5.3. SR 06-21-2010REQUEST FOR ACTION
To
Ci Council Item Number
5.3.
Agenda Section Meeting Date Prepared by
Community Development June 21, 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 13 Acres of Administrator
Property Owned by Waste Mana ement, Inc - CU 10-09 Peter Beck, Ci Attorney
Action Requested
Staff and Planning Commission recommend 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.
Introduction
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
Case File: CU 10-09
Page 2
Tiller CUP
Ciryof E1kRiver
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 City Council 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.
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 CUP, 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 propertyto the south to help protect land
values and limit impacts to future uses of those areas.
Landfill Letters:
Counsel for the Landfill has submitted two letters directlyto the City Council addressing the
application to amend Tiller's conditional use permit. These letters include numerous inaccurate
and/or misleading statements which staff feels the need to address, as follows:
June 11, 20101etter:
• First paragraph, third and fourth sentences, which read: "Setting aside ERL's landfill
expansion requests, ERL needs to immediately expand a new cell within the existing landfill
property but outside of the buffer area. To do so, Tiller needs, consistent with the parties'
standard practice since 1996, to first mine the buffer area as soon as possible."
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Case File: CU 10.09 Tiller CUP
Page 3 City of Elk River
Response: The approved plan for the Landfill does not require any mining within
the buffer area and, as noted above, the Landfill's conditional use permit does not
allow the removal of trees within the buffer area. The approved plan for the Landfill
provides for expansion of the Landfill to its approved boundaries and the
preservation of the 200-foot buffer zones on the east, west, and south sides. Musing
in the buffer area is not allowed by either Tiller's or the Landfill's existing conditional
use permits, and is certainly not "consistent with the parties' standard practice since
1996." There is no need or reason to mine the buffer area in order to expand the
Landfill to its current permitted boundaries.
• Fast paragraph, sentence five, which reads: "For undisputed logistical reasons, Tiller needs
to promptly commence the mining of the aggregate in this buffer area or forever lose its
$5.5 million to $8.6 million value."
Response: City staff is aware of no reason, logistical or otherwise, whythere is an
imminent need to mine the buffer area at this time. Tiller's conditional use permit
for mining the Landfill property, and the Landfill's conditional use permit for
landfilling its property, both provide that the buffer area and the vegetation on it will
be preserved. Therefore, Tiller should not have ever planned to generate revenue by
mining the protected buffer area. Furthermore, Tiller has 109 acres located
immediately south of the buffer area which it is free to mine at this or any other time
pursuant to an existing conditional use permit.
First paragraph, sentence six, which reads: "As reflected in the City Staff Report, there is
neither an operational nor an environmental reason for the City to deny Tiller's requested
mining within this buffer area. Ex. 189. Rather City staff's sole substantive issue with
mining in this buffer area is its trumped up concern with the loss of screening for the view
shed from 221st Avenue looking north."
Response: As set forth above, and in the Staff Report to the Planning Commission,
City staff has raised several issues with respect to the proposal to mine the existing
buffer area. The most significant of these is the fact that mining this area would
constitute a violation of the Landfill's existing conditional use permit. Perhaps
counsel for the Landfill does not believe this is a substantive issue, but it is.
• First paragraph, sentence seven, which reads: "The fallacy of this concern has been
exposed; Tiller's existing earthen berm with trees along 221st Avenue already fully screens
the buffer area."
Response: Tiller's existing earthen berm on 221st Avenue does not fully screen the
buffer area. Furthermore, the issue is not screening the buffer area but screening the
Landfill. The buffer which Tiller seeks to remove screens the Landfill. Removal of
this buffer exposes Landfill operations to 221st Avenue and removes the existing
topography and mature, native trees which, in addition to screening Landfill
operations, will constitute the backdrop for future development at 221st Avenue and
Highway 169 and screen the closed Landfill from these areas and from 221st
Avenue.
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Case File: CU 10-09
Page 4
Tiller CUP
Ciryof Elk River
• Second paragraph, second sentence, which reads: "But stopping ERL's Landfill expansion
is no reason to deny Tiller's mining expansion, particularly given that Tiller's mining
expansion within the 200-foot buffer is in no way dependent on ERL's Landfill expansion."
Response: Tiller's conditional use permit to mine the Landfill property allows
mining activities which prepare the property for the deposit of solid waste. Mining
within the 200-foot buffer is directly dependent on Landfill expansion, because if the
Landfill does not expand into or beyond the 200-foot buffer area, no mining is
allowed within that buffer.
• Paragraph three, at the top of page two, states that denying Tiller the opportunity to mine
the buffer would be a severe economic blow to Tiller during a trying economic time for the
mining industry.
In response, staff would point out that Tiller does not and never has had the right to
mine the 200-foot buffer. This buffer has been protected by both Tiller's
conditional use permit and the Landfill's conditional use permit for years. Moreover,
Tiller has hundreds of acres within the City, including 109 acres directly south of the
200-foot buffer, which are available for mining at this time. According to the first
full paragraph on page three of the Landfill's letter, Tiller has an approximately 60-
yearsupply of gravel just within that 109 acres.
• Page 2, paragraph numbered No. 1, states that: "The one and only issue is screening."
Response: As noted above, there are a number of issues with the proposal to mine
the Landfill's buffer, including the fact that to do so would be a violation of the
Landfill's conditional use permit. It is false to saythat the one and only issue is
screening.
• Page 2, numbered paragraphs 2 and 3, continue with the argument that the existing
screening along 221st Avenue is sufficient.
Response: City staff does not agree that the existing screening on 221st Avenue
would screen Landfill operations if the 200-foot buffer area at the southern edge of
the Landfill is removed. Furthermore, as noted above, removal of the existing berm
and the mature, native trees located on it will expose Landfill operations to view
from 221st Avenue during the period the Landfill is operating, and will leave the
closed Landfill visible permanently.
In the paragraph beginning at the bottom of page 2 and extending on to page 3, it is stated,
in the last sentence, that the City could impose a CUP condition requiring Tiller to erect an
earthen berm if there will be visual impacts. In fact, the City has required, and both Tiller
and the Landfill have agreed, to the establishment of the existing 200-foot buffer at the
southern edge of the Landfill property. This condition has been in place for manyyears
and, in its present form, was agreed to bythe Landfill when its existing conditional use
permit was approved in February of this year. This condition is binding on the City, the
Landfill and Tiller.
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Case File: CU 10-09
Page 5
Tiller CUP
Ciryof Elk River
• The second to the last sentence in the second to the last paragraph of the Landfill's June 11
letter states that Tiller and ERL stand readyto address this and anyother concern raised by
the mining expansion. However, no where in this letter, nor in the subsequent June 16,
2010 letter, nor in the voluminous attachments to these letters, does Tiller or the Landfill
address the fact that the CUP amendment requested by Tiller would cause a violation of the
Landfill's existing CUP for the Landfill property.
dune 16, 2010 letter:
C-n June 16, 2010, the Landfill submitted a second letter directlyto the City Council, which
argues that Tiller has a right to mine the buffer area because of the State's public policy
favoring mineral exploitation and the Judicial "natural expansion" doctrine.
Response: Staff does not agree that denying a request to mine and obliterate a buffer
area which has been provided for and agreed to over the course of many years runs
afoul of any State policies favoring mineral exploration or the "natural expansion"
Judicial doctrine. The City of Elk River has guided and zoned 2,000 to 3,000 acres
of propertyfor mineral excavation, subject to the approval of conditional use
permits and licenses. Designating and zoning this area for gravel mining does not
grant the owners of property so designated and zoned the right to mine every acre so
designated and zoned. It grants the right to apply for a conditional use permit and
license to mine in this area subject to reasonable conditions, including the
establishment of appropriate buffer areas. Denying a request to obliterate along-
establishedbuffer area which includes natural topography and mature, native trees
does not run afoul of either public policy or the natural expansion doctrine.
More importantly, neither the supposed public policy favoring mineral exploitation
nor the natural expansion doctrine, grant a right to mine and remove a buffer area
established to screen and buffer a separate use: i.e., the Landfill. The 200-foot
buffer area which Tiller seeks to mine was established on the Landfill property for
the purpose of screening the Landfill from surrounding areas both during operation
and after closure. The fact that the buffer has gravel under it does not confer a right,
under the purported State policy or natural expansion doctrine, to remove that
buffer and expose the Landfill to view.
The cases that the June 161etter cites have been reviewed, and are not controlling
here. Fast, the onlypublished Minnesota appellate decision that the June 161etter
cites (Hazvkin.r a Talbot, 80 N.W.2d 863 (Minn. 1957)) doesn't go far enough to
support the applicant's assertions here. Second, none of the cases involves a
situation where a CUP imposed conditions that restricted the mining operation from
mining the entire parcel in question. In cases where a zoning ordinance makes turns
a mining operation into a nonconforming use, the mining operator normally must
show that it intended all along to mine its entire parcel of land. Tiller cannot
plausibly argue that it always intended to mine the buffer zone. 'Third, none of the
cases that letter cites involved a situation where a court applied the natural expansion
doctrine to allow a mining operation to expand into land that it did not own. This is
important because Tiller does not currently own the land that is the subject of the
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Gale File: CU 10-09 Tiller CUP
Page 6 Ciryof E1kRiver
current CUP application. Tiller cannot rely on the natural expansion doctrine to
argue that it has a vested right to expand on land that it does not own.
Recommendation
Staff and the Planning Commission recommend to 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 CLIP for the Landfill.
Attached for the City Council's consideration is a resolution of denial which incorporates these
findings.
Attachments
• Buffer Exhibit
• Tiller Corporation application and narrative
• The existing 1996 Tiller CUP
• Staff report, excluding attachments, dated June 8, 2010 to the Planning Commission, CU 10-09
• 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
• Letter dated June 11, 2010 from Jack Perry, Briggs & Morgan Attorney
• Letter, excluding attachments, dated June 16, 2010 from Jack Perry, Briggs & Morgan Attorney
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Case File: CU 10-09
Page 7
Tiller CUP
City of Elk River
City Council Action Motion by Second by Vote
Follow Up
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CAPITAL LAND GROUP, LLC
PROPERTY WASTE MANAGEMENT PROPERTY
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February 2010
TILLER
CORPORATION°
APPLICATION
FOR
AMENDMENTS TO
CONDITIONAL USE PERMIT
FOR MINERAL EXTRACTION
ELK RIVER LANDFILL
ELK RIVER,
MINNESOTA
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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 (CUPj 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
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~; USGS Quad Map Excerpt
Elk River and Lake Fremont Quadrangles
C Figure 3
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.
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
f I I 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.
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152] LONE OAK RD
EGAN MN SS 121
CAPITAL LAND GROUP, LLC
7200 HEMLOCK LANE N #200
PO BOX 1480
MAPLE GROVE MN 55311-6480
CAFITAL LAND GROUP, LLC
ATTN: STEVEN D SAUER -CFO
PO AOX 1480
MAPLE GROVE Ml! 55311
CITY OF ELK RIVER
13065 ORONO PKWY
ELK RIVER MN 55330
CORROW, GINA R TRUSTEE
12133 223RD AVE NW
ELK RIVER MN 55330
E A Z-MARSH FAMILY FARM CORY
CIO LAWRENCE J ZEIMET
1235 W SKILLMAN AVE
ROSEVILLE MN 55113
ELK RIVER LANDFILL, INC
CIO WASTE MANAGEMENT
PO BOX 1450
CHTCAG0IL 60690-1450
ERICKSON, KEVIN E & SHAVON.[
12163 Z23RD AVE
ELK RIVER MN 55330
IFT RESOURCES LLC
1023 MANOR PLACE
ELK RIVER MN 55330
KINGERY, BRIAN S & ST MARTE, TANYA
23105 ] 28TH AVE NW
ELK RIVER MN 55330
HENTGES, MARLENE
12163 223RD AVE NW
ELK RIVER IVIN 5533Q
J T LAND COMPANY, LLC
PO BOX 332
ELK RIVER l~IN 55330
TOTH, ERNEST J-TRUSTEE
RIDGES OF RICE LK HM•OWN ASSOC, INC C/ O RICHARD TOTH
PO BOX 91 1714 MAPLE COURT
ELK RIVER MN ss33o SAINT CLOUD MN 56304
SCHUI,ZE FAMILY FARM LMTD
43611 236TH LANE
AITKIN MN 56431
SCHULZE, THOMAS A & EILEEN A
11661 225TH AVE NW
ELK RIVER MN 55330
SHERBURNE COUNTY
13880 HIGHWAY 10
ELK RJVER MN 55330-460I
SHERPER, DONALB & ROCHELLE TRUST
12275 239TH AVE NW
ELK RIVER MN 55330
SPENCER, JAMES E & LILA
PO BOX 40
ZM4ERMAN MN 55398-0040
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CITY OF ELK RIVER ~'`~1 ..~~1~'- .~ ~~
AGREEMENT FOR ISSUANCE OF
CONDITIOI~?4L USE PERNLIT
FOR
h2INER_AL EXCAVATION
iii, ~ - r~, ~,.
L _ ~ ~i'1 1 l b
THIS AGREEI~ZENT, made and entered into this ~~ day of~
_i``'~ ~~ , 1996, b~= and between the CITE' OF ELk RI~%ER; a municipal
corporation organized under the laws of the State of Minnesota (City=), and
STR.~IGHTLIN-E EXCAVATION INC., a Minnesota corporation and
BARYON S<4ND & GR<4V'EL CO. a Division of Tiller Corp oraiion, a
Minnesota corporation; hereinafter collectively= referred to as (operator);
~~%ITNESSETH:
~%'HER.E<4S, Operator has made application to City for approval of a
conditional use permit to operate a gravel mining operation within the CitS=
on property= legally described as follows: See attached Exhibit A.
(the Property); and
~~THERE AS, the City of EIk River Planning Commission and City
Council have held hearings on Operator's request far a conditional use
permit, at which hearings all citizens of the City of EIk River and other
interested parties have had the opportunity to be heard on the application;
and
~~THEREAS, the City Council by motion adopted January I5, 199G;
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
~~~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~TO~~%, THEREFORE, in consideration of the premises and the mutual
promises and conditions hereinafter contained, it is hereby agreed as follow=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,
va ~ ~
~~~~
Page 2
shall govern the parties rights, responsibilities, and obligations with respect
to the Operation, subject to the compliance bs= all parties z~=ith applicable city
ordinances and stare and federal laws.
2.) ~Ti'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 ov,=ner 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 I~-Zineral Excavation
(~ avei) from the Property.
(02) r1ll 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; u=ith the City of EIk
River's Environmental Impact Statement on mineral excavation;
and with the application materials and plans submitted by the
operator, R=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 ~=citing 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 rene«~ed 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.
cunST•Ralh~/Fr
Page 3
~~~~~~
(06) The City Building and Zoning Administrator andlor his/her
agents shall be permitted to inspect the operation for compliance
with the conditions of this permit during normal hours of
operation.
(O r) The City='s approval of this Conditional Use Permit is subject to
the approval of appropriate permits by other govern3nental
agencies.
(08) No explosives shall be allowed for this operation.
(Q9) Reclamation
Reclamation shall be consistent with E?k P..iver La~_~fsl~s closure
plan. In the absence of a valid reclamation plan (closure plan)
b~= El.l~ River Landfill on all or part of the property=, the operator
shall submit said plan for approval b~= 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.
(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. Water, 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/bzlsr
~~,~~~
~~ Page 4
(I2) Hours of Ox~eration
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) I~~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 t~-pe of
equipment used.
b. poise 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) Sho12
a. INTO unscreened outside storage shall be allowed.
b. The operator shall have an approved hazardous waste
license for this facility and properly dispose of o~• recS=c1e
all waste.
(15) Li~htin~
Lighting from the operation shall be directed a~~c=ay from
adjacent residential property. Glare, R=hether directed or
reflected as different from general illumination, shaL1 not be
visible beyond the limits of the immediate site. All sources of
artificial light shall be so fixed, directed, des boned, or sized, that
the minimum subtotal of their illumination shall not increase
the level of the illumination on nearby residential property= by
more than .l 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-Balb~lsr
Page 5
;~~~~
(Ii) h'Iining activities shall not cause excessive vibration ofr" 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 Cit57 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 v~-ith a
copy of their flammable or hazardous materials.
c. Fuel tanks shall be above ground, properly= d~~ ed (if
required by law), and registered a=ith I~~IPCA.
d. All incidences that have the potential to adversely affect
groundwater, including but not 1im.ited to spills, shall be
verbally reported to the CitST 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.
f. RZining 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) Screening and Buffering - INTO mining operations shall be
conducted within two hundred (200) feet of the property boundary.
Further, R-ithin 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-
(Ol) 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/bzlsr
- 1p ,{ .... ' Lr
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
cos=enants running R=ith 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, t'rle same shall not af7ect il~ any respect
~~=hatsoever the validity of the remainder of this Agreement.
(04) ~~raiver- Any waiver, whether empress 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 <4greement.
(05) I~TOtices- All notices and demands specified herein shall be
deemed appropriately and timely given when delivered personallz= or
deposited irn 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 u=ritten notice given as
above:
cupST•Ba/bz/sr
Page r
If to the Citt= at: City of ELk River
ATTl!?: Building and Zoning Administrator
13065 Orono Parkway
P.0. Box 490
E1_.k 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
Maple Grove, MN 55311-6480
(06) Incorporation b~= 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 «~ITNESS ~~~IEREOF, the City and Operator have caused this
Agreement to be duly executed on the day and year first above written.
CITE" OF ELK RIVER
By•
By•
OPERATOR:
STRAIGHTLINE EkCAV ATION
INC.
FEE O~uNER (S) OF PROPE
By:
By:
OPERATOR:
BARYON SAND & GRAVEL CO.,
A DIVISION OF TILLER CORP.
... ..- I~t re
\ .. 4/
B5-' ~ By: ~.-
`'~' Its: xecutive Vice resident
cupST•Ba/bz/sr
Its: City Administrator
~! .~,_ ...~M ~ a~
Pale 8
STATE OF MI?~~TESOTA
ss.
COU?~~ OF SHERBURNE
. ~ ~: -:~,
The foregoing instrument was acknowledged before me this=~ day of
'-1-: ~~.~:~ ~- 1996, by Henry .4. Duitsman, the Mayor of THE
CITY OF ELI R.I~TER, a Minnesota municipal corporation, on behalf of
the corporation.
,.:
~` ,--- .
,.
_~ ~ . ~'f ~' ._--~
l~~otary Public ~~
STATE OF ~-ZINNESOTA ~ "" ~~ `~ ~ ~~~~ ~`~~'
ss. ~ - `<= SF,NDRA A. THACKtR~;~ ~~
NOTARY PUBLIC-tJ~INNE50TA
`' •~~ SHERBURNE COUNTI'
COUNTY OF SHERBURNE ~~
f~~y Comm. Expires Jan. 31, 2000
T e foregoing instrument was acknowledged before me this ~- d y of
1996, by Patrick D. Klaers, the City Administrator of
~HE CIT~OF ELK RIVER, a Minnesota municipal corporation, on
bbehalf of the corporation.
'1
f//
,~.~ -
,~
Notarv Public
STATE OF MINNESOTA
,~ SS.
COUNTY 0 ~ ~~ ~.~ C ~c1~~-~~
The foregoing instrument w s ackno ledged before
of ~~ ~~-~ 1996, by ~~~~~~-~%~, the ~*,
Straighthne Excavation Inc., a Minnesota corporation,
corporation.
Not ry Public
""° •
'f ~~ SANDRA A. THACKEnAY
~
'
-'~~~
` NOTARY PUBUGfJ~INNESDTR
SHERBURNE COUNTY
.
.
°-~R~`' My Comm. Expires Jan. 31, 2000
STATE OF MINNESOTA
SS.
COUNTY OF SHERBURNE
~e this u d day
on behalf of the
<
~~~~~~
RtrrH a s-raTM
NOTARY ~
'`~ AdY C~JI~dM153FOF! EJCP4RES 13'4-mQJ
Page 9
__ .The foregoing instrument was ac - owledged before me this ~~ day of
~`~~ 1996, by ~ ~ ~~~,~'-~ the ~i~-~-~~ of
Straigh~line Excavation Inc., a l~lin esota corporation, on behalf of the
corporation. ~
.~ ~ , ~ emu'
No~ary Public
STATE OF MIN?~?ESOTA ~ ~. €
M~TARY
ss. '~ ~ sus.
COUNTY OF J~~ ~ ~-~
The foregoing instrument was acknowledged before me this ~ ~ ~ day of
~'~s~-,~- 1996, by G~v_3. 5~~2 , the ~2ES, ~ ~ 7- 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 ~ 7 '~ day of
~-~ 2 ~ ~ 1996; by GkY~.~., C~r;a,~the v ~ ~ SSE of Barton Sand & Gravel
Co., a Division of Tiller Corporation, a Minnesota corporation, on behalf of
the corporation.
STATE OF 1~ZINNESOTA
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
Pale 10 __---.___.-' __
' STS TE OF I~ZINNESOTA
5c
COUNTY OF
The foregoing instrument was. acknouTledged before me this day of
, 1996, by ,the of Elk River Landfill,
Inc., a ?~Zinnesota Corporation, the_fee owner of subject property.
~. _ ~ _. _ Notazy Public
This instrument was drafted by: City of Elk River
Builaing and 'Zoning lUepartment
13065 Orono Parkway
PO Box 490
EIk Ritter, Ii1N 55330
-- . _ .~:
:, _ ._.
;.
--,;..' i
.. ~
~Xt-~~BiT A
Sherburne County Abstract ~ Title Co.
OWNER'S POLICY
Schedule A
CA53 NUM~BR
AMOUNT OF INSURANCB:
~~~~~
1 . ~ ..
POLICY NU~'3SR: ,
T'r_3 POLICY N-CJM-B 3R SriOh'N ON 'T`HIS SC 3DULS MUST AGt'ti~3 hTITH TH3 PRSPRINfiED 2v'U~SB3R ON TH3
cov$ r; s BST .
1, Policy Date August 17, 1995 at 5:00 P.M.
2, The Insured hereunder, in whom title to t'r~e fee simple estate is vested, at the
date hereof, is:
Elk River Landfill, inc.
3, The land referred to in this policy is situated in the County of She+rburne, State of
Minnesota and is described as follows:
PARCEL B
That part of the Northeast Quarter of the Northwest Quarter of Section 3,
Township 33, Range 26, described as follows:
Corimencing at the point of arterswith thefwesterlytlinenofothearagh~trofeway 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 So=tof°theaNorthwestd4uarterhsaidgp oint ofsaid
North line of the Northeast Quarte
intersection being the actual point of beginning of the~land trebcedSouth at/a
thence west along said parallel line a distance of 558 feet;
right angle to intersect thecSo?thTlise-ofeouthslineNtotinte,-sectrthe saidhe
Northwest Quarter; thCn.-e ~~--~ ~ p g _ i• ay
westerly lire of the highway riQ1~ongwaSherburne CountyrlMinnesota2 a n..g
right-of-way to the point of be_
PARCEL C
The North 525 feet of the westrHa~o thetUnitedtStatesQGovernmentSS u rvey thereof
Township 33, Range 26, accords g
and situate in ~i-,°-rburne County, Minnesota.
p,~ -COntirued-
Sherburne County Abstract & Title Co.
s'' ~ ~~~~~''~ ALTA Owner' s Policy 10 -17 - 9 2
Authorized O ficer or Agent ~~,s*,.~
= OLD REgU~LTC
a Nayenil TIUa Ina,ranu Cow.WM
This Policy is invalid unless the cover sheet and Schedule B are att II`=*=`
";~~"~ ~ P
The North 57.5 feet of that part of the Northeast Quarter of the Southeast
quarter of Section 4, Township 33, Range 26, lying East of the Great Northerr.
Railway, PND that part of the East Half of the Northeast Quarter of Section 4,
Tewnship 33, Range 26, lying East of the Great Northern Railway, according to
the United States Government Survey LhereoL and situate in Sherburne County,
Minnesota.
That part oL~`_"- South 200 feet of the Southwest Quarter of Section ~_-
lyin ~~ the ~ "
Township 34, Range ~erburne County, Minnesota, ~
following described line; C~°'T° _~ - at the S - corner of the Southwest ~ '
Quarter; thence east along the Sou -- e Southwest Quarter, a distance ~~~ t! 1'
of 1722.70 feet to the .-- - oint of beginning 4 '~.1-ine to be described;
thence Nor'theas - ~_ "aeflecting 79 degrees 26 minutes 37 se "_' ~ eft to the
North 1' 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 1Xing westerly of the following described real estate, to-wi t:
Commencing at a point on the North line of the said North Half of the Northwest
Quartet G50 fceL- distant west of the inl•crsection ChcreoC 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 Unite d States
Government Survey thereof and situate in Sherburne County, Minnesota.
PARCEL r
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-
cv 2ddF2f1F
~I~I~~IIII`*#(~ ~* OLD REPUBLIC
~a ~ w,w...~ new h..ue.~u u.•r^Y
Sherb;:rz-e County, Minnesota, lying east of a line described as Beginning a~ a
point c the Narth line of said Northeast Quart°°-r of the Northwest Quarte r a
d:- -~noe~of 550 feet west of the intersection of said North line with the
w~~ _e rly right-of-way line of U. S. Highway No. 169; thenYeGsouth`P~a=sec t the
with the west line of the North Half of the Northwest Quart__ to
South lire of said Northeast Quarter of the Northwest Quarter and there
t e rr~:i nat ing .
pe''~RC~L i
That part of the Northeast Quarter of the Nortrwest Qua~teSOO~nSeoct~n~ South
Township 33, Range 26, Sherburne County, Minnesota, ly_.g
line of the North x70 feet, as measured at right angles, thereof and lyin g
west of the following described line: Commencing at the point of
Qu_rt_r of the Northwest
intersection of the North line of said Northeast
Qu~r ter with the westerly line os" the right-of-way of U. S. Highway No. 3.59;
thence southerly along said highway right-of -way to intersect a line para llelt
with and 470 feet South of, as measured at right angles to, said North li re oL
the Northeast Quarter °e ofe558rfeetsto thetactualePoi teof Beginnir_gdof the
parallel li*?e a distan~
line to be hereby described; thence South at right angles tc irt~rsect t}i°
South line of said Northeast Quarter of the Northwest O_uarter ar_d there
terms inuting.
Y'
t
POLICY ~7MBSR:
SV 2446206
IX.* 4
~~ `« OLD REPUBLIC
III.«~ * ltaUeNl TXt1 In~uranc. G.nW"1'
REQUEST FOR ACTION
ver
To
Planning 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 Mana ement, Inc - CU 10-09 Peter Beck, Ci Attorney
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~ighway 169/Agriculture Commercial Reserve CRT (ME)
West Agriculture/Open Space Rural Residential Al
Case File: CU 10-09
Page 2
Introduction
Tiller CUP
City of E1kRiver
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 preparatoryto 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..
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Page 3
Attachments
Tiller CUP
City of Elk River
• Location Map
• Tiller Corporation application and narrative
• The existing 1996 Tiller C[JI'
• Staff report, excluding attachments, dated May 11, 2010 to the Planning Commisssion, 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 Pexinit (Section 30-654)
The issuance of a Conditional Use Permit can be ordered only if the use at the proposed
location:
7. LVill not endanger, i1 jure or detrimelatally affect the use and e1 joyment of other p~~pez y in the immediate
vicinity or the public health, safety, morals, comfort, convenience o~°gerreral avelfare of the neighborhood or the
~iy.
2 Till be consistent with the comprehensive plan.
3. mill not impede the nor~rraal and order y development and improvement of surrounding vacant proper y.
4. LVill be served adequately by acrd will not adversely affect essential public facilities and services including
streets, police and fire protection, d9ainage, refuse disposal, avater and seiner ystems, parks and schools; and
will not, in particular, create traffic congestion or interference with trafc on adjacent and neighborzng public
thoroughfares.
5. 1,Vill not involve uses, activities, processes, materials, equipment and conditions of operation that will be
detrimental to ary persons or property because of excessive traffic, noise, smoke, fumes, glare, odors, dust or-
vibratioras.
6. 1,Vill not result in the destrzrction, loss or damage of a natural, scenic or historzc feature of major importance.
7. 1-Vill fully comply with all other requirements of this Code, including ary applicable requirements and
standards for the issuance of a license or permit to establish and operate the proposed use in the city.
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Page 4
Tiller CCTP
Catyof 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 complywith 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 CUP, 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 none 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 boundaryof 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 constnzction, 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.
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.
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Case File: CU 1409
Page 5
Planning Commission Action A2otion by Second by Vote
Follow Up
Tiller CUP
Cary of Elk River
N:\Departmerrrs\CommuniryDevelopmern\Planning\Case Files\CUP\CU 1409 Tiller Corp\Staff repon to PGCU 1409.doc
~''~,/i
.~..-.
Elk
River
-~
F~.nP
REQUEST FOR ACTION
To
Plannin Commission Item Number
5.2.
Agenda Section Meeting Date Prepared by
Planning May 11, 2010 Rebecca Haug,
Environmental Admin
Item Description Reviewed by
Request by Elk River Landfill to amend Conditional Use Pernlit 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 CitS= Council on whether to amend the existing Conditional Use Permit
(CUP) and Solid Waste Facility License (SWFL) fox 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 fox 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 CitS=
must approve, approve with conditions, ox deny= the
ro' ect b June 22, 2010
Requested Action Amend CUP &SWFL
Location and Size 22460 Highway 169
Location Existing Land Use Land Use Plan Current
Designation Zoning
Property in Landfill Landfill Al (ME) (SWF)
Question
North Livonia Township N/A N/A
South Muzeral Excavation Mining Al (ME)
East Highway= 169/Agriculture Commercial Reser~=e CRT (ME)
Case bile: CU l(~-08 ERI. CUP
Page 2 Cih' of P11: Rig=er
West Agriculture/Open Space Rural Residential Al
Introduction
A~~li~tion~{or 709-acre Ea~an.rion
In 2009, Elk River Landfill requested a Land Use Amendment, Zone Change, Conditional Use
Permit and Solid Waste Faciitl= 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 fox a Conditional Use Permit and Solid Waste Facilities License to e~-pand 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.
CoJaditional Use Permit and Solid T~Iaste Facility L,a'cesa,re
- - Following denial of the requested Land Use Amendment and Zone Change, Elk Ri`=er Landfill sued
the CitS= in Sherburne County District Court. The Landfill filed a second lawsuit follow=ing denial of
the Conditional Use Permit and Solid Waste Facilities License. Sherburne CountST District Judge
Robert Varco issued an order in the first lawsuit on Ap~l 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.
~t~liration fo~•AmendedlKesae~ed Cosaditional Use Permit and Solid i~a.rte Facility License
Because the Landfill's then existing CUP and SWFL e~~pired 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 Cit3= 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.
~~lication to Re~osae to SWrF and ke guide to `2 and~ill"
In the course of the litigation, it came to the attention of CitS= staff that due to confusing and
possibly conflicting legal descriptions fox 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 CitSr initiated a zoning of the entire Landfill property with a new,
simplified legal description into the SWF District. On April 19, 2010, the CitS~ Council adopted an
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Page 3 City of Lill: River
ordinance implementing this zoning. A copy of the staff report and the Ordinance are attached for
the Planning Conunission'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
entice Landfill property as "Landfill". Therefore, the CitST initiated an amendment of the Land Use
Map, which will be acted on by the CitS~ Council on May 17, 2010. A copy of the staff report and
proposed CitS~ Council resolution adopting this amendment to the Comprehensive Plan axe attached
for the Planning Commission's reference.
Solid baste Facilities O~ dinance Amendment
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 CitS= Code to reaffirm that required
buffer areas and buffer zones for Solid Waste Facilities must be located witlvn the SWF Overlap
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.
TI~e Presesat A~lication to ea~iand the Landfill into the E.~~zstinQ 200~oot Bu~fer 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 re~riewed 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 Construction Details. The application materials lack a
number of details, including engineering and construction details related to the leachate
management s~7stem, a detailed storm water management plan, design details for die Landfill
gas system, and others. If the Cit~T Council were to approve the requested amendment to the
Conditional Use Permit, additional detail in several of these areas would be requv:ed 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-
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Page 4 City of>;Ik 12iver
100(b) 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 pro~rides 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, u'~e 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 CitS~ 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 visibilit~~ of the Landfill, making landfill operations clearly
risible 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 Landfill's property and out of the Solid Waste
Facilities Overlay Zoning Distuct. 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
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Page 5
>;lu, c.(IP
Citt~ of L-']k 12iver
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 southel-n 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
• 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 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
• 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
Applicable R~ulations
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. 1X~ill 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 orgezaeral welfare of the neighborhood or the
city.
2. 1-Vill be consistent. with the comprehensive plan.
3. bill not impede the normal and orderly development and improvement of surrounding vacantprope~ y.
4. iVill be ser~~ed adequately ly and will not, adverse~~ affect essential public facilities and se~~r~icer including
streets, police and, fire protection, drainage, refzrse disposal, water and sewer systems, parks asad schools; and
will not, in pa~~2icular, create traff c congestion or interference with tra~ic on adjacent asad neighboring public
thorougl fares.
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5. will not involve uses, activities, processes, mateszals, equipment and conditiozzs of operation that will 6e
detrimental to as~~ persons or proper~t because of excessive tra~c, noise, smo,~e, fumes, glare, odors, dust or
vibrations.
6. l.Y~ill not result in the de.rtzzrction, loss or damage of a natural, scenic or historic feature of major importaszce.
7. i~~ill fully comply with all other requirements of this Code, including any applicable requirements and
standa~ ds for the issuance of a license or permit to establish asad operate the proposed use in the czty.
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. Cit<~ Code Defuutions and Standards for Solid Waste Facilities
Defuution 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 z7ghts, 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 prov=isions of
this Code.
Provisions of the city Solid Waste Facilities Ordinance:
Section 30-1834 (e)
(3) Solid Waste Facilities rest~cted to SWF -Solid Waste Facilities Overlay District. No
Solid Waste Facility, including any portion of a Solid Waste Facility, any easements,
water or air rights, all storm water management facilities and buffer areas or buffer zones
required, needed or useful for the establishment and/or operation of the Solid Waste
Facility=, with the exception of facilities necessary for monitoring the offsite impacts of
the facility= on ground and surface water, shall be located or operated in the CityT 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 sights, 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 ox operated in die City except in those areas of the City
located within the SWF -Solid Waste Facilities Overlay Zoning District.
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• Section 58-171 (8)
(8) 200 feet from the nearest propert~~ which is not located within ME SWF -Solid
Waste Facilities Overlay Zoning District.
C. State Re~ulations_(iyTinn. Rules, Part 7035.2815, Subp. 5(C)
(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 Ptan
According to the Landfill, the 200-foot buffer zone which they propose to fill with solid waste was
not entirel3T within the CitS~'s SWF Zoning District until the City Council's April 19, 2010 action
zoning the entire Landfill into the SWF and ME Overlay 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 CitS~'s, and we believe, the Landfill's
long time understanding and intent that the entire Landfill property between the rail trail and
Highwa~T 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.
AnalXsis
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 ~X~aste 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
propert3r appears to be inconsistent with the state regulation that requires any new fill area to be
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located at least 200 feet from the nearest property line. No evidence. of a conveyance of property= by
the adjoining landou=ner 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 Overlay District also is a violation of the City Code
sections set forth above, as is the location of landfill infrastructure, including groundwater
monitohng wells, gas probes, storm water management facilities and sere=ice 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.) Will detrimentally affect the use and enjoyment of other property= in the immediate vicinity
because Landfill acti~rities will be considerably more visible than at present and will extend for a
considerably= longer period of time;
2.) Is not consistent with the CitS=' 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 2215` 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.
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Planning Commission Action ti7oaon by Second b5~ Vote
Follow Up
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REQUEST FOR ACTION
To
Ma r & Ci Council Item Number
J, c},
Agenda Section Meeting Date Prepared by
Planning May 17, 2010 Rebecca Haug,
Environmental Admin
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~or 109-acre Ea~ansion
In 2009, Elk River Landfill requested a Land Use Amendment, Zone C~iange, 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. On 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 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.
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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
oppominity.
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 arith its proposed expansion' appears to
either compel the City to legalize the Landfill's 2009 proposed expansion, or prohibits the CitS= from
enforcing its laws against that expansion." The Landfill, however, sought a dismissal of the CitS='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 municipalityto 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 fast action, ERL would have to, as it has done, obtain from the
district court a declaration that CitS-'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 Laa= in Support of its Rule 127 Motion to Dismiss Appellant
CitST of Elk 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 a=as "expressly aware that its declaratory
judgment claim, `standing alone,' could not compel [the] CitS='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 by the 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 City to 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 City 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.
A1~~lication forAmeJaded/Keneaved Conditional Use Permit (CUP) and Solid baste Facility License (ST-YfFL)
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Because the Landfill's then existing CUP 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.
At~~lication to Keryone to S1~F and Ike-nuide 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 Taste 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 CitST 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 L'se
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 i~aste Facilities Ordisaasace Amendment
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 PresentAt~t~lication to expand the Land~ill into the E.~~zsting 200~oot Bu~fer 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.
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Matt Ledvina, the City='s Environmental Consultant, has rez=iewed 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 relaxed 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 see=eral 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(G)), 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 neap 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(G). 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. On 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 regulaxion 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
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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 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.
On 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 4-7 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. (HKGi) 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 Cwerlay Zoning District.
Infrastructure which would be moved off-site includes groundwater monitoring wells, landfill gas
monitoring probes, a service road around the southern 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
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opportunities 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 possibility.
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 CtJP, but staff sees no potential issues vrith such an amendment.
c. Considerable additional waste capacity could be gained by implementing a
leachate recirculation system for the landfill, which has been approved bythe
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. mill not endanger, i~ jure or detrimentally affect the use and e1 joyment of other property in the immediate
viciniy or the public health, safety, morals, comfort, coraveraience orgeraeral avelfare of the neighborhood or the
~y.
2. i.Ylill be consistent with the comprehensive plan.
3. mill not impede floe normal arad orderly development and improvement of surrounding vacant property.
4. Will 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
avill not, in particular, create tra~c congestion or interference avith trd~c on adjacent and neighboring public
tloorougl fares.
~. bill raot involve uses, activities, processes, materials, equpment and conditions of operation that avill be
detrimental to ar~r persons or properi~~ because of excessive traf ic, noise, smoke, fumes, glair, odors, dust or
vibrations.
6. 1Ylill rant result in the destruction, loss or damage of a natural, scenic or historic feature of major importance.
7. mill fully comp~~ avith all other requirements of this Code, including any applicable requirements and
standards for the issuance of a license orpermit to establish and operate floe proposed use in the city.
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City of Elk River
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 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 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 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 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.
~ Section 58-171 (8)
(8) 200 feet from the nearest propertywhich is not located within ME SWF -Solid
Waste Facilities Overlay Zoning District.
C. State Regulations (Minn. Rules, Part 7035.2815, Subp. 5(G
(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 bythe commissioner based on existing filling
procedures, existing site structures, the facility design, compliance boundaries, and existing land
restrictions.
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Page 8 Cin~of E1kRiver
Zoning-and Comprehensive Plan
According to the Landfill, the 200-foot buffer zone which theypropose to fill with solid waste was
not entirely arithin the CitS~'s SWF Zoning District until the City Council's April 19, 2010 action
zoning the entire Landfill into the SWF and ME Overlay Districts. Similarly, at present the eastern
edge of the 200-foot buffer zone proposed to be filled is not cu~entl~T guided "landfill" on the Land
Use Map element of the 2004 Comprehensive Plan. However, staff has proposed, and the City
Council mill consider on May 17, 2010, an amendment to the Comprehensive Plan that will
designate the entire Landfill propert~~ 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.
Summary
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 regulation 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 regulaxion.
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
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Page 9
ERL CUP
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 Pernut.
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 4-7 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 221ST 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 109 acre expansion.
iii.) Will impede the nom~al 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
particular 221ST 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 minimum, extend for
an additional 4-7 years the time period that surrounding properties will be subject to
noise, odors, and dust.
vi.) Will result 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 221st
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
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Page 10 City of Elk River
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 Apri119, 2010 Ordinance Zoning the Landfill property SWF and ME
• Staff report and proposed Resolution designating the entire Landfill pxopertST as "Landfill" on the
Land Use Map element of the City 2004 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 May 14, 2010, from Matt Ledvitla, CitSTs Environmental
Consultant
• HKGI Studies: North I~ighway 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
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RESOLUTION NO. 10- lg
City Council
City of Elk River
A Resolution Denyin~ the Application of EIk River Landfill. Inc. to Amend its Existing
Conditional Use Permit and Solid ~~Vaste 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 Group, a land holding company for Tiller Corporation (Tiller),
is the owner of an approximately 109-acre parcel of land identified as the Southern Development
Area (SDA) located immediately south of the existing Landfill; and
WIiEREAS, 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
Facilities License SWFL to allow ex ansion of the Landfill b develo in the existin 200-foot
( ) p Y p g g
buffer zone on the south side of the Landfill for the deposit of Municipal Solid Waste (MSW);
and
WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City
Cade, the Application was referred to the City of EIk 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
i
who desired to speak at the May 11, 2010 public hearing; and
WHEREAS, the Planning Commission closed its public hearing on the Application on
May 1 l; 2010 and made a recommendation to the Elk River City Council that the Application be
denied; and
WHEREAS, the Elk River City Council, on May 17; 2010, held a public hearing on the
Application and considered the Planning Commission's recommendation; and
WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the
May 17, 2010 public hearing before the City Council were provided the opportunity to do so;
and
WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members
of the public prior to and at the public hearing on May 17, 2010 were accepted into the record;
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:
FII~TDINGS OF FACT
1. The Landfill was first approved to operate on 40 acres of land in 1971 and first
permitted by the Minnesota Pollution Control Agency in 1972.
•
2
2. The Landoll was granted its first approvals and permits by the City of Elk River
pursuant to the City s Solid Waste Facilities Ordinance in 1988.
In 1997, the City granted approval for the Landfill to expand the area approved
for Mixed Solid Waste (MSW) disposal from its original 40 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 7~ 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
f the Landfill would be extended from four 4 to seven 7 ears but there is conflictin
o 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 onto the
entire 109-acre SDA (the "March 2009 Application"). This application was considered by the
Planning Commission and City Council at a number of meetings, which extended from June
2009 until October 2009. The March 2009 Application for a Comprehensive Plan amendment
and rezoning was denied by the City Council on September 21, 2009. The March 2009
Application for a Conditional Use Permit and Solid Waste Facilities License was denied by the
City Council on October 19, 2009. The information submitted to the City Council prior to its
September 21 and October 19, 2009 decisions regarding the March 2009 Application, including
the staff reports presented to the City Council, along «~ith the resolutions adopted by the City
Council denying the March 2009 Application, are hereby incorporated in the Ciry 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 «~aste 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
® utio to b the i ouncil's
resol ns adop d y C ty Council, are hereby incorporated m the City C
consideration and decision with respect to the current Application.
9. The Application presently before the City Council to amend the existing CUP and
S~s1FL proposes to expand the Landfill by developing the existing 200-foot buffer zone on the
southern boundary of the Landfill for the deposit of solid waste.
10. Although the application materials submitted with the Application indicate that,
from an overall engineering standpoint, the design of the proposed expansion into the buffer area
is feasible, ERL has not submitted sufficient materials, including engineering and construction
details related to the leachate management system, a detailed storm water management plan,
design details for the Landfill gas system, and others, for the City to approve the requested
amendment to the CUP and SWFL.
4
11. Minnesota Rules, part 7035.281, 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 Corninissioner 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 240 or more feet from the proposed fill
area and bring the proposed expansion into compliance with the state regulation. 1~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,
«~ith the exception of facilities necessary for momtonng the offsrte
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 «jaste Facilities Ordinance) of the Elk River
City Code provides:
(b) Location of Solid Waste Facilities. No Solid Waste Facility, including
any portion of a Solid Waste Facility, any easements, water or air rights,
all storm water management facilities and all buffer areas or buffer zones
required, needed or useful for the establishment and/or operation of the
Solid Waste Facility, with the exception of facilities necessary for
monitoring the offsite impacts of the facility on ground and surface water,
shall be located or operated in the City except in those areas of the City
located within the SWF -Solid Waste Facilities Overlay Zoning District.
16. Section 58-171(8) (in the City Solid Waste Facilities Ordinance) of the Elk River
City Code provides that waste disposal areas within a sanitary landfill are prohibited from certain
areas, including within::
(8) 200 feet from the nearest property which is not lacated 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 Jells and gas monitoring probes, a service road running around the
southern boundary of the Landfill and, potentially, storm water management facilities, will be
located outside of the Solid Waste Facilities Zoning District. Therefore, the City Council finds
•
6
that the expansion as proposed in the Application violates Sections 30-1834(e), 58-100(b}, and
58-171(8) of the Elk River City Code.
18. The current, approved CUP for the Landfill, approved by the City Council on
February 16, 2010, provides, in paragraph 3, for the preservation of trees within the 200-foot
buffer zone during the construction and operation of the Landfill, and that preservation of trees
be included in the end use plan for the Landfill. Therefore, if the existing buffer zone is not
developed for the deposit of solid waste, the existing topography and the existing mature, native
trees will remain.
19. The existing topography and mature, native trees in the 200-foot buffer zone on
the southern boundary of the Landfill act as a visual screen of the Landfill and Landfill
operations from 221St Avenue and surrounding residential areas. If the Landfill stays ~~Tithin 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 5 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 Ends that the proposed expansion of the Landf 11 into the 200-
foot buffer zone does not meet the standards set forth in § 30-6~4 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 Pian 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
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 minimtun, extend
for an additional four to seven years the time period that
surrounding properties will be subject to noise, odors and dust,
which have all been persistent problems with the Landfill in the
past.
v. In addition, there are environmental impacts and risks inherent
with the Landfill land use which cannot be mitigated other than by
limiting the expansion of the Landfill.
D. Will result in the destruction, loss or damage of natural features
which are of major importance.
i. Expansion of the Landfill into the existing 200-foot buffer zone
will result in the destruction and loss of the existing native, mature
trees and natural topographic conditions which screen and buffer
Landfill activities from 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 S~7ijF district, does not comply with pro~risions of the City of
Elk River Zoning Ordinance and Solid «~aste 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 ~Tithin the area currently zoned S~jJF -Solid
Waste Facilities Overlay and guided "Landfill" available to it at present. The Landfill has
expanded from its origina140 acres of land in 1971 to approximately 168 acres of disposal areas
for mixed municipal sold waste and construction and demolition debris.
25. Since 2004, the waste capacity of the Landfill has been expanded with approval
by the City of a leachate recirculation system which results in faster decomposition of waste and
expansion of the capacity of the Landfill to receive waste. The Landfill has also received
approvals to expand its gas to electricity facility and to construct new storage buildings and
retain existing buildings previously required to be removed.
26. The City Council finds that the Landfill has considerable opportunities to expand
the waste capacity of the Landfill and extend the Life of the Landfill without destroying the
existing buffer zone on the southern edge of the Landfill and the screening which that buffer
zone provides to 221st Avenue and surrounding properties.
27. The Landfill has approximately nine acres in the northeast portion of its property
that could be utilized for Landfill expansion. Development of this area for the deposit of Solid
Waste would require consolidation and relocation of existing facilities, and an amendment of the
existing CUP and SWFL, but would require no amendments to the Comprehensive Plan
designation or zoning of the Landfill property. The City sees no obvious technical issues with
development of this area for solid waste disposal and encourages the Landfill to investigate this
possibility. The Landfill could also gain another acre of fill area by moving the south boundary
10
of cell 17 20 feet to the south. This would also require an amendment to the existing CUP, but
the City sees no potential issues with such an amendment. Ms. Stephanie Stolz; on behalf of the
Landfill, stated, with respect to expansion in those areas, that the Landfill is not saying it can't be
done; it would just be very costly. There are also additional opportunities to implement leachate
recirculation systems which could add considerably to the ~~~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 SWFL for the Landfill, and subject to the Landfill
providing the necessary construction details «~hich would allow the City to evaluate and analyze
the proposed expansion; including engineering and construction details related to the leachate
management system, a detailed storm water management plan, design details for the Landfill gas
system and others as required by the City's consultant.
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 Fmdulgs of Fact set forth above, the Application of ERL to amend the
existing Conditional Use Permit and Solid Waste Facilities License for the Landfill to
allow expansion of the Landfill by developing the existing 200-foot buffer zone on the
south side of the Landfill for the deposit of solid waste is hereby denied.
THIS RESOLUTION PASSED AND ADOPTED this 17th day of May, 2010.
- ,
Steph 'e Klinzing, r
~.
Tina Allard, City Clerk
GP:2629426 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 Environmental 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 current 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 requu•ed by City ordnance. The engineering plans
for the request show that landfill facility featut•es, 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 fiorn then waste fill setback rule of 200 feet fi•om the property boundary (MN Rules Part
7035.2815, Sub. 5. C.).
Page 1-1 Background
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.
Pale 2-4 Groundwater
The expansion will require the abandonment of monitoring wells/piezometers 2090WA, 2130WA and
P213B as part of the development for Cell 18 and this should be complete according to Minnesota
Deparhnetrt 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 P11ase N Water Quality Monitorng Work Plan will be required to address the replacement
of monitoring welUpiezometers 2090WA, 2130WA and P213B.
ERL has installed numerous monitoring welUpiezometers outside of the current buffer area in order to
investigate d1e nature and extent of contaminant migration associated with the historic unlined waste
deposit. For the lined expansion of ERL, monitoring welUpiezometers and gas probes would typically
be located withui the 200-foot buffer area surrounding the waste deposit.
Page 2-7 Proposed Landfill Desi~r-
From an overall engineering standpoint, the design of the Cell I8 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) 887-9607 Fax: (952) 887-9605 www.landmarkenv.com
a.~
Ms Rebecca Haug
May 6, 2010
Page 2 of 3
design. Basegrades are acceptably configured with sufficient vertical separation from the gl•oundwater
elevation based on historic monitoring data. The liner system and final 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 ni relation to the existing leachate management 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 Gradin /Dg rainage 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 over the perimeter access road and then offsite to the property to the
south. Significant erosion is anticipated for the steep exterior berm slopes which are proposed at a 2:1
ratio. The perimeter access road needs to be redesigned to include au 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
fill limit of Cell 18.
Page 3-9 Leachate and Gas Collection S, std ern, pa eg 310
ERL proposes leachate recirculation for Cell 18. This operation will greatly increase the amount of
landfill gas tlTat will be generated from the landfill. The prunary 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 Celi 18 liner
system. The supplemental LFG collection piping must extend up the sideslopes to enable corniection 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 maximum area
allowed for inactive fill areas prior to placing temporary final cover need to be identified by the
applicant.
Page 3-10 Construction Quality Assurance Reports
ERL must prepare detailed record 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 witlun 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. From
the plans submitted, the current capacity of P2 is approximately 1 ac-ft or less. The design plans
Ms Rebecca Haug
May 6, 2010
Page 3 of 3
presented with the request do not show the construction of P2 and are not consistent with the
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 1$ fugal cover slope (as indicated
above).
Please contact me if you have any questions or continents regarding my review of the ERL request far
amendment of the License/CUP.
Sincerely,
mar n lr 1 ental, LLC _..-
Matthew L. Ledvina, P.E.
Project Engineer
F:\PROJECTS\CER-City of Elk River\2009-07.01\Corr\Letters 2010\It100506Haug.doc
BRIGGS
June 11, 2010
VIA E-MAIL
EIk River City Council
13065 Orono Parkway
Elk River, MN 55330
Attn: Stephanie Klinzing-Mayor (mayorer@q.com)
Nick Zerwas-Ward 1 (nick.zerwas@ci.elk-river.mn.us}
Jerry Gumphrey-Ward 2 (iwgump@yahao.com)
Matt Westgaard-Ward 3 (westgaard@nsatel.net)
Paul Motin-Ward 4 (pmotin@aol.com)
Re: TiIter's requested mining CUP amendments
Dear Councilmembers:
Jack Y. Perry
(612}977-8497
jperry@briggs. cam
City staff recently reiterated that "[m]ining of .the Landfill property is conducted in
connection with ... ERL['s] landfiliing activities. As ERL needs to expand in a new cell, Tiller
mines the cell removing the ground so that liners can be installed and the cell ftted with solid
waste." Ex. 189 at 2. Setting aside ERL's landfill expansion requests, ERL needs to
immediately expand a new cell within the existing landfill property but outside of the buffer area.
To do so, Tiller needs, consistent with the parties' standard practice since 1996, to first mine the
buyer area as soon as possible. For undisputed logistical reasons, Tiller needs to promptly
commence the mining of the aggregate in this buffer area or forever lose its $5.5 to $8.b nniliion
value. S/12/10 Stolz Aff. '~ 7{b). As reflected in the City staff report, there is neither an
o erational nor an environmental reason for City to deny Tiller's requested mining within this
buffer area. Ex. 189. Rather City staffs sale substantive issue with mining in this buffer area is
its trumped up concern with the loss of screening for the view shed from 221st Avenue looking
north. Id. The fallacy of this concern has been exposed; Tiller's existing earthen berm with trees
along 221st Avenue already fully screens the buffer area.
As Planning Commissioner Anderson effectively conceded, the real reason for denying
Tiller's rmnina request is to be "consistent with" and "not conflict" with last month's denial of
ERL's landfill request. But stopping ERL's landfill expansion is no reason to deny Tiller's
mining expansion, particularly given that Tiller's minin expansion within the 200-foot buffer is
in no way dependent on ERL's landfill expansion.
2Z00IDS Center
80 South 8th Street
Minneapolis MN 55402-2157
tel 612.977.8400
fax 612.977.8650
Briggs and Morgan, Professional Association
Minneapolis I St Paul 1 wwwbriggs.com
Member - Lex Mundi, a Glohal Association of Independent Law Firms
BRIGGS AND M O R G A N
Elk River City Council
June 11, 2010
Page 2
At the June 8, 2010 City Planning Commission hearing, the Planning Commission voted
4-2 to recommend the denial of Tiller's requested mining CUP amendments to mine within the
200-foot buffer of ERL's existing 137.4-acre landfill property. The Planning Commission's
recommendation, if followed by City Council, will be a severe economic blow to Tiller during a
trying economic time for the mining industry. A denial will also send a chilling message to
Tiller and the rest of City's significant mining industry and labor force. As Planning
Commissioner Lemke pointed out in advocating for the approval of Tiller's request, City's fight
is with the landfill, not with Tiller or the mining industry.
Two Planning Commissioners were in favor of Tiller's request (i.e., Paul Bell and
Lemke) and four were against it. Despite the split vote, each and every one of the four Planning
Commissioners who spoke appeared to agree upon the following:
1. The one and only issue is screening -that is, whether the destruction of
the trees in the 200-foot buffer will cause a "short"-term or "long"-term
loss of screening.
2. The potential loss of screening at issue is limited to the view looking north
from 221st Avenue -that is, the east and west views will be unaffected
because the trees within the 200-foot buffer on the east and west will be
undisturbed.
There is no legitimate concern with the "short"-term loss of screening
because {a) there is an existing earthen berm with trees along 221st
Avenue (Ex. 185) which is effective and (b) Tiller and ERL have both
pledged their willingness to not only enhance as necessary but also
maintain this screening as reasonably required by the City (which can be
reinforced by City's imposition of CUP conditions}.
Planning Commissioner Anderson, speaking for the majority, clarified that the concern is
with the "long"-term loss of screening when Tiller's existing earthen berm with trees along 221st
Avenue is removed and the landfill is exposed from 221st Avenue. He identified two scenarios
when this could happen -namely, when either (a) Tiller's 108.8-acre SDA is "commercially
developed" after the aggregate has been mined or (b) MnDOT constructs its TH 169/221 st
Avenue interchange. Because Planning Commissioner Anderson`s concern regarding the
purported "long"-term loss of screening arose for the first time after the public testimony portion
of the hearing had ended, neither Tiller nor ERL had the opportunity to address his new concern.
That was unfortunate because Planning Commissioner Anderson's concern is easily debunked.
The "short"-term view shed at issue is the visual impact, if any, from 221st Avenue
looking north due to the destruction of the trees within the middle of the 200-foot buffer while
Tiller's earth berm with trees along 221st Avenue is in place. Exhibit 185 and a 30-second drive
B R I G G S AND M O R G A N
Ells River City Council
June 11, 2010
Page 3
along 221st Avenue prove that Tiller's existing screening along 221st Avenue already visually
screens any such loss of trees within the interior of the property. Indeed the only break in this
screening is due to Tiller's narrow site entrance along 221st Avenue. Tiller and ERL are,
nevertheless, willing to further enhance this existing screening along 221st Avenue to address
any reasonable concern raised by City. For example, to the extent that City can substantiate that
the view shed from 221st Avenue looking north at Tiller's existing entrance on 221st Avenue,
coupled with the destruction of the trees in the middle of the 200-foot buffer, would cause a
material adverse visual impact, then it can impose a CUP condition requiring Tiller to erect an
earthen berm immediately inside its entrance on 221st Avenue which would screen this view of
the affected area.
Per the district court's April 2, 20 i 0 Order, any reference to the existing screening of this
view shed as "short"-term is a complete misnomer. Per Tiller's testimony with regard to ERL's
March 30, 2009 requested expansion of the SWF overlay district onto the 108.8-acre SDA, Tiller
will not finish mining the 10$.8-acre SDA until "approximately the year 2070" unless ERL's
73.4-acre landfill expansion is approved. ERL 14/2/10 Order at 10, Finding 30; id. at 11,
Finding 38; id. at 30. Thus, because of City's September 21, 2009 denial of ERL's requested
expansion of the SWF overlay district onto the 108.8-acre SDA, the district court has already
determined that City is "unable to plan anything for that property for sixty years." Id.
City has, moreover, already recognized that the existing trees within the middle portion
of the buffer could be replaced with "a new berm and screen" literally decades before the site
could be developed for anon-mining commercial use in "approximately the year 2070." City's
May 17, 2010 denial of ERL's requested CUP/license amendments far the 13-acre landfill
expansion contained the following finding of fact:
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 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 years that the Application indicates the Landfill would
remain open as a result of the proposed expansion, for a total of seven to ten
years. It would be man~years after that before new trees on a new berm would
reach maturity and provide a screen comparable to the existing mature, native
trees.
Ex. 188 at 7-8, Finding 21. Using City's timeline "of the remaining three years of capacity
within the Landfill" exclusive of any expansion (id. ), which is unaffected by ERL's previously
submitted estimate of "a minimum of 12 months" for mining the buffer area (5/12/10 Stolz Aff.
¶ 9), ERL's "new berm and screen" could be in place by approximately 2014 with those trees
reaching maturity within 8 to 12 years, or by 2022 to 2026. In other words, ERL's "new berm
and screen" would "provide a screen comparable to the existing mature, native trees" over 40
BRIGGS AND M O R G A (V
Elk River City Council
June 1 1, 2010
Page 4
years before Tiller's existing earthen berm with trees could be rendered obsolete in
"approximately the year 2070."
The only conceivable disruption of this "sixty year" no material visual impact from this
view shed is, as Flanning Commissioner Anderson speculated, MnDOT's construction of a new
interchange at TH 169 and 221st Avenue. But there is no record evidence to support that this
speculative construction project will occur any time before ERL's "new berm and screen" would
be complete and mature. In fact, the information on MnDOT's website shows exactly the
opposite. In MnDOT's April 2002 Highway 101/169 Corridor Management Plan at Vl, the
"[n]ew interchange at 221st Ave" is identified as a "Priority D" project, which means it is not
even scheduled until "[b]eyond 2025." Ex. 190. Even if the prospective interchange were
constructed, at the absolute earliest, in 2030, ERL's "new berm and screen" would already be
fully in place and effective.
Between the mining operator (i. e., Tiller} and the landowner (i.e., ERL), there are
arguably no two Minnesota companies better able to effectively address City Planning
Commission's stated concern with the requested mining CUP expansion -that is, with
screening the view shed looking north from 221st Avenue. Tiller and ERL stand ready to
address this and any other concern raised with the mining expansion. But they simply cannot
legally or practically be asked to address that which City has yet to substantiate.
In malting its decision, City Council is hereby notified that ERL and Tiller submit by
reference thereto into this administrative record all of the correspondence, applications, exhibits
and briefs filed by ERL relating to ERL I, ERL II, and ERL III, as well as any and all City records
regarding the same.
Since 1y,
Y. err
JYP
Attachments
cc: B. Jeffry (via email)
M. Ayers (via email)
D. Walters (via email)
S. Stolz (via email)
J. Asmus (via email)
2563868v5
Cit of
~~, ~, REQUEST FOR ACTION
Rsver
To
P Conunission Item Number
5.1.
Agenda Section Meeting Date Prepared by
P~anni a June 8, 2010 Rebecca Ham,
Environmental Admin
Item Description Reviewed by
Request by Tiller Corp. to amend Condixional Use Permit to Lori Johnson, City
allow muiezal excavation of approximately 13acres of property Administrator
owned b Waste ement, Inc - CU 10-09 Peter Beck, Attom
r .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 Co ration
60-Day Rule The application was submitted on February22, 2010
and deemed complete on March 4, 2010. The City.
_._ _ _ _ must approve, approve with. conditions, or deny the
re est b une 22, 2010
Requested Action Amend existin Conditional Use Permit '
Location and Size 22460 Highway 169
Location Existing Land Use Land Use Plan
Designation Current
Zoning
Propertyin
Question Landfill Landfill Al (Iv1E) (SWF}
North Landfill Landfill Al (NIE) (SW.~
South Mineral Excavation A~vaing ~ (~)
East I~ighway 169/Agxicultuxe Coinmeeicial Reserve GRT (ME)
West Agrice~ltuxe/Open Space Rural Residential Ai
EXHIBIT 189
c~ F~ cv iaa~
Page 2
Introduction
Tiller Q7P
Gryof E1kRiver
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 ('I"iller) is the successor to these entities and is cunrernly mining the Landfill property
pursuant to the i99b CUP.
Mtrling of the Landfill property is conducted in connection with EIlc River Landfill, Inc. (ERL}
landfiIling 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 preparatoryto and in connection with
ERL's subsequent landfilling, Tiller's mining activity is subject to the carne buffer requirement as the
Landfill. Section 3(20) of Tiller's 199b 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. Tn open areas where trees do not exist, screening
shall be accomplished bythe construction of a minimum six (b} 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 Zon„g/Screening., A Buffer Zone shall be established within the perir~ter of
the Landfill Propertyaround the waste disposal areas of not less than 200 feet, except on the
north side. Wrthiri this Buffer Zone, no waste disposal may occur. 't'he Landfill shall-
develop aninventory of significant tees within the buffer zone. The preservation of trees
within the buffer zone shall be provided for during the constnrction, operation, and be
included in the end use plan to be submitted for approval byDecember 31, 2011 bythe City.
C-n Februazy 22, 2010, Elk River Landfill, Inc. and Tiller Corporation filed separate applications to
amend their existing CUP's to allow expansion of ini ~ and landfi7luig 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
Counc>7 subsequently denied this request on Allay 17, 2010. Copies of the staff reports to the
Planning Commission and ~5' Council, and the ~' Council Resolution denying the Landfill's
request are attached
Tiller's request was held for consideration after the Councrl's decision on the Landfill's request,
because a decision on the Landfill's request is relevant to consideration of T'iller's request.
Tiller's request before the Planning Commission at this time is to amend Condition No. 3(20) of its
1996 C'LJP to allow removal. of trees and mining within the buffer area that is within 200 feet of the
Landfill's southpropertyline.
N:~Deparcmentc~c~maam;ryDev~topmenc~Plannmg~casc r'~s~cUP~cu lao9 TJkr coip~scatt,epo:c co rGCxl laos.aoc
Case Pile: GU 1409
Page 3
Attachments
r>~cuP
Gryof Ells River
• Location Map
• Tiller Corporation application and narrative
• The existing 1996 Tiller CUT'
• Staff report, excluding attachments, dated May 11, 2010 to the Planning Commisssion, CU 10-08
• Staff report, excluding attachments, dated May 17, 2410 to the CityCouncil for CU 10-OS
• Caty Council Resolution No. 10-18
• Letter dated May 6, 2010 from Matt Ledvina, City's Envimnmemal Consultant
~pplicabFe Re-gulation~
A. Standards for Issuance of a Con~.itional Use Permit ($ection 30-654)
The issuance of a Conditional Use Permit can be ordered only if the use at the proposed
location:
1. Will not endanger, injure or detrimentally affect the use and enj~ent of otherproperty in the immediate
vianiiy or the public health, safety, morals, comfort, convenience orgenerad welfare of the neighborhood or the
'•
2. Will be consistent with the comprehensive plan.
3. Will not impede the normal and orderly development and improvement of surrounding vacant property:
4. Will be served adequately by and will not adversely affect essential public facilities and services including
streets, police and firr protection, drainage, refuse disposal, water and sewer systems, parks and schools; and
will not, in particular, create traffic congestion or interference wish tra~c on adjacent and neighboring public
thoroughfares
S. Will not involve uses, acti-rities, processes, materials, equipment and conditions of operation that will be
detrimental to any persons or property because of excessive tra~rc, noise, smoke, fumes, glare, odors, dust or
vibrations
G. Will not result in the destructwn, loss or damage of a natural scenic or historic feature of major importance.
7. Will fzrlly comply with all other requirements of this Code, including arry applicable requirements and
standards for the issuance of a license orpermit to establish and opernte the proposed use in the city.
1Vc~Depaata~ena~Camsrn~nisy~nevr]cpmatt~Planning\Casc PiEes~c[A'~cv iao9'I~lrscoip~saff report co P~G~r 1a09.d«
c~ Fes: ou iao9
Tiller CUP
CStyof E1kRiver
Tf 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
T'iller'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 CUP, which
requires that the preservation of trees within the buffer zone shaIl 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.
Tn 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 Dave 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 adequaxe
screening and distance between landfill activities and the propeny to the south to help protect land
values and lirriit impacts to future uses of those areas.
Recommendation
Staff recommends that the Planning Commission recommend to the City Council that T'iller's
applicaxion 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, 20f0 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. Muzirig 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 22i~ Avenue and
surrounding properties to the south and west.
3. Mining the existing 200 foot buffer zone will resuh in the destnrction, 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 221 Avenue
and surrounding residential areas to the south and west will be removed, 'This existing
screening is of major importance iri that it screens landfill operations from surrounding
properties and will screen the Landfill permanently once operations cease.
4, ~ mina 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 ~Deputmeaa\Commm~ayDevelopment~P]amm~g\Cau Fiks~CCTP~CU Laos Tiller Co:p\Scaff sport co PGCCJ io-o9.cloc
Case Fite: Ct710.09
Page 5
Tiller C~7P
Cite of Elk River
Planning Commission Action Motion by second by
Follow Up
Vote
N:\Depanmcocs\Commm~i~yI?cvelopme~\I'lanning\Case Fiks\CxJP\CU 10.09 Tiller Corp\ScaEf report m PGGU 10-09.doc
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EXHIBIT 190
Contents -Select colored text to view section of document
Acknowledgements ..................................................................................................................................... vi
Acronyms ....................................................................................................................................................... vi
Executive Summary ....................................................................................................................................... I
1. Introduction and Corridor Vision ...............................................................................................1-1
1.1 Statewide Framework for Interregional Carridors .....:........................................................1-1
1.2 Corridor Management Plan Purpose and Strixcture ...........................................................1-2
1.2.1 Study Organization and Process .............................................................................1-4
1.3 Corridor Vision Statement and Need For Aciion ..................................................................1-7
1.3.1 Corridor Vision Statement .......................................................................................1-7
1.3.2 Purpose of and Need for Action .............................................................................1-8
2. Corridor Background .....................................................................................................................2-1
2.1 Trends and Forecasts ............................................................................................................2-1
2.1.1 Population ..............................................................................................................2-1
2.1.2 Employment ...........................................................................................................2-4
2.1.3 Land Use .................................................................................................................2-5
2.2 Environmental and Recreational Issues ...........................................................................2-13
2.2.1 State Parks and Wildlife Management Areas .................................................2-13
2.2.2 Four Brooks Dag Trial Grounds .......................................................................2-14
2.2.3 Sherburne National Wildlife Refuge ................................................................2-14 _ ,_
2.2.4 State Forests .........................................................................................................2-14
2.2.5 Rivers ....................................................................................................................2-14
2.2.b Boat Accesses .......................................................................................................2-15
2.2.7 Snowmobile Trails ..............................................................................................2-16
2.2.8 Environmental Justice ........................................................................................2-16
2.3 Related Plans, Policies, a~1d Studies ..................................................................................2-17
2.3.1 General ..................................................................................................................2-17
2.3.2 Possible New Parallel Highway-Northwest Metro Corridor &
River Crossing ....................................................................................................2-18
3. Existing and Future Transportation Performance ....................................................................3-1
3.1 Roadway Function and Cross 5ection ....................................................................................3-1
3.2 Analysis of Existing and Future Traffic Performance ..........................................................3-1
3.2.1 Traffic Volumes .........................................................................................................3-1
3.2.2 Travel Speed Performance and Predictability ......................................................3-6
3.2.3 Intersection Capacity Analysis ................................................................................3-9
3.2.4 Mainline Capacity Analysis ...................................................................................3-10
3.3 Access Inventory ..........:..........................................................................................................3-11
3.3.1 Access Spacing Review ..........................................................................................3-12
3.3.2 Access Risk Review .................................................................................................3-14
3.3.3 Traffic Signal Review ..............................................................................................3-14
3.4 Safety .........................................................................................................................................3-15
i~
~~'
TH 101 -TH 169 CORRIDOR MANAGEMENT PLAN APRIL2002
3.4.1 Segment Crash AnaIysis .........................................................................................3-15
3.4.2 Intersection Crash Analysis ............................... ....................................................3-15
3,4.3 Snow Trap Inventory .......................................... ....................................................3-21
3.5 Intermodal Issues/Uses ..................................................... ....................................................3-22
3.5.1 Future Northstar Commuter Rail Service ........ ....................................................3-22
3.5.2 Northstar Commuter Coach Service ................ ....................................................3-22
3.5.3 Possible Northwest Corridor Busway Service ....................................................3-22
3.5.4 Regional Transit Services ................................... ....................................................3-23
3.5.5 Interstate Bus Service .......................................... ....................................................3-23
3.5.6 Park-and-Ride Lots ............................................. ....................................................3-23
3.5.7 Freight Movement and Truck Issues ................ ....................................................3-24
3.5.8 Municipal Airports ............................................. ....................................................3-25
3.6 Mobility Risks ..........................................................................................................................3-25
4. Alternative Strategies to Achieve the Vision ............................................................................4-1
4.1 Corridor Alternatives ...............................................................................................................4-1
4.1.1 No-guild and Transportation Management Strategies ........................................4-2
4.1.2 Highway Capacity Improvements-Rogers to Onamia ......................................4-3
4.1.3 TH 169 Improvement Project- Onamia to Garrison ...........................................4-6
4.2 Comparison of Alternatives .....................................................................................................4-8
4.2.1 Level of Service ..........................................................................................................4-8
4.2.2 Speed Performance ...................................................................................................4-8
4.2.3 Safety Performance .................................................................................................4-11
4.3 Consensus Alternative ............................................................................................................4-14
5 Actian.Plan for Corridor Management 5-T
5.1 The Vision in Action ............................................................................................... ......:::......5-1
5:2 Identification of Highway Improvement Projects ..................... ..................... .....::.......5 2
5.3 Evaluating and Prioritizing Corridor Actions and Projects .......................................::....:..5-6
5.3.1 Project Performance Evaluation ..............................................................................5-6
5.3.2 Project Prioritization .................................................................................................5-7
5.4 Corridor Management Recommendations .......................................................................... 5-10
5.5 Unresolved Issues ................................................................................................................... 5-19
5.6 Funding the Vision .................................................................................................................. 5-20
5.6.1 Area Transportation Partnership .......................................................................... 5-20
5.6.2 Local Initiative Funding ......................................................................................... 5-21
5.6.3 Special Federal and State Programs ..................................................................... 5-21
5.6.4 State-Aid Allocations .............................................................................................. 5-22
5.6.5 Bonding .................................................................................................................... 5-22
Tables
1-1 IRC Priority Ranking and Speed Performance Goals .....................................................................1-2
1-2 Study Committee Structure ................................................................................................................1-5
2-1 City and County Historic and Projected Population Growth ........................................................2-2
2-2 Commuting Patterns in Study Area by County of Residence .......................................................2-5
2-3 Land Absorption Analysis ..................................................................................................................2-6
2-4 List of Wildlife Management Areas and State Parks Adjacent to TH 169 ..................................2-13
2-5 List of FubIic Boat Accesses adjacent to TH 101-TH 169 ..............................................................2-16
2-6 List of Snowmobile Crossings on TH 169 .......................................................................................2-16
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TH 101-TH 169 CORRIDOR tVIANAGEA9ENT PLAN APRIL 2002
3-1 Existing and Forecasted Traffic Volumes .........................................................................................3-2
3-2 Existing Crossroad Traffic Volumes for Mille Lacs County ........................................................ ...3-5
3-3 Existing and Future Travel Speed Performance by Growth Area ............................................. ...3-8
3-4 TH 101-TH 169 Existing and Future Signalized Intersection Capacity Under No-Build
Conditions ...........................................................................................................................................3-10
3-5 TH 101-TH 169 Existing and Future Mainline Corridor Performance Under Na-Build
Canditions ...........................................................................................................................................3-11
3-6 Existing Access Summary on TH 101-TH 169 - I-94 in Rogers to the north TH 27 intersection
located north of Onamia ....................................................................................................................3-11
3-7 Summary of Recommended Access Spacing .......................................................................... ...3-12
3-8 Mn/DOT IRC Access Spacing Categories and Existing Conditions ..........................................3-13
3-9 TH 101- TH 169 Corridor Crash Data Between Rogers and Onamia ...................:.....................3-15
4-1 TH 101-TH 169 Six-lane Signalized Intersection Capacity Analysis from
Rogers to Zimmerman .........................................................................................................................4-3
42 TH 101-TH 169 Six-lane Signalized Alternative Mainline Capacity Analysis from
Rogers to Ells River ...............................................................................................................................4-4
4-3 Analysis of Freeway Aiternatives ......................................................................................................4-6
4-4 Comparison of Future {2025) Speed Performance for Various Alternatives ...............................4-8
4-5 Future (2025) Speed Performance by Growth Area ...................................................................... 4-13
5-1 Potential Highway Capacity Improvement Projects ..................................................................... ..5-3
5-2 Highway Improvement Project Cost Summary ...............................................................................5-7
5-3 Highway Improvement Projects Benefit Cost Ratios and Cost Estimates ...................................5-$
5-4 Typical Design Distances Recommended Along The TH 101-169 Corridor ............................. 5-15
5-5 Mille Lacs County Primary and Secondary Development Nodes .............................................. 5=17
5-6 General STIP Schedule- .........~ ........... ......... .............................................................................. 5-21
Figures
1-1 Interregional Corridors ........................................................................................................................1-3
1-2 Corridor Map with Subareas ..............................................................................................................1-6
2-1 Historic and Projected Population Growth ......................................................................................2-3
2-2 Planned Land Use ................................................................................................................................2-7
2-3 Land Absorption ..................................................................................................................................2-9
2-4 Development Nodes ......................................................................:................................................... 2-11
2-5 NW Metro Corridor & River Crossing Study Area Location ...................................................... 2-19
3-1 Existing and Forecasted Daily Traffic ............................................................................................. ..3-3
3-2 Peak Period Weekday Travel Speed Performance ..........................................................................3-7
3-3 Segment Crash Rates and Crash Severity Distriburion ................................................................ 3-16
3-4 Segment Crash Rates & Crash Severity Distribution .................................................................... 3-19
3-4 Intersections with High Crash Rates ............................................................................................... 3-19
4-1 Estimated Peak Period Level of Service for Different Facility Types ......................................... ..4-5
4-2 Draft EIS Alignment Alternatives .................................................................................................... ..4-7
4-3 Existing and Forecasted Mainline Volumes and Performance .................................................... ..4-9
4-4 Overall Corridor Performance with 4-Iane Freeway from Rogers through Elk River ............. 4-12
5-1 Potential Highway Improvement Projects ..................................................................................... ..5-4
5-2 Typical Rural TH 101-TH 169 Cross Section .................................................................................. 5-13
5-3 Conventional Diamond Interchange for Rural Areas ................................................................... 5-14
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TW 101-TH 169 CORRIDOR MANAGEMENT PLAN
APRIL 2002
Appendices
A Agency and Public Involvement
B Corridor Issues Inventory
C CMP Endorsements
D Highway Improvement Project Evaluations and Cost Analyses
v
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Acknowledgements
Mn/DOT, along with its consultant CH2M HILL, would Like to thank the following corridor
partners for their involvement in this Corridor Management Plan.
Baldwin Township
Bogus Brook Township
City of Elk. River
City of Milaca
City of Onamia
City of Otsego
City of Pease
City of Princeton
City of Rogers
City of St. Michael
City of Zimmerman
Dailey Township
_ East Central Regional Development Commission
Federal Highway Administration
Hassan Township Board
Hennepin County
Hennepin County Department of Transportation
Livonia Township
Contacts Regarding this Pian:
Curt Eastlund, P.E.
Mn/DOT -District 3
1991 industrial Park Road
Baxter, MN 56425
{218)855-5021
Curt.Eastlund@dot.state.mn.us
Metropolitan Council
Milaca Township
Mille Lacs Band of Ojibwe
Mille Lacs County
Mi1Ie Lacs County Board
Mille Lacs County PIanning Commission
Milo Township
Minnesota Department of Natural Resources
Minnesota Department of Transportation
Minnesota Pollution Control Agency
Onamia Township
Page Township
..Princeton City Council..
Princeton Township
Sherburne County
Sherburne County Zoning
Wright County
Brian Isaacson
Mn/DOT -Metro
Waters Edge Building
1504 W County Road B2
Roseville, MN 55113
{b51) 582-3659
Brian.Isaacson@dot.state.mn.us
~~
Lynne Bly
Mn/DOT -Metro
Waters Edge Building
1500 W County Road B2
Roseville, MN 55113
(6S1) 582-1235
Lynne.Bly~dot.state.mn.us
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Table of Contents
Acronyms
AADT Annual average daily traffic
BNSF Burlington Northern Santa Fe
CMP Corridor Management PIan
CR County Road
CSAH County State-Aid Highway
EA Environmental Assessment
EAW Environmental Assessment Worksheet
EIS Environmental Impact Statement
IRC Interregional corridor
LOS Level of service
MFFTC Minnesota Federation of Field Trail Clubs
i
MNRRA Mississippi National River and Recreational Area
I
Mn/DOT Minnesota Department of Transportation - - -
mph miles per hour
PAC Policy Advisory Committee ~
SAC Subarea Advisory Committee
SDC State Demographic Center
STIP State Transportation Improvement Program
TAC Technical Advisory Committee
TDM Transportation Demand Management
TH Trunk Highway y
TSM Transportation System Management
WMAs Wildlife Management Areas
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rn w
`~ ,
- Executive
F ~.- +
Su~n~na
~-
Y TOi(!64
COR~OR
MoriH~ Mdtncsola
~~,~"
Executive Summary
Irt February 1999, the Minnesota Department of Transportation (Mn/DOT) began identifying key
state transportation corridors and ultimately adopted the interregional corridor (IRC) system in
January 2000. As part of the State Transportation Plan, the goal of the IRC system is to enhance the
economic vitality of the state by providing
safe, timely, and efficient movement of goods
and people between and among regional trade The process of developing this plan was broken down
centers. into three major steps:
This Corridor Management Plan (CMP) for (7} identify issues;
Trunk Highway ~ 101-TH 169 between {2} develop improvement altematives; and
Rogers and Garrison represents a first step (3} plan for project implsmentatian.
toward optimizing the corridor`s long-term
safety and performance. Early in 2001,
Mn/DOT, TH 101-TH 169 corridor communities and other agencies, the CMP "partners," began
work on this plan to address the goals of the Mn/DOT IRC program. The process of developing this
plan was broken down into three major steps: (1) identify issues; (2) develop improvement
alternatives; and (3) plan for project implementation.
The Vision Statement (see box below) was developed by the corridor partners and established the
basic goals of the corridor pl~nn;ng process. Performance goals for 2025 and the roles that Mn/DOT.
°° and the corridor partners can expect to play as the planning process moves toward implementation
are also included in the vision statement.
TH 101- TH 169 Corridor Vision Statement
1: CORRIDOR MANAGEMENT' PLAN GOALS
The CMP will be developed to:achieve a balance be#ween the needs and visions of individual communities and the,safe and
efficient movemenf..of people and goods. Speafically, .the:planning:processwdl strive fo minimize adverse .community effects white
maintaining or improving both interregionaE and focal fraffic operations,
2. NlGHWAY PERFORMANCE GOALS ..
Mn1l)OT and its coiridor.parlnersheve established the future highway performance goals (2t)25):for the TH 1Q1-TH 169 IRC as
follows: _
• Improve travel time, performance and.predictabil~fyao meet the target speed of 6Q mph for the High Priority segment from..
`Rogers to Zimrnermari, minimizing delays on TH`.101=TH 169 and on intersecting roadways..
• . Maintain or.improve travel time performance':and predic#ability #a meet the target speed ofi55 mph for the Medium Priority
segmentfrom Zimmerman to Garrison, mnimii~ng delays.on TH 169 and on intersecting roadways.
• . Improve safety:to achieve, crash rates better than the statewide_average, limiting conflicts betv~een the various vehicle types
_ .:. .
. and pedestrians.
3. TMPLFME'NTATION APPROACHES ANR ROLES.
These goals will be achieved by focusing highway.project investments,.guiding future fetid use patfems, and managing highway-:.
access points.; MNDOT and its corridor. partners will-provide leadership toward the acheyemerrt of corridor goals bysharing their
visions; promoting projects or.initiatives, and protecting or enhancing community image and natural resources.
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TH 1 O1 - TH 169 CORRIDOR MANAGEMENT PLAN APRIL 2002
Plan Organization
Below is a summary of the purpose of each chapter in this CMP.
• Chapter 1--Introduction and Corridor Vision, Establishes the CMP purpose and objectives;
reviews the planning context and background; and states the long-term corridor vision
• Chapter 2-Corridor Background: Provides corridor-specific background information, including
trends and forecasts for population and land use
• Chapter 3-Existing and Future Transportation Performance: Describes the highway's existing
and future transportation performance i# no improvements were made, including traffic volume
and safety {crash rate) analyses
• Chapter 4-Alternative Strategies to Achieve the Vision: Discusses the possible alternative
strategies that can be implemented to preserve corridor mobility and states the principal findings
of this CMP
• Chapter 5-Action Plan far Corridor Management: Addresses the principal recommendations
of this CMP
• Appendices: Includes (a} agency and public involvement information; (b} inventory of corridor
issues; (c) CMP partner endorsements; and (d) highway projects evaluations and cost analyses
Corridor Description
The statewide IRC program emphasizes plazuiing to maintain reliable travel speeds under normal
weekday peak hour conditions and to improve highway safety. For this plan, the IRC speed
performance goals are based on the IRC priority, shown in Table 1 and on the map that follows.
TABLE 1
IRC Priority Ranlcina and Speed Performance Goals
IRC Priority Applicable Segments of TH 101-TH 169 Target Speed Actual Speed
(2t)01}
High Priority iRC TH 101-TH 169 from I-94 in Rogers to CSAH 4 in Zimmerman 60 mph 52 mph
Medium Priority IRC TH 169 from CSAH 4 in Zimmem~an to TH 18 in Garrison 55 mph 67 mph
The TH 101-TH 169 corridor provides an essential connection between the Minneapolis-St. Paul
(Twin Cities) metropolitan area and central Minnesota. It is also an important Mississippi River
crossing. TH 101 is a four-lane signalized suburban expressway serving commuter traffic between I-
94 in Rogers and TH 10 in Elk River (7 miles), which includes eight traffic signals. TH 169 runs north
and south in the study area from TH 10 in Ells River to TH 1$ in Garrison; it is a four-lane rural
expressway between TH 10 and TH 27 in Onamia (55 miles) and a twalane highway north of TH 27
to Garrison (20 miles}. There are currently four traffic signals on TH 169 in the 2.5 miles through Elk
River, as well as traffic signals at CSAH 4 in Zimmerman and at the Grand Casino north of Onamia.
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TH 101 - TH 169 CORRIDOR MANAGEMENT PLAN
AaR~L 2002
The 83-mile study corridor was divided into five subazeas in order to gather detailed input on issues
and concerns from key decisionmakers and the gen
These subareas are:
• Rogers/Otsego - TH 101 between 1-94 and
TH 10 {7 miles)
• Elk River - TH 169 between TH 10 and the
north Ells River city limit, at 229th Avenue (7
miles)
• Northern Sherburne County - TH 169
between the north Elk River city limit and
the south end of the LaGrande Avenue
interchange near Princeton {11 miles}
• Mille Lacs County - TH 169 between the
south end of the LaGrande Avenue
interchange near Princeton and TH 27 in
Onamia (38 miles)
• Mille Lacs and Crow Wing Counties
Environmental Impact Statement (EIS) - TH
169 between TH 27 in Onamia and TH 18 in
Garrison {20 miles), being addressed in a
separate, project level E1S
Forecast Conditions
GrowEh and Development
• The Metropolitan Council population forecasts estimate the city of Rogers almost doubling its
population in the next twenty years. Sherburne County is also projected to have the highest
percentage population increase in the state (92 percent in the next 25 years).
• The actual population growth along the TH 101-TH 169 corridor has often exceeded the State
Demographer's trend forecast (1998).
• It is forecasted that by 2025, nearly all of the adjacent land south of the Mississippi River will be
developed along with most of the land in Elk River.
Future Traffic Volumes
Table 2 (next page) shows the recent average daily traffic volumes (1998) and forecasted traffic for
2015 and 2025. At a m;nimuYn, traffic volumes along fine corridor are expected to double. Greater
increases will occur in the most developed areas-Rogers, Elk River, Zimmerman, and Princeton.
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TH 101- TH 169 CQRRIDOR MANA~ENtENr PtJIN
APw~2002
TABLE 2
Existing and Forecasted Traffic Volumes
Location 1998 2015 2025 °~ Growth
(199$ to 2025}
i-94 (Rogers} to Crow River Bridge (Otsego) 34,500 83,000 95,000 175°h
Crow River Bridge (Otsego} to TH 10 (Elk River) 34,500 56,200 72,000 109%
TH 10 (Elk River) to CSAH 21 32,400 65,600 83,950 159%
CSAH 21 to TH 95 {Princeton) 23,900 43,300 55,400 132%
TH 95 {Princeton) to TH 23 (Milaca) 13,800 23,700 29,500 114%
TH 23 (Milaca) to TH 27 (Onamia) 9,900 15,450 18,900 91%
TH 27 (Onamia) to TH 18 (Garrison) 10,200 16,650 20,800 104%
Note: Rededs unconstrahed traffic volumes. it was assumed that other dependent corridors can accept existing and future traffic volumes from TH 1Q1-TH f 69.
Key Findings and Need for Action
In order to realize the corridor vision, multiple transportation issues and needs must be addressed.
Considering iRC objectives, Mn/DOT and its corridor partners need to develop anaction-oriented
plan to improve and protect the highway so that it will continue to play a vital role th the state's
economy as .the area keeps growing. Below is a list of key findings that were developed through the
CMP process.
Key;Findirogs of the Corridor Management Plan
- . 'The speed and safety perforirtarice goalsstatedin the corridor vision cannot be achieved without, highway
capar,~ty improvements: :,
The speed performance goals stated in the comdor.vision can be achieved by iniproving'the highway to a'
freeway from Rogers;through Elk River.
• Thesafsty performance goal stated In the corridor vision can be most readily achieved by eliminating signalized
intersections`and by addressing crash problepis at-other selected intersections.
_. ,..
~, Proper management of TH 169 as a four-lane expressway between.Princeton: and tJn.amia i& suffiaent to
achieve the speed goals stated in the comdor:vision.
• lJpgrading TH 169 to afour-lane viral expressway between.Oriamiagnd Garrison is'necessary to achieve the
safety anr3.speed objectives stafed:in~the corridor vision.
The corridor partners have worked together.to reach consensus that upgrading TH 1Q1-TH 96.$ to a freeway
between Rogers and Princeton is sfrongly:5upported=as along-term=vision.
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TH 101- TH 168 CORRIDOR MAw+seuEn~r PLAN APRIL 20D2
The findings noted above all relate to specific corridor needs that initially prompted the need for this
CMP. The general corridor needs are related to the following issues:
• Interregional Mobility
• Proliferation of Traffic Signals
• Proliferation of Access Points
• Increasing Congestion
Alternatives Considered
• Safety
• Internal Community Connections
• Intermodal Planning
• Highway Corridor Land Use Planning
Four corridor management alternatives were analyzed:
• The No-Build scenario, as well as other system management strategies
• Upgrade to a six-lane signalized expressway
• Upgrade to a four-lane freeway
• Upgrade to a six-lane freeway (Rogers through IIk River only}
The overall performance evaluation of the CMP found that upgrading to a four-lane freeway from
Rogers through Elk River will satisfy 2025 performance goals while the alternative of expanding the
highway to a six-lane signalized expressway will not. Even though analysis shows that performance
targets would be met with a 4-lane freeway from Rogers through Ells River, corridor partners
reached a general consensus that the best approach to achieve the long-term corridor vision was to
focus on 4-lane freeway expansion from Rogers to Princeton. The corridor partners believe that
extending the 4-lane freeway beyond what is necessary to achieve performance goals will maintain
continuity of highway design, meet driver expectations, and meet performance goals beyond the.,
analysis period. Additionally,. improvements should also be made to the existing fou. r-Iane._ . _ ,
expressway from Princeton to Onamia. Below are the recommendations that have been developed-to
achieve this corridor vision.
Corridor Plan Recommendations and Project Prioritization
The vision statement was referred to throughout the planning process and was key in developing
the recommendations that require follow-up actions or projects. The recommendations were
structured to identify the highest priorities for follow-up actions. There are no specific timeframes
implied; however, as Mn/DOT programs projects, and possibly earmarks funds, the most promising
highway improvement projects identified for TH 101-TH 169 may receive further attention.
The process involved in improving the corridor includes identification of recommended projects.
These projects are included in Chapter 5, with more information included in Appendix D. Table 3 is
a summary of prioritization of the projects by funding categories. Based on considerations within the
CMP, the most favorable projects for achieving the IRC vision (listed in order from south to north)
are:
• Rogers through Elk River -Chapter 5 identifies eight potential projects to upgrade from the
four-lane expressway to a four-lane freeway. These projects include new interchanges,
reconstruction of the existing interchanges at I-94 and TH 10, and construction of frontage roads.
~~' .
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TH 101- TH 169 CORRIDOR M~rrnceenFrlr PLAN
APRIL 2002
TABLE 3
TH 1U1 - Tti 169 GOmdor Marra ement F'tan rro ect Nnonazaaon n runaln t;a1e o
FUNDING CATEGORY Estimated Schedule of Improvements as Programmed (Category I) or
as Needed to Meet Tar et Performance Cate o II
Priority A Priority B Priority C Priority D
12042-20141 (2011.20181 (2019-2025) (Beyond 2025)
CR 33 Interchange
Category I. Fiscally Project#7
Constrained CSAH 9lrrterchange
Improvement Projec[ #12
Upgrade to 4-Sane expressway
between Onamia and Garrison
CSAH 11 intersection Safety
Improvement
SUB-TOTAL = $G7 M - $117 M
A. Target Speed
Performance Four•Lane Freeway Cornersion
Projects 1, 5, fi i3<7 (Rogers and
Elk River)
3UB-TOTAL = $124 M Four-Lane Freeway
Conversion
Project #s 2,3 & 4
(wrtgM County)
-SUB-TOTAL = S44 M
Zimmerman CSAH 4lrrterchange
B. Safety Project # 10
Performance SUB-TOTAL = S21 M
Development Nodes -Access
Category III. and land use management from
Unconstrained Princeton to Qnamia
Upgrade To Six-Lane Freeway
ImproVetnentS Project#s 1 to 7 (Rogers
through Eik River)
Four-Lane Freeway Conversion
_ _
#1 Rogers -Improved and new interchanges from I-94 to CSAH 944
(41ane freeway conversion = $fi6; Upgrade to 6-lane freeway = $15)
#2 St Michael -New interchange a# CSAH 3fi
(4-lane freeway conversion = $16; Upgrade to 6-lane freeway = $4}
#3 Otsego A-New interchange at CSAH 37; overpass at CSAH 42
(4-lane freeway conversion = $17; Upgrade to 6-lane freeway = $6}
#4 Otsego B -New interchange at CSAH 39
{4-lane freeway conversion = $11; Upgrade to 6-lane freeway = $3)
#5 Eik River A - tmproved interchange at TH 10
{4-lane freeway conversion = $29; Upgrade to 6-lane freeway = $5)
#ti Elk River B -New Interchange at Main Street; overpass at School
Street (4-lane freeway conversion = $13; Upgrade io 6-lane fteeway = 9
#7 Eik Rhrer C - CR 33 interchange (2003 letting; $12}
New interchange at Jackson/197th
(4-lane freeway conversion = $16; Upgrade to 6-lane freeway = $fi)
ri`8 EIk River D - New irrterchange at 221st Ave
(4-lane freeway conversion = $12)
Project#s 8, 9, 11, 12, and 13
(Northern limits of Elk River#o
Princeton)
SUB-TOTAL = $178 M
;fs'in $million)
#9 South of Zimmerman -New interchange at CR 36/CR 45
{4-lane freeway conversion = $15}
#10 Zimmerman -New interchange at CSAW 4
(4-lane freeway conversion = $21; Funding not identified}
#11 North of Zimmerman - New interohange at 277th Ave
{4-lane freeway conversion = $17)
#12 South of PNnceton A-Future CSAH 9 irrterchange
($4 let cost; 4-lane freeway conversion = $7)
#13 South of Princeton B -New interchange at CR 38
{4-lane freeway conversion = $9)
CSAH 1 t Safety Improvement -Intersection design altemalives have been
Development Nodes -The consolidation of access points toward primary
and secondary intersections v~rith TH 169, where development is occurring or
likely to occur in the future ($76)
Upgrade to four-lane expressway from Onamla (TH 27) to Garrison (TH
18} -An upgrade from the curren# two-lane design of TH 169 to fouNanes
{2006-2010 construction}; EIS is underway and some funding for the
improvement has been designated
(project cost estimates range from $50 to $100}
^F z:
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TH ~ O1 - TH ~ 69 CORRIDOR MANAGEMENT PLAN
APr~1.2002
The CMP also recommends that currently programmed projects should be completed including
the current CR 33 interchange project.
Elk River to Princeton -Consistent with the consensus of the corridor partners there are five
potential projects identified to achieve highway design continuity and upgrade to a four-lane
freeway from EIk River to Princeton. While a freeway from Elk River to Princeton is a long-range
vision, a new interchange at CSAH 4 is the highest priority project in this segment, in order to
address a very poor safety record at the existing intersection. AIso recommended is the
completion of the currently programmed CSAH 9 interchange project.
Princeton to Onamia -The potential projects for the corridor north of Princeton include future
planning of development nodes and consolidation of access points to maintain highway
performance in Mille Lacs County. Discussion with the Mille Lacs County Subarea Committee
helped identify key locations where development is either occurring or likely to occur in the
future. Also recommended is the completion of the currently programmed CSAH 11 safety
improvement project.
• Onamia to Garrison --The CMP recommends upgrading the highway from the current two-lane
design to a four-lane expressway (a separate Environmental Impact Statement is currently
underway for this segment and funding is designafied in the District 3 Project Work Plan/Project
Studies Plan).
Corridor Management Strategies
Along with the recommended highway improvement projects a number of Corridor Management
Strategies-were identified. These strategies include continuing ongoing project development, °
strategies for preserving the corridor, Intelligent Transportation Systems opportunities, and access
management tools.
Partnership Planning Studies
Mn/DOT and the corridor partners should complete ongoing project development work. Several
projects currently underway along the TH 101-TH 169 corridor should be completed, including:
• Construction of the CSAH 9 interchange in Sherburne County
• Completion of environmental documentation necessary for construction of the County Road
(CR) 33 interchange in Sherburne County
• Complete study and implementation of safety improvement at CSAH 11 in Mille Lacs County
+ Frontage road improvements between South Diamond Lake Road and CR 144 in Rogers
• Completion of the EIS from Onamia to Garrison
• Additional progress toward implementation of the Northstar commuter rail service
Mn/l]OT and corridor partners should plan for the phased development of highway
improvement projects. Along with completing current projects and beginning scoping work proposed
for the corridor, it is recommended that Mn/DOT and corridor partners begin planning for the
development of selected highway improvement projects. The highest priority corridor projects should be
based primarily on ability to improve the highway's performance. Some of the key performance
measures identified through the corridor planning process include the potential to:
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TH 1O1 - TH t$9 CORRIDOR MANAGEMENT PLAN APRILZOOZ
• Maintain or increase average peak-hour travel speeds
• Eliminate traffic signals
• Improve local traffic operation
• Resolve safety problems
An example of such a partnership project is the development of a new interchange at CSAH 4 in
Zimmerman.
Soon after the CMP is completed, Mn,/DOT should develop the appropriate level of National
Environmental Policy Act {NEPA} review. This recommendation concerns the "next steps" for
project development and CMP implementation along the TH 101-TH 169 corridor as a whole. All
projects that Mn/DOT and corridor partners wish to build must go through documentation of
environmental effects. Project "Scoping" is employed during the initial phases of project
investigations that may require an environmental impact statement (EIS), but is not required to
proceed with an environmental assessment (EA}. However, amultiple-project scoping document
analysis is under consideration for the corridor to help Mn/DOT and corridor partners establish the
list of independently justified projects, the geographic limits, and the appropriate levels of
environmental study needed to develop each project.
Corridor Preservation Strategies
Local governments should update comprehensive plans and should consider updating local
zoning ordinances. Achieving the TH 101-TH 169 corridor vision will depend, in part, on the
working relationships that have been formed between Mn/DOT and other corridor partners. While
Mn/DOT is the agency with the greatest amount of responsibility for the state TH system, land use
planning and zoning actions taken by counties and communities along the corridor alsoinfluence
the corridor's characteristics and the highway's future performance. Controlling development at key
locations can positively impact the cost and feasibility of future projects. Specific examples of how
communities can show support for the TH 101-TH 169 CMP include:
• Pass official resolutions of support or endorsement for CMP recommendations
• Update Local land use, comprehensive, and transportation plans to reflect the conclusions of the
CMP
• Ensure that Iocal roads are being planned and built in a coordinated manner with the long-term
vision of an upgraded TH 101-TH 169
• Assume leadership for interim Local projects involving maintenance or access management, such
as frontage road projects, turn Lanes, or acceleration lanes
• Continue to work in partnership with Mn/DOT to advance the key projects necessary to achieve
the long-term corridor vision
• Ensure development patterns that recognize and plan for future highway projects
Access Management Strategies
To maintain highway performance in Mille Lacs County (from Princeton to Onamia}, planning
should be focused on primary and secondary development nodes. In addition to the preservation
strategies discussed above, this recommendation relates to key locations that have been identified
where development is occurring or is likely to occur in the future. Consolidation of access points to
these "development nodes" will help maintain highway performance between Princeton and
~.
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TH 101 - TH 169 CORRIDOR MANAGEMENT PLAN f1PRIL 2002
Onamia. Development nodes (typically at county road intersections with TH 169) were prioritized as
primary or secondary according to the location's level of development and crossroad functions.
Intelligent Transportation System Strategies
All highway improvements impacting both the TH 101-TH 169 mainline and the crossroads would
be assessed for consistency and inclusion with the state-wide and regional 1TS architecture. This
includes provisions for traffic detection, advanced traffic signalization, ramp metering, incident
management, and traveler information.
Modal Strategies
Mn/DOT and corridor partners should seek opportunities to enhance multimodal opportunities
along the corridor. A variety of multimodal issues and opportunities exist along the TH 101-TH 169
IRC, including the following:
TC811SIt SerViCeS - Northstar corridor feeder bus connections; possible northwest busway service
{CSAH 81 to a potential western terminus of Rogers); general capacity improvements and bus-on-
shouider operations; and park-and-ride transit services
~reightlShipping -Separation of traffic at the 1-94/TH 101 interchange and elimination of traffic
signals; and other truck-related access considerations including adequate turning radius treatments
and adequate acceleration-deceleration distances-particularly in the area from Rogers through Elk
River
Unresolved Issues
The following is a list of some issues that have emerged as requiring further consideration and
investigation in order to resolve the many details and questions that naturally flow from this CMP
and the pl~nri~ng process completed to date:
• Funding
• Coordination with Other IRCs and Other Nearby Projects
• Project Development and Corridor Right of-Way Preservation
• Supporting Local Roadway Network
The above list is not intended to be comprehensive, but rather the major themes that will require
further consideration. These issues are discussed further in section b.5.
Plan Endorsemenfi
The successful implementation of the TH 101-TH 169 corridor vision is dependent on a cooperative
relationship between Mn/DOT and the corridor partners. Support of this plan by all corridor
partners is essential for preserving the corridor, securing needed funding to pursue the vision, and
developing a plan of action for the projects presented in this plan. Mn/DOT has sought endorsement
of the CMP by corridor partners to gain this needed support. Appendix C contains endorsement
resolutions passed before publication of this document and a status report on all other known
endorsement issues.
-:~~:;.
Return to
ix Tabfe of Contents
;:~: ;-. .
BRIGGS
AND
June 16, 2010
VIA E-MAIL
Elk River City Council
13065 Orono Parkway
Elk River, MN 55330
Attn: Stephanie Klinzing-Mayor (mayorer@q.com}
Nick Zerwas-Ward 1 (nick.zerwas@ci.elk-river.mn.us}
Jerry Gumphrey-Ward 2 {iwgump@yahoo.com)
Matt Westgaard-Ward 3 {westgaard@nsatel.net)
Paul Motin-Ward 4 (pmotin@aol.com)
Jack Y. Perry
(612)977-8497
jperry@briggs.com
Re: Tiller's mining CUP amendments for an $.6-acre mining expansion into the
200-foot buffer on ERL's existing 137.4-acre landfill property
Dear City Councilmembers:
City Planning Commission's June 8, 2010 recommendation for denial of Tiller's mining
CUP amendments for an 8.6-acre mining expansion into the 200-foot buffer on ERL's existing
137.4-acre landfill property has additional problems other than those pointed out in ERL's June
10, 2010 letter. Specifically, ERL has two more compelling arguments for the approval of
Tiller's request.
ARGUMENT
A. PUBLIC POLICY FAVORING MINERAL EXPLOITATION ENTITLES
TELLER TO ITS 8.G-ACRE MINING EXPANSION
The Minnesota Legislature expressly recognizes the need for aggregate mining
operations, defining State policy as providing for "the diversification of the state's mineral
economy through long-term support of mineral exploration, evaluation, environmental research,
development, production, and commercialization." Minn. Stat. § 93.001 (2006). Even more
significantly, the Legislature has declared mining "to be in the public interest and necessary to
the public welfare, and the use of the property therefor is declared to be a public use and
purpose." Minn. Stat. § 93.43(a) (2006} (emphasis added).
In 2000, the Minnesota Geological Survey undertook an analysis of the aggregate
resources in the seven-county metropolitan area. Ex. 189, Southwick, D.L., Jouseau, M., Meyer,
G.N., Mossier, J.H., and Wahl, T.E., Aggregate Resources Inventory of the Seven-County
Metropolitan Area, Minnesota: Minnesota Geological Survey Information Circular 46 at 91
2200 IDS Center
80 South 8th Street
Minneapolis MN 55402-2157
tel 612.977.8400
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BRIGGS ANO MORGAN
Elk River City Council
June 16, 2010
Page 2
(2000) (hereinafter "Aggregate Inventory"). The findings in the Aggregate Inventory reflect the
growing recognition of the need for local government to authorize the mining of the few
remaining metropolitan aggregate deposits. The Aggregate Inventory summarized the need for
aggregate materials noting their inherent value in continued development, but that these
resources are increasingly scarce or unavailable in the seven-county metro area:
Construction aggregate producers and their largest customers in the construction
sector have recognized for many years that the aggregate resources available for
mining within the seven-county metropolitan area are rapidly diminishing. The
ultimate reason for this is urbanization, which on the one hand increases the
demand for construction aggregates, and on the other, tends to remove aggregate-
bearing lands from production through land development and zoning decisions
that preclude mining. When sources of aggregate are eliminated locally, and
become more remote from places of need, the costs of construction rise
significantly. This is mainly because of the increased cost associated with
aggregate transportation.
Construction aggregates are sand, gravel, and crushed rock -bulk granular
materials that are used in building and landscaping projects of all sizes and kinds.
Sand and gravel are mined from glacial or alluvial deposits. This material,
commonly called "natural aggregate," is widespread in the state. Natural
aggregate constitutes the largest fraction of aggregate produced. Only some of it,
however, is of high-enough quality for the more demanding uses. Crushed
carbonate rock (limestone and dolostone or dolomite) is mined from bedrock
strata in the seven-county metropolitan area and in southeastern Minnesota, and is
referred to as "bedrock aggregate."
The highest-quality deposits of sand and gravel in the seven-county metropolitan
area were laid down about 15,000 to 20,000 years ago by meltwater from a glacial
lobe that advanced from the northeast through the Lake Superior basin during the
last glaciation. The Superior-lobe gravels contain abundant particles of strong,
non-reactive crystalline rock, and only minor amounts of undesirable rock types
such as shale or sulfide-bearing slate. During the last glaciation, the southern
edge of Superior-lobe ice lay for some time across central Washington, northern
Dakota, and eastern Hennepin counties. Sand and gravel deposits laid down by
meltwater from the Des Moines lobe contain particles of shale, and are therefore
of lower quality as construction aggregate. Most of the near-surface Superior-
lobe gravel deposits in Hennepin and Ramsey counties are now largely depleted
or are no longer available for mining. The availability of the best remaining
Superior-lobe sand and gravel deposits in eastern Washington and central Dakota
counties, is threatened by suburban sprawl.
BRIGG5 aNa MORGAN
Elk River Ciry Council
3une 16, 2010
Page 3
The only bedrock deemed valuable as a source of aggregate in the seven-county
metropolitan area is dolostone (sometimes termed dolomite) of the Prairie du
Chien Group. Geologically suitable bedrock from the Prairie du Chien Group is
rapidly being depleted or otherwise made unavailable for mining in the area of
historic quarrying along the Minnesota River valley from Burnsville to Chaska.
The only volumetrically significant alternative Prairie du Chien bedrock resources
are in the southern and southeastern portions of Dakota and Washington counties.
Major Conclusions
1. The seven-county metropolitan area originally contained about 5.7 billion
tans of aggregate resources that meet, or would have met, the
specifications of an economically viable resource by today's definitions.
This geological endowment included 1.7 billion tons of Superior-lobe
gravel (excellent to good quality}, 1.5 billion tons of Des Moines-lobe
gravel (good to fair quality), and 2.5 billion tons of quarryable dolostone
bedrock {excellent to good quality).
2. The present total resource base (year 2400 is approximately 1.7__billion
tons.
3. The present resource base will be effectively exhausted by 2029, based on
realistic urban-growth scenarios that assume no fundamental chan>;es in
resent land-use olicies or it and u desi n.
4. It is highly probable that resources of high-quality Superior-lobe gravel
will be exhausted before the other aggregate categories. This will Lead to
increased aggregate imports and more vigorous development of available
dolostone bedrock resources.
5. The area of dolostone quarries along the Minnesota River valley from
Burnsville to Chaska has very limited potential for expansion. Dolostone
resources in southern and southeastern Dakota and Washington counties
will become increasingly attractive alternatives for new quarries.
td. at 91 (emphasis added).
The Metropolitan Council in 2001 similarly noted that the "Metropolitan Area is rapidly
depleting its aggregate resources." Rural Issues Work Group, Executive Summary, item No.
2001-439 (Oct. 10, 2001) at 1. The Work Group further observed that local actions threaten the
maximization of existing aggregate resources. The Work Group specifically recommended that
BRIGGS nNO M O R G A N
Elk River City Council
June 16, 2010
Page 4
the Council revise its rules and "use them to protect significant aggregate sites when proposed
local actions would preclude future extraction of the resources." Id.
The Minnesota Legislature has likewise recognized the critical need to manage wisely
aggregate deposits by forming the Aggregate Resources Task Force under the 1998 Laws of
Minnesota, chapter 401, section S0. The Task Force, comprised of 12 legislators and citizens,
delivered its report to the Legislature in February 2000. The Task Force noted that "local
opposition to mining is often pitted against regional resource needs." Ex. 190, Aggregate
Resources Task Force, Final Report to the Minnesota Legislature at 1 (Feb. 1, 2000). "The
typical result is that the regional needs are often given lip service, but usually ignored." Id. The
Task Force summarized its conclusions, in part, as follows:
With demand increasing, the supply and demand balance is critical. A dilemma is
drawing near because aggregate resources are a finite natural resource and locally
available reserves are dwindling in many areas of the state. Regional trade
centers and the metropolitan areas are witnessing the depletion of resources at a
rapid rate, covered by urban and suburban development, precluded from
development by local planning and zonin>; or opposed by residents obiectina to
minim and the increased truck traffic needed to deliver commodities to the
marketplace. Mine operators supplying the Seven County Metropolitan Area,
have permitted reserves estimated to last only about thirteen years based an the
current demand. The critical issues for the state are to maintain local avail_abili
of construction aggregates at reasonable costs; to protect these resources for
future use; to provide consistent environmental guidelines for local permitting of
aggregate mining; and to deliver resources to the market without undue impact to
the state's citizenry.
~~~
The Aggregate Resources Task Force recognizes that the consequences of
depletion of the construction aggregate resources will have a serious impact on
the growth and economic vitality of the state. Aggregate resources are
fundamental for the public good. If ag~re>;ate resources are not properly
identified and managed both the environment and the public will suffer
detrimental consequences.
Id. at v & x (emphasis added}. In a special session the next year, the Legislature amended Minn.
Stat. § 473.859, subd. 2{d) to require that local comprehensive plans address aggregate resources.
Id. (" [a] land use plan shall also include the local government's goals, intentions, and priorities
concerning aggregate and other natural resources").
BRIGGS AND M O R G A IV
Elk River City Council
June 16, 2010
Page 5
Thus, the explicit need for aggregate materials, like those that Tiller will mine within the
200-foot buffer, cannot be gainsaid. The Minnesota Court of Appeals recently addressed the
State's position on aggregate resources and mining operations, reversing the Aitkin County
Planning Commission's decision because it failed to consider the Legislature's policy of long-
term support of mining operations. Kennecott Exploration Co. v. Aitkin County Planning
Comm'n, No. A06-1078, 2007 WL 1894152 (Minn. App. July 3, 2007) (Ex. 191). In that case,
the court held that the Aitkin County Planning Commission's denial of a CUP for mining
exploration was arbitrary and capricious because the commissioners' "individual opinions .. .
were predetermined and heavily influenced by public opposition." Id. at *4. Ignoring explicit
state policy and supplanting that with predetermined opinions and heavy reliance on public
opposition are not legally sufficient and Aitkin County's actions did not withstand scrutiny by the
courts. Id. Thus, not only does State policy designate aggregate mining a public necessity and
beneficial to the public welfare but the Minnesota courts are also not reluctant to reverse a local
government's determination that ignores explicit State policy.
Here, the public policy of encouraging the exploitation of mining resources is particularly
strong. The 200-foot buffer area at issue sits not only on ERL's 137.4-acre Mineral Extraction
(ME) overlay district and Tiller's adjacent 108.8-acre ME overlay district but also within City's
massive 3,500-acre ME overlay district. This is significant because City's August 2004
Comprehensive Plan defines "[t]he primary objective of this land use category as to allow the
current mining use of the land." Ex. 12 at 5-13. Tn addition, both the 137.4-acre and the 108.8-
acre properties are already subject to a mining CUP.
Thus the only issue is, as discussed in ERL's June 10 letter, whether reasonable
conditions could address City Planning Commission's concern with the long-term screening for
this relatively small 8.6-acre mining expansion. And, of course, such conditions are readily
available to address this and any other concern. ,
B. THE "NATURAL EXPANSION" DOCTRINE COMPELS CITY'S APPROVAL
OF TILLER'S 8.6-ACRE MINING EXPANSION
The "natural expansion" doctrine mandates the expansion of mining operations, even if
local zoning ordinances would otherwise prohibit such expansion. Hawkins v. Talbot, 80
N.W.2d 863, 865 (Minn. 1957}. And, indeed, the "natural expansion" doctrine provides for the
expansion of mining operations because mining operations involve "diminishing assets" --~- i. e. ,
aggregate deposits.
The Minnesota Supreme Court expressly recognized the "natural expansion" doctrine
over 50 years ago. Id. The Court reasoned that there is, after all, only so much aggregate that
may be mined without expansion. See id. Clearly Hawkins applies even if the zoning ordinances
were somehow read to conflict with the mining operation. See also Blom v. St. Louis County
Planning Comm'n, No. C3-98-1520, 1999 WL 10241, at ~2 (Minn. App. Jan. 12, 1999) (Ex. 192)
BRIGGS nNp MORGAN
Elk River City Council
June 16, 2010
Page 6
(citing Hawkins and affirming the St. Louis County Planning Commission's decision to allow
mining operations to expand to gravel pit mining to entire area of a gravel bed).
The "natural expansion" doctrine has been widely recognized and accepted in all of the
other states to have been confronted with the issue in order to permit mining to expand, even if
the local zoning ordinances are incompatible with that use. See, e.g., Stephan & Sons, Inc. v.
Mun. of Anchorage Zaning Bd. of Exam'rs & Appeals, b85 P.2d 98, 101-02 (Alaska 1984)
(affirming the board's decision to apply the natural expansion doctrine and allow expansion of
mining operations to adjacent parcels as a nonconforming use}; Hanson Bros. Enters., Inc. v. Bd.
of Supervisors of Nev, County, 907 P.2d 1324, 1336-38 {Cal. 1996) (concluding that the natural
expansion doctrine is recognized in California and allowing expansion of mining operation as
nonconforming use}, reh'g denied (Feb. 29, 1996); Kovacs v. Zoning Bd. of Appeals of the Town
of New Milford, No. CV010856845, 2002 WL 31928586, at *9-11 (Conn. Super. Ct. Dec. 17,
2002) (Ex. 193) (confirming Connecticut Supreme Court's recognition of the natural expansion
doctrine as applied to mining operations); County of DuPage v. Elmhurst-Chicago Stone Co.,
165 N.E.2d 310, 313 (Ill. 1960} (reversing the county's injunction preventing a quarry from
expanding because the assets involved -the mined stone - was a diminishing asset and
continued mining necessarily required expansion), reh'g denied (Mar. 28, 1960}; Moore v.
Bridgewater Twp., 173 A.2d 430, 442-43 {N.J. Super. Ct. App. Div. 1961} {noting that, for
practical and economic reasons, quarry mining will naturally expand because it is a "one-use
property" and holding quarrying operations would be allowed to expand); In re Application of
Syracuse Aggregate Corp., 424 N.Y.S.2d 556, 560 {N.Y. App. Div. 1980) (citing Hawkins, 80
N.W.2d at 865 and holding the lower court erred in determining that nonconforming uses could
never be expanded), affd 434 N.Y.S.2d 1S0 (N.Y. 1980}; Gatti v. Zoning Hearing Bd of
Salisburg Twp., 543 A.2d 622 (Pa. Commw. Ct. 1988) (stating the rule that natural expansion of
a prior nonconforming use was a constitutional right); Gibbons & Reed Ca. v. N. Salt Lake City,
431 P.2d 559, 564-65 (Utah 1967} (citing Hawkins, 80 N.W.2d at 865 and allowing mining of
sand and gravel to be extracted from landowner's entire parcel); Smart v. Dane County Bd. of
Adjustments, 501 N.W.2d 782, 785 (Wis. 1993} (affirming a county board's decision to allow
mining operations to expand to an additional tract of continuous land under the natural expansion
doctrine}; Sturgis v. Winnebago County Bd. of Adjustment, 413 N.W.2d 642 (Wis. App. 1987)
(affirming county board's decision to not require an additional CUP where the natural expansion
doctrine applied to allow quarrying of additional parcels of land).
The rationale for the "natural expansion" doctrine is simple and irrefutable -namely,
unlike virtually all other land uses except landfilling, aggregate mines must expand in order to
continue.
Tiller's mining expansion into the 200-foot buffer frts squarely within the "natural
expansion" doctrine. The 8.6-acre area, referred to as the 200-foot buffer area, is entirely within
City's 3,500-acre ME overlay district, as is the rest of ERL's 137.4-acre landfill property and
Tiller's adjacent 108.8-acre SDA. Moreover, City has long since been aware of Tiller's
BRIGGS AND M O R G A N
Elk River City Council
June 16, 2010
Page 7
anticipated mining expansion into this buffer area. In October 2002, Tiller applied to expand its
mine into the first 150 feet of the 200-foot buffer. Ex. 98. City staff recommended denial but
only because it preferred to have the application processed with the full landfill expansion onto
the 108.8-acre SDA. Id. Indeed, the district court already determined that "[t]he record is .. .
clear that city officials were aware of [ERL's] intent to expand in the following years once the
landfill reached capacity and that only the area south of the landfill is available far expansion."
ERL 14/2/10 Order at 20; id. at 31 {"[t]he landfill's borders also show that within the city of Elk
River, it can only expand south"). In fact, given that Tiller's mining prepares ERL's property for
landfilling {id. 31 n.23}, City was contractually required under the parties' 2003 Host Community
Agreement (HCA) to "approve an application for expansion which complies with its legal
requirements" (id. at 20}, and there is no doubt that Tiller's mining request "complies with its
legal requirements."
Quite simply, City Council is obligated by public policy and the "natural expansion"
doctrine to approve of Tiller's requested mining CUP amendments to mine within the 200-foot
buffer.
Sincer y,
Y.SPerry
JYP
Attachs.
cc: B. Jeffry (via email)
M. Ayers (via email)
D. Walters (via email)
S. Stolz (via email)
J. Asmus {via email)
2566476v2
RESOLUTION NO. 10-
City Council
City of Elk River
A Resolution Denying the Application of Tiller Corporation to Amend its Existing
Conditional Use Permit to Allow the Removal of Trees and Minin within the Existing 200
Foot Buffer Zone on the South Side of the Elk River Landfill
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, Tiller Corporation (Tiller) has an existing Conditional Use Permit, approved
in May 1996 (1996 CUP), authorizing gravel mining operations on the Landfill property; and
WHEREAS, Tiller has submitted a land use application (Application) to the City
requesting an amendment to the 1996 CUP to allow the removal of trees and mining within the
existing 200-foot buffer zone on the southern boundary of the Landfill property; 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
June 8, 2010, at which time Tiller and its 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 June 8, 2010 public hearing; and
WHEREAS, the Planning Commission closed its public hearing on the Application on
June 8, 2010 and made a recommendation to the Elk River City Council that the Application be
denied; and
WHEREAS, the Elk River City Council, on June 21, 2010, held a public hearing on the
Application and considered the Planning Commission's recommendation; and
WHEREAS, Tiller and all members of the public desiring to speak at the June 21, 2010
public hearing before the City Council were provided the opportunity to do so; and
WHEREAS, all written materials submitted by Tiller, and all other members of the public
prior to and at the public hearing on June 21, 2010, were accepted into the record; and
WHEREAS, during the June 21, 2010 public hearing, the City Council received
testimony from all parties desiring to present testimony and offer evidence for or against the
Application, closed the public hearing on the Application, continued its discussion of the
Application, and reached the decision incorporated in this resolution.
NOW, THEREFORE, the City Council of the City of Elk River makes the following
Findings of Fact and Decision with respect to the Application:
FINDINGS OF FACT
1. Tiller holds an existing Conditional Use Permit, dated May 30, 1996 (the 1996
CUP), which authorizes mineral excavation from the Elk River Landfill Property.
2. Section 3(20) of the 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 by the construction of a minimum
six (6) foot high berm planted with evergreens.
2
Tiller's excavation activities on the Landfill property are conducted in connection
with ERL's landfilling activities. ERL's landfilling activities are conducted pursuant to a
conditional use permit most recently amended and approved by the Elk River City Council on
February 16, 2010.
4. Section 3 of ERL' S February 16, 2010 CUP provides 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 by the City.
5. 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 Tiller's
109-acre property located between 221St Avenue and the Landfill (the "March 2009
Application"). This application was considered by the Planning Commission and City Council at
a number of meetings, which extended from June 2009 until October 2009. The March 2009
Application for a Comprehensive Plan amendment and rezoning was denied by the City Council
on September 21, 2009. The March 2009 Application for a Conditional Use Permit and Solid
Waste Facilities License was denied by the City Council on October 19, 2009. The information
submitted to the City Council prior to its September 21 and October 19, 2009 decisions regarding
the March 2009 Application, including the staff reports presented to the City Council, along with
the resolutions adopted by the City Council denying the March 2009 Application, are hereby
incorporated in the City Council's consideration and decision with respect to the current
Application.
3
6. On February 22, 2010, ERL submitted an application to amend its February 16,
2010 CUP to allow an approximately 13-acre expansion of the Landfill by developing the
existing 200-foot buffer zone on the southern boundary of the Landfill for the deposit of solid
waste.
7. ERL's February 22, 2010 application to amend its February 16, 2010 CUP was
considered by the Planning Commission on May 11, 2010 and by the City Council on May 17,
2010. On May 17, 2010, the City Council adopted a resolution denying the request to deposit
solid waste in the buffer zone on the southern boundary of the Landfill. The information
submitted to the City Council prior to its May 17, 2010 decision to deny ERL's CUP
amendment, including the staff reports presented to the City Council, along with the City
Council's May 17, 2010 resolution of denial, are hereby incorporated in the City Council's
consideration and decision with respect to Tiller's current application to amend its 1996 CUP.
8. Denial of ERL's application to amend its CUP to allow the deposit of solid waste
in the 200-foot buffer zone along its southern boundary means that ERL's CUP continues to
require that the preservation of trees within the buffer zone be provided for during the
construction and operation of the Landfill, and be included in the end use plan for the Landfill.
9. On February 22, 2010, Tiller submitted the current Application to amend its 1996
CUP. Tiller's current Application seeks approval to remove trees and mine within the 200-foot
buffer zone along the southern boundary of the Landfill. This is the same area in which ERL's
February 16, 2010 CUP requires that the trees be preserved during the construction and operation
of the Landfill, and be included in the end use plan for the Landfill.
4
10. Section 30-654 of the Elk River City Code sets forth seven standards for the
issuance of a Conditional Use Permit, and provides that a Conditional Use Permit can be ordered
only if the proposed use meets the seven standards.
11. The City Council finds that Tiller's proposal to remove the trees and mine the
200-foot buffer zone on the southern boundary of the Landfill does not meet the standards set
forth in § 30-654 of the City Code for the issuance of a conditional use permit, because:
A. 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.
B. 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.
C. 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.
D. 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 February 16, 2010 CUP for the Landfill.
DECISION
THEREFORE, the City Council of the City of Elk River makes the following Decision
with respect to Tiller's Application to amend its 1996 CUP to allow the removal of trees and
mining within the existing 200-foot buffer zone along the southern boundary of the Landfill:
5
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 Tiller and its 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 Tiller to amend
its existing 1996 Conditional Use Permit to allow the removal of trees and mining
within the existing 200-foot buffer zone on the southern boundary of the Landfill is
hereby denied.
THIS RESOLUTION PASSED AND ADOPTED this 21st day of June, 2010.
Stephanie Klinzing, Mayor
Tina Allard, City Clerk
GP:2629426 v8
6