HomeMy WebLinkAbout10.A.1. Appeal of the Board of Adjustment & Appeals Decision on Shakopee Gravel, Inc. Conditional Use Permit-Res. No. 7272 General Business 10. A. 1.
SHAKOPEE
TO: Mayor and City Council
Mark McNeill, City Administrator
FROM: Mark Noble, Planner II
DATE: 02/05/2013
SUBJECT: Appeal of the Board of Adjustment & Appeals Decision on Shakopee Gravel, Inc. Conditional Use
Permit - Res. No. 7272 (B)
Action Sought
The Council is asked to adopt Resolution No. 7272, a resolution upholding the Board's adoption of Resolution
PC -12 -045, a resolution approving the Amendment of the Conditional Use Permit and Mineral Extraction and Land
Rehabilitation Permit for Shakopee Gravel, Inc.
Introduction:
On January 3, 2013, the Board approved a Conditional Use Permit request by Shakopee Gravel, Inc. for property
located at 1650 County Road 83 by a 4 -2 vote. On January 14, 2013, City staff did receive an appeal application
from Ms. Beverly Koehnen, 2036 Canterbury Road. Included with her application is a narrative describing her
position on the amendment, specifically stating that she felt previous significant conditions of approval have been
eliminated, and that conditions included in the board's recent actions will be injurious to the use and enjoyment of
neighboring properties. She also stated that she believes the end date included in the previous CUP should be held
to by the City and the applicant. Also attached is a testimony outline from 2006, and a copy of the resolution
approved for this project in 2002.
Discussion:
Staff had reviewed the application submitted by Shakopee Gravel, Inc., and had recommended approval of the
application, with 22 conditions of approval. The Board did briefly review this item at their December meeting and
continued the public hearing (at the request of the applicant) to their January meeting. At both meetings, they took
comments from several adjacent property owners and had significant discussion on the use; ultimately reaching
findings that supported the approval of the request, with one minor modification to the listed conditions. The
January 3, 2013 staff report and draft resolution are attached for the Council's information.
Action Requested:
The Council is asked to adopt Resolution No. 7272, a resolution upholding the Board's adoption of Resolution No.
PC12 -045, a resolution approving the Conditional Use Permit for Shakopee Gravel, Inc. at 1650 County Road 83 in
the Agricultural Preservation (AG) Zone.
Mark Noble
Planner II
Attachments: Applicant Narrative
draft resolution
BOAA report
SGI & Staff comments
phasing plans
APPEAL OF THE BOARD OF ADJUSTMENTS —
January 3, 2013 Decision
Amendment No. 5 passed by the BOAA on January 3, 2013 is a dramatic change
to Amendment No. 4 (copy attached) and "guts" many of those environmental,
quality of life, and financial safeguards.
Also attached is my 12/6/05 testimony to the City Council. The major reason that
I am appealing the BOAA decision of 2013 is the same as it was in 2005. That is,
the City Council has been cut out of decision - making due to a last minute
Memorandum for the Table placed by Michael Leek on April 4, 2002 at that
meeting. I doubt whether the BOAA had time to even notice that "City Council"
had been replaced by "BOAA" every place it appeared in the Resolution that they
voted upon that night.
I have compiled a more detailed list of my findings and will provide it to you
separately from this appeal notice.
Of special financial concern is Condition #17 that holds substantial risk to
Shakopee taxpayers.
Fugitive dust, increased hours of operation and no setback requirements
are injurious to the use and enjoyment of neighboring properties.
Importantly, it was Shakopee Gravel who requested a specific end date to the
Conditional Use Permit for the mine and agreed to January 16, 2013. That seems
to give Shakopee every right to hold them to it.
D4 y /,/ F :� 'l� /C �./ �lf 1.�� /lam'' - �f.+��.. '�L�" -.-
-c , ti.4...- t - a C % / 3 • �%Z z-e- {�'�'^_
December 6, 005 Testirno
,' I. The rnain reason I appealed the decision of the Board of Adjustment and
Appeals, is so the City Council can be involved in the decision making. At the May 21,
2002 Council rneeting, several Council members said they wanted the 2003 review of
the gravel pit permit brought back to them, rather than to the BOAA. Councilor Bob
Sweeney stated it most plainly: "...assumes this will be seen back In Council
rather than Planning Commission whe,re we can get bamboozled for a while."
II. I will now mention the condition number of Resolution No, 5727 to be considered
and then turn the discussion over to you.
#1 Permit renewal -- I asked an Real Estate S, Land Use Attorney if requiring a
CUP renewal is "legal ". The answer was, "Absolutely.
I then asked if Jack Perry's statements saying there is no Supreme Court or ■
other higher court opinion that allows for renewal is because no one has ever
questioned the legality of requiring renewals? If it is just accepted practice? The
answer -Vas, "Probably ".
#2 Mineral Extraction and Land Rehabilitation Permit
#17 Plan for Operation -- Shakopee's Mining Ordinance appears the same as
it was in 2002. The Mining Permit IS the Plan for Operation. What an Operator submits
becomes their mining permit.
A Plan of Operation consists of:
1. Map A — shows the exhibiting conditions, before mining, with contour
lines every two feet.
Map B — shows the proposed Operation /Gravel Extraction Plan
Map C — Map of the End Use Plan
2. Conditions of the CUP itself
3. Background information from Merila
#3 Security fencing — was a huge concern of the people to the west of the pit.
#6 Berms — Violation of 3:1 slopes Berms washed down into neighbors' yards
#9 Hours of Operation - Shakopee has remained firm and consistent by
keeping the original condition intact because the pit opened up in a residential
area.
#16 "Map B" and "Map C" wording was left out in the
February 7, 2002 Mark Noble memo to the BOAA.
Amendment 3 was left out in its entirety during the 2002 renewal It
reads: The operators shall comply with the standards and plans outlined
in the document submitted by the applicant and titled, Fischer Aggregates,
Inc. CUP, Shakopee, August 1995, with the following modifications and
additions — (the list has items a through u) ,_
#26 Monitoring Well — Diesel Range Organics
7 Hennepin Regional Poison Center Information — \
At 0.4 - 0.5 ppm you can begin to taste it.
Maximum Contaminant Level is a standard set by EPA:
Benzene MCL 0.005 mg /L
Toluene MCL 1 mg /L
-- EthylBenzene MCL 0.7mg /L
30 Monitoring of Impo Material —
The February 2S, 2002 rted DSU letter says: "Dirt inspectors are the weigh
station operator and bulldozer operators." Visual inspection only!
III. Other concerns:
The wording City Council was changed, every time it appeared, to Board of )
% Adjustment and Appeals in the Resolution that was part of the April 4, 2002
Memorandum for the table.
There was a Condition #18, an Environmental Assessment ti> "cF[tsh cet
requirement, that was dropped with the May 21, 2002 version of the Resolution.
� ' 3,750,000 cubic yards, as the maximum amount to be removed from the site,
was deleted as part of the February 6, 1996 Resolution version. Now the pit attorney is
talking about the value of Shakopee bedrock. This deletion, along with an ambiguous
permitted depth to mine (10 feet above the established ground water MSL elevation),
could be disastrous in the future.
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RESOLUTION NO. 5727
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA, GRANTING
AMENDMENT NO. 4 TO CONDITIONAL USE PERMIT NO. CC -376 (AND
SUBSEQUENT AMENDMENTS NO. 1, 2 & 3) AND THE MINERAL
EXTRACTION AND LAND REHABILITATION PERMIT TO OPERATE A
MINE WITHIN THE MINING OVERLAY (MIN) ZONE
WHEREAS, Shakopee Gravel, Inc., property owner and applicant, have filed an
application dated December 20, 2001, for an Amendment to Conditional Use Permit No.
CC -376 (and subsequent amendments No. 1, No. 2 and No. 3) under the provisions of
Chapter 11, Land Use Regulation (Zoning), of the Shakopee City Code, Section 11.85,
Subd. 2, for a Conditional Use Permit to operate a mine; and
WHEREAS, this parcel is presently zoned Agricultural Preservation (AG) Zone
with a Mining Overlay (MIN) Zone; and
WBEREAS, the property upon which the request is being made is legally described
as follows:
The Northeast Quarter of the Northwest Quarter of Section 16, a7 91 (o6Id `d
Township 115 North, Range 22 West, Scott County Minnesota. a -9 I 71- 6
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 c'2- g/ 7-oDcP -4
WHEREAS, notice was provided and on Nov. 4, 1993; Dec. 9, 1993; March 9,
1995; April 6, 1995; May 4, 1995; June 8, 1995; July 6, 1995; August 3, 1995; and
February 7, 2002, the Shakopee Planning Commission or the Board of Adjustment and
Appeals conducted a public hearing regarding this application, at which it heard from the
Community Development Director or his designee and invited members of the public to
comment; and
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WHEREAS, Ms. Beverly Koehnen timely appealed the determination of the
Board of Adjustment and Appeals; and
WHEREAS, the City Council reviewed the appeal of Ms. Koehnen at it's meeting
of May 7, 2002; and
WHEREAS, the City Council reached the following findings with respect to the
requested amendment and applicable ordinance criteria:
Finding #1: After reviewing the evidence in the record, the Council has concluded that,
not received any evidence that the use, with the conditions stipulated, the use
will not be injurious to the use and enjoyment of other property in the
vicinity.
Finding #2: The Council finds that the amendment to the conditional use, mineral
extraction and kind 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 #S: The use is consistent with the Comprehensive Plan guiding for the subject
site.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF SHAKOPEE, MINNESOTA, AS FOLLOWS:
•
That the decision of the Board of Adjustment and Appeals is hereby upheld, and the
applicant's request for Amendment No. 4 to Conditional Use Permit No. 376 and the
Mineral Extraction and Land Rehabilitation Permit is hereby granted, subject to the
following revised conditions:
1. The Shakopee Board of Adjustments and Appeals shall review the
Conditional Use Permit and Mineral Extraction and Land Rehabilitation
Permit annually. Both peiinits 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.
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3. Security fencing shall be used on the main access roads to control vehicular
• access to the mining and equipment area, and along the west property line
adjacent to existing residential development.
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
1united to the use of County Road 83 to Hwy. 101 and County Road 42.
Absolutely no truck traffic from the mining operation shall be routed through
the urban portion of the City of Shakopee.
6. Berms with a minimum height of eight (8) feet shall be built around the
perimeter of each phase, installed at no greater than a 3:1 grade. Berms must
be fully seeded to prevent erosion.
7. The mining operation shall maintain the following rniiirnum setbacks: 100
feet from any residential or commercial property line; 500 feet from any
residential or commercial structure; 30 feet from any road right -of -way.
8. All portable buildings must be approved by the Building Official.
9. The hours of operation of any aspect of the mining operation shall be limited
to 8:00 a.m. to 5:00 p.m., Monday thru Friday.
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 noise limits as noted in Section 10.60
(Noise Elimination and Noise Prevention) of the Shakopee City Code, nor the
MPCA Standards.
12. Two propane tanks shall be permitted, one 325- gallon tank located next to the
scale building and one 100 -pound tank located next to the
maintenance /electrical building. The propane shall be used to heat these two
buildings only. The propane tanks must be installed and maintained in
accordance with State Fire Marshall Rules (Chapter 7510.3100 — 7510.3280).
There shall be no other fuel tanks on -site unless said tanks receive permit
approval from the Minnesota Pollution Control Agency (MPCA) or other
required agency. There shall be no use or storage of explosives except as
approved in advance as a part 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 fowl, 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 peiiiiits (CUP and Mining) is made in reliance
upon the applicant's representations regarding the life of the operation (17
years). Any factors, or future developments which significantly delay the
completion of the mining operation, may be viewed by the City as sufficient
grounds to deny the three -year renewal of the permit.
19. The Conditional Use and Mining Permits may be reviewed prior to the
scheduled annual review, if the City receives complaints, supported by
evidence indicating that the conditions of this permit are being violated. Upon
receipt of such complaints, or by the Board of Adjustment and Appeals' own
initiation, the City shall schedule a public hearing, in accordance with the
proper procedures for notice and publication.
20. If the Board of Adjustment and Appeals finds that the applicants have
substantially, or repeatedly violated the terms of this agreement, the Board of
Adjustments and Appeals may revoke said permit.
21. Expand the operation to include the 5 -acre Rutt Farmstead.
22. Relocate the natural gas pipeline on the site.
23. Allow for the relocation of the central processing area.
24. Allow the final development grades to be between an elevation of 764 at the
bottom of the proposed ponds and 832 feet.
25. The operation should be mined in five phases, except as modified by any
subsequent amendment to or renewal of the CUP and Mining permit.
26. The applicant shall establish a monitoring well on the subject site for ground
water quality monitoring, and shall regularly (at least quarterly) record
measurements from that well, which measurements shall be submitted with
any application for review, renewal, or amendment. Mining extraction shall
not exceed a depth greater than ten (10) feet above the established ground
water MSL elevation. The mine shall operate for 17 years beginning on
January 16, 1996, and terminating on January 16, 2013.
27. Provided that the applicant is granted access to future 17 Avenue, consistent
with the end use development of the property, the applicant agrees to dedicate
the right of way for future 17 Avenue at no cost to the City and accept
assessments based upon the end use development of the property.
28. The sanitary sewer along future 17 Avenue is shown, but not approved.
' Future extension of 17 Avenue will determine the ultimate aligrunent and
depth. The City Engineer shall determine and propose a mutually agreeable
location and depth for the trunk sanitary sewer along future 17 Avenue.
29. Access spacing to future 17 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.
30. 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
h e
b
n o shall all imported material and all of the necessary ert Y is documentadtio s f all be lly clean
available. The applicant will certify that the p ro p
at the completion of each phase of the mining operation.
1. Material imported onto the site and used in the reclamation capacity sufficient grading shall on to
support development, as p 3 include soil materials of a bearing
proposed in the End Use Plan. The dc� °cations and
compaction of materials shall be done in accordance with sp
prepared by a licensed geotechnical engineer.
32lan and be
, The site shall be reclaimed in accordance
1S with
ti the E nd. i f lawing the
available for development within one co
completion of mining activities, if' not before.
33. The stone sewer discharge along future 17 Avenue shall not exceed the
City
by the
design capacity in the CSAH 83 trunk storm sewer as de e S e ate the
Engineer. The development along o f �r °I�thoAV ylle• The prope owner
lowering of the storm sewer
shall pay the cost of lowering this trunk 1 egasco Easement #1997 -7,
34. No Construction cutting or feeling Mi asco.
an earthwork quantity calculation, to be
recorded as document #039 3 88, city
except as authorized by
35. The applicant
by is to Registered cape
completed by a Registered Professional Engineer orRe ari t a�lual boa s the
Architect, and the applicant is to provide to the city on
quantity of export and import materials.
36
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If the mining operation intends to bring solid waste S c tt County onto the
eo site, atal material
solid waste license must first be app roved by
Health Department.
A
doted in cZ , Lrr• . , session of the City Council f the City of
`'
Shakopee, Minnesota, , it d t day of
Mayor of the Ci of Shakopee
ATTEST:
.41,77 • .ti
:� c2 c2 �J
Cit Clerk
Prepared by:
THE CITY OF SHAKOPEE
129 Holmes Street 5uth
Shakopee, MN 5537
1
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RESOLUTION NO. 7272
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA UPHOLDING THE
REVOCATION BY THE BOARD OF ADJUSTMENT AND APPEALS OF AMENDMENT
NO. 5 TO CONDITIONAL USE PERMIT NO. CC -376 (AND SUBSEQUENT
AMENDMENTS NO. 1, 2, 3 & 4) AND THE MINERAL EXTRACTION AND LAND
REHABILITATION PERMIT TO OPERATE A MINE WITHIN THE MINING
OVERLAY (MIN) ZONE
WHEREAS, the City of Shakopee received an application from Shakopee Gravel, Inc., property
owner and applicant, for an amendment to the Conditional Use Permit (CUP) and Mineral
Extraction and Land Rehabilitation Permit originally granted by Resolution No. CC -376 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 Zone (MIN); and
WHEREAS, the property upon which the request was made is legally described as:
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
(Property); and
WHEREAS, notice was provided and on January 3, 2013, the Board of Adjustment and
Appeals conducted a public hearing regarding the application, at which it heard from the
Community Development Director and invited members of the public to comment; and
WHEREAS, on January 3, 2013, the Board of Adjustment and Appeals adopted resolution
PC 12 -045 approving the CUP application. The approval included the following conditions:
1. The Shakopee Board of Adjustments and Appeals shall annually review the Permit to ensure
that the Applicant is in full compliance with all provisions of the Permit.
2. The annual review of the Permit by the Board of Adjustment and Appeals shall be provided
to the Shakopee City Council as an informational item.
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.
4. Design/maintenance treatment of the berm adjacent to the residential properties along the
Applicant's west property line shall be consistent with the following conditions:
a. Maintenance of a 1: 1 slope for the berm adjacent to the homes in Wyndam Ponds.
Any areas of erosion shall be remedied and stabilized with the approved seed mix.
b. Removal of the weeds using the steps outlined by the Scott County Weed Inspector.
c. 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.
d. Landscaping shall be maintained in accordance with the landscape plan on file in the
Community Development office (June, 2006).
5. All operations on the Property shall be allowed from 6 a.m. - 6 p.m., Monday thru Saturday,
except upon approval by the Shakopee City Council of extended hours on a temporary basis.
6. Dust must be controlled by paving main access roads, watering haul roads and equipment
and by any other means which will control adverse effects of dust on neighboring properties.
7. Two diesel tanks and two propane tanks for the storage of fuel shall be permitted on -site,
and must be installed and maintained in accordance with State Fire Marshall Rules (Chapter
7510.3100 - 7510.3280). Other fuel tanks on -site must receive permit approval from the
Minnesota Pollution Control Agency (MPCA) or other required agency. There shall be no
use or storage of explosives except as approved in advance as a part of this Permit.
8. 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.
9. The Gravel Extraction Phasing Plan and the End Use Plan, as submitted by Applicant
(November, 2012), shall be adhered to. Modifications will be submitted for approval to the
Board of Adjustment and Appeals.
10. Applicant shall establish and maintain a monitoring well on the Property for ground water
quality monitoring, and if/when Shakopee Public Utilities Commission (SPUC) notices
evidence of a pollutant of concern in the testing of their wells, a testing shall be conducted of
the monitoring well in an effort to evaluate and either identify or eliminate whether the
pollutant of concern is originating from or moving thru this property.
11. Mining extraction shall not exceed a depth greater than ten (10) feet above the established
ground water MSL elevation.
12. The sanitary sewer along 17th Avenue is shown, but not approved. Future extension of 17th
Avenue will determine the ultimate alignment and depth. The City Engineer shall determine
and propose a mutually agreeable location and depth for the trunk sanitary sewer along 17th
Avenue.
13. Access spacing to CR 16 /17th Avenue and CSAH 83 will be determined by Scott County,
City, and Applicant upon approval of the preliminary plat for the end use.
14. Applicant will certify that the property meets any and all standards set by the MPCA or
government board that regulates mine reclamation.
15. The storm sewer discharge along 17th Avenue shall not exceed the design capacity in the
CSAH 83 trunk storm sewer as determined by the City Engineer. The development of the
Property will necessitate the lowering of the storm sewer along 17th Avenue. Applicant
shall pay the cost of lowering this trunk line.
16. Applicant is to provide to City an earthwork quantity calculation, to be completed by a
Registered Professional Engineer or Registered Landscape Architect, and Applicant is to
provide to the City on an annual basis the quantity of export and import materials.
17. Applicant shall enter into an agreement with the City in which the Applicant agrees to allow
the City to enter the property and to complete the reclamation plan and to assess the City's
costs to the property, should the site not be reclaimed and made available for development
consistent with the End Use Plan by the Applicant.
18. Berming shall be installed in phases around the perimeter of the site, beginning at the
northwest corner and working easterly along the north side and then working southerly
adjacent to residential use areas (generally consistent with the November/December, 2012
Potential Berm Improvement, Projected Reclamation Pile Location and Existing
Berm/Proposed Reclamation Pile Section Plans). This berming process shall be evaluated at
the yearly review, and is subject to modification based on the evaluation. Reclamation
material may be 15 feet higher than the berm (max. 40 feet), and constructed as material is
made available.
19. The design of the berms, existing and proposed, shall comply with standards set forth by the
City of Shakopee's Design Criteria. Exceptions to these requirements may be granted by
the City Engineer.
20. All fmal and permanent berms, existing and proposed, shall receive a minimum of six (6)
inches of top soil. The top soil, whether salvaged or imported, shall meet the requirements
of select top soil borrow as defined by MnDot's specification #3877.
21. The applicant shall comply with the conditions set forth in its National Pollutant and
Discharge Elimination System (NPDES) permit.
22. The applicant will inspect, on a daily basis, all adjacent streets, sidewalks and trails for any
off-site sediment attributable to the applicant's operation of the mine, and will conduct street
sweeping as necessary or as directed by the City and/or Scott County.
WHEREAS, on January 14, 2013, Ms. Beverly Koehnen submitted an application of appeal
of the Board of Adjustment and Appeals decision; and
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SHAKOPEE, MINNESOTA, AS FOLLOWS:
The City Council adopts the following findings of fact:
Finding #1 After reviewing the evidence in the record, the City Council has concluded
that with the conditions herein, the use will not be injurious to the use and
enjoyment of other property in the vicinity.
Finding #2 The City Council finds that the amendment to the Permit, with the
conditions herein, 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 herein, is consistent with the purposes of the
Agricultural Preservation (AG) Zone and Mining Overlay (MIN) Zone.
Finding #5 The Shakopee Board of Adjustment and Appeals did not commit any
errors or omissions in its January 3, 2013 approval of the amendment to
the Conditional Use Permit (CUP) and Mineral Extraction and Land
Rehabilitation Permit originally granted by Resolution No. CC -376.
BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SHAKOPEE, MINNESOTA, AS FOLLOWS:
That the approval by the Board of Adjustment and Appeals of the Conditional Use Permit
Resolution PC No. 12 -045 (amendment to the Conditional Use Permit (CUP) and Mineral
Extraction and Land Rehabilitation Permit originally granted by Resolution No. CC -376) is hereby
UPHELD.
Adopted by the City Council of the City of Shakopee, Minnesota th 5 th day of February, 2013.
Mayor, City of Shakopee
ATTEST:
Julie Linnihan, City Clerk
PREPARED BY:
City of Shakopee
129 Holmes Street South
Shakopee, MN 55379
CITY OF SHAKOPEE
Memorandum
CASE NO.: 12 -045
TO: Board of Adjustment and Appeals
FROM: Mark Noble, Planner II
SUBJECT: Amendment of the Conditional Use Permit and Mineral Extraction and
Land Rehabilitation Permit for Shakopee Gravel, Inc.
MEETING DATE: January 3, 2013
REVIEW PERIOD: October 26, 2012 — February 22, 2013
INTRODUCTION
Shakopee Gravel, Inc. has made application for an amendment to their Conditional Use Permit
and a Mineral Extraction and Land Rehabilitation Permit for their operation located at 1650
County State Aid Highway (CSAH) 83. The subject property is located west of CSAH 83 and
south of CSAH 16, within the Agriculture Preservation (AG) Zone (Exhibit A).
CONSIDERATIONS
This item was scheduled for consideration at the Board's December 6, 2012 meeting, but was
continued to the January meeting as requested by the Applicant. Staff and the applicant have had
another series of discussions to review several of the conditions noted in that December 6 staff
report, and have made several modifications to that report.
At the December 6 meeting, several neighbors spoke to concerns that they have with the
Shakopee Gravel operation, specifically concerning dust from the site. The applicant is
proposing to construct berms to alleviate that concern, and to provide screening of their
reclamation material piles that will be used to fill in the active mining area once the operation is
completed. The reclamation piles would exceed the height of the berms (see berm /reclamation
pile section plans), and would be subject to evaluation and possible modifications by the Board
during the annual review of this permit.
Other modifications to the December 6 draft resolution include changes to the language and
evaluation of the groundwater monitoring testing, and a change to how the City and the
Applicant will address the situation should the City become involved in the reclamation of the
site (special assessment process rather than a reclamation bond process).
As previously stated, the applicant has worked with staff on developing an end use plan and have
a strong desire to complete the mining and prepare the land for development consistent with their
submitted end use plan (extensive mix of commercial, multi - family and single family residential
at a prominent location within the city).
Staff sent out reviews to other city departments and outside agencies, and received
memorandums from City Engineering, Shakopee Public Utilities Commission (SPUC) and Scott
County Public Works, each providing comments or suggested conditions should this amendment
be approved. Staff has incorporated a number of these comments into the draft resolution for the
applicant's and Board's consideration.
ALTERNATIVES
1. Approve the requested amendment to the permit, subject to proposed conditions.
2. Approve the requested amendment to the permit, with additional modifications.
3. Continue the public hearing regarding the request for the amendment to the permit.
4. Deny the request for the amendment to the permit, stating the reasons for the denials.
STAFF RECOMMENDATION
Approve the requested amendment to the permit, subject to the proposed conditions.
ACTION REQUESTED
Offer Resolution No. PC 12 -045, a Resolution approving Amendment No. 5 to the Mineral
Extraction and Land Rehabilitation Permit and Conditional Use Permit No. 376, subject to
conditions, and move its approval.
Mark Noble
Planner II
RESOLUTION NO. PC12 -045
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA, GRANTING
APPROVAL OF AMENDMENT NO. 5 TO CONDITIONAL USE PERMIT NO. CC -376
(AND SUBSEQUENT AMENDMENTS NO. 1, 2, 3 & 4) 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 (Applicant), has applied
for an amendment to the Conditional Use Permit (CUP) and Mineral Extraction and Land
Rehabilitation Permit originally granted by Resolution No. CC -376 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, the CUP has been amended a number of times, and is set to expire on January
16, 2013, and;
WHEREAS, this parcel is presently zoned Agricultural Preservation (AG) Zone with a
Mining Overlay Zone (MIN); 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
(Property); and
WHEREAS, Applicant has operated a mine on the Property since 1985, and, during this
time, Applicant and the City of Shakopee (City) have worked to improve mining operations,
mitigate potential adverse impacts on surrounding properties, and to ensure that Applicant is
operating in full compliance with its Permit and is not causing any degradation of groundwater;
and
WHEREAS, Applicant has established an End Use and Reclamation Plan, an Operations
Plan, and a Phasing Plan, each of which is attached hereto; and
WHEREAS, aggregate is a diminishing resource, recognized by the Minnesota
Legislature and the Metropolitan Council as a resource of Regional significance, the extraction of
which must be protected and provided for through the local planning process; and
WHEREAS, the demand for aggregate fluctuates, and as a result of those fluctuations, it
has taken longer than originally estimated to complete the mining and reclamation of the
Property; and
WHEREAS, current expectations are that the aggregate material available from the site
will be fully mined within approximately 10 years, and that the rate at which material is extracted
will be monitored on an annual basis with the CUP review; and
WHEREAS, both Applicant and City wish to pursue reasonable opportunities to
expedite the completion of mining of the Property by the extraction of all aggregate located
therein, and to concentrate on closure, reclamation and the successful and productive reuse of the
Property; and
WHEREAS, the Shakopee Board of Adjustment and Appeals reached the following
findings with respect to the requested review of the Permit:
Finding #1: After reviewing the evidence in the record, the Board of Adjustment and
Appeals has concluded that with the conditions herein, the use will not be
injurious to the use and enjoyment of other property in the vicinity.
Finding #2: The Board of Adjustment and Appeals finds that the amendment to the
Permit, with the conditions herein, 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 herein, is consistent with the purposes of the
Agricultural Preservation (AG) Zone and Mining Overlay (MIN) Zone.
Finding #5: The use is consistent with the Comprehensive Plan guiding for the
Property; and
WHEREAS, in light of the foregoing, on January 3, 2013, the Shakopee Board of
Adjustment and Appeals approved this application, with the following conditions.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF ADJUSTMENT
AND APPEALS OF THE CITY OF SHAKOPEE, MINNESOTA, AS FOLLOWS:
That the requested amendment to the CUP and Mineral Extraction and Land Rehabilitation
Permit most recently evidenced by Resolution No. 6533 is hereby approved, subject to the
following conditions:
1. The Shakopee Board of Adjustments and Appeals shall annually review the Permit to
ensure that the Applicant is in full compliance with all provisions of the Permit.
2. The annual review of the Permit by the Board of Adjustment and Appeals shall be
provided to the Shakopee City Council as an informational item.
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.
4. Design/maintenance treatment of the berm adjacent to the residential properties along the
Applicant's west property line shall be consistent with the following conditions:
a. Maintenance of a 1: 1 slope for the berm adjacent to the homes in Wyndam
Ponds. Any areas of erosion shall be remedied and stabilized with the approved
seed mix.
b. Removal of the weeds using the steps outlined by the Scott County Weed
Inspector.
c. 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.
d. Landscaping shall be maintained in accordance with the landscape plan on file in
the Community Development office (June, 2006).
5. All operations on the Property shall be allowed from 6 a.m. - 6 p.m., Monday thru
Saturday, except upon approval by the Shakopee City Council of extended hours on a
temporary basis.
6. Dust must be controlled by paving main access roads, watering haul roads and equipment
and by any other means which will control adverse effects of dust on neighboring
properties.
7. Two diesel tanks and two propane tanks for the storage of fuel shall be permitted on -site,
and must be installed and maintained in accordance with State Fire Marshall Rules
(Chapter 7510.3100 - 7510.3280). Other fuel tanks on -site must receive permit approval
from the Minnesota Pollution Control Agency (MPCA) or other required agency. There
shall be no use or storage of explosives except as approved in advance as a part of this
Permit.
8. 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.
9. The Gravel Extraction Phasing Plan and the End Use Plan, as submitted by Applicant
(November, 2012), shall be adhered to. Modifications will be submitted for approval to
the Board of Adjustment and Appeals.
10. Applicant shall establish and maintain a monitoring well on the Property for ground water
quality monitoring, and if/when Shakopee Public Utilities Commission (SPUC) notices
evidence of a pollutant of concern in the testing of their wells, a testing shall be
conducted of the monitoring well in an effort to evaluate and either identify or eliminate
whether the pollutant of concern is originating from or moving thru this property.
11. Mining extraction shall not exceed a depth greater than ten (10) feet above the established
ground water MSL elevation.
12. The sanitary sewer along 17th Avenue is shown, but not approved. Future extension of
17th Avenue will determine the ultimate alignment and depth. The City Engineer shall
determine and propose a mutually agreeable location and depth for the trunk sanitary
sewer along 17th Avenue.
13. Access spacing to CR 16 /17th Avenue and CSAH 83 will be determined by Scott County,
City, and Applicant upon approval of the preliminary plat for the end use.
14. Applicant will certify that the property meets any and all standards set by the MPCA or
government board that regulates mine reclamation.
15. The storm sewer discharge along 17th Avenue shall not exceed the design capacity in the
CSAH 83 trunk storm sewer as determined by the City Engineer. The development of the
Property will necessitate the lowering of the storm sewer along 17th Avenue. Applicant
shall pay the cost of lowering this trunk line.
16. Applicant is to provide to City an earthwork quantity calculation, to be completed by a
Registered Professional Engineer or Registered Landscape Architect, and Applicant is to
provide to the City on an annual basis the quantity of export and import materials.
17. Applicant shall enter into an agreement with the City in which the Applicant agrees to
allow the City to enter the property and to complete the reclamation plan and to assess the
City's costs to the property, should the site not be reclaimed and made available for
development consistent with the End Use Plan by the Applicant.
18. Berming shall be installed in phases around the perimeter of the site, beginning at the
northwest corner and working easterly along the north side and then working southerly
adjacent to residential use areas (generally consistent with the November/December, 2012
Potential Berm Improvement, Projected Reclamation Pile Location and Existing
Berm/Proposed Reclamation Pile Section Plans). This berming process shall be
evaluated at the yearly review, and is subject to modification based on the evaluation.
Reclamation material may be 15 feet higher than the berm (max. 40 feet), and constructed
as material is made available.
19. The design of the berms, existing and proposed, shall comply with standards set forth by
the City of Shakopee's Design Criteria. Exceptions to these requirements may be granted
by the City Engineer.
20. All final and permanent berms, existing and proposed, shall receive a minimum of six (6)
inches of top soil. The top soil, whether salvaged or imported, shall meet the
requirements of select top soil borrow as defined by MnDot's specification #3877.
21. The applicant shall comply with the conditions set forth in its National Pollutant and
Discharge Elimination System (NPDES) permit.
22. The applicant will inspect, on a daily basis, all adjacent streets, sidewalks and trails for
any off -site sediment attributable to the applicant's operation of the mine, and will
conduct street sweeping as necessary or as directed by the City and/or Scott County.
Adopted by the Board of Adjustment and Appeals of the City of Shakopee, Minnesota, this 3rd
day of January, 2013.
Chair of the Board of Adjustment and Appeals
ATTEST:
Community Development Director
Prepared by:
THE CITY OF SHAKOPEE
129 Holmes Street South
Shakopee, MN 55379
Stantee Consulting Services Inc.
2335 Highway 36 West
St. Paul MN 55113
1 e1: (651 ) 636-4600
:''y Fax: (651) 636.1311
November 5, 2012
Mayor Tabke and City Council Members
C/O Michael Leek, Director of Community Development
City of Shakopee
129 Holmes Street S
Shakopee, Minnesota 55379 -1328
RE: Application to Amend the Conditional Use Permit No. CC -376 and the Mining Extraction and
Land Rehabilitation Permit for Shakopee Gravel, Inc.
Dear Mayor Tabke, Council Members and Staff:
The original CUP to operate an aggregate mining and processing facility at this site was ordered by the
district court following the owner's challenge to the City's dental of the application. The resulting permit was
cumbersome and the annual review process and the requirement for renewal every three years led to
inefficiency and unnecessary and counterproductive conflict.
Over the course of the past several years, the owners and the City have worked hard to improve our working
relationship and communication and the annual reviews have been greatly improved. Following the
completion of the most recent review we met with City staff and agreed that it is time to amend the permit and
finally shed the cumbersome vestiges of the original permit. This application is intended to replace the dated
and often irrelevant old permit language with clearer new language.
One of the conditions of the original permit that has always been at issue is the durational limitation. The
original EAW included an estimate of the length of the mining operation based on projections and then
current market conditions. That projection showed up as an end date for the operation. It was never intended
to represent a hard and fast deadline. This amendment eliminates the end date in favor of clearer
descriptions about how mining and reclamation will actually occur on the property. It also provides the
potential for some additional operational flexibility that could accelerate the extraction of the marketable
material on the site.
Despite the greatly reduced consumption of aggregate due to the recent recession, aggregate remains a
valuable and finite resource. The Metropolitan Land Planning Act was a mended some years ago to identify
aggregate as a resource of Metropolitan significance. The law requires local governments to protect these
resources before covering them prematurely with development. The approval of this amendment will be
consistent with the requirements of this law.
Mining is entering the final stages at Shakopee Gravel, as the attached exhibits illustrate. The approval of this
amendment will support the transition from an active mining and processing facility, to reclamation and finally
November 5, 2012
Mayor Tabke and City Council Members
Page 2 of 2
Reference: Application to Amend the Conditional Use Permit No. CC -376 and the Mining Extraction and Land
Rehabilitation Permit for Shakopee Gravel, Inc..
to the realization of high valued future development. We greatly appreciate the positive attitude that City staff
members have brought to this process and we look forward to working cooperatively with the City to complete
the mining operation and to realizing our common vision for a productive and high valued end use for this
land.
Regards,
STANTEC CONSULTING SERVICES INC.
hn Shardlow, FAICP
Senior Associate
Tel: (651) 967 -4560
Fax: (651) 636 -1311
John.Shardlow@stantec.com
City of Shakopee
Memorandum
TO: Mark Noble, Planner 11
FROM: Joe Swentek, Project Engineer`
SUBJECT: Conditional Use Permit Arnendrnent — Shakopee Gravel, Inc.
PBD NO.: 27- 916010 -0, 27- 916011 -0, 27- 917002 -0
CASE NO.: 12045
DATE: November 27, 2012
The application indicates a request to amend the Conditional Use Permit (CUP) for Shakopee
Gravel, Inc. The property is located in the southwest quadrant of the County Road 83
(Canterbury Road) and 17 Avenue intersection.
The engineering department has completed its review and offers the following comments at
this time for the applicant and for the planning department:
1. Adjacent streets, sidewalks and trails will be kept free of any offsite sediment
tracking. The applicant will be responsible for street sweeping.
2. Turf will be established onsite as per requirements set forth by the National
Pollutant and Discharge Elimination System (NPDES) permit program.
3. Erosion control measures will be installed, inspected and maintained as per
requirements set forth by the National Pollutant and Discharge Elimination
System (NPDES) permit program.
4. Slopes of all berms, existing and proposed, will comply with standards set forth
by the City of Shakopee's Design Criteria. Exceptions to these requirements may
be granted by the City Engineer.
5. All berms, existing and proposed, will receive a minimum of six (6) inches of
topsoil. The topsoil, whether salvaged or imported, shall meet the requirements
of select topsoil borrow as defined by MnDOT's specification 3877.
6. The applicant will work with the City to restore previous mining areas as
additional areas are opened.
7. The storm sewer system design and discharge rate from the site will comply with
all requirements set forth by the City Engineer.
H: \ENG \EMPLOYEE FOLDERS \JSwentek \Staff.Reviews\ CUP \Case.Number. 12045.CUP.Amendment (Shakopee Gravel).docx
8. Pre- treatment and infiltration of storm water runoff will be required for future
development of the properties.
Recommendation
Should the City of Shakopee choose to approve the amendment to the CUP, the engineering
department suggests the conditions listed above be attached as conditions of the approval.
H: \ENG \EMPLOYEE F0LDERS\1Swentek \Staff.Reviews\ CUP\ Case.Number.120QS.CUP.Amendment (Shakopee Gravel).docx
Nov. 21. 2012 8:48AM No. 3485 P. 4/4
Ail SHAKOPEE PUBLIC UTILITIES COMMISSION
"Lighting the Way - Yesterday, Today and Beyond"
MEMORANDUM
TO: Shakopee Community Development Department
FROM: Joseph D. Adams, Planning and Engineering Director l o. -
SUBJECT: STAFF REVIEW RECORD COMMENTS for:
Conditional Use Permit Amendment
CASE NO: 12045
DATE: 11/21/12
COMMENTS:
1. Shakopee Public Utilities Commission would like to see that the
current condition requiring Shakopee Gravel to perform and
submit third party water quality testing results for review
continue as before. As the municipal wellhead protection manager
SPUC operates municipal water supply wells within the zone of
potential contamination of the gravel mine operations.
2. SPUC's Comprehensive Water Plan identifies the location of the
gravel mine property as substantially falling within the Normal
Elevation Service District (825 foot elevation and below). Future
development plans for the site then should anticipate building pad
elevations at 825 foot and belowv. Those areas left above 825 feet
would have to be able to access the First High Elevation Service
District's water mains that will be adjacent to the south end of the
property.
Post Office Box 470 0 255 Sarazin Streets Shakopee, Minnesota 55379 -0470
(952) 445 -1988 ♦ Fax (952) 445 -7767
www.shalcopeeutilities.com
1 SCOTT COUNTY PUBLIC WORKS DIVISION
u.
StrX1 HIGHWAY DEPARTMENT • 600 COUNTRY TRAIL EAST JORDAN, MN 55352 -9339
(952) 496 -8346 Fax: (952) 496 -8365 •www.co.scott.mn.us
LEZLIE A. VERMILLION
PUBLIC WORKS DIRECTOR
November 26, 2012
Mark Noble
City of Shakopee
129 South Holmes Street
Shakopee, MN 55379
RE: CUP — Shakopee Gravel
CH 17 and CH 83
Dear Mark:
We have reviewed the conditional use permit application and offer the following comments:
♦ The County requests that the CUP require weekly sweeping of County Road 83, and additional
sweeping at the request of the County if weekly sweeping is insufficient. The sweeping should be
documented by Shakopee Gravel.
♦ The County will review any future development access in accordance with the applicable access
spacing regulations at that time.
Thank you for the opportunity to comment. If you have any questions, please feel free to contact me.
Sincerely,
Craig Jenson
Transportation Planner
1/3/13 City of Shakopee Mail - shakopee gravel inc
ommi
S '1KO E B
shakopee gravel inc
Mark Hill < MHill @threeriversparkdistrict.org> Thu, Jan 3, 2013 at 3:36 PM
To: mleek @ci.shakopee.mn.us
Cc: mnoble @ci.shakopee.mn.us
Michael /Mark,
My name is Mark Hill and I live at 1829 Wyndam Dr.
I had hoped to make tonight's meeting of the BOAA, but will be unable to attend. My plan was to
inquire if the CUP for Shakopee Gravel includes anything about periodically spraying water on
active and inactive stockpiles and their equipment? I have only seen that they are to water down
haul roads and sweep on County 83.
If not, is there a way to have these included? The amount of dust and dirt the past year and a
half that has coated my house and everything else on my property is the worse I have ever
witnessed in the eight years I have lived here. Not to mention if there are any health hazards
that could arise.
On that topic has the city ever had any air quality tests done to see if the dust particles falling
on the surrounding neighborhood fall within the median inhalable size specified by the EPA?
Thank you for your time and consideration on this matter and look forward to your response.
Thank You,
Mark Hill
https: // mail. google .com /mail / ?ui= 2 &ik= dc340523e0 &view pt &search= inbox &msg= 13c025880f28ba5f 1/1
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_ l , Pr oct d E Aria of du aperaticns Pro r?rnams f or
' l i �.� t durauq�t of m me uction t.
r� V € a ! , 7‘k ,a Reclamation Area
t . ' g �i' / . jam �' " � .. w —._ ♦ - ae.
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•
Reclamation Area Mine!
1
os - Area Receiving,
Compacting Pill
w
w `k ° ...__,..,,
w '
? r
e
,.
el Stantec
Phase 3
LEGEND
�.: ' ..�,.. -te .,~ -,.
,
— — 4. ClkCUTA'I''N kanE 3 17TH AVE
,., ....,. AREA REGENING, CCNAVACTNiG nu "',, F
FUTURE MNlN' AkEA , , ,
ACTIVE M-NYNG A0EA t
1 Reclamation Area ea , �
. � 3
a 'ti " 4 Area Receivin ,
^ p ` Compacting Fdf t
4 t ae l amation
k Area
: 1.4.''' ®'` � M Operations/St aging/ 3 r
Mine rations /St
, . ` ~> Pr Productio
u
9 � Area o'Foperations remains for
°; T duratl • ofmine
..tai + a -a
\ Reclamation Area ,>
+r* a Area Receiving, Active
\ ' Compacting Fill � i
\; Mine
■ , _'• ' Future Mining I
\ ArCd I
i
i
M
r •
■
w
:: ■ Stantec
Phase 4
LEGFND
v
...r .. clRCUUnow Rcw1F
FUTURE M N Y.i AREA ,1:,,, a I
ACTNE MtNNG AREA ' + ,..; ?w,� <� t �w A ,, y=a q.
ff F
. ' I ; Reclamation Area `
' I : A rea Suitable for Fill
'' Reclamatian
*� Area R .
I . Mine Operations/Staging/ + .
I Product Production toirr
it
Area of operations remains for
drua?ion'of mine,
j . Reclamation Area e
o-
v r
. .
\; . Reclamation Area
' 1} \ e Area Receiving,
1 Compacting Fill I
< R
a
.� Act
.44 - Mine
. Future Mining l
Area 1
1
1 .ties wt�c arre�ac
{ ;'THRUSH ST
e k'
so
r/stargec
Phase 5
LEGEN LEGEND ' ._
D . .. -." � >. : .,.., ' i- : _ -_
,� v. C1RCOIATION ROUTE � t 7TH AVE
*• AREA RECEIVING, COMPACTING fill — ;_::..: "..._:> �, •,
—
AVSNG AREA � ;. y >q w� .. sxss „nab s , °
FaUrif M z -,....
wax aW ' _ ww rw w {
ACME M64rNG AREA i t
- -� Reclamation Area
a * Area Receiving, ' , *" .
. � I Compacting Fill �
*. � + .. f• Relamation a
x
Area
G ' Mine Operations/Staging /
I ; Product Production
I ; a Ar ea of operations remains for
duration of mine
1 Reclamation Area
I ,
w * r 3 i
t
�� ' Reclamation Area . � -.
*e � ` Area Receiving. �. �' i
Compa rting Fill j..;
($
�' :.. v
" 4' Active ' I
! e Mining
i.
Stantec
Phase 6
LEGEND
i. ii... CIRCULATION ROUTE
« « « AREA RECENIPK3, COMPACTING
L .....:
, ott'PAPArtic myrfatiA
.•,z, FUTURE MINI AREA , .
AC" vE MINP.JC: AREA
„,•-
...
.. .., 7:::, 00.,, , Redamation---,,,
- ,.-;---, i s- ei , , ..;,,-., , - r ; Are. Receivi •
,,...,.,- -.4 4„(44 : -,c7,., r Compacting Fi . ' ,•'.,i ' etiamatio -,
_ ----fl-„,-
„-
i, ,..„ • -. „A ' ;‘1' ' ;" • • "` . "Ar .. ''' "'' ' ' ` ..„-; - '' ' "' '• "APAA0.4, ''''' „.'„ i ' '
,„,,.,,- liv . . , , , I • 1 i 4 • -m in1 • , , , .- e OPerationsiStaging/
'' -
Product Production
Area of operations remains for ...- ,-,
; '1,-: : . ' '. .i! ":,',',' t iiiiiratim of mme —
•
,, Reclamation Area .„,..
_ ,
f . T c • a.
,:.
Reclamation , ,,
clamation Area 1 ,- •
' 4 4 ,, ,, - •ty„.„: ''', '1- • . „ . „
''..
Area Receiving. . . Ir - • „ .
, . .
Compacting Fitt 1 ''
glik',., • •t , „, „ , 1 ' , , .„,
0 • ‘ • - -„z ''' Active
Mine ''''''''' t.
1 ,
. . ,
.. .
re Mining .,.,
' -
"-, ..„...„.
,.., , 'i tor IMARNOWSRIVACK
. ...
' ■ '
e . ,
S StanteC
Phase 7
LFGEND
.... -. CIRCULATION RC31J!E „ - 17TH AVE � -
+. *• AREA RECEIVING, COMPACtIRJG T11.1 *.-* — •*® -�-• - - '
FUTURE MRdMG AREA `* «'s s` . AIMRIp ilTtJltIG -• -* -,' ^»«s* ,,,,
ACTNE MINN.; AREA - t �►• rn t t”
r
. Reclamation Area . ,•
e
,, 1 ' . 0- s e - Area Receiving, f � 3 `' t ' .
r
9 w , t
. - . � ,ir,: 4A". Compacting Fill
. - 7
4
�.,i` -- sc' , `j'� Reclamation ;;• � •
„r' ._ d • . ` * ,0ww ‘,/- Area t
t Mine Operations/Staging/ k,, „ter
W.
Product Production I ��
1. E i t
Area of operations remains for
fi r'* i r 1 duration of mine ''�1 • N s -
Ee s�rFU
” ` ' ' " " i i Reclamation Are4 ; • , t. " .#<
* r...�. a ... ,. 'r _ +wrSl.r:.. »+x. «,., y a 5� ?
.
i
. yt � Reclamation Area
, � '
Area �
Compacting Fill
' ^' d
l a \ti .
e - .
e. • .
\ ‘ ' Active
. Mine
•
h THRUSH 5T.
Stantec
Phase 8
LEGEND .. „ <,.�,..;-,
— — — aRCUU110N RL>nF r ° 17TH AVE
+ AREA RE�EIVMIG, C9M?AC1kP f3LL ✓ , .
FUTURE M N'NC- AREA
£ ,y
AC1NE MiNiNG AREA
- e ° t Reclamation Area i
.-1 , + , r / Area Receiving, 9 , a
■
a lb . ” � -a�!" `2 r �z +� `" f C m FIII ■ '" ",' k v
r ° on
a
a - . _ � '''.21 I Area
� � It r � • e
- " ' v ir Cyperations/Staging/ ,., .,.. ,,. ;...,
Product Production a'
r" .:'`
ArFa of r)perat+ons remains for ,.„
9a duration !7f mine '
Reclamation Area
a ...
i
' >.
Reclamation Area 3',
Area Receiving,
�p
Compacting Fill
a. l I
i
-- , A . ; ,. 100' MINING SETISACM 1 ',.
THRUS ST
, a
m _<, ,
n .
.e i 1
Stan t&
Final Phase
LEGEND
v a CFACUTAINJN R(7ilIF
...... AREA RECENWG, COMPACTRftG f!LL .; �c - ._.
f�
FUTURE trtml�lG AREA �, � , r' "'"
ACTIVE MRdIMG AREA » €_': �
Reclamation Area
... :.
I
\
\
a \
i .,
I 4 .
s+ . \ I
a'
\.,
1
I
x 1 400' MINING SETBACK I
6 t _
THRUSH ST'
Sta tec
End Use Plan
1 7T 1-1 AVE
, ,.......,_....„..
Development Semmot y
, ,__ -- 7" r r r, ---- l i, '
____ ., ,
7, .
' "\
011Ke/Reiall 1&2 Stay - 460,70o sf
— Parking Provided ; I, 74ri
,l• i ' ' ' .?"',, ) "' ,,-- 1 l . , --
1 ' ' -- l• ' , , *" .1 - ,l-' .
,
ll " * """, , Rownorne 69 onm,
) r"."'"".".... Par kIng Provided 1
."'
- 410*- , ' 0 'I
. ,
. —
Restd lot 1.11
..1-,-- r , = •., - ' ,,-. -- - i ,'-' - r— - 'N - it,
,
ill 4
--- - . -= ' IF ;`=-,-; .,-: ■ : ''-- ,/t1 ....., . ., ' -,
'I ' ''.. "1' I ■ i i"-- t ':'.-' i i t: ■ .- '; r•• 7.. : ....... ' . 146e* , , ' ..,,.: '4' ' ::It i*'"' et , : . "" A
iaM s , ... , ..1410. OM OAP '' ' ' '
''''
;'),!,-.7
- , , ,f., Z'. .,' ....A FLOOR AREA
,
o........m.
_ ..... ...
,.,
' PARK
& 14 -- ---6-7 - 2--' ' -- teofb tdet -e6s,
• .. ,,
....
• '," - ' '' • , ,
, 0
x.r i ■..)
..,
' -, 0
• "Nnbigsr- -Ace, 4/00 446 'St
PARK 5..--„,-,.-:,,-,_„,,,-.,,,,-;--,:;:if„..„,
I:0 Stantec
B R I G G S 2200 IDS Center
80 South 8th Street
Minneapolis MN 55402 -2157
te1612.977.8400
fax 612.977.8650
January 31, 201 Jack Y. Perry
(612) 977 -8497
jperry @briggs.com
VIA FACSIMILE (952- 233 -3801)
Shakopee City Council
City Hall
129 S. Holmes Street
Shakopee, MN 55379
Re: Beverly Koehnen's appeal of BOAA's January 3, 2013 approval of
Amendment No. 5 to Shakopee Gravel's CUP and Mineral Extraction and
Land Rehabilitation Permit
•
Dear Council:
For the last couple of years, Shakopee Gravel and City Staff have struggled to figure out
the proper regulatory oversight for Shakopee Gravel's 25- year -old mining facility as it slowly
winds down its current use and reclaims the property for its eventual permanent use. Shakopee
Gravel and City Staff came to recognize that the out -of -date permit was actually an impediment
to the continued progress that they were making in better operating and regulating the mining
facility. Their solution was to completely rewrite the permit to reflect not only the cooperative
working relationship between Shakopee Gravel and City but also the current site conditions and
plans for the site.
After several meetings and drafts between the parties, they agreed upon Amendment
No. 5, which was approved by the Board of Adjustments and Appeals (BOAA) on January 3,
2013. Beverly Koehnen (Koehnen) has appealed the BOAA's January 3, 2013 approval of
Amendment No. 5.
A. FOUR BASES FOR KOEHNEN'S APPEAL
Koehnen, who lives over a mile from the mining facility, has steadfastly opposed the
facility beginning with City's initial approval in 1988 and for every permit amendment and
renewal since. Koehnen's anticipated appeal here is principally a restatement of her previous
objections to the mining facility, which she breaks down to four reasons. Indeed, the entire
statement of her four reasons for the appeal is as follows:
Briggs and Morgan, Professional Association
Minneapolis 1 St. Paul I www.briggs,com
Member- Lex Mundi, a Global Association of Independent Law Firms
B R I G G S A N D M O R G A N
Shakopee City Council
January 31, 2013
Page 2
Amendment No. 5 passed by the BOAA on January 3, 2013 is a dramatic change
to Amendment No. 4 (copy attached) and "guts" many of those environmental,
quality of life, and financial safeguards.
Also attached is my 12/6/05 testimony to the City Council. The major reason that
I am appealing the BOAA decision of 2013 is the same as it was in 2005. That is
J(1)1 the City Council has been cut out of decision - making due to a last minute
Memorandum for the Table placed by Michael Leek on April 4, 2002 at that
meeting. I doubt whether BOAA had time to even notice that "City Council" had
been replaced by "BOAA" every place it appeared in the Resolution that they
voted upon that night.
I have compiled a more detailed list of my findings and will provide it to you
separately from this appeal notice.
[(2)] Of special financial concern is Condition #17 that holds substantial
risk to Shakopee taxpayers.
[(3)] Fugitive dust, increased hours of operation and no setback
requirements are injurious to the use and enjoyment of neighboring
properties.
[(4)] Importantly, it was Shakopee Gravel who requested a specific end date to the
Conditional Use Permit for the mine and agreed to January 16, 2013. That seems
to give Shakopee every right to hold them to it.
(Emphasis and bracketed information added).
But Koehnen did not, as she promised, "separately" submit "a more detailed list of any
findings."
B. EACH OF KOEHNEN'S FOUR BASES FOR APPEAL FAIL
1. FAILED BASIS NO. 1: Leek's purported misconduct is false
City did change the review process for permits like this, but it wasn't done secretly by
Leek. The language contained in Resolution NO. PC12 -045 accurately reflects City's current
regulations and policy and the BOAA did not make a mistake in adopting this resolution.
B R I G G S AND M O R G A N
Shakopee City Council
January 31, 2013
Page 3
2. FAILED BASIS NO. 2: Condition No. 17's risk to taxpayer is illusory
Condition No. 17 requires Shakopee Gravel to enter into an agreement authorizing City
to enter the property to complete the reclamation plan or assess the costs to the property "should
the site not be reclaimed and made available for development consistent with the End Use Plan
by the Applicant." This is a City- requested protection for City, and it does not pose a substantial
risk for Shakopee taxpayers.
First, this is valuable land and its location in the community will support high valued
development in the future. Second, Shakopee Gravel knows this, and they have been carefully
reclaiming the land to support productive use after the mining is completed. Third, Shakopee
Gravel has prepared and submitted a phased reclamation plan illustrating how the mining and
reclamation will proceed. And, fourth, City will have the opportunity to review this permit every
year, thus giving City more than ample time and opportunity to take the necessary steps to avoid
harm to the taxpayers.
3. FAILED BASIS NO. 3: The purported "iniur[yl to the use and enjoyment of
neighboring properties" is made up
Koehnen raises fugitive dust and increased hours of operation as issues "injurious to the
use and enjoyment of neighboring properties." The opportunity to have the flexibility to request
increased hours of operations was a mutual decision between Shakopee Gravel and City Staff to
expedite the completion of the mining and reclamation. This is in everybody's best interest and
not a threat. The City Council can then decide to allow or not allow expanded hours of
operation, solely at your discretion.
The issue of dust control was the focus of much of the discussions throughout this
process, and there are conditions of approval directly related to dust mitigation. In mutually
identifying meaningful changes that could provide protection for immediately adjacent property
owners from dust generated from the mining operations at Shakopee Gravel, Shakopee Gravel
and City Staff cooperatively identified locations where new berms could be constructed. Per the
presentation to the BOAA, the berms constructed along the western boundary have provided
excellent protection. And the plan recommended by City Staff and approved by the BOAA
would authorize the construction of similar berms along the north side of the property.
Sadly, the appeal filed by Koehnen prevented Shakopee Gravel from already building a
substantial portion of the berm that both Shakopee Gravel and City Staff believe will protect
adjacent homes from fugitive dust from the mining operations. Shakopee Gravel had an
opportunity to receive not only a significant amount of clean fill but also to have this supplier
deposit this material where the berm could be readily shaped. But, because of Koehnen's appeal,
this material needed to be stock piled in other areas of the property to be in compliance with the
B R I G G S AND M O R G A N
Shakopee City Council
January 31, 2013
Page 4
current operations plan. Shakopee Gravel could not build these berms because they are not
consistent with the current operations and end use plan. Now these residents will need to wait
for incremental berm construction as material becomes available and this work will almost
certainly happen during times when it will be more disruptive.
Regarding the setbacks, it was unnecessary to repeat the setback requirements in the
resolution because they are contained in Ordinance § 11.52. At the BOAA meeting, Koehnen
was clearly informed that all of the same setback requirements remain in effect. All of our
operations maps and phasing maps honor the setbacks.
4. FAILED BASIS NO. 4: January 16, 2013 end date
This issue has been exhaustively argued in writing and orally to City Council. The
parties disagree on whether the end date is enforceable. While City argues that it is enforceable,
Shakopee Gravel disagrees. Even though there is a non - binding Attorney General Opinion in
favor of Shakopee Gravel's position, the parties' counsel have conceded that this legal issue has
not yet been decided by any Minnesota court and it is thus an issue of "first impression."
One of City Staffs and Shakopee Gravel's expressed considerations in recommending
Amendment No. 5 was the avoidance of protracted litigation over an issue of first impression.
Evidently, Koehnen stands alone in wanting to litigate this issue. Of course, the Last time that
Koehnen encouraged this body to invite such litigation was with City's subsequently reversed
denial in 1987 of Shakopee Gravel's initial permit.
Shakopee Gravel stands with City Staff in encouraging City Council's approval of their
significantly improved resolution, as it was approved by BOAA on January 3, 2013. There is no
justification for further fighting.
Sincerely,
Jack Y, Perry
JYP /kg
cc: Michael Leek
Mark Noble
Bert Notermann
Joel Speer
John Shardlow
Maren Grier