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5.1. PCSR 06-08-2010REQUEST FOR ACTION To Plannin Commission Item Number 5.1. Agenda Section Meeting Date Prepared by Planning June 8, 2010 Rebecca Haug, Environmental Admin Item Description Reviewed by Request by Tiller Corp. to amend Conditional Use Permit to Lori Johnson, City allow mineral excavation of approximately 13acres of property Administrator owned by Waste Mara ement, Inc - CU 10-09 Peter Beck, Ci Attorne Action Requested Staff recommends denial of Tiller's request to amend its existing Conditional Use Permit (CUP) to allow mineral excavation of approximately 13 acres of property owned by Waste Management, Inc.. General Information Applicant Tiller Corporation 60-Day Rule The application was submitted on February 22, 2010 and deemed complete on March 4, 2010. The City must approve, approve with conditions, or deny the re uest by June 22, 2010 Requested Action Amend existing Conditional Use Permit Location and Size 22460 Highway 169 Location Existing Land Use Land Use Plan Designation Current Zoning Property in Question Landfill Landfill Al (ME) (SWF~ North Landfill Landfill Al (ME) (SWF~ South Mineral Excavation Mining Al (ME) East I~ghway 169/Agriculture Commercial Reserve CRT (ME) West Agriculture/Gpen Space Rural Residential Al Case File: CU 10-09 Page 2 Introduction Tiller CUP Ciryof Elk River In May, 1996, Straightline Excavation, Inc. and Barton Sand and Gravel Co., a Division of Tiller Corporation, were issued a Conditional Use Permit to mine the Elk River Landfill property. Tiller Corporation (Tiller) is the successor to these entities and is currently mining the Landfill property pursuant to the 1996 CUP. Mining of the Landfill property is conducted in connection with Elk River Landfill, Inc. (ERL) landfilling activities. As ERL needs to expand into a new cell, Tiller mines the cell removing the gravel so that liners can be installed and the cell filled with solid waste. Because Tiller's mining operation on the Landfill property is preparatory to and in connection with ERL's subsequent landfilling, Tiller's mining activity is subject to the same buffer requirement as the Landfill. Section 3(20) of Tiller's 1996 CUP reads as follows: (20) Screening and Buffering - No mining operations shall be conducted within two hundred (200) feet of the property boundary. Further, within this two hundred (200) foot buffer area trees shall be left for screening. In open areas where trees do not exist, screening shall be accomplished bythe construction of a minimum six (6) foot high berm planted with evergreens. This language corresponds to Section 3 of the current CUP for the Landfill, which reads as follows: 3.) Buffer Zone/Screening. A Buffer Zone shall be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the north side. Within this Buffer Zone, no waste disposal may occur. The Landfill shall develop an inventory of significant trees within the buffer zone. The preservation of trees within the buffer zone shall be provided for during the construction, operation, and be included in the end use plan to be submitted for approval by December 31, 2011 bythe City. On February 22, 2010, Elk River Landfill, Inc. and Tiller Corporation filed separate applications to amend their existing CUP's to allow expansion of mining and landfilling activities within the 200 foot buffer zone on the southern boundary of the Landfill property. The Planning Commission considered the Landfill's request to expand into the buffer zone on May 11, 2010, and the City Council subsequently denied this request on May 17, 2010. Copies of the staff reports to the Planning Commission and City Council, and the City Council Resolution denying the Landfill's request are attached. Tiller's request was held for consideration after the Council's decision on the Landfill's request, because a decision on the Landfill's request is relevant to consideration of Tiller's request. Tiller's request before the Planning Commission at this time is to amend Condition No. 3(20) of its 1996 CUP to allow removal of trees and mining within the buffer area that is within 200 feet of the Landfill's south property line. N:\Departrnents\Com**n,n;tyDevelopment\Planning\Case Files\CUP\CU 10-09 Tiller Corp\Staff report to PGCU 10-09.doc Case File: CU 10-09 Page 3 Attachments Tiller CCJI' City of Elk River • Location Map • Tiller Corporation application and narrative • The existing 1996 Tiller CUP • Staff report, excluding attachments, dated May 11, 2010 to the Planning Commission, CU 10-08 • Staff report, excluding attachments, dated May 17, 2010 to the City Council for CU 10-08 • City Council Resolution No. 10-18 • Letter dated May 6, 2010 from Matt Ledvina, City's Environmental Consultant Applicable Regulations A. Standards for Issuance of a Conditional Use Permit (Section 30-654) The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 7. mill not endanger, injure or detrimentally affect the use and enjoyment of other property in the immediate vicinity or the public health, safety, morals, comfort, convenience orgeneral welfare of the neighborhood or the city. 2. Dill be consistent with the comprehensive plan. 3. Will not impede the normal and orderly development and improvement of surrounding vacant property. 4. 1~ill be served adequately by and will not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and seaver ystems, parks and schools; and will not, in particular, create traffzc congestion or interference aarith traf~ic on adjacent and neighboring public thoroughfares. 5. 1-Vill not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons or properly because of excessive tra~c, noise, smoke, fumes, glare, odors, dust or vibrations. 6. Dill not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. 7. Will fully comply with all other requirements of this Code, including any applicable requirements and standards for the issuance of a license orpermit to establish and operate the proposed use in the city. N:\Departments\CommuniryDevelopment\Platming\Case Files\CUP\CU 10-09 Tiller Coop\Staff report to PGCU 10-09.doc Case File: CU 10-09 Page 4 Tiller CUP Ciryof Elk River If denial of such a permit should occur, it shall be accompanied by findings or a report stating how the proposed use does not comply with the standards set forth in Section 30-654. Analysis Tiller's application to remove the trees and mine the Landfill's 200 foot buffer zone was submitted with the Landfill's application to expand in the buffer zone. The Landfill's application was denied by the City Council on May 17, 2010. This means that Condition No. 3 in the Landfill's CtJP, which requires that the preservation of trees within the buffer zone shall be provided for in the construction, operation and end use plan for the Landfill, remains in effect. Therefore, Tiller could not remove the trees and mine the buffer zone without violating the Landfill's CUP. In addition, removal of the existing, mostly native, buffer area on the southern edge of the Landfill, including the removal of several hundred mature native trees in the buffer area, would have a significant impact on the visibility of landfill operations from 221st Avenue and surrounding residential areas. Mining the buffer zone would also greatly alter the final contour plan for the landfill as currently approved. The existing 200 foot buffer was put in place to provide adequate screening and distance between landfill activities and the property to the south to help protect land values and limit impacts to future uses of those areas. Recommendation Staff recommends that the Planning Commission recommend to the City Council that Tiller's application to amend its existing 1996 CUP to allow removal of trees and mining within the 200 foot buffer area along the southern boundary of the Landfill be denied, for the following reasons: 1. Removal of the existing mature, native trees and mining of the Landfill's 200 foot buffer zone would be inconsistent with and constitute a violation of the February 16, 2010 CUP for the Landfill, which requires that the preservation of trees within the buffer zone shall be provided for during the construction, operation and end use of the Landfill. 2. Mining the existing 200 foot buffer zone will detrimentally affect the use and enjoyment of other property in the immediate vicinity, because existing topography and vegetation in the buffer zone will be removed, making landfill operations visible from 221ST Avenue and surrounding properties to the south and west. 3. Mining the existing 200 foot buffer zone will result in the destruction, loss or damage of natural features which are of major importance because 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 will be removed. This existing screening is of major importance in that it screens landfill operations from surrounding properties and will screen the Landfill permanently once operations cease. 4. Mining the existing buffer zone does not fully comply with the other requirements of City Code because it would be inconsistent with and a violation of the requirements of the existing CUP for the Landfill. N:\Departments\CommunityDevelopment\Planning\Case Files\CUP\CU 10-09 Tiller Corp\Staff report to PGCU 10-09.doc Case File: CU 10-09 Page 5 Tiller CUP City of Elk River Planning Commission Action Motion by Second by Vote Follow Up N:\Departments\CommuniryDevelopment\Planning\Case Files\CUP\CU 10-09 Tiller Corp\Staff report to PGCU 10-09.doc February 2010 ~r TILLER ORPORATION`~ APPLICATION FOR AMENDMENTS TO CONDITIONAL USE PERMIT FOR MINERAL EXTRACTION ELK RIVER LANDFILL ELK RIVER, MINNESOTA ~~~ ~ TILLER CORPORATION APPLICATION FOR AMENDMENT TO CONDITIONAL USE PERMIT FOR MINERAL EXTRACTION INTRODUCTION Tiller Corporation (Tiller) is seeking an amendment to an existing Conditional Use Permit (CUP) for Mineral Extraction on parcels of land located in the northern portion of Elk River. The permit was issued in May, 1996. The proposed amendments are limited to Condition #20 of the current CUP. The proposed amendment involves mining the southern boundary of the Elk River Landfill, Inc.'s (ERL) property. Condition #20 of the CUP requires no mining operations be conducted, and trees be left in place, within 200 feet of property lines. The amendment seeks to allow removal of trees and mining within the area that is 200 feet from the south property line. Figure 1 is a general location map of the site. Figure 2 illustrates the existing mining setbacks and proposed revisions to mining setbacks. Figure 3 is a USGS Quad Excerpt. Site operations will be consistent with the current CUP. Operations will consist of stripping the area to be mined, removing the aggregate with a front end loader, screening and crushing the material and hauling it north or south to .Tiller's existing processing area. There is a haul road established between ERL's property and Tiller's property. II. SITE INFORMATION 1) Legal Description of Property: See attached Exhibit A 2) Name and Address of Operator: Tiller Corporation 7200 Hemlock Lane, Suite 200 PO Box 1480 Maple Grove, MN 55311-6480 (763) 425-4191 Contact: Mike Caron ~ ~ _.. . ~: v ~ c~ ~.~ Q - ~ Q Elk River Landfill, nc O .T~,.hS?~,., ~ _,r~ M y N Existing landfill ,, ~ ~~ ~~ ,; ~ ~ ~, ;~7"rH Aye i ,~~ _ ~ ~ ~ j _ r r . ~ _ r t -i ~ ~ f ~ .~' ~~~ ~ i ,,per ~ -~~r 2~?pFBFE ~ 4 Ti erCorpora4on ti ~ r._ -.... ..~ .,.-~...,,x»"[/.~k ~~--~-~- 1 ~ Busting Mining ~ ~' ..' t_1 ~_ ! > r ~ ~ ~ 22157AVE? ' ~ ?ata^TA ~ 1St AYt~ -. _ - ---- ~ ~ ~ ~, ~ ~ f ~~ ., ~ ~ ,, r f i~ s ~ f r ~ ~L1NGH~SI # ~ 1TtH i ~- ~'$ ~ 1 E ~ ~ ~ ?Q ~ 2 t1 ~ _ ~ vs f 2 ' 2tsiH ~ g ~ ~~ ~ ~ 1 ,,.. r ~ e .. - 1 211th ~ }S E ~~ f ~ ` ~ r ~ 1 r a sgir ~ 1 218TH AVE ~.. ~ ~, ... h~~ ~~...,.~.-.- mot.... tR ~ - F ~.._.~ ....__ i ~;~~~_~..~~_ .f";-,. ~ 21M1'ft'Ii4VF ~ ; Tr< ~ `~.. ;Hr ~ a~,a (A,., {J, i - ~ r ~ ~ s ~ O ~ I s.. E'4 ,.. .1 r s f1rTk AYd _ ~ r ~srH AtiiE n 18 ~ ~ c 18 ~ 15 ~ ~ ~a `` -~ I k Q cAw I ~lBTk AYE "` f ~ 11 r s' r Ave it ~ _ a ~ 207Tt AVc ~ -r.,ia t ,~ ~ , i g g ''T~h E a r ~ G ~+,~ SC Y ~ .._M1~ A f ~_ tom' F ~t (•~ ~. ,7 r 20y((r l ~ ~ le ~.RYcx elk ` ~ ,~~` ~2 A ~ k c a. @ Q k ~ .Qi`inµ~ ~ggtkAV~ < -~, ~ tsra C ,E ~ 1~'~ rBara $~ a ~€ Y..,-n'~JC ~ s a. 74rrH f fp77 t + ,~ ,~ fE ~ ~2. .. -~ .- ~ s r ~ .= .~ ~ } r~ ~ ~, ~- _ _~_ _ x ~ rseTe WE 1 `q - ~ x~ ~. ~ ' t ~` T S im ~~ a a ~ :...;cs. ~ ~~ ~ y Ki m r g 7 4 VI ~~ ,~.,~ :192ND AYg `' 3d q ~ 0.' ~ o; ec f '~ > z w ~ r t t!J r ~ o Np~`-1 E<l ~ ~ r ~'- ' p ~° r~~ ~ 1 re ~`° ~ y 1 ~` 13 r ~ .. ,- 2 AYE - ~ c E Sr ?d 1 t 'w ~w a o _ ~"9~? "~,... sr ve fsr - rasa+~ ~ t r®rsr~vc~-..c F • ~ ~~ ~_E '` ~.eo ~~. wat ws rat ~ ~'ks ;, ,~ ,;~ x ~~ ~ ~~~. ~ - s t-- ; ~a,..r~z~ --- ~ gt'. a •}~ ~ v ~ ~ ~~ ~T„ '?".::~ ryYs~lBTl H~13 ~ b + .IK ! ----ti- ~ ~7K~.1 x y ,, m a°~ " - f , +t l ~~ ~ _ ~ , 10 33-~ r sr €arkSt ~~ ~ 3 { r ~ " ,w~ ~ _ yr - f .c ~ ~ ~ ~ ~ '_ ...,' ~. ~(dp ~z s~ ~ !, ~s~ k1E _._..: F SAES Aye. H ot~° rr ," I ~ ' ` . 7d9r~' ~P C '' 9 ^ T l_ 7yf H Q ~ r ¢ S- ~ m r Rir Y. _ f_ r :179 ~ _ s +C.1~ u dr ~ @W l W 6 ~ 1 Fk E~ r N Excerpt from Elk River Transportation Map Location Map from Sherburne County GIS Department Figure 1 V Elk River Landfill Permitted for Mining Existing 200' Zone 200' Proposed Mining Area ~ ~ Property ~~ 200' Mining Boundary ~ Setback /, Tiller Corporation Mining Operation Permitted for Mining 30' Mining ~'~~ Setback ~ ,~ ~ ~ ~ `fl 'I ui ,' ,' I ,' Revisions to Mining Limits Figure 2 3) Name and Address of Land Owner: Elk River Landfill, Inc. 22460 Hwy 169 NW Elk. River, MN 55330 (763) 441-2464 Contact: Debra Walters 4) Names and addresses of property owners within 350 feet: See attached Exhibit B. 5) Purpose of Proposed Extraction: The purpose of the proposed extraction is to remove an existing deposit of sand and gravel and process it into construction aggregate. This is a high quality aggregate deposit which will be used to supply construction materials to Elk River and surrounding areas. 6) Estimated Time Required to Complete the Proposed Extraction: Mining activity under the current CUP is nearing completion. Mining of the southern most portion of the site will take an estimated two years to complete. 7) Transportation Routes: The amendment will have no impact to traffic routes. Material will be hauled or conveyed directly from ERL's property to Tiller's existing operations without accessing any public roadways. Trucks hauling the material will enter public roadways from existing access points. 8) Physical relationship of site with respect to the community: The site is located near the northern boundary of Elk River. It is immediately west of U.S. Highway 169 and approximately 3 miles north of the developed area of Elk River. 9) Site analysis: The property consists of ERL's operations. In the past, mining has been conducted over the entire site (excluding setback areas) in phases. Each phase of mining was followed by the construction of a phase of the landfill. Currently, other than the 200 foot area, only a small portion of the site remains to be excavated in preparation for landfill construction. A haul road has been constructed within the zone to allow access of equipment and transfer of material between ERL's property and Tiller's operations to the north and south. 10)Estimate of Quantity of Material to be Mined: The estimated quantity of material to be removed from the amended mining area is approximately 750,000 cy. i u- ~~ 1 ~c 3~ ~ 1 r~ ~ ~ - ~~~ ~ ;:~. --b,. -~ ! 4 .-~ ,~,. cr. ~ 4 T ~~ ` _ ~0 1 ~' ! ~ II J ~ J t .. ,.. a ~ ~ ~}/A _..= -~ _ ,` ~ , ER 'CU&PbitJ~~E ~ ~ SLi~TkaARY =_ `'[ ~'S' { :- ~ - y ~ ~ Y ~ ate. , "". ;~ ~3 ~ ~ w,~ .: ~ , ~ .~ -- w- ~ . y4r r- _ - --fl.x, 3'ti' .J- .. .,. ~ r R ~ ~ ti _ f ~~ U,~ 1 ~ ~ Gµ _,~, .. - .,~ ~ ~~I t~..~-~- _ ~ .-~S sr~~i, a ---e - _ < r .' ~ ' °.,~ ~ .~' 4 _ ~ ~ ~ ~~ ~~ ,~;-=' ,~~ Tiber Corporation - f ;Q i ~ -, ~{f, Lt~ ' f , :. ----~ Mining Operation ~ - ~ ' ~ }r ` -~--r ,S' ~ .- _-~~r a ;. '~~./1.~..) ~ .r ~lI~ pp. ~~r ~~{s~~j'~1 :a~~~r` a ~w.~ ~~~ ~~ r _ s,e ~ . :7~ ~ ,d- ~. _j~~t ly 7~.p, ~• .. / ~ ~~~ 9 ~ 1 ~ f of / '~' :,~, ~ r }, :~i ~'~ t r. r~ u ~ `r f j J ~ ~~ ~ o ~ ~ ~ o sF~~x C.J. ~ eu` ~If r~ ~ ~ Y ~ r ~ -~ ~~ .*' r f lot ~ ~ V ~ i~`':` r /` _ `FL. J . ~•i i • foes ~\ . ~~9L^' ti r_~ ~ ~p(4 .I `,~ l . ~ r ~..! -~ ~ '~ ¢, I /a .) °~^ 1 ~~1~ ~ ~_ ~.:~'! ~~ ~' ~ ~ , ~ „ ri ~ ,~ ~ Elk River Landf 11 • ~!? ~~ ~ •-~~ ,~~ ' Mining 0 eration ! ~ _ _ ' - _ ~ ~ ~~' < ! r ;Area of Per~mdit Request ^ ,4 r - -•""~ for Amendment : ~~ r ,r ~ ~ ~' r3~ ~ ~.~ ~ •, ~ / t,, (~ n i rr r t 1 ~ ~ , L ~ ~ ~ ~ ~ '^ F " ) n v !~ Z N USGS Quad Map Excerpt Elk River and Lake Fremont Quadrangles Figure 3 11)Depth of Water Table: The depth of the water table was identified in the EIS prepared for the gravel overlay district within the City of Elk River. The elevation of the water table in this area is approximately 955 - 957 feet above mean sea level. No mining will occur within the water table. 12)Average thickness of overburden: The average thickness of overburden is estimated to range between 0 and 5 feet. The overburden is a sandy loam. 13)Plan of Operation: The plan of operation is to strip the additional mining area. Topsoil and overburden will be used for final cover and/or as cover material at the landfill. The underlying sand and gravel will be removed using front end loaders. It will be crushed and/or screened at the working face and then conveyed or hauled, on the existing haul road, and stockpiled at Tiller's existing facilities. 14)Explosives: No explosives will be used at the site. 15)Drainage, Erosion Control, Sedimentation, Dust, Access Control and Security: i) Surface water drainage will be directed to a low area within the excavation. Collected surface water infiltrates into the underlying soils and/or evaporates. Surface water drainage will not be directed off site. Sedimentation may occur in temporary holding areas. These low areas can readily be cleaned out by on-site equipment. ii) Since water drainage will be directed internally, erosion will not pose a problem. iii) Dust will be controlled by watering internal haul roads as necessary. Additionally, conveyors may be used within the site minimizing truck traffic on internal haul roads. iv) Access is controlled by locking gates at site entrances to both ERL's operation and Tiller's mining operation. Both sites are fenced. 16)Reclamation Plan Reclamation activities at the site will consist of construction of landfill cells as shown in Elk River Landfill, Inc.'s application dated February 2010 III STANDARDS 1.) Boundary: Extraction operations shall be conducted within the currently permitted areas and within the proposed areas shown on Figure 2. 2.) Setbacks: Site setbacks will comply with the City of Elk River's Mineral Extraction Standards. 3.) Fencing: The entire site is fenced. 4.) Appearance and Screening: All equipment will be kept operational. Within 3 months after termination of mining, or within 3 months after termination of the extraction license, all buildings and structures incidental to extraction operations will be removed. The site will be graded in accordance with the reclamation plan. 5.) Operating Standards: a. Noise: The mining operation will be operated in compliance with State noise standards. b. Hours: Mining and crushing will be conducted between 7:00 a.m. to 7:00 p.m. Monday through Saturday. c. Explosives: There will be no explosives used at this site. d. Fugitive Dust: Fugitive dust will be :minimized by watering internal haul roads and/or the use of conveyors. e. Water Pollution: The site will be operated in compliance with all applicable standards of the Minnesota Pollution Control Agency and the Department of Natural Resources. A National Pollution Discharge Elimination Permit (NPDES) has been obtained for the site. Fuel storage is limited to above ground tanks. Secondary containment is provided for all fuel tanks. f. Topsoil: All topsoil will be retained on the site for as materials for use at the landfill. g. Slopes: The active mining face will be sloped at approximately 1:1. Reclaimed slopes will be backfilled according to the Reclamation Plan. 6.) Reclamation Standards a. Schedule: Reclamation will be completed as indicated within the Reclamation Plan. b. Slopes: Slopes will be reclaimed in accordance with the Reclamation Plan. c. Cover and Planting: The slopes will be seeded in accordance with the Reclamation Plan. d. Slopes to Water Bodies: There are no water bodies existing on site. e. Water Bodies: There will be no water bodies resulting from this operation. Exhibit A Property Legal Description Parcel B That part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, described as follows: Commencing at the point of the intersection of the North line of said Northeast Quarter of the Northwest Quarter with the Westerly line of the right-of-way of U.S. Highway No. 169; thence Southerly along said right-of-way, to intersect a line parallel with and 470 South of, as measured at right angles to, said North line of the Northeast Quarter of the Northwest Quarter said point of intersection being the actual point of beginning of the land to be described; thence West along said parallel line a distance of 558 feet; thence South at a right angle to intersect the South line of the said Northeast Quarter of the Northwest Quarter; thence East along said South line to intersect the said Westerly line of the highway right-of-way; thence Northerly along said highway right-of-way to the point of beginning, Sherburne County, Minnesota. Parcel C The North 525 feet of the West Half of the Southwest Quarter of Section 3, Township 33, Range 26, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. AND The North 525 feet of that part of the Northeast Quarter of the Southeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, AND that part of the East Half of the Northeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. Parcel E That part of the North Half of the Northwest Quarter of Section 3, Township 33, Range 26, lying Westerly of the following described real estate, to-wit: Commencing at a point on the North line of the said North Half of the Northwest Quarter 650 feet distant West of the intersection thereof with the Westerly right of way line of U.S. Highway No. 169 as presently located and established; thence South and parallel with the West line of the said North Half of the Northwest Quarter to the South line thereof and there terminating, excepting there from the South 33 feet thereof, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. Exhibit B Property Owners Names and Addresses Parcel F The Northwest Quarter of the Northwest Quarter of Section 3, Township 33 North, Range 26 West; and That part of the South Half of the Northwest Quarter lying West of U.S. Highway No. 169, and the Northerly 525 feet of that part of the East Half of the Southwest Quarter lying West of U.S. Highway No. 169, all in Section 3, Township 33 North, Range 26 West, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. Parcel H The West 92.70 feet of the North 470 feet of that part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, Sherburne County, Minnesota, lying East of a line described as beginning at a point of the North line of said Northeast Quarter of the Northwest Quarter a distance of 650 feet West of the intersection of said North line with the Westerly right-of-way line of U.S. Highway No. 169; thence South parallel with the West line of the North half of the Northwest Quarter to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. Parcel I That part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, Sherburne County, Minnesota, lying South of the South line of the North 470 feet, as measured at right angles, thereof and lying west of the following described line: Commencing at a point of intersection of the North line of said Northeast Quarter of the Northwest Quarter with the Westerly line of the right-of-way of U.S. Highway. No. 169; thence Southerly along said highway right-of-way to intersect a line parallel with and 470 feet South of, as measured at right angles to, said North line of the Northeast Quarter of the Northwest Quarter; thence West along said parallel line a distance of 558 feet to the actual Point of Beginning of the line to be hereby described; thence South at right angles to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. a o M ~ O i 30-033-1300~~~ I ! -'`mil/ ~ (30.033-4200 ~ 130-501-0225 1 ~ 1 ~ ~,m i ~--~_ p~ - . f I 75-104-2100 ~~«x~ 75-672-0004 $ ~' ~ j ~ ~ ~~~~ _ ~~s E 0 O °m 30-034-4200 1 E E ' t l xw-~o~m f ~x ~ i ---.--- 3¢~ ~ 3-01-25 f j !!~- i;3~ -0120 lD6Tl0115 I I ~ j 3D-034-440D 1j ~- -~ j o-naaaion ooxanc ~ 3, 01 am I ~ ~( 75-103-1101 75-103-1300 rn n:'f d ~ ~ ° i ~ ~ 4 ti ' ~ / ~ 1 1 ~ 75-103-3200 1 i c°~i ~ !~ o~ ~/ + i °" 1 E / 1 I ..... t l ~ Easy Peep Labels ,~ A ~ send along line to i ~ AVER'Y® 5160® U32 Avery®Templete 5150 ~ Feed Paper ~'^~ ~ expose Pap•Up EdgeTM ~ j 3080 LEXINGTON AVE LP 1521 LONE OAK RD EGAN MN SS 121 CAPTTAL LAND GROUP, LLC 72oa HEMLOCK LANE N zoo PO SOX 1480 MAPLE GROVE MN 55311-b480 CAPITAL LAND GROUP, LLC ATTN: STEVEN D SAUER -CFO PO BOX 1480 MAPLE GROVE MN 5531 ] CITY OF ELK RIVER l 3065 ORONO PKWY ELK RIVER MN 55330 CORROW, GINA R-TRUSTEE 12183 223RD AV£ NW ELK RIVER MN 55330 E A Z MARSH FAMILY FARM CORY GO LAWRENCE J ZEIMET ]235 W SKILLMANAVE ROSEVILLE MN 55113 ELK RIVER LANDFILL, INC CIO WASTE MANAGEMENT PO BOX 1450 CHICAGO IL 60690-I450 ERICKSON, KEVIN E & SHAVON J 12163 Z23RD AVE ELK RIVER MN 55330 JFT RESOURCES LLC 1023 MANOR PLACE ELK RIVER MN 55330 KINGERY, BRIAN S & ST MARTS, TANYA 23 ]OS 128TH AVE NW ELK RIVER MN 55330 RIDGES OF RICE LK }IM-OWN ASSOC, INC PO BOX 91 ELK R[VER MN 55330. SCHULZE FAMILY FARM LMTD 4351 l 236TH LANE AiTKIN MN 56431 SCHULZE, THOMAS A & EILEEN A I166! 225TH AVE NW ELK RTVER MN 55330 SHERBURNE COUNTY 13880IiIGHWAY IO ELK RIVER MN 55330-4601 SHERPER, DONALD & ROCHELLE TRUST 12275 239TH AVE NW ELK RI VER MN 55330 SPENCER, JAMES E & LILA PO BOX 4fl ZIMME1tMAN MN 55398-0040 HENTGES, MARLENE 12163 223RD AVE NW ELK RIVER MN 55330 J T LAND COMPANY, LLC PO BOX 332 ELK RIVER MN 55330 TOTH, ERNEST J-TRUSTEE C/O RICHARD TOTH 1714 MAPLE COURT SAINT CLOUD MN 5b304 WASTE MANAGEMENT PO BOX 1450 CHICAGO IL 60690-1450 @lt2S ~BCj~eL'd j@~ Pe ~ ~ ~ Re~iez~ la had~uee afro de.{ www.averycom ljti!#sez 1e Stabarit AVERII~ 5160® ; ~h;eR; ~an4 r~v~ter le fe60id Pop•lJp~ ; 1-800-+GO-AVERY ' 1. 1 CITY OF ELK RIVER ` ~ . ~~~~,~.~~.,~ T,f' AGREEMENT FOR ISSUAIvTCE OF CO~~ITIONAL USE PERMIT FOR MINERAL EXCAVATION e ~ ;~~; s ~ rm r'rn~ ~ ~ 4 ~--.~--- ~~ _~ ~~ ~ ~~ THIS AGREEhZENT, made. and entered into this ~G da5~ of ~,,~' ~~ 1996, by and between the CITY OF ELK RIVER; a municipal corporation organized under the la«~s of the State of Minnesota (City), and STRAIGHTLINE EXCAVATION INC., a Minnesota corporation and BARYON SAl~nJ & GR4~~-EL CO. a Division of Tiller Corporation, a Minnesota corporation; hereinafter collectively referred to as (operator); ~VITI~TESSETH: ~~%HEREAS, Operator has made application to City for approval of a conditional use permit to operate a gravel mining operation within the City= on property legally described as follows: See attached Exhibit A. (the Property); and ~~THEREAS, the City of Elk River Planning Commission and City Council have held hearings on Operator's request for a conditional use permit, at which hearings all citizens of the City of Elk River and other interested parties have had the opportunity to be heard on the application; and ~~iTHEREAS, the City Council by motion adopted Januar3- 15, 1996; approved a conditional use permit for the operation of a gravel mining operation (the Operation) on the Property, subject to certain conditions, including that Operator enter into a License Agreement and Conditional Use Permit Agreement ~Tith City so as to fully comply with the City's Mineral Excavation; Zoning, and other applicable Ordinances; and ~~'HEREAS, the City's Zoning Ordinance requires that a Conditional Use Permit be issued and that a Conditional Use Permit Agreement for mineral excavation be entered into. I~~0«T, THEREFORE, in consideration of the premises and the mutual promises and conditions hereinafter contained, it is hereby agreed as follo~~s: 1.) Entire Agreement- Except as otherwise provided herein, this Agreement shall constitute the Conditional Use Permit for the Property and, together with the License Agreement to be executed by City and Operator, ~~~a~~~ Paae 2 shall govern the parties rights, responsibilities, and obligations RTith respect. to the Operation, subject to the compliance by all parties s~%ith applicable city ordinances and state and federal laws. 2.) ~~i'arranty of Operator- Operator hereby warrants and represents to the City= , as inducement to the City's entering into this agreement, that the Operator has a valid lease for the operation and the fee owner of the subject property shall also enter into this agreement. 3.) Conditions- The following general conditions shall apply to the Operation: (Ol) This Conditional L'se Permit authorizes l~~Zineral Excavation (travel) from the Propert~.=. (02) X11 mineral excavation and processing operations on the property shall comply with the City's mineral excavation, zoning and other applicable ordinances; with the terms of this .Conditional Use Permit agreement and the license agreement to be executed by the City= and operator; Frith the City of EIk River's Environmental Impact Statement on mineral excavation; and with the application materials and plans submitted by the operator, u=hick plans and materials are the basis for the City's approval of the Conditional Use Permit. (03) The operator shall orally notify the City of any violations of this permit within 24 hours and follow this with notification in writing within 4 working days of the violation. The operator shall notify the City annually in v~rriting of the total area and amount of material mined and projected estimates of area and amount of material to be mined in the following year. This is to be done at time of license renewal. (04) The license must be renewed annually and shall run from January lst through December 31st. The annual license fee is that which is specified by -City Code at time of renewal. This license fee is not in lieu of gravel tax collected by the County and a portion of u=hich the City receives. {05) Violations of this Conditional Use Permit may result in suspension or revocation. cupST-Ba/bz/sr Page 3 :~~~~~~; (06) The City Building and Zoning Administrator and/or his/her agents shall be permitted to inspect the operation for compliance «=ith the conditions of this permit during normal hours of operation. (01) The City='s approval of this Conditional Use Permit is subject to the approval of appropriate permits by other governmental agencies. (08) lvTo explosives shall be allow=ed for this operation. (09) Reclamation Reclamation shall be consistent. ~Tith Elk P..iver La~~df~I's closure plan. In the absence of a ~=alid reclamation plan (closure plan) by Elk River Landfill on all or part of the property=, the operator shall submit said plan for approval by the city=. (10) Traffic a. Except for localized jobs, traffic through ELk River associated with this operation shall be limited to U.S. Highway 10 and 169. (11) Dust Control a. ~ permit from MPCA regarding air emissions shall be obtained when required and particulate emission standards shall be met by the operation. b. All equipment shall be located as to reduce dust to adjacent properties. c. ~~~ater, but no chemical agents, shall be used to control dust as necessary. d. The City reserves the right to require additional measures to be taken, if warranted b~= dust problems, including but not limited to reducing stock pile heights. cupST-Ba/bz/sr Page 4 (12) Hours of Operation All mineral excavation, processing, and sales activities shall be conducted between the normal hours of 7:40 a.m. and 7:00 p.m., ?~Zonday through Saturdai=. (13) lti"oise a. The noise from screening and crushing associated ~=ith this operation shall be controlled by equipment location on site, the placement of stock piles, and the ty=pe of equipment used. b. poise levels associated VlTith this cperation, shall at rlo time exceed State standards. c. The City reserves the right to require additional measures be taken, if warranted by noise. (14) Shop a. %TO ur_screened outside storage shall be allowed. b. The operator shall have an approved hazardous waste license for this facility and properly dispose of or recd=cle all waste. (15) Lighting Lighting from the operation shall be directed av=ay from adjacent residential property. Glare, vahether directed or reflected as different from general illumination; shat not be visible beyond the limits of the immediate site. Ali sources of artificial light shall be so fixed, directed, designed, or sized, that the minimum subtotal of their illumination shall not increase the level of the illumination on nearby residential property by more than .1 foot candles in or within 25 feet of a dwelling; or more than .5 foot candles on any part of the adjacent property. (16) The piling, storing, or keeping of old machinery, junk; debris, or abandoned motor vehicles, shall be prohibited on this site, with the exception that reusable parts may be stored on the mineral excavation site provided that it is in a location that cannot be viewed from adjacent properties or is totally= screened. cupST-Ba/bz/sr Page 5 ~~~~~~ (I7) IlZining activities shall not cause excessive vibration off site. If excessive vibration becomes an issue, the City reserves the right to take appropriate measures to alleviate the problem. (18) Groundwater protection measures shall include: a. The operator shall file with the City an emergency spill response plan. The operator shall adhere to this plan in the event there is a spill. b. The operator shall provide the Fire Department w=ith a copy of their flammable or hazardous materials. c. Fuel tanks shall be above ground, properly diked (if required by law), and registered ~=ith ?~~IPCA. d. :~11 incidences that have the potential to adversely affect. groundwater, including but not limited to spills, shall be verbally reported to the City within 24 hours. This verbal notification shall be follov~=ed up in writing within 4 working days. e. Gravel wash operations shall be prohibited on the property. f. 11-Zining operations shall be conducted a minimum of five (5) feet above the seasonally high water table. g. The appropriate storm water permit shall be obtained by the operator from MPCA. (I9) Fencing -The entire perimeter of the property shall be fenced. (20) Screening and Buffering - INTO mining operations shall be conducted within two hundred (200) feet of the property boundary. Further, within this two hundred (200) foot buffer area trees shall be left for screening. In open areas where trees do not exist, screening shall be accomplished by the construction of a minimum six (6) foot high berm planted with evergreens. 4.) General Provisions- (O1) Permits- Operator agrees to comply with all of the provisions hereof and agrees to save and hold the City harmless from any and all cupST•BaPoz/sr `? ~ !~'~ !ter ~, ~ ._.• Page fi claims or actions arising from the operations of the Operator on the Property. (02) Binding Effect- The terms and provisions hereof shall be binding upon, and inure to the benefit of the heirs, representatives ,successors, and assigns of the parties hereto and shall be binding upon all future owners of all or any part of the Operation and shall be deemed covenants running with the land. This Agreement shall be placed of record so as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Property, and all recording fees; if anST; shall be paid by the Operator.. (03) Severable- In the event that any portion of this Agreement shall be held invalid for anST reason, t'r~e same shall not affect i12 any respect «~hatsoever the validity of the remainder of this Agreement. (04) V~Taiver- Any waiver, u=hether empress or implied, by an~~ party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any subsequent breach of this Agreement. (05) I~TOtices- All notices and demands specified herein shall be deemed appropriately and timely given when delivered personally or deposited in the United States mail to the addresses hereinafter set forth by certified mail (return receipt requested). The addresses of the parties hereto are as follows until changed by ~Tritten notice given as above: cupST-Ba/bz/sr Page i ~~~~~~ If to the Cite at: City of Elk River ATTN: Building and Zoning Administrator 13065 Orono Parkway P.0. Box 490 Elk River, Minnesota 55330-0490 If to the Operator at: Straightline Excavation Inc. Attn: Dan Kreger PO Box 114 12628 Fremont Ave., Suite 2 Zimmerman, It2N 55398 and Barton Sand & Gravel Co. Attn: Brent Schlueter PO Box 1480 I~'Iaple Grove, MN 55311-6480 (06} Incorporation by Reference- All plans, special provisions, proposals and specifications; submitted pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set forth herein in full. IN «TITNESS uTHEREOF, the City and Operator have caused this Agreement to be duly executed on the day and year first above written. CITY OF ELK RIVER B~T. Bye FEE OWNER (S) OF PROPE By: By: OPER_TOR: OPERATOR: STRAIGHTLINE EXCAVATION BARYON SAND & GRAVEL CO., INC. A DIVISION OF TILLER CORP. .. ;:.., ..:...... .....~_ _ ~ .. _~., I~t re ident B5 , By: ~ " Its: xecutive Vice resident cupST•Balbz/sr Its: City Administrator •.r+•.-~~r~ .J Page 8 STATE OF A!IINNESOTA ss. COUNTY OF SHERBURl~TE The foregoing instrument was acknowledged before me this-~~ day of '~'-~ ,~-~.%~_-~.~, 1996, by Henry A. Duitsman, the ?~~Zayor of THE CITY OF ELI RI~%ER, a Minnesota municipal corporation, on behalf of the corporation. L~ ~ ' z~~ Not ry Public RUTH A SI~i1TH NOTARY A "~ RtY CO~dMtS310t~! F~CP'~E& 1 f1•~fCU g~~ ~`: -ivotary Public STATE OF I~-'IIl~I~ESOTA ~`~ - <~ SAi~DRA A• THACKEr~A~' SS. ~ ~'~~a NOTwRYPUBLIC-MINNESOTA ~~~''~ SHERBURNE COU?dTl' COUNTY OF SHERBURNE ~~~ ..~6s IJy Comm. Expires Jan. 31, 2000 T e foregoing instrument was acknowledged before me this da % of ~~..~.-~, 1996, by Patrick D. Klaers, the City Administrator of /`THE CIT~OF ELK RIVER, a Minnesota municipal corporation, on "behalf of the corporation. STATE OF MINNESOTA SS. COUNTY 0 t ~-~ ~~1~~~~ otarv ~' `"° • ~~' SANDRA A. THAGKrRAY °` a ' NOTARY PUBLIC-MINNESOTA '.~'~~: - : ° SHERBURNE COUNTY 4,.~~° My Comm. Expires San. 31, 2000 The fore going instrument w _ s ackno ~ledged before e this ~ ~ day of `~~~~-, 1996, by .~~~~~~%~ the ~i~,.~-~-~ of T ~ Straightl~ine Excavation Inc., a Minnesota corporation, on behalf of the corporation. STATE OF MINNESOTA SS. COUNTY OF SHERBURNE cupST-Ba/bz/sr Page 9 The foregoing instrument was ac -nowledged before me this ~~ day of _ ~'~~,~-~ 1996, by •~.~~-~ /~~ -~ the ~h-`-~--~~ of Straigh~line Excavation Inc., a ?~Zin ~esota corporation, on behalf of the corporation. ~~~ No~ary Public STATE OF MINI~?ESOTA ~ ~. ~ NOTARY SS. ~~ hSY CdbdF.SSSKkd £X 5~~ CovI~TTY of ~~~ ;,.~ - The foregoing instrument was acknowledged before me this ~ ~ ~ day of . ~ ~sz-~ ~- 1996, by G~~t 3. ~~z ,r.he ~2ES r ~ ~ -r- of Barton Sand & Gravel Co., a Division of Tiller Corporation, a Minnesota corporation, on behalf of the corporation. Notary Public STATE OF MINI~rESOTA ~~~~~ ~. ~~~~~~~~~ ~r~~~~C~u~~~r~. COUNTY OF D~coT~ '~"~`~ ~~° ~° The foregoing instrument was acknowledged before me this (~ `'~ day of ~$ ~ ~ ` 1996, by Gkv~ ~;~~the v ~ ~a 5~ of Barton Sand & Gravel Co., a Division of Tiller Corporation, a Minnesota corporation, on behalf of the corporation. STATE OF MINNESOTA ss. COUNTY OF The foregoing instrument was acknowledged before me this day of 1996; by ,the of Elk River Landfill, Inc.; a Minnesota corporation, the fee owner of the subject property. Notary Public cupST-Ba/bz/sr ~';~;~; ~ y .y ~ f.. Pale 10 _ _•.-~..____. _ City of Elk River Building and Zoning lllepartment 13065 Orono Parkway PO Box 490 Elk River, I~ZN 55330 STS? T E OF I~2INNESOTA ss. COUNTY OF The foregoing instrument F~-as acknov,~ledged before me this day of , 1996, by ;the of Elk River Landfill, Inc., a ?~~Iinnesota Corporation, the fee owner of subject property. _.. _ . , _ Notai-~~ Public This instrument was drafted by: - ,~ _ ~.~ G Y _,r _ ~ x r'° ~,~ •:Y~-, cuDST-BaPoz/sr EXHtBtT A Sherburne County Abstract & Title Co. OWNER'S PQLICY Schedule A CASE h'UNiBBR: AMOUNT OF INSURANCB: ~~.~~~ POLICY NL7NBBR: , THg POLICY N-,J1~BR SHOW-N ON THIS SCHgDULS MUST AGRBB FIITH THB PRBPRINTBD 2v'U~SR ON THB COVER S-r_SST . 1. Policy Date August 17, 1995 at 5:00 P.M. 2. The Insured hereunder, date hereof, is: in whom title to the fee simple estate is vested, at the Elk River Landfill, Inc. 3, The land referred to in this policy is situated in the County of Sherburne, State of Minnesota and is described as follows: PARCEL B That part of the Northeast Qubedeasofollo Sorthwest Quarter of Section 3, Township 33, Range 26, descri Commencing at the point of arterswith theywesterlytlinenofothearaghtrofeway of Quarter of the Northwest Qu to intersect a U.S. Highway No. 169; thence Southerly along said right-of-way, line parallel with and 470 feet Southofo~heaNorthwestdQuarterrsaidgpo intoofsaid North line of the Northeast Quarter intersection being the actual point of beginning of the land the cedgouth at,a thence west along said parallel line a distance of 558 feet; right angle to intersect the So?thrlise-~fSouthslineNOOtintersectr the saidhe Northwest Quarter; whence was:. ~-~ -_ westerly line of the highway right-of•way; thence NortherlMinnesota~ a ryg~~•av right-of-way to the point of beginning, Sherburne County, PARCEL C The North 525 feet of the West Hato ~hetUnitedtStatesQGovernmertSSurvey thereof Township 33, Range 26, according Minnesota. and situate in Sherburne County, py~ -Contirued- Sherburne Coun^^t,A~y,, pbstzact & Title Co. /VY ~~~ pLTA Ow-ner`s Policy 10-17-92 v• Authorized O ficer or Agent I''='~` REpUgj,IC i M.IIeNI TW I~,rarrv Coi^Y^7 This Policy is invalid unless the cover sheet and Schedule B are att s ~ * OL Ili,* # * ~ ORT Form ~12~ ~~~ .f , The North 525 feet of that part of the Northeast Quarter of the Southeast Quarter of Section 9, Township 33, Range 26, lying East of the Great Northern Railway, AND that part of the East Half of the Northeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, according to the United States Government Survey thereof anc3 situate in Sherburne County, Minnesota. L D - .,y ~ That part o ` _-South 200 feet of the Southwest Quarter of Section ~. ~ - ; Township 34, Range ~''~ hburne County, Minnesota, lyin ~ - _~_ ~ the E ~- at the So .- corner of the Southwest ~ f~ following described line; `~ Quarter; thence east along the So~~ ., he Southwest Quarter, a distance s` of 1722.70 feet to the_~ oint of beginning - .line to be described; ' ~~~~ thence Nor'theas aeflecting 79 degrees 26 minutes 37 ss~-left to the North l' -- "the south 200 feet of said South Half of the Southwest ~ °. _. an-. ere terminating.~thereat. PARCEL E That part of the North Half of the Northwest Quarter of Section 3, Township 33, Range 26 lying westerly of the following described real estate, to-wit: Commencing at a point on the North line of the said North Half of the Northwest Quarter 650 fee L• distant west of Che intersection thereof with the westerly right of way line of U. S. Highway No. 169 as presently located and established; thence South and parallel with the west line of the said Narth Half of the Northwest Quarter to the South line thereof and there terminating, excepting therefrom the South 33 feet thereof, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL F The Northwest Quarter of the Northwest Quarter of Section 3, Township 33 North, Range 26 west; and That part of the South Half of the Northwest Quarter lying west of U. S. Highway No. 169, and the Northerly 525 feet of that part of the East Half of the Southwest Quarter lying west of U. S. Highway No. 169, all in Section 3, Township 33=North, Range 26 west, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL H The west 92.70 feet of the North 470 feet of that part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, -Continued- Page 2 POLICY NUMBSR: SV 2446206 ~~~I(lll~~t~#(~ a* OLD REPUBLIC 1 t wu.,..i nc~ ~.~...+T.. u..w.y Ii,.• ~ ~ i f <. Minnesota, lying east of a line described as Beginning a L a Sherburne County, point c• the North line of said Northeast Quarter of the Northa~est Quarte r a distance of 650 feet west of the intersection of said North line with the P right•of•way line of U. S. Highway No. 169; thence south paralle 1 ~este..ly with the west line of the North Half of the Northwest Quarter to intersec t t e South lire of said Northeast Quarter of the Nortrwest Quarter and there terr~:inatirg. PARCEL S That part of the Northeast Quarter of the Northwest Qyingesoot~iSeoct~he South Township 33, range 26, Sherburne County, Minnesota, line of the Nor,hw~n0 described~linered Commencingnatethetpointfof~a lying west of the fol_o i g intersection of tWesterly line of thedrighthofSwaQyuoftUr Sf Highway`NoPsl 59; Quarter with the ht•of-way to intersect a line parallel thence southerly along said highway r_g with and 470 feet South otheaNorthwestdQuarte~ttthenceswest aloagNsaid line of the Northeast Quarter of parallel li*!e a distance of 558 feet to the actual Point of Beginning of the line to be hereby described; thence South at right angles tc intersect *_he South line of said Northeast Quarter of the Northwest Quarter and there Ver~inating. Y' SV 2446206 Page 3 POLICY NUNlBSR: f~**(~t* OLD REPUBLIC Ili,*{,. .~... Elk River REQUEST FOR ACTION To Plannin Commission Item Number 5.2. Agenda Section Meeting Date Prepared by planning Map 11, 2010 Rebecca Haug, Environmental Admire Item Description Reviewed by Request by Elk River Landfill to amend Conditional Use Permit Lori Johnson, City and Solid Waste Facility License to allow an approximately 13- Administrator acre expansion of the existing Landfill by developing the existing Peter Beck, City Attorney 200-foot buffer zone on the south side of the Landfill for the de osit of Munici al Solid Waste S - CU 10-08 Action Requested Recommendation to the City Council on whether to amend the existing Conditional Use Permit (CUP) and Solid Waste Facility License (SWFL) for the Landfill to allow an approximately 13-acre 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. General Information Applicant Elk River Landfill 60-Day Rule The application was submitted on February 22, 2010 and deemed complete on March 4, 2010. The City must approve, approve with conditions, or deny the ro' ect b une 22, 2010 Requested Action Amend CUP & SWFL Location and Size 22460 Highway 169 Location Existing Land Use Land Use Plan Designation Current Zoning Property in Question Landfill Landfill Al (ME) {SWF) North Livonia Township N/A N/A South Muieral Excavation Mining Al (ME) East Highway 169/Agriculture Commercial Reserve CRT (ME) Case File: CU 10-08 Page 2 ERL CUP City of Elk River West Agriculture/Open Space Rural Residential Al Introduction A~i,~lication~or 109-acre Ex~an.non In 2009, Elk River Landfill requested a Land Use Amendment, Zone Change, Conditional Use Permit and Solid Waste Facility License to expand the existing Landfill onto 109 acres of property located immediately south of the Landfill, extending from the southern boundary of the Landfill to 221st Street (the "Southern Development Area"). Following a lengthy public participation process, the City Council adopted a resolution on September 21, 2009, making Findings of Fact and denying the requested Land Use Amendment and Zone Change. A copy of the Staff Report on the Request and the Resolution of Denial are attached for the Planning Commission's reference. On October 19, 2010 the City Council adopted a resolution making Findings of Fact and denying the Landfill's request for a Conditional Use Permit and Solid Waste Facilities License to expand into the Southern Development Area. A copy of the Staff Report on that request and the Resolution of Denial are also attached for the Planning Commission's reference. Conditional Use Permit and Solid baste Facili, License Following denial of the requested Land Use Amendment and Zone Change, Elk River Landfill sued the City in Sherburne County District Court. The Landfill filed a second lawsuit following denial of the Conditional Use Permit and Solid Waste Facilities License. Sherburne County District Judge Robert Varco issued an order in the first lawsuit on April 2, 2010. Judge Varco has yet to issue an order or decision in the second lawsuit challenging the denial of the Conditional Use Permit and Solid Waste Facilities License to expand into the Southern Development Area. A~~lication forAmended/Kenesved Conditional Use Permit and Solid 1.Ylaste Facili License Because the Landfill's then existing CUP and SWFL expired on February 17, 2010, the Landfill applied on December 28, 2009 fox an amendment to the CUP and SWFL which would allow operation of the Landfill to continue beyond February 17, 2010. This application was approved by the City Council on February 16, 2010. Copies of the staff report, the City Council Resolution and the existing CUP and SWFL, as amended on February 16, 2010 are attached for the Planning Commission's reference. ~15lication to Begone to SWF and Beguile to `2.andfill" In the course of the litigation, it came to the attention of City staff that due to confusing and possibly conflicting legal descriptions for the Landfill property, it appeared possible that not all of the Landfill's existing property was zoned into the City's Solid Waste Facilities (SWF) Overlay Zoning District. Therefore, the City initiated a zoning of the entire Landfill property with a new, simplified legal description into the SWF District. On April 19, 2010, the City Council adopted an S:\Communiry Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-O8.doc Case File: CU 10-08 ERL CUP Page 3 City of Ell: River ordinance implementing this zoning. A copy of the staff report and the Ordinance are attached for the Planning Commission's reference. During the process of zoning the Landfill property into the SWF District, it came to the attention of staff that the Land Use Map element of the City's 2004 Comprehensive Plan did not designate the entire Landfill property as "Landfill". Therefore, the City initiated an amendment of the Land Use Map, which will be acted on by the City Council on Map 17, 2010. A copy of the staff report and proposed City Council resolution adopting this amendment to the Comprehensive Plan are attached for the Planning Commission's reference. Solid T.Vaste Facilities OrdinanceAmendment In the course of the litigation, the Landfill took the position that the City's SWF Ordinance is ambiguous and that required buffer areas and buffer zones are not required to be located in the SWF Overlay Zoning Districts, despite the fact that this is how the Ordinance has been interpreted and applied for 22 years. To address the intent of the SWF Ordinance, staff proposed and the City Council adopted amendments to Chapters 30 and 58 of the City Code to reaffirm that required buffer areas and buffer zones for Solid Waste Facilities must be located within the SWF Overlay Zoning District. A copy of the staff report and the ordinance adopted by the City Council on March 16, 2010 are attached for the Planning Commission's reference. The Present A~~lication to ex~iand the Land~ill into the E.xistin~ 200~oot Bu er Zone In the course of the litigation in District Court the Landfill has taken the position that it prior application to expand the Landfill by 109 acres entitled it to an amendment of its existing Conditional Use Permit allowing it to expand the area in which solid waste is deposited into the 200- foot buffer area on its southern boundary. This position was taken in the litigation notwithstanding the fact that the Landfill never applied to deposit fill in this area as part of a smaller expansion, nor did it submit any plans showing how this could be done. Judge Varco has yet to rule on this theory. In the meantime, the Landfill filed the present application to amend the existing Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing 200-foot buffer area on the southern edge of its property. This is the application before the Planning Commission. Matt Ledvina, the City's Environmental Consultant, has reviewed the application materials and concluded that from an overall engineering standpoint the design of the proposed Cell 18 and the 200 foot expansion into the buffer area is feasible. However, he has identified several issues, including: (1) Engineering and Constnzction Details. The application materials lack a number of details, 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. If the City Council were to approve the requested amendment to the Conditional Use Permit, additional detail in several of these areas would be required as outlined in Mr. Ledvina's report, which is attached as an exhibit. (2) 200 Foot Buffer Zone. The state regulations governing the Landfill (Minn. Rules Part 7035.2815, subd. 5(C)), the Elk River City Code of Ordinances (Sections 58- S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-OS.doc Case File: CU 10-08 Page 4 ERL CUP City of Ells Ricer 100(b) and 58-171(8)), and the Landfill's existing Conditional Use Pernzit (Section 3), all require that a 200-foot buffer zone be located on landfill property around the perimeter of the waste deposit area. The state regulation 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." Minn. R. 7035.2815, subp. 5(c). The Landfill has submitted no evidence with its application that it has acquired any right from the adjoining landowner to the south that would change the property line so as to put the state-mandated buffer zone on their property. If the City Council were to approve an amendment to the Landfill's Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing 200-foot buffer zone, the approval would have to be contingent on the Landfill satisfying the requirements of the state regulation. Compliance with the state regulation is necessary so that it is clear that the 200-foot buffer zone is not developable and cannot be developed in the future by the adjoining landowner. City Code mandates that the 200-foot buffer zone be located in the SWF Zoning District. Sections 58-100(b) and 58-171(8). If the City Council were to approve an amendment to the Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing buffer zone, that approval would have to be subject to an amendment to the City Code allowing buffer zones to be located outside of the Solid Waste Facilities Zoning District. (3) Buffer Area. In addition to the legal issues raised by the proposal to deposit solid waste in the existing zone and moving the buffer zone and moving the buffer zone to the adjoining property, relocation of the existing 200-foot buffer zone would result in removal of the existing established buffer on the southern edge of the Landfill. The existing buffer consists of a mostly native, undisturbed area with an elevated topographic terrain. The existing terrain, which is covered by several hundred native, mature trees, acts as a visual screen of the Landfill. If solid waste were to be deposited in this area, 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, the residential areas to the west, for an extended period of time while the 13.7-acrae existing buffer area is filled with solid waste and a new buffer is established to the south, on the adjoining property. (4) Offsite Infrastructure. Expanding the area allowed for the deposit of solid waste to the southern property line of the Landfill will, according to the plan submitted by the Landfill with their Application for this expansion, result in significant portions of the Landfill's infrastructure moving off of the LandfiIl's property and out of the Solid Waste Facilities Overlay Zoning District. Infrastructure which would be moved off-site includes groundwater monitoring wells, landfill gas monitoring probes, and, potentially, storm water management facilities, and a service road around the southern boundary of the Landfill. Although it is true the Landfill has installed several groundwater monitoring wells outside of its boundaries and the Solid Waste Facilities Zoning District in the past, these facilities have been installed for the purpose of investigating the nature and extent of contaminant migration associated with the unlined portions of the Landfill. Lined expansions of the S:\Community Development\Plaruvng Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 Page 5 ERL CUP City of Ell: River Landfill, including the lined expansions of the Landfill to date, typically require that all monitoring wells and gas probes be located within the Landfill Property and the Solid Waste Facilities District. Similarly, storm water management facilities are an integral part of the Landfill's operation and are specifically required by City Code to be located in the SWF District. Finally, the service road around the southern boundary of the Landfill is clearly a part of the Landfill operation and clearly a part of the Solid Waste Facility which is the Landfill operation as that term is defined in the City Code, and must be located on the Landfill's property and within the Solid Waste Facilities Zoning District. Attachments ,~ Location Map ,~ ERL application and narrative ,~ The existing CUP and SWFL for the Landfill, as amended on February 16, 2010 ~ Staff report and September 21,2009 Resolution denying Comprehensive Plan amendment and Rezoning for 109-acre expansion PCge ~~- Staff report and October 19, 2009 Resolution denying CUP and SWFL amendments for 109-acre expansion ,~ Staff report and February 16, 2010 Resolution of the City Council approving amendments to the CUP and SWFL to allow operation of the Landfill to continue beyond February 16, 2010 .,f Staff report and April 19, 2010 Ordinance Zoning the Landfill property SWF and ME • Staff report and proposed Resolution designating the entire Landfill property as "Landfill" on the Land Use Map element of the City 2004 Comprehensive Plan v'ti • Staff report and March 16, 2010 Ordinance amending Chapters 30 and 58 of the Elk River City ~'. Code of Ordinances • Letter dated May 6, 2010 from Matt Ledvina, City's Environmental Consultant Ap,piicable Regulations A. Standards for Issuance of a Conditional/ Interim Use Permit (Section 30-6541 The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 7. IYlill not endanger, injure or detrimentally affect the use and enjoyment of other propery in the immediate vicinity or the public health, safety, morals, comfort, convenience orgeneral welfare of the neighborhood or the city. 2. Weill be consistent with the comprehensive plan. 3. bill not impede the normal and orderly development and improvement of surrounding vacant propery. 4. Dill be served adequately by and will not adversely affect essential public facilities and services including streets, police and fzre protection, drainage, refuse disposal, water and sewer ystems, parks and schools; and wild not, in particular, create tra~ic congestion or interference with tra~ic on adjacent and neighboring public thoroughfares. S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-OS Page 6 ERL CUP City of Ell: River 5. mill not involve uses, activities, processes, materials, equipment and conditions of operation that urill be detrimental to any persons or properly because of excessive tra~zc, noise, smoke, fumes, glare, odors, dust or vibrations 6. l mill not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. 7. tY>ill fully comply with all other requirements of this Code, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the p~nposed use in the city. If denial of such a permit should occur, it shall accompany recommendations or determinations by findings or a report stating how the proposed use does not comply with the standards set forth in Section 30-654. B. City Code Definitions and Standards for Solid Waste Facilities Definition of Solid Waste Facility (Sections 30-1 and 58-91 of the Elk River City Code)(first sentence only): 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. Provisions of the city Solid Waste Facilities Ordinance: • Section 30-1834 (e) (3) 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 fox 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 Section 58-100 (b) (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. S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 Page 7 ERL CUP City of Ell: Rives • Section 58-171(8) (8) 200 feet from the nearest property which is not located within ME SWF -Solid Waste Facilities Overlay Zoning District. C. State Reguulations (Minn. Rules, Part 7035.2815. Subp. 5(Cl (C) 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. Zoning and Comprehensive Plan According to the Landfill, the 200-foot buffer zone which they propose to fill with solid waste was not entirely within the City's SWF Zoning District until the City Council's Apri119, 2010 action zoning the entire Landfill into the SWF and ME C-verlay Districts. Similarly, at present the eastern edge of the 200-foot buffer zone proposed to be filled is not currently guided "landfill" on the Land Use Map element of the 2004 Comprehensive Plan. However, staff has proposed, and the City Council will consider on May 17, 2010, an amendment to the Comprehensive Plan that will designate the entire Landfill property as "Landfill". The April 19, 2010 zoning action and the proposed May 17, 2010 Comprehensive Plan amendment were not proposed by staff so that the Landfill could place solid waste in the buffer zone. These actions were proposed and taken in order to implement the City's, and we believe, the Landfill's long time understanding and intent that the entire Landfill property between the rail trail and Highway 169 be zoned and guided to allow Solid Waste Facilities. However, the fact that the Landfill property is, or soon will be, correctly zoned and guided does not mean that there is a right to place solid waste in the 200-foot buffer zone. The requested amendment to allow this must still meet the requirements of City Code and State law, including the standards for issuance of a Conditional Use Permit and the requirements of the City's Solid Waste Facilities Ordinance. Analysis The Application to expand the Landfill by extending the area approved for the deposit of Solid Waste into the existing 200 foot buffer zone on the southern boundary of the Landfill appears, from an overall engineering standpoint, to meet the design requirements for expansion of the Landfill. However, the proposed expansion will result in the state-mandated 200 foot buffer zone being located on adjoining property outside of the Solid Waste Facility Zoning District, and would require that significant infrastructure components, including groundwater monitoring wells, gas monitoring probes, a service road, and potentially, surface water management facilities,be located outside of the SWF Zoning District. This raises a number of concerns regarding the consistency of the proposed amendments with State regulations, the City's Solid Waste Facilities Ordinance, and the Standards for Issuance of a Conditional Use Permit. With respect to state regulations, location of the state-mandated 200-foot buffer zone onto adjoining property appears to be inconsistent with the state regulation that requires any new fill area to be S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 1U-08.doc Case File: CU 10-08 ERL CUP Page 8 City of Elk River located at least 200 feet from the nearest property line. No evidence of a conveyance of property by the adjoining landowner has been submitted with the Application, so the City has not way to confirm that this regulation will be complied with. Relocating the buffer zone outside of the SWF C-verlay District also is a violation of the City Code sections set forth above, as is the location of landfill infrastructure, including groundwater monitoring wells, gas probes, storm water management facilities and service roads, outside of the SWF District. Approval of an amendment to the CUP and SWFL to allow the deposit of solid waste in the existing buffer zone would have to be subject to an amendment to the City Code allowing buffer zones and other infrastructure to be located outside of the SWF District. Finally, removal of the existing, mostly native, buffer area on the southern edge of the Landfill, including the removal of several hundred mature native trees in the buffer area, would have a significant impact on the visibility of landfill operations from 221st Street and surrounding residential areas and, therefore, raises significant concerns regarding compliance of the proposed amendment within the Standards for Issuance of a Conditional Use Permit. Specifically, the Planning Commission and City Council should consider whether removal of the existing trees and buffer area, expansion of the Landfill's capacity, and extension of the period of time the Landfill will be operation: 1.) WiII detrimentally affect the use and enjoyment of other property in the immediate vicinity because Landfill activities will be considerably more visible than at present and will extend for a considerably longer period of time; 2.) Is not consistent with the City' 2004 Comprehensive Plan, for the reasons set forth by the City Council in its action on the proposed 109-acre expansion; 3.) Will not impede the normal and orderly development and improvement of surrounding vacant property, as discussed, in the record and found by the City Council in its action on the 109-acre expansion; 4.) Has the potential to create traffic congestion and interference on adjacent streets, in particular 221St Avenue; 5.) Will generate noise, odors and dust that is detrimental to surrounding properties; 6.) Will result in the destruction and loss of the existing native trees and natural topographic conditions which screen and buffer landfill activities from 221St Avenue and surrounding residential areas; and 7.) Does not comply with the other requirements of the City Code, including the provisions of the Zoning Ordinance and Solid Waste Faculties Ordinance set forth above. S:\Communitq Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10.08 Page 9 ERL CUP City of Elk River Planning Commission Action Motion by Second by Vote Follow Up S: \Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc REQUEST FOR ACTION To Ma r & Ci Council Item Number ~~ Agenda Section Meeting Date Prepared by planning May 17, 2010 Rebecca Haug, Environmental Admire Item Description Reviewed by Request by Elk River Landfill to amend Conditional Use Permit Lori Johnson, City and Solid Waste Facility License to allow an approximately 13- Administrator acre expansion of the existing Landfill by developing the existing Peter Beck, City Attorney 200-foot buffer zone on the south side of the Landfill for the de osit of Munici al Solid Waste - CU 10-08 Action Requested Planning Commission recommends denial to the City Council to amend the existing Conditional Use Permit (CUP) and Solid Waste Facility License (SWFL) for the Landfill to allow an approximately 13-acre 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. Introduction lication for 109-acre E.x~iansion In 2009, Elk River Landfill requested a Land Use Amendment, Zone Change, Conditional Use Permit and Solid Waste Facility License to expand the existing Landfill onto 109 acres of property located immediately south of the Landfill, extending from the southern boundary of the Landfill to 221st Street (the "Southern Development Area"). Following a lengthy public participation process, the City Council adopted a resolution on September 21, 2009, making Findings of Fact and denying the requested Land Use Amendment and Zone Change. A copy of the Staff Report on the Request and the Resolution of Denial are attached for the City Council's reference. C-n October 19, 2009 the City Council adopted a resolution making Findings of Fact and denying the Landfill's request for a Conditional Use Permit and Solid Waste Facilities License to expand into the Southern Development Area. A copy of the Staff Report on that request and the Resolution of Denial are also attached for the City Council's reference. Following denial of the requested Land Use Amendment and Zone Change, Elk River Landfill sued the City in Sherburne CountyDistrict Court. The Landfill filed a second lawsuit following denial of the Conditional Use Permit and Solid Waste Facilities License. Sherburne County District Judge Robert Varco issued an order in the fast lawsuit on April 2, 2010. Judge Varco has yet to issue an order or decision in the second lawsuit challenging the denial of the Conditional Use Permit and Solid Waste Facilities License to expand into the Southern Development Area, Case File: CCJ 1408 ERL CUP Page 2 City of E1kRiver In its challenge to the denial of the rezoning and reguiding, the Landfill had filed a motion for partial summary judgment, but it did not bring a motion for an injunction against the City. The Court's April 2, 2010 decision, which was provided to the Council the day it was received by the City, includes a declaratory judgment that the Landfill "is entitled to proceed with its proposed landfill expansion," a reference to the 2009 proposed expansion that is the subject of that suit. The City's counsel believe that the district court's declaration is the result of a misapplication of Minnesota law that will be reversed on appeal, and with the Council's support appealed that ruling at the earliest oppomuuty. Attorneys for the parties viewed the effect of this declaration in different ways. The City appealed within two weeks of the order in part because its counsel believed that "in this setting, the district court's declaration that the Landfill `is entitled to proceed with its proposed expansion' appears to either compel the City to legalize the Landfill's 2009 proposed expansion, or prohibits the City from enforcing its laws against that expansion." The Landfill, however, sought a dismissal of the City's appeal, arguing in support of that request that "the district court is not authorized under the Minnesota Declaratory Judgments Act to compel City's zoning approvals" and that the Act "does not authorize a district court to compel a municipality to make a particular decision on a zoning request." The Landfill explained that "in order to obtain its desired relief, ERL would have to pursue two separate actions. In its first action, ERL would have to, as it has done, obtain from the district court a declaration that City's failure to approve of the expansion of the SWF Overlay District onto the adjacent 109-acre SDA was arbitrary. Then, in its second action, ERL would have to obtain from the district court either a mandamus order or a mandatory injunction compelling [the] Cityto approve of the requested SWF OverlayDistrict expansion." Respondent Elk River Landfill Inc.'s Reply Memorandum of Law in Support of its Rule 127 Motion to Dismiss Appellant City of EIk River, Minnesota's Improper Appeal at 3. ('That "second action" as described by the Landfill has not yet been filed.) The Landfill stated that it was "expressly aware that its declaratory judgment claim, `standing alone,' could not compel [the] City's zoning approvals," Id. at 5, and added that "an injunction does not `automatically' follow from a declaratory judgment in the zoning context" Id. at 7. On May 12, 2010, the Court of Appeals granted the Landfill's requested dismissal of the City's appeal It explained that the Landfill had not made a motion to the district court for an injunction, and a final judgment had not been entered because the district court had not fully adjudicated the Landfill's contract claim. Neither side had argued to the court of appeals that the district court's declaratory judgment caused the SDA to be reguided to "landfill" or rezoned into the SWF Overlay District. Based on the legal authorities relied upon bythe Landfill in obtaining this dismissal, and with the benefit of the court of appeals' May 12 grant of the Landfill's motion, counsel for the City believes that the Court's April 2, 2010 Order does not compel the Cityto reguide or rezone the SDA, and that the Citywill not be compelled to do so unless and until (1) the Landfill first makes a motion for an injunction compelling the reguiding and rezoning, (2) the Court grants that injunction, and (3) the Cary does not succeed in securing a stay of that injunction pending an appeal from the entry of that injunction. Therefore, the Council is advised that property to the south of the existing, historical Landfill propertyline is not guided "Landfill" and remains outside of the SWF Overlay District. At~~lication forAmended/.Renewed Conditional U.re Permit (CUP). and Solid W>arte Facilit~Licenre (ST~~;1 Z:\CommunityDevelopu~~\Platming Main\Case Files\CUP\CU 10-08 waste Managea~r¢\Staff repon to oGQT 10-08 - peterdoc Case File: QI 10-08 Ems- ~' Page 3 Catyof Elk River Because the Landfill's then existing CLJI' and SWFL expired on February 17, 2010, the Landfill applied on December 28, 2009 for an amendment to the CUP and SWFL which would allow operation of the Landfill to continue beyond February 17, 2010. This application was approved by the City Council on February 16, 2010. Copies of the staff report, the City Council Resolution and the existing CUP and SWFL, as amended on February 16, 2010, are attached for the City Council's reference. Abblication to Beryone to SlY/F and Be-QUide to `2.andfzll" In the course of the litigation, it came to the attention of City staff that due to confusing and possibly conflicting legal descriptions for the Landfill property, it appeared possible that not all of the Landfill's existing property was zoned into the City's Solid Waste Facilities (SWF) Overlay Zoning District. Therefore, the City initiated a zoning of the entire Landfill property with a new, simplified legal description into the SWF District. C-n April 19, 2010, the City Council adopted an ordinance implementing this zoning. A copy of the staff report and the Ordinance are attached for the City Council's reference. During the process of zoning the Landfill property into the SWF District, it came to the attention of staff that the Land Use Map element of the City's 2004 Comprehensive Plan did not designate the entire Landfill property as "Landfill". Therefore, the City initiated an amendment of the Land Use Map, which will be before the City Council on May 17, 2010. A copy of the staff report and proposed City Council resolution adopting this amendment to the Comprehensive Plan are attached for the City Council's reference. Solid baste Facilities OrdinanceAmendment In the course of the litigation, the Landfill took the position that the City's SWF Ordinance is ambiguous and that required buffer areas and buffer zones are not required to be located in the SWF Overlay Zoning District, despite the fact that this is how the Ordinance has been interpreted and applied for 22 years. To address the intent of the SWF Ordinance, staff proposed and the City Council adopted amendments to Chapters 30 and 58 of the City Code to reaffirm that required buffer areas and buffer zones for Solid Waste Facilities must be located within the SWF Overlay Zoning District. A copy of the staff report and the ordinance adopted by the City Council on March 16, 2010 are attached for the City Council's reference. The Pr~sentA~i~lication to expand the L.andfzll into the Existin~200;foot Bu er Zone In the course of the litigation in District Court the Landfill has taken the position that its prior application to expand the Landfill by 109 acres entitled it to an amendment of its existing Conditional Use Permit allowing it to expand the area in which solid waste is deposited into the 200- foot buffer zone on its southern boundary. 'This position was taken in the litigation notwithstanding the fact that the Landfill never applied to deposit fill in this area as part of a smaller expansion, nor did it submit any plans showing how this could be done. Judge Varco has yet to rule on this theory. In the meantime, the Landfill filed the present application to amend the existing Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing 200-foot buffer area on the southern edge of its property. This is the application before the City Council. Z:\ComnuinityDevelopmern\PLwning Main\Case Files\CUP\CCT 10-08 Waste Managea~rrt\Staff report to OGCCT 10.08 - peter.doc Case File: CCJ 10-08 ERL CCII' Page 4 Catyof E1kRiver Matt Ledvina, the City's Environmental Consultant, has reviewed the application materials and concluded that from an overall engineering standpoint the design of the proposed Cell 18 and the 200 foot expansion into the buffer area are feasible. However, he has identified several issues regarding the proposed expansion. Below are issues identified by City staff and consultants that should be addressed in the deliberation of this application: (1) Engineering and Construction Details. The application materials lack a number of details, 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. If the City Council were to approve the requested amendment to the Conditional Use Permit, additional detail in several of these areas would be required as outlined in Mr. Ledvina's report, which is attached as an exhibit. (2) 200 Foot Buffer Zone. The State regulations governing the Landfill (Minn. Rules Part 7035.2815, subd. 5(C)), the Elk River City Code of Ordinances (Sections 58-100(6) and 58-171(8)), and the Landfill's existing Conditional Use Permit (Section 3), all require that a 200-foot buffer zone be located on landfill property around the perimeter of the waste deposit area. The State regulation 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." Minn. R. 7035.2815, subp. 5(C). The Landfill submitted no evidence with its application that it has acquired any right from the adjoining landowner to the south that would change the property line so as to put the state-mandated buffer zone on their property. Gn May 14, 2010, the City received an email from Michael Caron of Tiller Corporation conveying a letter dated May 14, 2010, from Steven Sauer of Capital Land Group, LLC, and owner of the property, stating "agreements and arrangements are in place that will allow Elk River Landfill, Inc. to acquire the necessary property from us for their expansion requests." However, the State regulation requires that the fill area be at least 200 feet from the nearest property line. We do not know whether the "agreements and arrangements" referenced by Mr. Sauer move the property line 200 feet from the proposed fill area and bring the proposed expansion into compliance with the State regulation. If the City Council were to approve an amendment to the Landfill's Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing 200-foot buffer zone, the approval would have to be contingent on the Landfill satisfying the requirements of the State regulation. Compliance with the State regulation is necessary so that it is clear that the 200-foot buffer zone is not developable and cannot be developed in the future bythe adjoining landowner. In addition to the State regulation, City Code mandates that the 200-foot buffer zone be located in the SWF Zoning District. Sections 58-100(6) and 58-171(8). If the City Council were to approve an amendment to the Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing buffer zone, that approval would have to be subject to an amendment to the City Code allowing buffer zones to be located outside of the Solid Waste Facilities Zoning District. (3) Buffer Area. In addition to the legal issues raised by the proposal to deposit Solid Waste in the existing buffer zone and move the buffer zone to the adjoining property, relocation of the existing 200-foot buffer zone would result in removal of the existing established buffer on the Z:\Coma~unityDevelopment\Planniag Main\Case Files\CUP\CU 10.08 Waste Manageme~\Staff report to OGCxJ 10-08 - peterdoc Case File: CU 10-08 ERL CUP Page 5 Ciryof Elk River southern edge of the Landfill. The existing buffer consists of a mostly native, undisturbed area with an elevated topographic terrain. The existing terYairi, which is covered by several hundred native, mature trees, acts as a visual screen of the Landfill. If the fill area of 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. C-n the other hand, if solid waste were to be deposited in the buffer area, 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, the residential areas to the 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, on the adjoining property. The plans indicate that a new berm and screen would not be installed until at or near the end of landfill operations in the expansion area, meaning that operations in the expansion area would be visible throughout the additional 47 years that the landfill would remain open as the result of an expansion, as well as 2-3 years until operations move into the expansion area. It will be many years after that before new trees reach maturity and provide a screen comparable to the existing mature, native trees. Visibility of the Landfill is an item of importance that was studied as part of the Hoisington Koegler Group, Inc. (HI~Gi) studies previously completed to evaluate the impact of various development scenarios in this area. The visual impact of the landfill operations, currently blocked by the existing buffer, would be vastly changed with the removal of the present mature buffer. The HKGI studies offer analysis of view sheds. Those studies are attached for the City Council's review. (4) Offsite Infrastructure. Expanding the area allowed for the deposit of solid waste to the southern property line of the Landfill will, according to the plans submitted by the Landfill with their Application for this expansion, result in significant portions of the Landfill's infrastructure moving off of the Landfill's property and out of the Solid Waste Facilities Overlay Zoning District. Infrastructure which would be moved off-site includes groundwater monitoring wells, landfill gas monitoring probes, a service road around the southem boundary of the Landfill and, potentially, storm water management facilities. Although it is true the Landfill has installed several groundwater monitoring wells outside of its boundaries and the Solid Waste Facilities Zoning District in the past, these facilities have been installed for the purpose of investigating the nature and extent of contaminant migration associated with the unlined portions of the Landfill. Lined expansions of the Landfill, including the lined expansions of the Landfill to date, typically require that all monitoring wells and gas probes be located within the Landfill Property and the Solid Waste Facilities District. Similarly, storm water management facilities are an integral part of the Landfill's operation and are specifically required by City Code to be located in the SWF District. Finally, the service road around the southern boundary of the Landfill is clearly a part of the Landfill operation and clearly a part of the Solid Waste Facility which is the Landfill operation as that term is defined in the City Code, and must be located on the Landfill's property and within the Solid Waste Facilities Zoning District. (5) Alternative Expansion C-pportunities. The landfill has insisted throughout the process of seeking approvals to expand to the south, and in the litigation, that expansion to the south onto new property and or into the existing buffer zone is the only option for increasing the capacity of the landfill. To address this issue staff asked Mr. Ledvina to investigate alternative expansion Z:\CotnmunityDevelopmeixt\Planning Main\Case Files\CUP\CU 10-08 Waste Manageme~\Staff iepoa to OGCU 10-08 - peterdoc Case File: CU 10-08 Page 6 ERL C;UP City of EIk River opportwuties for the landfill within its current permitted boundaries. In his attached letter, Mr. Ledvina points out: a. The landfill has approximately 9 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, but staff sees no obvious technical issues with development of this area for solid waste disposal and encourages the landfill to investigate this possl~bility. b. The landfill could gain another acre of fill area by moving the south boundary of cell 17 by 20 feet. This would require an amendment to the existing CUP, but staff sees no potential issues with such an amendment. c. Considerable additional waste capacity could be gained by implementing a leachate recirculation system for the landfill, which has been approved by the City. Applicable Regulations A. Standards for Issuance of a Conditional/ Interim Use Permit (Section 30-654 The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 7. Dill not endanger, injure or detrimentally a~ect the use and enjoyment of other propery in the immediate vicinity or the public health, safety, morals, comfort, convenience orgeneral welfare of the neighborhood or the city. 2. Weill be consistent zvith the comprehensive plan. 3. mill not impede the normal and orderly development and improvement of surrounding vacantpropery. 4. I-Y/ill be served adequately by and r~rill not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and sewer systems, park,.r and schools; and will not, in particular, create tra~zc congestion or interference with traffac on adjacent and neighboring public thoroughfares. S. mill not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons or property because of excessive tra~zc, noise, smoke, fumes, glare, odors, dust or vibrations. b. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. 7. Dill fully comply with all other requirements of this Code, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the proposed use in the city. Z:\CommunayIkvelopmertt\Planning Main\Case Files\Ct1P\CU 10-08 Waste Managemern\staff mport to oGCCT 10-08 - peterdoc Case Fik: CU 10-08 Page 7 ERL CUP City of Elk River If denial of such a pernut should occur, it shall accompany recommendations or determinations by findings or a report stating how the proposed use does not comply with the standards set forth in Section 30-b54. B. City Code Definitions and Standards for Solid Waste Facilities Definition of Solid Waste Facility (Sections 30-1 and 58-91 of the Elk River City Code)(first sentence onl~: 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 maybe 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. Provisions of the City Solid Waste Facilities Ordinance: Section 30-1834 (e) (3) Solid Waste Facilities restricted to SWF -Solid Waste Facilities OverlayDistrict. 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 necessaryfor 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. Section 58-100 (b) (b) Location of Solid Waste Facilities. No Solid Waste Facility, including anyportion 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 necessaryfor 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. • Section 58-171 (8) (8) 200 feet from the nearest properrywhich is not located within ME SWF -Solid Waste Facilities Overlay Zoning District. C. State Regulations (Minn. Rules, Part 7035.2815, Subp. 5(CI (G) Anynew fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved bythe commissioner based on existing filling procedures, existing site structures, the facility design, compliance boundaries, and existing land restrictions. Z:\CommunityDevelopmerx\P]anning Main\Case Files\CUP\CU 1408 Waste Managemern\Staff report to OGCU 10-08 - peterdoc Case File: CU 10-08 Page 8 ERL CUP City of E1kRiver Zoning and Comprehensive Ptan According to the Landfill, the 200-foot buffer zone which theypropose to fill with solid waste was not entirely within the City's SWF Zoning District until the City Council's April 19, 2010 action zoning the entire Landfill into the SWF and ME OverlayDistricts. Similarly, at present the eastern edge of the 200-foot buffer zone proposed to be filled is not currently guided "landfill" on the Land Use Map element of the 2004 Comprehensive Plan. However, staff has proposed, and the City Council will consider on May 17, 2010, an amendment to the Comprehensive Plan that will designate the entire Landfill property as "Landfill". The Apri119, 2010 zoning action and the proposed May 17, 2010 Comprehensive Plan amendment were not proposed by staff so that the Landfill could place solid waste in the buffer zone. These actions were proposed and taken in order to implement the City's, and we believe, the Landfill's long time understanding and intent that the entire Landfill propertybetween the rail trail and Highway 169 be zoned and guided to allow Solid Waste Facilities. However, the fact that the Landfill property is, or soon will be, correctly zoned and guided does not mean that there is a right to place solid waste in the 200-foot buffer zone. The requested amendment to allow this must still meet the requirements of City Code and State law, including the standards for issuance of a Conditional Use Permit and the requirements of the City's Solid Waste Facilities Ordinance. Summar~r The Application to expand the Landfill by extending the area approved for the deposit of Solid Waste into the existing 200 foot buffer zone on the southern boundary of the Landfill appears, from an overall engineering standpoint, to meet the design requirements for expansion of the Landfill. However, the proposed expansion will result in the State-mandated 200 foot buffer zone being located on adjoining property outside of the Solid Waste Facility Zoning District, and would require that significant infrastructure components, including groundwater monitoring wells, gas monitoring probes, a service road and, potentially, surface water management facilities, be located outside of the SWF Zoning District. This raises a number of concerns regarding the consistency of the proposed amendments with State regulations, the City's Solid Waste Facilities Ordinance, and the Standards for Issuance of a Conditional Use Permit. With respect to state regulations, location of the state-mandated 200-foot buffer zone onto adjoining property appears to be inconsistent with the state regulation that requires any new fill area to be located at least 200 feet from the nearest property line. No evidence of a conveyance of property or relocation of the property line has been submitted with the Application, so the City can not confirm that this regulaxion will be complied with. Approval of an amendment to the CUP and SWFL to allow the deposit of Solid Waste within the existing buffer zone would have to be subject to the Landfill complying with the state regulation. Relocating the buffer zone outside of the SWF Overlay District is also a violation of the City Code sections set forth above, as is the location of landfill infrastructure, including groundwater monitoring wells, gas probes, storm water management facilities and service roads, outside of the SWF District. Approval of an amendment to the CUP and SWFL to allow the deposit of solid Z:\CommunityDevelopment\Planning Main\Case Files\CUP\CU 10-08 Waste Managetnern\Staff report to oGCU 10-08 - peterdoc Case File: CU 10-08 ERL ~' Page 9 City of Elk River waste in the existing buffer zone would have to be subject to an amendment to the City Code allowing buffer zones and other infrastructure to be located outside of the SWF District. Finally, removal of the existing, mostly native, buffer area on the southern edge of the Landfill, including the removal of several hundred mature native trees in the buffer area, would have a significant impact on the visibility of landfill operations from 221st Street and surrounding residential areas and, therefore, raises significant concerns regarding compliance of the proposed amendment within the Standards for Issuance of a Conditional Use Permit. In addressing whether the proposed expansion into the buffer zone meets that standards set forth above for the approval of a Conditional Use Permit, the City Council should consider whether removal of the existing trees and buffer area, expansion of the Landfill's capacity, and extension of the period of time the Landfill will be operation: i.) Will detrimentally affect the use and enjoyment of other property in the immediate vicinity. Expansion of the landfill into the buffer zone will extend the life of the landfill by 47 years, and removal of the existing buffer will mean that throughout the time and the additional 2-3 years of operation before operations move into the expansion area, landfill activities will be considerably more visible from 221` Street and surrounding areas than at present. ii.) Is consistent with the City's 2004 Comprehensive Plan. The City Council addressed the impacts of expansion of the landfill and visibility of the landfill from adjacent properties on the goals of the City's Comprehensive Plan at length in its action on the proposed 209 acre expansion. iii.) Will impede the normal and orderly development and improvement of surrounding vacant property. The impact of landfill expansion on the development of surrounding property was also discussed by the City Council in its action on the proposed 109 acre expansion. iv.) Has the potential to create traffic congestion and interference on adjacent streets, in particu}ax 221` Avenue. v.) Will generate noise, odors and dust that is detrimental to surrounding properties. Noise odors and dust have been persistent problems with the landfill. The landfill's application confirms the potential for odor releases from the additional landfill footprint (page 3-11). Extending the life of the landfill will, at a m;n;mum, extend for an additional 47 years the time period that surrounding properties will be subject to noise, odors, and dust. vi) Will resuh in the destruction, loss or damage of natural features. Expansion of the landfill will result in the destruction and loss of the existing native mature trees and natural topographic conditions which screen and buffer landfill activities from 221` Avenue and surrounding residential areas, as described above. vii.) Will fully comply with the other requirements of City Code. As discussed above, relocation of the buffer zone outside of the SWF District and the placement of Solid Waste Facility infrastructure, including service roads, Stormwater management facilities Z:\CommunicyDevelopmetx\Planning Main\Case Files\CUP\CU 10-08 Waste Managemern\Staff repost to O^.CU 10-08 - peterdoc Case File: CU 10-08 ERL CUP Page 10 CatyofElkRiver and wells, outside of the SWF District, does not comply with the requirements of the City Code, including the provisions of the Zoning Ordinance and Solid Waste Facilities Ordinance set forth above. Attachments • Location Map • ERL application and narrative • The existing CUP and SWFL for the Landfill, as amended on February 16, 2010 • Staff report and September 21,2009 Resolution denying Comprehensive Plan amendment and Rezoning for 109-acre expansion • Staff report and October 19, 2009 Resolution denying CUP and SWFL amendments for 109-acre expansion • Staff report and February 16, 2010 Resolution of the City Council approving amendments to the CUP and SWFL to allow operation of the Landfill to continue beyond February 16, 2010 • Staff report and April 19, 2010 Ordinance Zoning the Landfill properrySWF and ME • Staff report and proposed Resolution designating the entire Landfill property as "Landfill" on the Land Use Map element of the City2004 Comprehensive Plan • Staff report and March 15, 2010 Ordinance amending Chapters 30 and 58 of the Elk River City Code of Ordinances • Staff report dated May 11, 2010 to the Planning Commission • Letter dated May 11, 2010 from Jack Perry, Attorney for the Elk River Landfill to the Planning Commission • Letters dated May 6, 2010, and Map 14, 2010, from Matt Ledvina, City's Environmental Consultant • HKGI Studies: North Highway 169 Land Use Study presented November 10, 2008, Memorandum from Brad Scheib dated June 2, 2009, and Elk River Landfill Expansion Supplemental Information 16 June 2009 • May 14, 2010, letter from Steven Sauer, Vice President of Finance, Capital Land Group City Council Action Motion by Second by Vote Follow Up Z:\CommunityDeveloptm~\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff repoa to CGCU 10-08 - petesdoc RESOLUTION NO. 10-_~ City Council City of Elk River A Resolution Denning the Application of Elk River Landfill, Inc. to Amend its Existing Conditional Use Permit and Solid Waste Facilities License to Allow Expansion of the EIk 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), a wholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Crroup, 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 e S L t all w e L dfill b develo in the existin 200-foot Facihties Lrcens (WF } o o xpansion of the an y p g g buffer zone on the south side of the Landfill for the deposit of Municipal Solid Waste (MS~~; 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 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 EIk 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; and 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 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 ~~Vaste (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 3une 2009 until October 2009. The March 2009 Application for a Comprehensive PIan amendment and rezaning was denied by the City Cauncil 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 Crty 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 resolutio s ado ted b the i c' ' n p y C ty Council, are hereby incorporated m the City Coun it s 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. I~tinnesota 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. I~TOr 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 5 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 momtonng 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. INTO 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 204-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 within the Landfill as currently permitted and the additional four to seven ~ ears 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-b54 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 ail 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 221 ~` 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 opportumtles 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 «~aste 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 S~VFL 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 i management system, a detailed storm water management plan, design details for the Landfill gas system and others as required by the City's consultant. C7 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 far 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 .~ . r., Tina Allard, City Clerk GP2629426 v7 12 Landmark Environmental LLC May 6, 2010 Ms. Rebecca Haug Environmental Administrator City of Elk River 13065 Orono Parkway Elk River, MN 55330 RE: Elk River Landfill -Request for CUP and License Amendment, February 2010 Dear Ms. Haug: Landmark Enviromnental has completed a review of the Elk River Landfill (ERL) -Request for CUP and Solid Waste Facility License Amendment project, as directed. The following comments were generated related to ordinance requirements and potential environmental concerns associated with the proposed landfill expansion. The application expands the authorized extent of the curretrt landfill and proposes the placement of waste to the south property boundary. This design for the expansion (Cell 18} does not meet the establishment of a suitable buffer zone on the site, as required by City ordinance. The engineering plans for the request show that landfill facility features, including the perimeter access road, soil berms and screening, are located offsite on the property located to the south. The engineering design for landfill expansion will require approval from the State of Minnesota for deviation fiom their waste fill setback rule of 200 feet fiom the property boundary (MN Rules Part 7035.2815, Sub. 5. C.}. Page 1-1 Back rg ound The application indicates that the site is 476.8 acres. The site, as indicated in the current CUP/License, is a subarea of the area indicated in the application. Page 2-4 Groundwater The expansion will require the abandonment of inonitori~g wells/piezometers 209OWA, 213OWA and P213B as part of the development for Cell 18 and this should be complete according to Minnesota Deparhnent of Health Water WeII Rules. Similarly, landfill gas monitoring probes GP23 and GP24 will require abandonment and replacement and the Landfill Gas Monitoring Plan will need to be revised accordingly. Given the construction of liner system up to the south property boundary, it is apparent that wells and gas probes will be replaced offsite, on adjacent property south of the ERL. A revision to the current Please N Water Quality Monitoring Work Plan will be required to address the replacement of monitoring welUpiezometers 209OWA, 213OWA and P213B. ERL has installed numerous monitoring welUpiezometers outside of the current buffer area in order to investigate the nature and extent of contaminant migration associated with the historic unlined waste deposit. For the Tiled expansion of ERL, monitoring welUpiezometers and gas probes would typically be located witlnul the 200-foot buffer area surrounding the waste deposit. Page 2-7 Proposed Landfill Design From air overall engineering standpoint, the des}gn of the Cell 18 expansion area is feasible/acceptable. The south interior sideslope (a strong area of concern) is proposed as a 3:1 grade, which is standard 2042 W. 98'" Street Bloomington, Minnesota 55431 Phone: (952) 887-9601 Fax: (952) 887-9605 viww.landmarkenv.com Ms Rebecca Haug May 6, 2010 Page 2 of 3 design. Basegrades are acceptably configured with sufficient vertical separation froth the groundwater elevation based on historic motutoring data. The liner system and fmal cover system designs are acceptable and consistent with previous approvals. The design is missing engineering and construction details related to the leachate management system and other features. The detailed engineeruig design report and construction plans must provide hydraulic calculations for Cell 18 in relation to the existing leachate mauagetnent infrastructure to demonstrate sufficient capacity for the added liner area. It is recommended that the CUP and License contain conditions requiring the submittal and staff approval of the detailed engineering reports and construction plans prior to Cell 18 construction. Page 3-6 Grading/Draina~e Plan and Drainage Calculations The conceptual surface water drainage plan is generally acceptable; however modifications are necessary to meet standard landfill design guidelines. The application states that all of the stonnwater is controlled onsite, however, surface water drainage for approximately 4 acres of landfill slope is uncontrolled on the south side of Cell 18. Surface water is currently designed to sheet flow ovet• the perimeter access road and then offsite to the propet•ty to the south. Significant erosion is anticipated for the steep exterior berm slopes which ate proposed at a 2:1 ratio. The perimeter access road needs to be redesigned to include an interior ditch with sufficient hydraulic capacity and erosion control protection. Surface water should be routed to Pond P2 or other provisions made if sufficient capacity for P2 is not available. An additional surface water pond may need to be established at an offsite location considering that no buffer is provided adjacent to the south fall limit of Cell 18. Page 3-9 Leachate and Gas Collection S std em, pa e~- 3-10 ERL proposes leachate recirculation for Cell 18. This operation will gteatly increase the amount of landfill gas that will be generated from the landfill. The ptunary concerns relate to landfill gas collection and the prevention of fugitive gas emissions and odors. To provide additional LFG extraction capacity, the design must be modified to place horizontal LFG collection piping within the sand drainage layer at the east west ridge (high point} of the Cell 181iner system. The supplemental LFG collection piping must extend up the sideslopes to enable cotu~ection to the LFG extraction system and to enable cleanout maintenance. Temporary final cover is proposed as an element of the September 2008 "Leachate Recirculation Permit Application" proposal. The criteria for when an area would receive temporary final cover indicating the maximum length of time of inactive fill operations needs to be identified. Similarly, the tnaxitnum area allowed for inactive fill ateas prior to placing temporary final cover need to be identified by the applicant. Page 3-10 Construction Quality Assurance Reports ERL trust prepare detailed tecot•d drawings/documents of the leachate recirculation drainfield construction, which are certified by an engineer. The drawings will include survey measurements of the drainfield areas to document position within the cell, suitable base contours and piping elevations. All construction must be fully documented. This information is critical in potential problem resolution during later stages of landfill operation. Apuendix B Grading and Drainage Calculation The sedimentation basin design information for P2 indicates a total storage capacity of 8.7 ac-ft. Froth the plans submitted, the current capacity of P2 is appmxunately 1 ac-ft or less. The design plans Ms Rebecca Haug May b, 2010 Page 3 of 3 presented with the request do not show the construction of P2 and are not consistent with flee calculations. Revised surface water calculations for P2 must be modified to include the appropriate portion of runoff from the area of uncontrolled drainage of the Cell 18 final cover slope {as indicated above). Please contact me if you have any questions or continents regarding my review of the ERL request for amendment of the LicensefCUP. Sincerely, mar n lr ental, LLC Matthew L. Ledvina, P.E. Project Engineer F:\PROJECTS\CER-City of E(k River\2009-07.01\CorrlLetters 2010Ut100506Haug.doc e, ~:. .. CITY OF ELK RIVER ~ ~~C..C/- ~? ~~' AGREEMENT FOR ISSUANCE OF CONDITIONAL USE PERMIT FOR r,~~.v J~~~ f ~ c !~ 1 ~~7 MINERAL EXCAVATION . ,~;.. . ~ - THIS AGREEMENT, made and entered into this ~~ day of ~ ~ ~ , 1996, by and between the CITY OF ELK RIVER, a municipal corporation organized under the laws of the State of Minnesota (Clty), and STRAIGHTLINE EXCAVATION INC., a Minnesota corporation and BARYON SAND & GRAVEL CO. a Division of Tiller Corporation, a Minnesota corporation; hereinafter collectively referred to as (operator); VtrITNESSETH: V~rHEREAS, Operator has made application to City for approval of a conditional use permit to operate a gravel mining operation within the City on property legally described as follows: See attached Exhibit A. (the Property); and «THEREAS, the City of Elk River Planning Commission and City Council have held hearings on Operator's request for a conditional use permit, at which hearings all citizens of the City of Elk River and other interested parties have had the opportunity to be heard on the application; and WHEREAS, the City Council by motion adopted January 15, 1996, approved a conditional use permit for the operation of a gravel mining operation (the Operation) on the Property, subject to certain conditions, including that Operator enter into a License Agreement and Conditional Use Permit Agreement with City so as to fully comply with the City's Mineral Excavation, Zoning, and other applicable Ordinances; and VSrHEREAS, the City's Zoning Ordinance requires that a Conditional Use Permit be issued and that a Conditional Use Permit Agreement for mineral excavation be entered into. NOW, THEREFORE, in consideration of the premises and the mutual promises and conditions hereinafter contained, it is hereby agreed as follows: l.) Entire Agreement- Except as otherwise provided herein, this Agreement shall constitute the Conditional Use Permit far the Property and, together with the License Agreement to be executed by City and Operator, -~~~~~~~ Page 2 shall govern the parties rights, responsibilities, and- obligations with respect to the Operation, subject to the compliance b~T all parties with applicable city ordinances and state and federal laws. 2.) Warranty of Operator- Operator hereby warrants. and represents to the City , as inducement to the City's entering into this agreement,. that the- Operator. has a valid lease for the operation. and-the fee. owner of the subject. property shall also: enter into: this agreement. 3.) Conditions- The following general conditions shall apply to the Operation: (Ol) This Conditional Use Permit authorizes Mineral Excavation (gravel) from the Property. (02) All mineral excavation and processing operations on the property shall comply with the City's mineral excavation, zoning and other applicable ordinances; with the terms of this Conditional Use Permit agreement and the license agreement to be executed by the City and operator; with the City of Elk River's Environmental Impact Statement on mineral excavation; and with the applicationmaterialsnnd plans .submitted by the. operator, which plans and materials are the basis for the City's approval of the Conditional Use Permit.. (03) The operator shall orally notify the-City of any violations of this permit within 24 hours and follow this with notification in writing within 4 working days of the violation. The operator shall notify the City annually in writing of the total area and amount of material mined and projected estimates of area and amount. of material to be mined in the following year. This is to be done at time of license renewal (04) The license must be renewed annually and shall run from .January lst through December 31st. The annual license fee is that which is specified by City Code at time of renewal. This license fee is not in lieu of gravel tax collected by the County and a portion of which the City receives. (05) Violations of this Conditional Use Permit may result in suspension or revocation. cupST-Ba/bz/sr Page 3 •,~..o~ (06} The City Building and Zoning Administrator and/or his/her agents shall be permitted to inspect the operation for compliance with the conditions of this permit during normal hours of operation. (07) The City's approval of this Conditional Use Permit is subject to the approval of appropriate permits by other governmental agencies. (08) No explosives shall be allowed for this operation. (09) Reclamation Reclamation shall be consistent urith Elk River Landf ll's closure plan. In the absence of a valid reclamation plan (closure plan) by Elk River Landfill on all or part of the property, the operator shall submit said plan for approval by the city. (10) Traffic a. Except for localized jobs, traffic through EIk River associated with this operation shall be limited to U.S. Highway 10 and 169. (lI) Dust Control a. A permit from MPCA regarding air emissions shall be obtained when required and particulate emission standards shall be met by the operation. b. All equipment shall be located as to reduce dust to adjacent properties. c. V~'ater, but no chemical agents, shall be used to control dust as necessary. d. The City reserves the right to require additional measures to be taken, if warranted by dust problems, including but not limited to reducing stock pile heights. cupST-Ba/bz/sr ~~~.~~ ~. Page 4 (12) Hours of Operation All mineral excavation, processing, and sales activities shall be conducted between the normal hours of 7:00 a.m. and 7:00 p.m., Monday through Saturday. (13) Noise a. The noise from screening and crushing associated with this operation shall be controlled by equipment location on site,. the placement of stock piles, and the type of equipment used. b. Noise levels associated with this operation, shall at no time exceed State standards. c. The City reserves the right to require additional measures be taken, if warranted by noise. (14) Shop a. No unscreened outside storage shall be allowed. b. The operator shall have an approved hazardous .waste license for this facility and properly dispose of or recycle all waste. (15) Lighting Lighting from the operation shall be directed away from adjacent residential property. Glare, whether directed or reflected as different from general. illumination, shall not be visible beyond the limits of the immediate site. All sources of artificial light shall be so fixed, directed, designed, or sized, that the minimum subtotal of their illumination shall not increase the level of the illumination on nearby residential property by more than .1 foot candles in or within 25 feet of a dwelling, or more than .5 foot candles on any part of the adjacent property. (16) The piling, storing, or keeping. of old machinery, junk,- debris, or abandoned motor vehicles, shall he prohibited on this site, with the exception that reusable parts may be stored on the mineral excavation site provided that it is in a location that cannot be viewed from adjacent properties or is totally screened. cupST-Ba/bzisr `_ Page 5 .~^ ~ s" Q~~ (17) Mining activities shall not cause excessive vibration off site. If excessive vibration becomes an issue, the City reserves the right to take appropriate measures to alleviate the problem. (18) Groundwater protection measures shall. include.: a. The operator shall file with the City an emergency spill response plan. The operator shall adhere to this plan in the event there is a spill. b. The operator shall provide the Fire Department with a copy of their flammable or hazardous materials. c. Fuel tanks shall be above ground, properly diked (if required by law), -and registered with MPCA. d. All incidences that have the potential to adversely affect groundwater, including but not limited to spills, shall be verbally reported to the City within 24 hours. This verbal notification shall be followed up in writing within 4 working days. e. Gravel wash operations shall be prohibited on the property. £ Mining operations shall be conducted a minimum of five (5) feet above the seasonally high water table. g. The appropriate storm water permit shall be obtained by the operator from -MPCA. (19) Fencing -The entire perimeter of the property shall be fenced. (20) Sereenin~ and Buffering - No mining operations shall be conducted within two hundred (200) feet of the property boundary. Further, within this two hundred (200} foot buffer area trees shall be left for screening. In open areas where trees do not exist, screening shall be accomplished by the construction of a minimum six (6) foot high berm planted with evergreens. 4.} General Provisions- (OI) Permits- Operator agrees to comply with all of the provisions hereof and agrees to save and hold the City harmless from any and all cupsT-Ba/bz/sr Page 6 claims or actions arising. from the operations of the Operator on the Property. (02) Binding Effect- The terms and provisions hereof shall be binding upon, and inure to the benefit of the heirs, representatives ,successors, and assigns of the parties hereto and shall be binding upon all future owners of all or any part of the Operation and shall' be deemed covenants running with the land. This Agreement shall be placed of record so as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Property, and all recording fees, if any, shall be paid by the Operator. (03} Severable- In the event that any portion of this Agreement shall be held invalid for any reason, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. (04) Waiver- Any waiver, whether express or implied, by any party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any subsequent breach of this Agreement. (05) Notices- All notices and demands specified herein shall be deemed appropriately and timely given when delivered personally or deposited in the United States mail to the addresses hereinafter set forth by certified mail (return receipt requested). The addresses of the parties hereto are as follows until changed by written notice given as above: cupST-Ba/bz/sr Page 7 ~~~~ If to the City at: City of Elk River ATTN: Building and Zoning Administrator 13065 Orono Parkway P.O. Box 490 Elk River, Minnesota 55330-0490 If to the Operator at: Straightline Excavation Inc. Attn: Dan Kreger PO Box 114 12628 Fremont Ave., Suite 2 Zimmerman, MN 55398 and Barton Sand & Gravel Co. Attn: Brent Schlueter PO Box 1480 1Vlaple Grove, MN 55311-6480 (06) Incorporation bj~ Reference- All plans, special provisions, proposals and specifications, submitted pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set forth herein in full. IN «jITNESS WHEREOF, the City and Operator have caused this. Agreement to be duly executed. on the day and year first above written. CITY OF ELK RIVER By: By: OPERATOR: STRAIGHTLINE EXCAVATION INC. FEE OWNER (S) OF PRO By: By: OPERATOR: BARYON SAND & GRAVEL CO., A DIVISION OF TILLER CORP. -" re ident By: ~: B .. y: -~-- "" "'"'~ '~" ~'` Its: xecutive Vice resident cupST-Ba/bz/sr Its: City Administrator Page 8 STATE OF MINNESOTA ss. COUNTY OF SHERBURNE :,_ The foregoing instrument was acknowledged before me this. day of v~ ~ ~.~-~ 1996, by Henry A. Duitsman, the Mayor of THE TY OF EL RIVER, a Minnesota municipal corporation, on behalf of the corporation. Notary Public STATE OF MINNESOTA ~ ``"~ ,Qr =~~ . SANDRA A. THACKERAY SS. ` '_'a NOTARY PUBLIC-MINNESOTA COUNTY OF SHERBURNE ~•,=-~~ ~~ ' SHERBURNE COUNTY -~~•°°~ My Comm. Expires Jan. 31, 2000 T e foregoing instrument was acknowledged before me thisc~ day of 1996, by Patrick D. Klaers, the.- City Administrator of E CI OF ELK RIVER, a Minnesota municipal corporation, on ehalf of the corporation. Pu STATE OF MINNESOTA SS. COUNTY 0 ''~ ~~-~--~-~ .~°g• SANDRA A. THACKEr~AY ~v"' ~` ~ NOTARYPUBLIC-MINNESOTA ~' •' ' ' SHERBURNE COUNTY ~~-x•6°° My Comm. Expires Jan. 31, 2000 The foregoing instrument w _ s ackno ledged before e this ~D day of 1996, by ~ r .w, the - of Straighthne Excavation Inc., a Minnesota corporation, on behalf of the corporation. ,~ ~/ /`~. Not ry Public STATE OF MINNESOTA ss. COUNTY OF SHERBURNE RurE+ a s~ r~nflY P116~-IOTA '~ Mr oor~ussia+ ocaw~s ,-sti-~oao < g cupST-Ba/bz/sr Page 9 ~~~ The foregoing instrument was ac nowledged before me this ~O day of 1996, by ~~ f~ the ~ of Straigh 'ne Excavation Inc., a Min esota corporation, on behalf of the corporation. 0 No ary Public STATE OF MINNESOTA ~ A. NoTAar ss. M,r co~ss~ow E~ ~s~~ooo COUNTY OF DA-K~-r~ The foregoing instrument was acknowledged before me this ~ ? ~ day of . ~'~~-~~ 1996 by y~~ g. S~t-~~ , the X265 r D E"N T Of Barton Sand & Gravel Co., a Division of Tiller Corporation, a Minnesota corporation, on behalf of the corporation. The foregoing instrument was acknowledged before me this f'7~ day of ~~ ~- ~ ~ 1996, by G~~t~r ~u~the v ~ P~S~ of Barton Sand & Gravel Co., a Division of Tiller Corporation, a Minnesota corporation, on behalf of the corporation. ~~~~ Notary Public STATE OF MINNESOTA e~ t A. sG~+tw u~ SS. NOTARY PUBLIC -MINNESOTA QAKOTA Cf3UNTY COUNTY OF ray comm~~ion Expires Januuy 3i. 2~ The foregoing instrument was acknowledged before me this day of .1996, by ,the of EIk River Landfill, Inc., a Minnesota corporation, the fee owner of the subject property. Notary Public cupST-Ba/bz/sr Page 10 _ _•wM...-___. STATE OF MINNESOTA ss. COUNTY OF The foregoing instrument was acknowledged before me this day of 1996, by ,the of Elk River Landfill, Inc., a AZinnesota Corporation, the fee owner of subject property. ., Notary Public This instrument was. drafted by: City of Elk River. Building and Zoning Department 13065 Orono Parkway PO Box 490 Elk River, MN 55330 u~~ x"_ ~~~ cupST-Ba/bz/sr EXHIBIT A ~,~~~~ Sherburne County Abstract ~ Title Co. OWNER'S POLICY Schedule A CASE NUMBER: AMOUNT OF INSURANCE: POLICY NUZ+IDBR: THS POLICY NLTMBBR SHOWN ON THIS SCIiBDULB MUST AGRBB WITH THB PREPRINTED NUMBER ON THB COVER SHBBT. 1, Policy Date Auqust 17, 1995 at 5:00 P.M. 2, The Insured hereunder, in whom title to the fee simple estate is vested, at the date hereof, is: Elk River Landfill, Inc. , The land referred to in this policy is situated in the County of Sherburne, State of 3 Minnesota and is described as follows: PARCEL B That part of the Northeast Quardeas follows~rthwest Quarter of Section 3, Township 33, Range 26, describe Commencing at the poinst fuarterswith thefwesterlytlinenofothearightrofeway of Quarter of the Northwe 4 U.S. Highway No. 169; thence Southerly along said right-of-way, to intersect a line parallel with and 470 feetr~e~tofotheaNorthwestdQuarterhsaidgpointoofsaid North line of the Northeast Qua intersection being the actullepoline a distance off558efeeta thencedSouth at,a thence we§t along said Para right angle to intersectet~~sSo~t~rgis~_~fSouthSlineNtotintersectrthe said e Northwest Quarter; thenc westerly line of the highway beg inningWaSherburne CountyrlMinnesotaaid highway right-of-way to the point of g PARCEL C The North 525 feet of the wrdinHato thetUnitedtStatesQGovernmentSSurvey thereof Township 33, Range 26, acco g and situate in herburne County, Minnesota. AND -Continued- Sherburne Counttcy~ AbAS~t~ract & Title Co. ~ V Y ~~ ~/`'`"~ ALTA Owner' s Policy 10 -17 - 9 2 Authorized O ficer or Agent 1~~=**. i N,Ue1u171W In,.wnp b~NM This Policy is invalid unless the cover sheet and Schedule B are att ; ~ * OLD REPUBLI 1...* , * • cfRT Form 9~2~ -~~~ ~.. . ~. The North 5?.5 feet of that part of the Northeast Quarter of the Southeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, AND that part of the East Half of the Northeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, according to the United States Government Survey lhereoC and situate in Sherburne County, Minnesota. D That part o outh 200 feet of the Southwest Quarter of Sectio ~'~"~ Township 34, Range erburne County, Minnesota, lyin the following described line; at the S corner of the Southwest ~~ Quarter; thence east along the Souk. ~ he Southwest Quarter, a distance of 1722.70 feet to the oint of beginnings line to be described; thence Nor'theas eflecting 79 degrees 26 minutes 37 s eft to the North 1' the South 200 feet of said South Half of the Southwes an ere terminating;thereat. •i, I PARCEL E That part of the-North Half of the Northwest Quarter of Section 3, Township 33, Range 26 1}tinq westerly of the following described real estate, to-wit: Commencing at a point on the North line of the said North Half of the Northwest Quarter GSO Eeel• distant west of L•he intersection thereof with the westerly right of way line of U. S. Highway No. 169 as presently located and established; thence South and parallel with the west line of the said North Half of the Northwest Quarter to the South line thereof and there terminating, excepting therefrom the South 33 feet thereof, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL F The Northwest Quarter of the Northwest Quarter of Section 3, Township 33 North, Range 26 west; and That part of the South Half of the Northwest Quarter lying west of U. S. Highway No. 169, and the Northerly 525 feet of that part of the East Half of the Southwest Quarter lying west of U. S. Highway No. 169, all in Section 3, Township 33=North, Range 26 west, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL H The West 92.70 feet of the North 470 feet of that part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, -Continued- ~i*x ~ •. g ~I(I~IIIII`'' `** OLD REPUBLIC Pa e 2 POLICY NUNffiHR: SV 2446206 I ~ ~ ` "'"'"''^'""""'"e0iw" "'' *~ ORT Form X120 `~' s'` Sherburne County, Minnesota, lying east of a line described as Beginning aL a point an the North line of said Northeast Quarter of the Northwest Quarter a distance~of 650 feet west of the intersection of said North line with the Westerly right-of-way line of U. S. Highway No. 169; thence south parallel with the West line of the North Half of the Northwest Quarter to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. PARO~L Z That part of the Northeast Quarter of the Northwest QyingesouthSoftthe South Township 33, Range 26, Sherburne County, Minnesota, line of the North 470 feet, as measured at right angles, thereof and lying west of the following described line: Commencing at the point of intersection of the North line of said Northeast Quarter of the Northwest Quarter with the wesonersaidlhighwayhrighthof~wayato intersectlahlineNparallel thence southerly aI g with and 470 feet South o£, as measured at right angles to, said North line o thence west along said the Northeast Quarter of the Northwest Quarter; parallel line a distance of 558 feet to the actual Point of Beginning of the line to be hereby desctheast QuarterSoftthetNorthwestgQuarteryandrthere~~~ South line of said Nor terminating. Y' ~** 4 ~* ~* OLD REPUBLIC • ~, a wm...~ nu. ~tiw.~ te~p.~y Page 3 POLICY NLjMBSR: SV 2446206 ~*,* f ** OR7 Forth 3120 ~` ~ ~ !' ~~. 1 ~ ~ ~~~. ti y~_ , tip; 3 %~ /' ,~ ~ a ti • % `. P ,: _ ` ~~ - . 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