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RES 10-18RESOLUTION NO. 10- ig City Council City of Elk River A Resolution Denying the Application of Elk River Landfill, Inc. to Amend its Existing Conditional Use Permit and Solid Waste Facilities License to Allow Expansion of the Elk River Landfill by Developing the Existing 200-Foot Buffer Zone on the South Side of the Landfill for the Deposit of Solid Waste WHEREAS, Elk River Landfill, Inc. (ERL), awholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately south of the existing Landfill; and WHEREAS, ERL has submitted a land use application (Application) to the City requesting an amendment to ERL's existing Conditional Use Permit (CUP) and Solid Waste F iliti License SWFL to allow ex ansion of the Landfill b develo in the existin 200-foot ac es ( ) p y p g g buffer zone on the south side of the Landfill for the deposit of Municipal Solid Waste (MSW); and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the Application was referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and making a recommendation to the Elk River City Council on the Application; and WHEREAS, the Planning Commission held a public hearing on the Application on May 11, 2010, at which time ERL, WMI, Tiller and their consultants were provided as much time as they desired to present the Application and all information and data they desired in support of the Application; and i WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at the May 11, 2010 public heanng; and WHEREAS, the Planning Commission closed its public hearing on the Application on May 11, 2010 and made a recommendation to the Elk River City Council that the Application be denied; and WHEREAS, the Elk River City Council, on May 17, 2010, held a public hearing on the Application and considered the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the May 17, 2010 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members of the public prior to and at the public hearing on May 17, 2010 were accepted into the record; n ad WHEREAS, during the May 17, 2010 public hearing, the City Council received testimony from all parties desiring to present testimony and offer evidence for or against the Application, closed the public hearing on the Application, continued its discussion of the Application, and reached the decision incorporated in this resolution. NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the Application: FINDINGS OF FACT 1. The Landfill was first approved to operate on 40 acres of land in 1971 and first permitted by the Minnesota Pollution Control Agency in 1972. 2 2. The Landfill was granted its first approvals and permits by the City of Elk River pursuant to the City s Solid Waste Facilities Ordinance in 1988. 3. In 1997, the City granted approval for the Landfill to expand the area approved for Mixed Solid Waste (MSW) disposal from its origina140 acres to the current 93-acre footprint. 4. In 1988, the Landfill received approval from Livonia Township to expand the area approved for construction and demolition debris disposal (C & D) to a total permitted footprint of 75 acres. 5. The Mixed Solid Waste and Construction and Demolition Debris operations at the Landfill therefore currently cover 168 acres. 6. The proposed expansion of the Landfill would extend the life of the Landfill beyond its current expected closing date. The Application states that the current three year life of the Landfill would be extended from four 4 to seven 7 ears but there is conflictin O OY ~ g information regarding the remaining and potential capacity of the Landfill and the number of years the Landfill would remain open with or without the proposed expansion. 7. In March 2009, ERL applied for a Comprehensive Plan amendment, rezoning, Conditional Use Permit, and Solid Waste Facilities License to expand the Landfill on to the entire 109-acre SDA (the "March 2009 Application"). This application was considered by the Planning Commission and City Council at a number of meetings, which extended from June 2009 until October 2009. The March 2009 Application for a Comprehensive Plan amendment and rezoning was denied by the City Council on September 21, 2009. The March 2009 Application for a Conditional Use Permit and Solid Waste Facilities License was denied by the City Council on October 19, 2009. The information submitted to the City Council prior to its • 3 September 21 and October 19, 2009 decisions regarding the March 2009 Application, including the staff reports presented to the City Council, along with the resolutions adopted by the City Council denying the March 2009 Application, are hereby incorporated in the City Council's consideration and decision with respect to the current Application. 8. Subsequent to denial of the March 2009 application, the City Council has acted, on March 16, 2010, on City-initiated amendments to the City's Solid Waste Facilities ordinance; has acted, on April 19, 2010, to zone the Landfill property located within the City between Highway 169 and the City trail and North of the SDA into the Solid Waste Facilities Overlay Zoning District; and has acted, on May 17, 2010, to guide the Landfill property located within the City between Highway 169 and the City trail and North of the SDA "Landfill" on the land use plan element of the City's 2004 Comprehensive Plan. The information submitted in connection with these actions, including the staff reports presented to the City Council and the • resolutions ado ted b the Cit Council are hereb inco orated in the Cit Council's p Y Y ~ Y ~ Y consideration and decision with respect to the current Application. 9. The Application presently before the City Council to amend the existing CUP and SWFL proposes to expand the Landfill by developing the existing 200-foot buffer zone on the southern boundary of the Landfill for the deposit of solid waste. 10. Although the application materials submitted with the Application indicate that, • from an overall engineering standpoint, the design of the proposed expansion into the buffer area is feasible, ERL has not submitted sufficient materials, including engineering and construction details related to the leachate management system, a detailed storm water management plan, design details for the Landfill gas system, and others, for the City to approve the requested amendment to the CUP and SWFL. 4 11. Minnesota Rules, part 7035.2815, subd. SC, provides that, "any new fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved by the Commissioner based on existing filling procedures, existing site structures, the facility design, compliance boundaries, and existing land restrictions." 12. Although the City received a letter from the adjoining landowner to the south of the Landfill stating that "agreements and arrangements are in place that will allow Elk River Landfill, Inc. to acquire the necessary property from us for the expansion requests," the City has received no evidence that the existing property line has been relocated, nor that the agreements and arrangements referred to will move the property line 200 or more feet from the proposed fill area and bring the proposed expansion into compliance with the state regulation. Nor has the City received any evidence that the Commissioner has granted the Landfill an approval pursuant to the state regulation. Therefore, the City Council finds that the proposed Application does not comply with the state regulation set forth above. 13. Sections 30-1 (in the City Zoning Ordinance) and 58-91 (in the City Solid Waste Facilities Ordinance) of the Elk River City Code define Solid Waste Facility. The first sentence of each of those sections reads as follows: Solid Waste Facility means all property, real or personal, including negative and positive easements, water and air rights, all storm water management facilities, and all buffer areas or buffer zones, which are or may be required, needed or useful for the processing or disposal of waste and for which processing or disposal of waste a license is required under the provisions of this Code. 14. Section 30-1834(e) (in the City Zoning Ordinance) of the Elk River City Code provides: (e) Solid Waste Facilities restricted to SWF -Solid Waste Facilities Overlay District. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water . management facilities and buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, with the exception of facilities necessary for monitoring the offsite impacts of the facility on ground and surface water, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. 15. Section 58-100(b) (in the City Solid Waste Facilities Ordinance) of the Elk River City Code provides: (b) Location of Solid Waste Facilities. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, with the exception of facilities necessary for monitoring the offsite impacts of the facility on ground and surface water, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. 16. Section 58-171(8) (in the City Solid Waste Facilities Ordinance) of the Elk River • City Code provides that waste disposal areas within a sanitary landfill are prohibited from certain areas, including within:: (8) 200 feet from the nearest property which is not located within the SWF -Solid Waste Facilities Overlay Zoning District. 17. The plans submitted with the Application indicate that the Application proposes the deposit of solid waste up to the existing boundary of the Solid Waste Facilities Zoning District. The plans indicate that the required 200-foot buffer zone, and other infrastructure required, needed or useful for the operation of the Solid Waste Facility, including non-exempt ground water monitoring wells and gas monitoring probes, a service road running around the southern boundary of the Landfill and, potentially, storm water management facilities, will be located outside of the Solid Waste Facilities Zoning District. Therefore, the City Council finds 6 that the expansion as proposed in the Application violates Sections 30-1834(e), 58-100(b), and 58-171(8) of the Elk River City Code. 18. The current, approved CUP for the Landfill, approved by the City Council on February 16, 2010, provides, in paragraph 3, for the preservation of trees within the 200-foot buffer zone during the construction and operation of the Landfill, and that preservation of trees be included in the end use plan for the Landfill. Therefore, if the existing buffer zone is not developed for the deposit of solid waste, the existing topography and the existing mature, native trees will remain. 19. The existing topography and mature, native trees in the 200-foot buffer zone on the southern boundary of the Landfill act as a visual screen of the Landfill and Landfill operations from 221St Avenue and surrounding residential areas. If the Landfill stays within its currently permitted area, this visual screen and buffer will remain in place and will screen Landfill operations from adjoining properties during the remaining life of the Landfill. 20. The plans submitted with the Application indicate that if the Application is approved for the deposit of Solid Waste in the existing 200-foot buffer zone, all of the existing trees would be removed and the existing elevated terrain reduced and excavated to accommodate the deposit of Solid Waste. Removal of the existing trees and buffer would have a substantial impact on the visibility of the Landfill, making Landfill operations clearly visible from 221St Avenue and, potentially, residential areas to the south and west, for an extended period of time while the existing buffer area is filled with solid waste and a new buffer is established to the south of the existing Landfill property. 21. The plans indicate that a new berm and screen would not be installed until at or near the end of Landfill operations, meaning that operations in the expansion area, the existing 7 200-foot buffer zone, would be visible through most of the remaining three years of capacity wi hi t n the Landfill as currently permitted and the additional four to seven years that the Application indicates the Landfill would remain open as a result of the proposed expansion, for a total of seven to ten years. It would be many years after that before new trees on a new berm would reach maturity and provide a screen comparable to the existing mature, native trees. 22. Section 30-654 of the Elk River City Code sets forth seven standards for the issuance of a Conditional Use Permit, and provides that a Conditional Use Permit can be ordered only if the proposed use meets the seven standards. 23. The City Council finds that the proposed expansion of the Landfill into the 200- foot buffer zone does not meet the standards set forth in § 30-654 of the City Code for the issuance of a conditional use permit, because: A. the proposed expansion will detrimentally affect the use and enjoyment of other property in the immediate vicinity. i. The proposed expansion of the Landfill will extend the life of the Landfill by four to seven years and remove the existing topography and mature trees which screen Landfill operations from 221St Avenue and surrounding areas. ii. Removal of the topography and vegetation in the existing buffer zone will mean that Landfill operations will be visible from 221st Avenue and surrounding properties to the south and west for approximately seven to ten years, if the Landfill's information regarding the lifespan of the Landfill is accurate. iii. This will detrimentally affect the use and enjoyment of other property in the immediate vicinity. B. The proposed expansion of the Landfill is inconsistent with the City's 2004 Comprehensive Plan. i. The 2004 Comprehensive Plan designates only the existing Landfill property as "Landfill". Because the City Code defines Solid Waste Facility to include required buffer areas and buffer zones, and other infrastructure, location of a new buffer zone and 8 Landfill infrastructure outside of the "Landfill" designation is inconsistent with the Comprehensive Plan. C. Involves uses, activities and conditions of operation that are detrimental to persons and property in the area because of excessive noise, odors and dust. i. The Landfill has consistently generated complaints about noise, odor and dust, as well as excessive litter, truck traffic and road maintenance impacts. ii. The Application itself confirms the potential for odor releases from the additional Landfill footprint. iii. These impacts are not capable of being fully mitigated until the Landfill is closed. iv. Extending the life of the Landfill will, at a minimum, extend for an additional four to seven years the time period that surrounding properties will be subject to noise, odors and dust, which have all been persistent problems with the Landfill in the past. v. In addition, there are environmental impacts and risks inherent with the Landfill land use which cannot be mitigated other than by limiting the expansion of the Landfill. D. Will result in the destruction, loss or damage of natural features which are of major importance. i. Expansion of the Landfill into the existing 200-foot buffer zone will result in the destruction and loss of the existing native, mature trees and natural topographic conditions which screen and buffer Landfill activities from 221St Avenue and surrounding residential areas to the south and west. ii. This existing screen is of major importance in that it screens Landfill operations from. surrounding properties and will screen the Landfill permanently once operations cease. E. Does not fully comply with the other requirements of City Code. i. Relocation of the buffer zone outside of the SWF district, and the placement of solid waste facility infrastructure, including a service road, storm water management facilities and wells, outside 9 of the SWF district, does not comply with provisions of the City of Elk River Zoning Ordinance and Solid Waste Facilities Ordinance set forth above. 24. The City Council further finds that the Landfill has expanded numerous times in the past and has alternative expansion opportunities within the area currently zoned SWF -Solid Waste Facilities Overlay and guided "Landfill" available to it at present. The Landfill has expanded from its origina140 acres of land in 1971 to approximately 168 acres of disposal areas for mixed municipal sold waste and construction and demolition debris. 25. Since 2004, the waste capacity of the Landfill has been expanded with approval by the City of a leachate recirculation system which results in faster decomposition of waste and expansion of the capacity of the Landfill to receive waste. The Landfill has also received approvals to expand its gas to electricity facility and to construct new storage buildings and • retain existing buildings previously required to be removed. 26. The City Council finds that the Landfill has considerable opportunities to expand the waste capacity of the Landfill and extend the life of the Landfill without destroying the existing buffer zone on the southern edge of the Landfill and the screening which that buffer zone provides to 221st Avenue and surrounding properties. 27. The Landfill has approximately nine acres in the northeast portion of its property that could be utilized for Landfill expansion. Development of this area for the deposit of Solid Waste would require consolidation and relocation of existing facilities, and an amendment of the existing CUP and SWFL, but would require no amendments to the Comprehensive Plan designation or zoning of the Landfill property. The City sees no obvious technical issues with development of this area for solid waste disposal and encourages the Landfill to investigate this possibility. The Landfill could also gain another acre of fill area by moving the south boundary 10 of cell 17 20 feet to the south. This would also require an amendment to the existing CUP, but the City sees no potential issues with such an amendment. Ms. Stephanie Stolz, on behalf of the Landfill, stated, with respect to expansion in those areas, that the Landfill is not saying it can't be done, it would just be very costly. There are also additional opportunities to implement leachate recirculation systems which could add considerably to the waste capacity of the Landfill. The approval of these systems has already been granted by the City. 28. The City Council further finds that if an expansion of the Landfill into the buffer zone on the southern boundary of the existing Landfill property were to be approved, such an approval would have to be subject to compliance with Minnesota Rules, the Elk River City Code of Ordinances and the existing CUP and SWFL for the Landfill, and subject to the Landfill providing the necessary construction details which would allow the City to evaluate and analyze the proposed expansion, including engineering and construction details related to the leachate management system, a detailed storm water management plan, design details for the Landfill gas system and others as required by the City's consultant. 11 DECISION THEREFORE, the City Council of the City of Elk River makes the following Decision with respect to the Application to amend the existing CUP and SWFL for the Landfill to allow expansion of the Landfill into the existing 200-foot buffer zone: A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public, as of the date of this Resolution. C. Based upon the Findings of Fact set forth above, the Application of ERL to amend the existing Conditional Use Permit and Solid Waste Facilities License for the Landfill to allow expansion of the Landfill by developing the existing 200-foot buffer zone on the south side of the Landfill for the deposit of solid waste is hereby denied. THIS RESOLUTION PASSED AND ADOPTED this 17th day of May, 2010. __ Steph nie Klinzing, r ~, ~: Tina Allard, City Clerk GP:2629426 v7 12