe consistent with "plain and ordinary usaee"
"Renewal" is required to be construed per its "plain and ordinary usage." Frank's
Nursery Sales, 295 N.W.2d at 608. Per Black's Law Dictionary at 1165 (5th Ed. 1979), the
normal usage of "renewal" is "[t]o grant or obtain an extension of; to continue in force for a fresh
period." The courts agree. Hajny v. Church of Saints Peter, 1994 WL 390322 (Minn. App.
1994) ("'[r]enew' means to grant an extension, while 'terminate' means to put an end to
something") (citing The American Heritage Dictionary of English Language 1528, 1852 (3d ed.
1992)).
And such "extension[s]" or "continu[ances]" are routinely "obtain[ed]" by an abbreviated
administrative procedure. For example, one's drivers license is automatically "renewed" every so
many years until one turns a specified old age or certain medical, criminal or operational issues
arise, which then require a full-blown license reapplication. process complete with behind-the-
wheel and written examinations. Professional license "renewals" are likewise routinely approved
administratively, except under extraordinary circumstances. Physicians, lawyers and accountants
do not retake their boards, bar exams or CPA exams, respectively, every time their licenses are
up for renewal.
"",.
BRIGGS AND MORGAN
James J. Thomson
June 24, 2005
Page 3
2. Construe consistent with "intent"
"Renewal" is also required to be interpreted consistent with its"intent." State v. Zeimet,
696 N.W.2d 791, 793 (Minn. 2005). There is nothing in the establishment of the CUP conditions
that indicates City's intent to subject either itself or Shakopee Gravel every three years to the
full-blown pennit reapplication process upon which City is now insisting. Rather, City and
Shakopee Gravel contemplated an administrative renewal process. fudeed, for the first few years
after the 1996 enactment of amendments of the CUP, City automatically renewed the permit
without conducting any renewal process.
3. Construe so as to avoid "absurdity"
"Renewal" has to be interpreted, as well, so as to avoid being "absurd." Wegener v.
Comm'r of Revenue, 505 N.W.2d 612, 617 (Minn. 1993) (noting that Court is "equally obliged to
reject a construction that leads to absurd results or unreasonable results which utterly depart from
the purpose of the statute" and rejeGtin-g----absurd-interpret~tion) Per CUP condition #26,
Shakopee Gravel's CUP and mining permit extend for at least .17 years. But City's interpretation
of CUP condition #1 is that the permit effectively expires afterthree years, and the pennit must
then be "renewed" with a full-blown permit application. City is unable to explain either how a
minimum 17-year pennit expires every third year or what the value is of a 17-year permit if it
expires and must be reapplied for every three years. Moreover, given the number of years that it
took for Shakopee Gravel to procure its initial CUP, together with City's recent multi.:.year
"review". of Shakopee Gravel's permit, City's interpretation would. inevitably lead to a constant
reapplication process. Such a result is cost prohibitive and non-sensical.
4. Construe to be le2'al
"Renewal" must, moreover, be read so as to be legal. See Minn. Stat. ~ 645.22 (in
ascertaining legislative intent, it is presumed that "legislature does not intend to violate the
. Constitution of the United States or of this state").
a. Durationallimits are per se ultra vires
City's interpretation of CUP condition #1 as imposing an effective three-year "durational"
tenn on the permit is contrary to Minn. Stat. ~ 462.3595, subd. 3. Section 462.3595, subd. 3
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 this section shall prevent the
municipality from enacting or amending official controls to change the status of
conditional uses.
<
BRIGGS AND MORGAN
James J. Thomson
June 24, 2005
Page 4
(Bold in original; emphasis added); see also Shakopee Zoning Ord. ~ 11.85, subd. 9 ("[a]
conditional use permit shall remain in effect so long as the conditions agreed upon are
observedll) (emphasis added).
Strikingly, City cites to no case in which such a "durational" restriction as it is attempting
to impose was upheld. Equally telling, City ignores the previously cited Minnesota. Attorney
General's Office's opinion that is directly on point. Op. Atty. Gen. No. 59a-32, February 27,
1990. The opinion specifically rejected City of Ham Lake's argument 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:
[S]ection 462.3595 does not appear to us to contemplate the imposition of time
limitations on permits issued thereunder. The "conditions" upon . which such
permits may be issued are to be tied to the "standards and criteria" set forth 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 terminology refers)
instead, to the norms laid down by the ordinance to assure that particular uses will
not be detrimental 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. ~ 462.3597 (Supp. 1989) relating to interim uses.
ld. at 3 (citations omitted; emphasis added). Stated otherwise, City has. no authority to impose
implicit (CUP condition #1) or explicit (CUP condition #26) time limits on Shakopee Gravel's
CUP.
b. A standardless "renewal" process would violate due process
Unless it treats the "renewal" as a routine administrative process to check Shakop~e
Gravel's compliance with its CUP, City will be engaging in an ad hoc zoning process aimed at
revoking Shakopee Gravel's CUP, thereby raising serious due process concerns. This City
cannot do.
As previously recognized by the Minnesota Court of Appeals, Shakopee Gravel's current
use of its property is compatible with the existing zoning classification and does not endanger
public health or safety. Moreover, there are no standards for a "renewal" in the City's Zoning
Ordinance or in the CUP, and City has not otherwise explained or described the standards to be
applied in any meaningful way, despite Shakopee Gravel's express request in its May 31 letter.
Thus, City is without power to deny the renewal. Hay v. Township of Grow, 206 N.W.2d 19,22
(1973) (quoting Zylka v. City of Crystal, 167'N.W.2d 45,49 (1969) and noting that when zoning
ordinance lacks standards, decision is arbitrary where "the reviewing court establishes that the
'..
..
BRIGGS AND MORGAN
James J. Thomson
June 24, 2005
Page 5
requested use is compatible with the basic use authorized within the particular zone and does not
endanger the public health or safety or the general welfare of the area affected or the community
as a whole"). Should City refuse to renew the CUP without appropriate and clear standards,
City's decision would be arbitrary. ld. at 23 (reversing denial of special use permit and noting
that absence of specific express standards "makes denial of a special use permit more, not less,
vulnerable to a finding of arbitrariness"); see also Trisko v. City of Waite Park v. Meridian
Aggregates Co.,. 566 N.W.2d 349, 353 (Minn. App. 1997) ("[a] municipality may not base the
denial of a conditional use permit on land use standards that are 'unreasonably vague' or
'unreasonably subjective"'). .
If what City really desires is to revoke Shakopee Gravel's permit, then City has the
burden to demonstrate that Shakopee Gravel has violated the CUP in a "material or substantial
manner." NBZ Enters. v. City of Shako pee, 489 N.W.2d 531, 537 (Minn. 1992). City has not
met this burden.
c. As a matter of well-established public policy, Shakopee Gravel is
entitled by law to expand its mining indefinitely to the boundary of
the aggregate deposit
Mining CUPs are othelWise protected against such durational restrictions. Nearly one-
half century ago, the Minnesota Supreme Court recognized. that aggregate deposits are
"diminishing assets" and that, as such, by their very nature theyneed 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 a preexisting non-
conforming use, can expand to the boundaries of its aggregate deposit. ld. 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.
In sum, City's "renewal" of Shakopee Gravel's permit must proceed as dictated by the
rules of. construction and common sense - that is, in a routine administratively expeditious
manner to check Shakopee Gravel's compliance with its CUP. Shakopee Gravel thus looks
forward to City's perfunctory administrative renewal of its CUP.
Sincerely,
JYP/kg
cc: B. Notermann
L. Busch
J. Shardlow
1779884v9
." ~ 2200 [OS CENTER
, 80 SOUTH EIGHTH STREET
MINNEAPOLIS. MINNESOTA 55402
.BRIGGS MORGAN TELEPHONE (612) 977-8400
AND FACSIMILE (612) 977-8650
PROFESSIONAL ASSOCIATION WRITER'S DIRECT DIAL
(612) 977-8497
WRITER'S E-MAIL
jper.ry@briggs.com
November 15, 2005
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 expr~sses 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 exhaustits
permitted 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 permit shall remain in effect as long as the
conditions agreed upon are observed, but nothing in this 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. g 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 Minnesota case in which such a
"durational" restriction was upheld. Equally telling, Board conspicuously ignores the previously
cited Minnesota 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. FIRST NATIONAL BANK BUILDING · www.BRIGGS.COM EXHIBIT D
MEMBER -LEX MUNDf. 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
permits may be issued are to be tied to the "standards and criteria" set forth 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 terminology refers,
instead, to the norms laid down by the ordinance to assure that particular uses will
not be detrimental 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. ~ 462.3597 (Supp. 1989) relating to interim uses.
ld. at 3 (citation~ 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 Minnesota 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 boundaries of its aggregate deposit. ld. at 866.
If a preexisting non-confonning 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
There is 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 proj ects of all sizes and kinds.
Sand and gravel are mined from glacial or alluvial deposits. This material,
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 highesf-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 tenned 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 Bumsville to Chaska.
The only volumetric ally 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 ap?roximately 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 quarry 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 Work Group 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 of the resources." ld.
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 Task Force noted that "local
opposition to mining is often pitted against regional resource needs." Aggregate Resources Task
Force, Final Report to the Minnesota 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. .
ld. at v & x (emphasis added). In a special session the next year, the Legislature amended Minn.
Stat. g 473.859, subd. 2 to require that local comprehensive plans address aggregate resources.
. ld. ("(a] landuse 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
In 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.
JYP/kg
cc: J. Thomson
B. Notermann
L. Busch
J. Speer
L. Agrimonti
1840208v3
/ ,
. .
.
.
- lames 1. Thomson
470 US Bank Plaza
200 South Sixth Street
Minneapolis MN 55402
&
- (612) 337-9209 telephone
(612) 337-9310 fax
jthomson@kennedy-graven.com
CHARTERED
. .
TO: Mayor ap.d City Council
FROM: Jim Thomson, City Attorney ~y
DATE: December 29, 2005
RE.: Shak~pee Gravel Conditional Use Permit ~ Court Decisions
At the December 20, 2005 City Council ineeting, a question came up with respect to
whether any previous court decisions involving. the Shakopee Gravel CUP might impact the
City's ability to require renewal of the CUP every three years.
There are two Court of Appeals' decisions involving the Shakopee Gravel CUP. The first
one is a 1988 decision that arose out of the City Council's denial of the initial CUP application in
1985. The. Court of Appeals concluded that the City Council acted improperly in denying the
CUP. The Court ordered the.City Council to approve it.
By Resolution No. 376, the City Council approved the CUP on April 5, 1988 as required
by the Court's order. The Resolution contained twenty conditions, one which was that the. CUP
be reviewed annually and renewed every three years. The Court opinion does not address the
issue ofwhet~er the renewal condition was proper, because that issue was not part of the appeal.
The second Court of Appeals' decision is a 1992 one that arose out of the installationofa
concrete plant on the property.. The City contended that the CUP did not allow that use on the
property, and the City Council revoked the CUP. The Court of Appeals concluded that the
concrete plant was not authorized by Resolution No. 376. The Court held, however, that the City
could not revoke the CUP simply because of the concrete plant operation. Instead, the Court held
that the property could not be us~d for that purpose but the rest of the mining operation could
continue.. That case also does not address the validityofthe renewal condition.
The law with respect to conditional use pennits is that they "run with the land," and they
are not subject to "renewal" unless the applicant consents to it. Neither Court of Appeals' .
decision involving the Shakopee Gravel CUP changes the law with respect to that issue.
The City Council has the authority to review conditional use permits. . The purpose of
such a review would be to determine whether the user is in compliance with the terms of the
permit. Because the CUP in this case is being approved by the City Council, the review can
occur at the City Council level i(the Council chooses. .
\ EXHIBIT E
....
, Kennedy' '~. 470 U.S. Bank Plaza
200 South Sixth Street
. ~. Minneapolis, MN 55402 I
. (612) 337-9300 telephone
, (612) 337-9310 fax
C H ART ERE 0 http://www.kennedy-graven.com
JAMES J. THOMSON
Attorney at Law
Direct Dial (612) 337-9209
Emai1: jthomson@kennedy-graven.com
December 29,2005
Jack Y. Perry
Briggs and Morgan
2200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Re: Shakopee Gravel, Inc. Conditional Use Permit
Dear Mr. Perry:
I reviewed your November 15, 2005 letter concerning the 17-year durationallimit contained in the
Shakopee Gravel Conditional Use Pennit. I understand that the purpose of your letter is to ensure
that the record reflects your opinion that the condition is not enforceable, but that your client is not
asking that the condition be changed at this time.
The issue over the validity of the 17-year durationallimit does not need to be resolved at thistime.
If, however, your client wants that condition changed sometime in the future, the City's position is
that an amendment to the conditional use pennit is needed.
Sincerely,
Cl~onwon -
JJT:cr
cc: Michael Leek
JIT-273308vl
SHlSS-155 EXHIBIT F
.
Page 2 of7
Westlaw:
"',.,^...../
707 N.W.2d 725 Page 1
707N.W.2d 725
(Cite as: 707 N.W.2d 725)
H without any evidence to support it.
Briefs and Other Related Documents (3] Appeal and Error ~893(1)
30k893(l) Most Cited Cases
Statutory interpretation is a question of law subject
Court of Appeals of Minnesota. to de novo review.
VEIT COMPANY, et aI., Relators,
v. [4] Zoning and Planning ~439.5
LAKE COUNTY, Minnesota, et aI., Respondents. 414k439.5 Most Cited Cases
No. A04-1958. Planning commission failed to adopt mandatory
written statement of the reasons for denying
Jan. 17,2006. landowners' conditional use permit (CUP)
Review Denied April 18, 2006. application within 60 days of date of denial, and
thus, application was approved by operation of law;
Background: LandO'.'.1ners challenged CoYllty commission did not adDpt v,Titren reasons for denial
planning commission's denial of request for at meeting in which application was denied,
conditional use permit (CUP) to add blasting and subsequent meeting was not within 60-day period
quarrying to uses allowed in commercial aggregate permitted to adopt written reasons, and conunission
business, seeking writ of certiorari. did not adopt transcript of hearing as written
reasons for the denial. M.S.A. ~ 15.99.
Holding: The Court of Appeals, Peterson, J., held *726 Syllabus by the Court
that application was approved by operation oflaw. When a multimember governing body that denies a
Reversed. permit application fails to either (1) provide the
permit applicant a written statement of the reasons
West Headnotes for the denial at the time of the denial, or (2) adopt
a written statement of the reasons for the denial at
[1] Administrative Law and Procedure ~659 its next meeting before the period for making a
15Ak659 Most Cited Cases decision about the application expires and, upon
In the absence of an adequate method of review or adoption, provide the written statement to the
legal remedy, judicial review of the quasi-judicial applicant, the application is approved by operation
decisions of administrative bodies, if available, of law under Minn.Stat. ~ 15.99, subd. 2
must be invoked by writ of certiorari. (Supp.2003).
[2] Certiorari ~64(1) Jack Y. Perry, Jason R. Asmus, Briggs and
73k64(1) Most Cited Cases Morgan, P.A., Minneapolis, MN, for relators.
Review by certiorari is limited to an inspection of
the record of the inferior tribunal in which the court Michael J. Ford, John H. Wenker, Quinlivan &
is necessarily confmed to questions affecting the Hughes, P.A., St. Cloud, MN, for respondents.
jurisdiction of the board, the regularity of its
proceedings, and, as to merits of the controversy, Considered and decided by PETERSON, Presiding
whether the order or determination in a particular Judge; DIETZEN, Judge; and HUSPENI, Judge.
case was arbitrary, oppressive, unreasonable, [FN*]
fraudulent, under an erroneous theory of law, or
@2006Thomson/West. No Claim to Orig. U.S. Govt. Works.
EXHIBIT G
? - =__,......,_ __.......,_ J ~ ~ .....,.. :::: . .. ~/I""'" Jrto
:::: v=
Page 3 of7
707 N.W.2d 725 Page 2
707 N.W.2d 725
(Cite as: 707 N.W.2d 725)
FN* Retired judge of the Minnesota Court commission denied B & B's application. B & B did
of Appeals, serving by appointment not challenge the August 18, 2003 decision.
pursuant to Minn. Const. art. VI, ~ 10.
On June 15, 2004, B & B, this time joined by
OPINION relator Veit Company, submitted another
application to add blasting and quarrying to its
PETERSON, Judge. previously approved CUP. The planning
commission conducted a hearing on relators'
On appeal from the denial of relator applicants' application on August 16, 2004. At the close of the
application to amend their conditional-use permit, hearing, a commission member moved to deny the
relators argue that their application was approved CUP application based on relators' failure to show
by operation of law because respondent county did that the proposed use would not create potential
not (1) provide relators a written statement of the health and safety, environmental, lighting, noise,
reasons for denying the permit within the required signing, or visual problems and would not be
statutory period; and (2) provide relators a written detrimental to the rightful use and enjoyment of
statement of the reasons for the denial that was other property in the immediate vicinity nor
consistent with the reasons stated on the record. substantially diminish or impair property values
We reverse. within the vicinity. The motion carried. At the
meeting, a written notice of denial was given to
FACTS John Pippert, a vice president ofVeit. The notice
In July 2000, respondent Lake County Planning does not list any reasons for the denial. In October
Commission granted relator B & B Aggregates a 2004, relators received from the planning
conditional-use permit (CUP) for a commercial commission a written order that states that relators'
gravel operation. In the published conditional-use application is denied and includes as an attachment
order, the planning commission found that B & B's a planning-commission resolution that states
CUP request did not include crushing or washing reasons for the denial.
operations and that the CUP allowed only gravel
mining and screening. After B & B submitted to By writ of certiorari, relators sought this court's
the planning commission a separate application for review of the planning commission's denial of their
a crushing permit and sought a writ of mandamus in CUP application.
the district court to compel the planning
commission to approve B & B's permit request, the ISSUE
planning commission issued an amended order Was relators' CUP application approved by
granting B &. B's *727 request for a crushing operation of law because the planning commission
permit, but it did not allow blasting or quarrying. B failed to comply with the requirements in Minn.Stat.
& B amended its petition for a writ of mandamus to S 15.99, subd. 2(c) (Supp.2003)?
compel the planning commission to include blasting
and quarrying. in the permit, arguing that blasting ANALYSIS
and quarrying are inherent to a commercial gravel [1][2] Because the planning commission
operation. The district court granted summary determined facts about the nature and effects of
judgment for respondent Lake County and its relators' proposed land use and then exercised its
planning commission, and this court affirmed. B & discretion in determining whether to allow the use,
B Aggregates v. Lake County, 2002 WL 453231 the denial of relators' application was a
(Minn.App. Mar.26, 2002). quasi-judicial decision. Neitzel v. County oj
Redwood, 521 N.W.2d 73, 75 (Minn.App.1994),
In June 2003, B & B applied to Lake County to review denied (Minn. Oct. 27, 1994). The supreme
"add blasting and quarrying to previously approved court has explained
'CUP.' " On August 18, 2003, the planning that in the absence of an adequate method of
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review or legal remedy, judicial review of the (b) When a vote on a resolution or properly made
quasi-judicial decisions of administrative bodies, motion to approve a request fails for any reason,
if available, must be invoked by writ of certiorari. the failure shall constitute a denial of the request
Review by certiorari is limited to an inspection provided that those voting against the motion
of the record of the inferior tribunal in which the state on the record the reasons why they oppose
court is necessarily confmed to questions the request. A denial of a request because of a
affecting the jurisdiction of the board, the failure to approve a resolution or motion does not
regularity of its proceedings, and, as to merits of preclude an immediate submission of a same or
the controversy, whether the order or . similar request.
determination in a particular case was arbitrary, (c) Except as provided in paragraph (b), if an
oppressive, unreasonable, fraudulent, under an agency, other than a multimember governing
erroneous theory of law, or without any evidence body, denies the request, it must state in writing
to support it. the reasons for the denial at the time that it denies
Dietz v. Dodge County, 487 N.W.2d 237, 239 the request. If a multimember governing body
(Minn.1992) (quoting State ex rei. Ging v. Ed. oj denies. a request, it must state the reasons for
Educ. of Duluth, 213 Minn. 550, 571, 7 N.W.2d denial on the record and provide the applicant in
544,556 (1942) (overruled on other grounds)). writing a statement of the reasons for the denial.
If the written statement is not adopted at the same
Relators argue that when denying their CUP time as the denial, it must be adopted at the next
application, the planning commission *728 failed to meeting following the denial of the request but
comply with the requirements in Minn.Stat. ~ 15.99, before the . expiration of the time allowed for
subd. 2(c) (Supp.2003), that the commission state making a decision under this section. The written
reasons for the denial in writing. Relators contend statement must be consistent with the reasons
that because the planning commission failed to stated in the record at the time of the denial. The
comply with these statutory requirements, they are written statement must be provided to the
entitled to have their application granted. applicant upon adoption.
Respondents contend that the written denial that (Emphasis added.) The definition of "agency"
relators received on August 16, 2004, and the includes a county. Minn.Stat. ~ 15.99, subd. l(a)
verbatim transcript of the August 16 hearing (Supp.2003).
conform to the requirements of section 15.99.
Under Minn.Stat. ~ 15.99, subd. 2(a), an agency
[3J Statutory interpretation is a question of law has 60 days to approve or deny a zoning request,
subject to de novo review. Am. Tower, L.P. v. City and if the agency fails to deny the request within 60
of Grant, 636 N.W.2d 309,312 (Minn.2001). days, the request is approved by operation of law.
Minn.Stat. ~ 15.99, subd. 2(a), also requires that if
Minn.Stat. S 15.99, subd. 2 (Supp.2003), states: an agency denies a zoning request, the agency
(a) Except as otherwise provided in this section, "must state in writing the reasons for the denial at
section 462.358, subdivision 3b, or chapter 505, the time that it denies the request." There is no
and notwithstanding any other law to the dispute that the planning commission denied
contrary, an agency must approve or deny within relators' CUP application within the permitted
60 days a written request relating to zoning, 60-day period; a motion to deny the application
septic systems, or expansion of the metropolitan was passed at the August 16, 2004 [FN1J
urban service area for a permit, license, or other commission meeting, and a written notice *729. of
governmental approval of an action. Failure oj denial was given to relators' representative at the
an agency to deny a request within 60 days is meeting. But the written notice of denial did not
approval of the request. If an agency denies the state any reasons for the denial.
request, it must state in writing the reasons for FNl. August 14, 2004, was the 60th day
the denial at the time that it denies the request.
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after relators submitted their application. such language")).
Because August 14 fell on a Saturday, the
deadline for denying the application was The new provisions in clause (c) that apply to a
extended to the following business day, multimember governing body (1) continue the
Monday, August 16, 2004. See Gun Lake requirement that if a request is denied, the
Ass'n v. County of Aitkin, 612 N.W.2d multimember governing body must state the reasons
177, 181 (Minn.App.2000) (citing for the denial in writing; and (2) add a requirement
Minn.Stat. ~ 645.15). that the written statement be provided to the
applicant. But for a multimember governing body,
In Demolition Landfill Servs., LLC v. City oj it is not necessary that the written statement of the
Duluth, 609 N.W.2d 278 (Minn.App.2000), review reasons for a denial be adopted and provided to the
denied (Minn. July 25, 2000), this court construed applicant at the time of the denial. However, if a
as mandatory the requirement in Minn.Stat. ~ 15.99, multimember governing body does not adopt a
subd. 2 (1998), that "[i]f an agency denies the written statement of the reasons for a denial at the
request, it must state in writing the reasons for the time of the denial, the written statement must be
denial at the time that it denies the request." The adopted at the multimember governing body's next
Demolition Landfill court concluded, "Absent a meeting following the denial and before the
denial . within the statutory time limit and permitted period for denying a request expires.
simultaneous, written reasons for the denial, the [FN2] Although these new provisions provide an
permit application is approved." 609 N.W.2d at 282 alternative method for a multimember governing
. By requiring "simultaneous, written reasons for body to satisfy the requirement that reasons for a
the denial" to avoid automatic approval, the denial be stated in writing, they do not. provide a
Demolition Landfill court construed the statute to basis for this court to depart from the Demolition
mean that written reasons for a denial are an Landfill court's conclusion that the statutory
essential part of the denial. Id. at 281-82. written-reason requirements are mandatory.
Following the Demolition Landfill decision, the FN2. Under Minn.Stat. ~ 15.99, subd. 2,
legislature amended subdivision two of section the permitted period for denying a request
15.99 by designating the existing subdivision two as is ordinarily 60 days. But under
clause (a) and adding clauses (b) and (c). 2003 Minn.Stat. ~ 15.99, subd. 3(f) (Supp.2003)
Minn. Laws ch. 41, ~ 1. The legislature did not , "[a]n agency may extend the time limit in
amend the provision construed as mandatory by. the subdivision 2 before the end of the initial
Demolition Landfill court. Therefore, the 60-day period by providing written notice
Demolition Landfill construction of the of the extension to the applicant. The
written-reasons requirement applies to this case. notification must state the reasons for the
See State V. Anderson, 666 N.W.2d 696, 700 extension and its anticipated length, which
(Minn.2003) (stating that when the legislature does may not exceed 60 days unless approved
not amend the supreme court's construction of a by the applicant." There is no claim that
statute, the court's construction stands) (citing W. the planning commission extended the
Union Tel. CO. V. Spaeth, 232 Minn. 128, 131-32, initial 60-day period.
44 N.W.2d 440, 441-42 (Minn.1950) ("The judicial
construction of a statute, so long as it is unreversed, *730 Like clause (a), clause (c) applies the
is as much a part thereof as if it had been written mandatory term "must" to the requirements that (1)
into it originllllY")j see also Minn.Stat. S 645.17 a multimember goveming body state the reasons for
(2002) (providing. that "when a court of last resort denial on the record and provide the applicant a
has construed the language of a law, the legislature written statement of the reasons for the denial; (2)
in subsequent laws on the same subject matter written reasons be adopted. at the multimember
intends the same construction to be placed upon goveming body's next meeting following the denial
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and within the 60-day time period for denying a statement of the reasons for the denial of relators'
request; (3) the written statement be consistent with application, the record does not demonstrate . that
the reasons stated in the record at the time of the the planning commission. transcribed the recording
denial; and (4) the written statement be provided to of the hearing, adopted the transcript. within the
the applicant upon adoption. See Minn.Stat. g 60-day statutory period, and provided the transcript
645.44, subd. 15a (2004) (stating that " 'must' is to relators upon adoption.
mandatory"). Furthermore, the written-reasons
requirement in clause (c) applicable to an agency Because the requirement that reasons for a denial
other than a multimember governing body is be stated in writing is mandatory, and the planning
identical with that construed in Demolition Landfill. commission did not use either of the two permitted
Because the legislature used language that, on its methods for a multimember governing body to meet
face, indicates that these new requirements are this requirement, relators' CUP application was
mandatory and enacted the new requirements after approved by operation of law. Because the
this court construed the simultaneous-written-reason planning commission's failure to comply with the
requirement in the original section 15.99 as requirement that reasons for a denial be stated in
mandatory, we conclude that the new requirements writing means that the application is approved by
in Minn.Stat. g 15.99, subd. 2(c), are also operation of law, we do not address relators'
mandatory. additional arguments why their application should
not have been denied.
[4] It is undisputed that the planning commission
did not adopt a written statement of the reasons for DECISION
denying relators' CUP application and provide the Because the planning commission did not (1)
written statement to relators at the August 16, 2004 provide relators a written statement of the reasons
meeting where the application was denied. By for denying relators' application at the August 16,
itself, this does not mean that the application is 2004 meeting, or (2) adopt a written statement of
granted, because the new requirements in the *731 reasons forthe denial at its next meeting
subdivision 2(c) permitted the planning commission and before the 60-day period for making a decision
to adopt a written statement of the reasons for the expired and provide the written statement to
denial. at its next meeting before the 60-day period relators, relators' CUP application is approved
for making a decision expired. But the August 16, under Minn.Stat. g 15.99, subd. 2, and we reverse
2004 meeting occurred on the last day of the 60-day the planning commission's . denial of relators'
period for making a decision, and as a result, the application.
planning commission's next meeting did not occur
before the 60-day period expired. Consequently, Reversed.
the planning commission could not use the
alternative method for a multimember governing 707 N.W.2d 725
body to satisfy the requirement that reasons for a
denial be stated in writing. Briefs and Other Related Documents (Back to
top)
Respondents argue that, notwithstanding
Demolition Landfill, the purpose of the requirement . 2005 WL 3942217 (Appellate Brief) Relator'
that a denial of a permit application be supported by Reply Brief and Supplemental Appendix (Jun. 7,
written reasons is to prevent post hoc justifications 2005)
for a denial and that the record, particularly the
transcript of the August 16, 2004 hearing, provides . 2005 WL 3942216 (Appellate Brief)
sufficient justification for the planning Respondent's Brief and Supplemental Appendix
commission's denial of relators' permit application. (May 24, 2005)
But even if the transcript could serve as a written
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. 2005 WL 3942215 (Appellate Brief) Relators'
Opening Brief and Separate Appendix (Apr. 22,
2005)
END OF DOCUMENT
@ 2006 ThomsonlWest. No Claim to Orig. U.S. Govt.Works.
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-
. , -. ;
.,
....':y"~enneay:.._:. 470 U.S. Bank Plaza
200 South Sixth Street
I. Minneapolis, MN 55402
.. (612) 337-9300 telephone
.
c (612) 337-9310 fax
C H ART ERE 0 http://www.kennedy-graven.com
JAMES J. THOMSON
Attorney at Law
DirectDial (612) 337-9209
Emai1: jthomson@kennedy-graven.com
January 30,2006
JackY. Perry
Briggs & Morgan
2200 IDS Center
Minneapolis, MN 55402
Re: Shakopee Gravel CUP
Dear Mr. perry:
Your January 20, 2006 letter to the City Council has been referred to me for response. I was
surprised by both the tone and substance of your letter. The City Council and I both felt that all
issues pertaining to this matter had been resolved when the City Council denied Ms. Koehnen's
appeal.
The main point in your letter is your contention that the CUP has been approved without conditions
because of the 60-day statute. You state in your letter that Shakopee Gravel's CUP application was
complete as of July 5, 2005 and that the City did not notify your client of any extensions of the 60-
day review period. The City's records reflect that the renewal application was originally submitted
on May 20, 2005. Bya letter dated May 27, 2005, the City notified Joel Speer that the application
was not complete; The item causing the application to be incomplete was finally submitted to the
City on July 28, 2005. The City's records also reflect that on August 8, 2005, the City sent Mr.
Speer a letter extending the review period for 120 days. The City therefore had until November 25,
2005 (120 days from July 28th) to act on the application. The Board of Adjustments approved your
client's application on November 3, 2005. Even if you are correct that the appeal needed to be
acted on within the 120-day period, the Board of Adjustments Resolution, which includes virtually
the same conditions that were imposed by the City Council, is valid because it was adopted before
the end of the review period. There is therefore no merit to your contention that the CUP has been
approved without conditions.
The other point that you raise in your letter is your objection to the CUP's 17-year durational
limitation. You set forth your position on that issue in a previous letter dated November 15, 2005 to
. the City. The last sentence in that letter states: "Shakopee Gravel will revisit this issue if it becomes
apparent that it cannot fully mine the aggregate deposit by the pennit deadline." (emphasis added)
My December 29,2005 letter to you was sent merely to confmn: (1) that the record in this matter
would reflect your objection to that condition; and (2) that consistent with the last sentence in your
JJT.274541v1
SH155-169 EXHIBIT H
.. . .'~
Jack Y. Perry
January 30,2006
Page 2
November 15th letter, the issue over the validity of the condition did not need to be resolved at this
time.
The City considers this matter closed. If your client wants to pursue other remedies. that might be
available to address the issues raised in your letter, your client is free to do so.
cc: Mayor & City Council
Mark McNeill
Michael Leek
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WSB Ml1neapoUs, MN 55416 Shakopee Sand and Gravel WSB Project No. 1634-05
www.wsbeng.com Date Sf23.06
II Associates. Inc. Berm Slope Verification
I' 763-541-0lil.Fax76Ull.l700 Parcel 1
INFllASTRUCTURE .: ENGINEERING ,; PLANNING ., CONSlRlJCllON
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