7.5. SR 12-19-2005
Item # 7.5.
MEMORANDUM
TO:
Mayor & City Council
FROM:
Rebecca Haug, Environmental Administrator
/f~
DATE:
December 19, 2005
SUBJECT:
Amend Conditional Use Permit for Mineral Excavation by
Bauerly Bros./ P.H. CU 05-21
Request: Bauerly Bros., Inc. is requesting to mine into the water table at the Ernest Toth
property. The excavation of gravel will be mined to an approximate depth of 13-21' below
water. This is the same depth that clay base was found. The area will be filled with clean
sand once the excavation is complete.There will be no crushing or gravel washing on-site
and there are no plans for dewatering on-site. The site was included in the City of Elk
River's 1994 Environmental Impact Statement (EIS) on Mineral Excavation.
Attachments: Included with this memo is a revised Conditional Use Permit (CUP).
Below is a list of other information on this issue. Please let staff know if you need
additional copies.
~ a vicinity map;
~ a contour map showing the existing condition of the site and proposed mining;
~ a Notice of Wetland Conservation Act decision dated October 17, 2005.
Issue~:
Wetlands - The City Council is the Local Unit of Government charged with the
final decision regarding the Wetland Conservation Act (WCA). The Technical
Evaluation Panel, has reviewed wetland issues for compliance with the WCA and
determined this project to be exempt.
Recommendation: Staff is recommending approval of this request under the conditions
contained in the attached conditional use permit. Representatives from Bauerly Bros. Inc
are in agreement with those conditions.
CITY OF ELK RIVER
AGREEMENT FOR ISSUANCE OF
AMENDED CONDITIONAL USE PERMIT NO. 97-02
FOR MINERAL EXCAVATION
This Conditional Use Permit No. 97-02 was approved by the City Council of the City
of Elk River on June 23, 1997, and amended by the City of Elk River on this _ day
of , 2005, by and between the CITY OF ELK RIVER, a municipal
corporation organized under the laws of the State of Minnesota (City), and Bauerly
Bros.. Inc., a Minnesota corporation, hereinafter referred to as (Operator);
WITNESSETH:
WHEREAS, Operator has made application to City for approval of a
conditional use permit to operate a gravel mining operation within the City on
property legally described as follows:
The west half of the southeast quarter (W % of SE ~), and the west half of
the southeast ~ of the southeast ~ (E % of SE ~ of SE ~), and the east half
of the southeast ~ of the southeast ~ (E % of SE ~ of SE ~), all in Section 3,
Township 33, Range 26, Sherburne County, Minnesota. All in the west half
of the south half of the southwest quarter (W % of S % of SW ~), Section 2,
Township 33, Range 26, Sherburne County, Minnesota.
(the Property); and
WHEREAS, the City of Elk River Planning Commission and City
Council have held hearings on Operator's request for a conditional use
permit, at which hearings all citizens of the City of Elk River and other
interested parties have had the opportunity to be heard on the application;
and
WHEREAS, the City Council by motion adopted, on this _ day of
, 2005 an amended 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 conditional use permit
agreement with City so as to fully comply with the City's Mineral Excavation,
Zoning, and other applicable ordinances; and
Page 2
WHEREAS, the City's Zoning Ordinance requires that a conditional
use permit be issued and that a conditional use permit agreement for mineral
excavation be entered into.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and conditions hereinafter contained, it is hereby agreed as follows:
1.) Entire Agreement - Except as otherwise provided herein, this
Agreement shall constitute the Conditional Use Permit for the Property and,
to be executed by City and Operator, shall govern the parties rights,
responsibilities, and obligations with respect to the operation, subject to the
compliance by all parties with applicable city ordinances and state and
federal laws.
2.) Warranty of Operator- Operator hereby warrants and represents
to the City, as inducement to the City's entering into this agreement, that the
Operator is the fee owner of the subject property or has a valid lease for the
operation and the fee owner of the subject property shall also enter into this
agreement.
3.)
Operation:
(01)
(02)
(03)
Conditions- The following general conditions shall apply to the
This Conditional Use Permit authorizes mineral excavation
(gravel) from the Property.
All mineral excavation and processing operations on the
property shall comply with the City's Mineral Excavation,
Zoning and other applicable ordinances; with the terms of this
Conditional Use Permit agreement and the license agreement to
be executed by the City and Operator; with the City of Elk
River's Environmental Impact Statement on Mineral
Excavation; and with the application materials and plans
submitted by the Operator, which plans and materials are the
basis for the City's approval of the Conditional Use Permit.
The Operator shall orally notify the City of any violations of this
permit within 24 hours and follow this with notification in
writing within four (4) working days of the violation. The
Operator shall notify the City annually in writing of the total
area and amount of material mined and projected estimates of
area and amount of material to be mined in the following year.
This is to be done at time of license renewal.
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Page 3
(04) The license shall be renewed annually and shall run from June
1st through May 31st. The annual license fee is that which is
specified by the Elk River City Council at time of renewal. This
license fee is not in lieu of gravel tax collected by the County, a
portion of which the City receives.
(05) Violations of this Conditional Use Permit may result In
suspension or revocation.
(06) The City Environmental Administrator and/or his/her agents
shall be permitted to inspect the Operation for compliance with
the conditions of this permit during normal hours of operation.
(07) The City's approval of this Conditional Use Permit is subject to
the approval of appropriate permits by other governmental
agencIes.
(08) No explosives shall be allowed for this operation.
(09) Reclamation
a. Reclamation shall be implemented on an annual basis
pursuant to the reclamation plans submitted by the
Operator.
b. Each year a plan for that year's reclamation shall be
approved by the Environmental Administrator prior to
issuance of the mineral excavation license.
c. The reclamation shall include topsoil from the site being
preserved and put back into place after mining.
d. Revegetation of the property shall include seeding with a
mixture approved by city staff accompanied by a nurse
crop or approved mulch. The vegetation established for
the reclamation must be maintained until it is self-
sufficient.
e. Contours, finished grades, details of erosion control
methods, and settling ponds, shall comply with the plans
submitted and the City ordinance at the time of
reclamation. Additional measure as determined by city
staff may be required.
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Page 4
(10) Traffic
a. Except for localized jobs, traffic through Elk River
associated with the Operation shall be limited to U.S.
Highway 10 and 169. The Operator will route traffic from
the Operation to the County Road #33 and Highway 169
interchange as directed by the Minnesota Department of
Transportation or the City of Elk River.
(11) Dust Control
a. A permit from MPCA regarding air emissions shall be
obtained when required and particulate emission
standards shall be met by the Operation. This permit and
all other correspondence between the Operator and MPCA
shall be copied to the City.
b. All equipment shall be located as to reduce dust to
adjacent properties.
c. A water truck shall be on site at all times when mining
activities are taking place to control dust as necessary.
Chemicals shall not be use for dust control.
d. The City reserves the right to require additional
measures to be taken, if warranted by dust problems,
including but not limited to reducing stock pile heights.
(12) Hours of Oneration
The operator will be allowed to mine, process and sell product on
the site from 6:00 a.m. until 2:00 a.m. and maintain equipment
24 hours a day, as long as the Operation does not constitute a
nuisance to surrounding properties as determined by city staff.
If complaints can not be resolved, the Environmental
Administrator may, as a remedy, adjust the hours during which
mineral excavation activities are conducted, ultimately
reverting back to the normal hours of 7:00 a.m. to 7:00 p.m.,
Monday through Saturday. Upon approval of the
Environmental Administrator, or his/her designee, sale (hauling
product off site) may occur outside of the permitted hours (on a
temporary basis not to exceed seven (7) days) to address an
unique situation. Alternatives to back-up alarms will be used
from dawn to dusk.
(13) Noise
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Page 5
a. As deemed necessary by city staff, noise from screening
and crushing associated with this Operation shall be
controlled by equipment location on site, the erection of
sound barriers, the placement of stockpiles, and the type
of equipment used.
b. Noise levels associated with this Operation shall at no
time exceed State standards.
c. The City reserves the right to require additional
measures be taken, if warranted by noise.
(14) Lighting
Lighting from the Operation shall be directed away from
adjacent residential property. Glare, whether directed or
reflected as different from general illumination, shall not be
visible beyond the limits of the immediate site. All sources of
artificial light shall be so fixed, directed, designed, or sized that
the minimum subtotal of their illumination shall not increase
the level of the illumination on nearby residential property by
more than .1 foot candles in or within twenty-five (25) feet of a
dwelling, or more than 0.5 foot candles on any part of the
adjacent property.
(15) 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.
(16) Mining activities shall not cause excessive vibration off site. If
excessive vibration becomes an issue, the City reserves the right
to take appropriate measures to alleviate the problem.
(17) Groundwater protection measures shall include:
a. The Operator shall file with the City an Emergency Spill
Prevention and Counter Control Plan and a Storm Water
Pollution Prevention Plan as may be required by other
governmental entities. The Operator shall adhere to
these plans in the event there is a spill.
b. The Operator shall provide the Fire Department with a
copy of their flammable or hazardous materials.
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Page 6
c. Fuel tanks shall be above ground, properly diked (if
required by law), and registered with MPCA.
d. All incidences that have the potential to adversely affect
groundwater, including but not limited to spills, shall be
verbally reported to the City within 24 hours. This verbal
notification shall be followed up in writing within four (4)
working days.
e. The appropriate storm water permits (NPDES) shall be
obtained by the Operator from MPCA and copied to the
City.
f. The wells located at the site shall be monitored once a
year for diesel range organics (DRO). Mining activities
shall not take place closer to ground water levels than
indicated in the plans submitted without amending this
conditional use permit; however, if mining is proposed to
occur below the water table in the future, the above
referenced wells shall be monitored for DRO prior to
excavation activities commencing and after their
cessation each year. Further, in the event of a spill,
appropriate water tests (as determined by the city) will be
taken until the spill is deemed clean by the city.
g. Except for minor repairs, maintenance of vehicles and
equipment shall take place in the Operator's shop. The
Operator shall have an approved hazardous waste liCense
for this facility and properly dispose of all waste.
h. A minimum of a two-celled system to recycle water from
the wash operation shall be utilized.
1. Water usage by mining activities shall not adversely
affect adjacent wells. Mitigative measures may include,
but are not limited to, curtailing of pumping activities
until water levels return.
(18) Signage
Signage for the operation shall be that which is permitted for an
industrial operation in a medium industrial zone, with the
exception that billboards are not allowed.
(19) Fencing
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Page 7
The Operator shall fence the entire perimeter of the site with a
four (4) foot high fence with support post every ten (10) feet.
(20) Oakwilt
Cutting of trees between April 15 and July 15 is prohibited. The
Operator shall take other measures deemed appropriate by the
Sherburne County Forester to control oakwilt, such as, but not
limited to: debarking or destroying fallen diseased trees prior to
April 15th, not leaving roots exposed and avoiding mechanical
damage on remaining trees.
(21) Berming
The Operator shall erect berms adjacent to 225th Ave NW as
required by the City of Elk River.
(22) Other Permits
The Operator shall obtain all state and federal permits
appropriate to their operation and file copies of said permits
with the City.
4.) General Provisions-
(01) Permits- Operator agrees to comply with all of the provisions
hereof and agrees to save and hold the City harmless from any and all
claims or actions arising from the operations of the Operator on the
Property.
(02) Bindine: Effect- The terms and provisions hereof shall be binding
upon, and inure to the benefit of the heirs, representatives, successors,
and assigns of the parties hereto and shall be binding upon all future
owners of all or any part of the Operation and shall be deemed
covenants running with the land. This Agreement shall be placed of
record so as to give notice hereof to subsequent purchasers and
encumbrances of all or any part of the Property, and all recording fees,
if any, shall be paid by the Operator.
(03) Severable- In the event that any portion of this Agreement shall
be held invalid for any reason, the same shall not affect in any respect
whatsoever the validity of the remainder of this Agreement.
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Page 8
(04) Waiver- Any waiver, whether express or implied, by any party of
a breach of any provision of this Agreement will not operate as or be
construed to be a waiver of any subsequent breach of this Agreement.
(05) Notices- All notices and demands specified herein shall be
deemed appropriately and timely given when delivered personally or
deposited in the United States mail to the addresses hereinafter set
forth by certified mail (return receipt requested). The addresses of the
parties hereto are as follows until changed by written notice given as
above:
If to the City at:
City of Elk River
ATTN: Environmental Adm.
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Operator at:
Bauerl')! Bros.. Inc.
ATTN: Holly Brisk
4787 Shadow Wood Dr NE
Sauk Rapids, Minnesota 56379
(06) IncOl:poration bv 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 WITNESS WHEREOF, the City and Operator have caused this
Agreement to be duly executed on the day and year first above written.
CITY OF ELK RIVER
OPERATOR/FEE OWNER:
Bauerly Bros., Inc.
By:
Its: Mayor
By:
Its:
By:
Its: City Administrator
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Page 9
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
The foregoing instrument was acknowledged before me this _ day of
, 2005, by Stephanie A. Klinzing, the Mayor of THE
CITY OF ELK RIVER, a Minnesota municipal corporation, on behalf of
the corporation.
Notary Public
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Page 10
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
The foregoing instrument was acknowledged before me this _ day of
, 2005, by Lori Johnson, the Interim City Administrator
of THE CITY OF ELK RIVER, a Minnesota municipal corporation, on
behalf of the corporation.
Notary Public
STATE OF MINNESOTA
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this _ day
of , 2005, by , the
of Bauerlv Bras.. Inc., a Minnesota corporation, on
behalf of the corporation, fee owner of a portion of the subject property
and Operator on the subject property.
Notary Public
This instrument was drafted by:
City of Elk River
Environmental Dept.
13065 Orono Parkway
Elk River, MN 55330
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ELK RIVER
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219TH AVENUE
B LAC 1< B E
PRIVA TE
Location Map
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Case Number: CU 05-21
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