5.1. PCSR 01-08-2008REQUEST FOR ACTION
To Item Number
Plannin Conmmission 5.1.
Agenda Section Meeting Date Prepared by
January 8, 2008 Rebecca Haug,
Environmental Admin
Item Description Reviewed by
Request by Kevin Meland for extension on Interim Use permit
for minin
MN Statute 15.99 (60 day rule) status: The application has been deemed complete as of
November 26, 2007. The City must approve, approve with conditions, or deny the project by
Febru 26, 2008.
GENERAL INFORMATION:
A licant: Kevin Meland
Requested Action Extension of Interim Use Permit
Location and Size: 22826 Elk Lake Rd, Lot 2, Block 1 and parcel B,
Dunham Addition
Location Existing Land Use Land Use Plan Designation Current
Zoning
Property in
Question Agricultural Agricultural A-1
North Livonia Township
South Agricultural Agricultural A-1
East Agricultural Agricultural A-1
West Agricultural Agricultural A-1
Introduction
Kevin Meland is requesting an extension on his interim use permit (IUP) for mining.
Case File: CU 08-01 Kevin Meland IUP
Page 2 City of Ell: River
Attachments
• Memo dated November 25, 2007 from Kevin Meland
• Location Map
• a vicinity map;
• Certificate of Survey and project description map
• Application for Conditional Use Permit for Mineral Excavation by Kevin Meland dated
September 20, 2005;
• Letter of Approval from the Army Corps of Engineers
Action Requested
Approve an extension of an Interim Use Permit (CU 08-01) for Kevin Meland to mine 7.25 acres
(approximately 24,000 cubic yards of material), subject to the following conditions:
1. STAFF'S DECISION ON THE WCA IS NOT OVERTURNED ON AN
APPEAL.
2. MR. MELAND RECEIVES APPROVAL FROM SHERBURNE COUNTY
PUBLIC WORKS TO ACCESS COUNTY ROAD 1 FOR HAULING.
3. ALL WORK IS COMPLETED WITHIN ONE (1) YEAR OF PROJECT
EXTENSION APPROVAL.
4. THE MAXIMUM DEPTH FOR THE PONDS IS SIX (6) FEET AND SLOPES
ARE A MAXIMUM OF 6 TO 1.
5. ALL SPOILS REMOVED FROM THE WETLAND ARE DEPOSITED ON
UPLAND AREAS.
Planning Commission Action Motion by Second by voce
Follow Up
Overview
The applicant received an IUP in 2005. The mining was to be completed within 2 years, therefore, a
formal zoning amendment, CUP and license was not necessary. Currently, only a quarter of the
ponds have been excavated.
Applicable Regulations
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:
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Case File: CU 08-O1
Page 3
Kevin Meland IUP
City of Ell; River
7. lY>ill not endanger, injure or detrimentally affect the use and enjoyment of other property in the immediate
vicznity or the public health, safety, morals, comfort, convenience orgeneral welfare of the neighborhood or the
~iy.
2. lYlill be consistent with the comprehensive plan.
3. 1-Vill not impede the normal and orderly development and improvement of surrounding vacant property.
4. Weill be served adequately by and will not adversely a~ect essential public facilities and services including
streets, police and fire protection, drainage, refuse disposal, water and server systems, parks and schools; and
will not, in particular, create traffic congestion or interference with traffic on adjacent and neighboring public
thoroughfares.
5. Dill not involve uses, activities, processes, materials, equipment and conditions of operation that will be
detrimental to any persons or propery because of excessive tra~ic•, noise, smoke, fumes, glare, odors, dust or
vibrations.
6. 1Vill not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance.
7. 1-Ylill fully comply with all other requirements of this Code, including any applicable requirements and
standards for the issuance of a license orpermit to establish and operate the proposed use in the city.
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.
In the review of the standards for CUP as outlined, it appears that the operation is not consistent
with all of these standards.
Analysis
The use is not consistent with the city's Comprehensive Plan as it is not zoned for Mineral
Excavation. The reason behind issuing an interim use permit was so the applicant would not have
to be licensed and obtain a Conditional Use Permit similar to the other mineral excavation
operations in the City.
The applicant has stated that due to the slow market, the mining operation has not progressed as
rapidly as originally thought. While this slowdown is out of the applicant's control, it is equally
impossible to determine when the market will again support the use.
The IUP process was intended to allow generally small users the ability to capture the mineral
deposits with minimal interference from the government, with the understanding that the impact to
the adjacent property owners would be short-lived, i.e. two years. Because the time frame is
impossible to determine, it is prudent to deny the extension of the IUP, and require the applicant to
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Case File: CU 08-O1
Page 4
Kevin Meland IUP
City of Elk River
pursue a formal rezoning and licensure process, guaranteeing adjacent property owners the
opportunity for comment.
Recommendation
Because the request is not consistent with the Standards fox an Interim Use Permit, Staff
recommends the Planning Commission deny the interim use permit as noted above.
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To: Rebecca Haug
City of Elk River
RE: Interim use permit extension
For: Kevin Meland
22826 Elk Lake Rd
Elk River, Mn 55330
11 /25/07
Rebecca,
I am writing you about my mining and conditional use permit. My
original permit expires in November of this year, however because of
weather circumstances over that last two winters, I have only been
able to dig on quarter of the ponds. The winter of 2005 did not
produce enough frost in the wetland to be aggressive enough to get
what I needed done. The winter of 2006 produced too much frost in a
very short time so I couldn't get enough out. I am asking you to
extend the permit for a maximum of one year with the understanding
that I cannot extend it again. I have complied with the rules attached
to these permits and have kept a clean working environment. I have
not heard of any complaints from neighbors.
I purchased a new larger excavator last October while business was
booming. At the time we were digging 3-4 basements a week for a
very large business, however this spring things changed drastically
with the housing market taking a big drop in sales. We are not digging
hardly any basements any more so the black dirt mining business is
going to be what we are going to completely focus on. We have sold
the dirt as fast as we can dig it and I already have customers who
want the rest of the dirt as it comes out of the ground. I am confident
that we can finish the project in the next year easily. We will get
started tomorrow (11-26-07) at digging black dirt again.
Thank you for all the work you put into this originally and I appreciate
you taking the time to look at this for me.
Sincerely,
Kevin Meland
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APPLICATIONS WILL NOT BE ACCEPTED PRIOR TO DEADLINE DATE
(See attached Planning Commission and City Council Meeting Schedule)
Case Number: _~~Tj' ~~
~~ ,:_. ~~ '^~~ Planning D
City of ,., ~ ,
.,fie„ -~. ~ ! ..r.
. ~ Land se Application Form
River
Revised September 6, 2005
Application Type Fee Consultant Retainer
Administrative Subdivision $300.00 $500.00
('~.,~1;r;^.,~1 Use Permit
Residential $300.OQ 0
C.ommeraal/Ind+~ crT,a1 ~*+~T^'+TM^aal $500. $1,000.00
Easement Vacation Street, D e/IJ $250.00 $3
GeaeralPlannin Permit $100.00 No Recordin R aired
Interim Use Permit
Residential $300.00 $200.00
CommerciaVladustrial $500.00 $1,000.00
Ordinance or Lead Use Amendment $400.00
Plat
Prelimin $1,000.00 + $5 ea. addl >50 $1,000.00
Final $200.00
Site Plan Review $300.00 $1,000.00
Subdivision Exem tion $100.00
`7a.;a^r. or A eal of Zo ~ Decision $200.00
Zone $400.00
RECORDING FEE A licatioas w/No Retainer $46.00
Purpose of Fees and Retainers
Fees
The application fees that are charged are used for postage to mail the required notices to adjacent
properties, publication of the public hearing notice in the Elk River Star News, and for a small
portion of staff time for case review and preparation of documents.
Retainers
The City uses consultants for engineering, law, and environmental reviews. The retainer is used to
pay these consultants for review of land use cases. Once the retainer is used, the applicant or
responsible party will be billed for these services (see Agreement to Pay Costs of Review).
Property Information -~5-_ ~p ~ _ G/G~
Address: ~-~~,~ ~L~~.~1~~ ~d. Parcel Number. 75 ~lo- U//c~
Legal Description: (attach if necessary) ~-~-~~G~~,l~ - ~Z~,~ I~ ~,;.a.,v~~c~,~~ l~ G'~
Applicant Information
Name: 1' ~ v` ~ ~ E-mail address: Cc`s
Address: ~29~. k' IlT ~.IQ ,~.~~~ ~~~~~
Phone (w): ~j Fax: Phone:
I prefer that my copy o s reports be seat . y: In ass a Fax ^ E-mail ( eck one
Signature:
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Date: ~~`-~~
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Planning Land Use Application
Page 2
Owner In//formation
Name: ~~ ~ V1, ~ ~~, ~-I `3u1 ~ E-mail address:
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Address: ~ L~ Q ~L~~ ~~-~' ~C7~ ~~C~ •
5tteet City State Zip Code
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Phone (w): ~ , Fax: ~ Phone ~7f-~/~'\
I prefer that mp copy of staff reports be seat by: Clas Mail ax ~ E-mail~(Check•oae) '
Signature: Date: • /'-~'~ ~
Billing Information (if different from either applicant or owner information)
Name:
Address:
street
Phone (w):
State Zip Cnde
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Fax: Pone (F~:
Signature: ~ '~ Date: ~_ ~.%- ~' S
Agreement to Pay Costs of Review:
It is the policy of the City of Elk River to require applicants for land use approvals and licenses to
reimburse the City for costs incurred by the City in reviewing and acting upon applications, so that
these costs are not borne by the taxpayers of the City. These costs include all of the City's out-of-
pocket costs for expenses, including the City's costs for review of the application by the City's
environmental Consultant, City Engineer, City Attorney, or other consultants, and map also include
a charge for extra staff time to process particularly complex applications.
The City will bill the applicant for these costs as they are incurred, and payment will be due within
thirty (30) days of mailing of the bill. If payment is not received as requited by this by this
agreement, the City will suspend the application review process and may deny the application for
failure to comply with the requirements for processing the application. Payment fox costs will be
requited whether the application is granted or denied.
The undersigned has received the City's policy regarding the payment of costs of review,
understands that reimbursement to the City of costs incurred in reviewing the application will be
required as set forth in the policy, agrees to reimburse the City as requited in the policy and make
payment when billed by the City, and agrees that the application map be denied for failure to
reimburse the City for costs as provided in the poli ! '
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S:\PLANNII~3G\Fotms\Application Foans\Application Foan Rcvised 0124 05.doc
Planning Land Use Application
Page 3
e--- --
Description of ProjectJRequest/l~ame of ~Ia,~
,~-~
Submission Requirements
The City requires six (6) copies of all required drawings. DRAWINGS SHALL BE FOLDED at
a scale no smaller than 1"=50', and no larger than 24"x36" in size. One (1) set of 11"x17"
reductions is also required. All required information must be submitted on the application date in
order for an application to be considered complete. Incomplete applications will not be
accepted/processed rn accordance with MNStatutes Chapter 15.
For all applications:
^ Site Plan
^ Labels fox Property Owners within 350 feet of the Subject Parcel (Obtained from the
Sherburne County Auditor/Treasurer's Office; 13880 Highway 10 NW, Elk River 1-800-
438-0575 or 763/241-2594) * LABELS NOT REQUIRED FOR GENERAL PLANNING
PERMITS, $ITE PLAN REVIEW, FINAL PLAT, OR SUBDIVISION EXEMPTIONS.
^ AIl submitted hard copy graphics shall also be provided on a CD in .pdf format, no larger
than 11" x 17" at 300 dpi, unless waived by staff (floppy disks will not be accepted).
(SEE ATTACHED INFO REGARDING CAD DRAWING REQUIREMENTS)
For Administrative Subdivisions: (applies to subdivisions of four (4) or fewer lots on metes and
bounds property with no road construction required)
^ Simple Plat _
^ Existing/proposed Right of Way
^ Primary and Secondary Septic Locations
^ Wetlands
^ County Review Letter, if adjacent to County Road
For Lot Splits: (applies to two (2) lot split of Lot and Block property)
. ^ Certificate of Survey
^ County Review Letter, if adjacent to County Road
For Easement Vacations:
^ Legal Description of Easement or Street to be Vacated
For Final Plats:
^ Sig (6) copies of the final plat plus one (1) 11 g 17 reduction
^ One (1) area map showing lot, outlot, and right of way areas by acreage
^ Electronic form of final plat (see separate handout)
S:\PI..9NNING\Foans\Application Fotms\Papplication Foan Revised Oi 24 05.doc
Please describe pour project/reason fox pour request. If necessary, attach a written narrative.
DEPARTMENT OF THE ARMY
ST. PAUL DISTRICT, CORPS OF ENGINEERS
190 FIFTH STREET EAST
ST. PAUL MN 55101-1638
August 25, 2005
REPLY TO
TTENTON OF
perations
Regulatory (2005-5066-YSB)
Mr. Kevin Meland
22826 Elk Lake Road
Elk River, MN 55330
Dear Mr. Meland:
This concerns your proposed construction of four wildlife ponds in an unnamed wetland
for the purpose of wildlife habitat. Approximately 24,000 cubic yards of material would be
excavated and trucked to an upland disposal site. The project is located in the NW 1/4 of Sec. 5,
T. 33 N., R. 26 W., Sherburne County, Minnesota.
The Corps of Engineers regards the use of mechanized earth-moving equipment to
conduct excavations in waters of the US, including most wetlands, as resulting in a discharge of
dredged material unless project specific evidence shows that the activity results in only
incidental fallback. Incidental fallback is the redeposit of small volumes of dredged material that
is incidental to excavation activity when such material falls back to substantially the same place
as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is
shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls
into substantially the same place from which it was initially removed.
A Clean Water Act Section 404 permit is not required provided that all of the following
conditions would be met:
1. There will be no movement of material within the wetland, except for the excavation of
dredged material that is placed directly into trucks or deposited in an upland area by the
use of a backhoe or high hoe. While incidental fallback from the excavator is not a
regulated discharge, our jurisdiction may be triggered if there is excessive spillage
between the bucket and the truck or the bucket and the upland disposal area.
2. No other earth moving activities will occur in the wetland, including grading or
mechanized land clearing. These activities result in discharges of dredged or fill
material, which requires authorization by the Corps under the Clean Water Act (Corps
permit) prior to commencing the work.
3.. None of the dredged material will be side cast or temporarily stockpiled within any
wetland areas. Sidecasting or stockpiling materials in jurisdictional wetlands requires a
Corps permit prior to commencing the work.
4: There will be no construction of temporary access roads in wetlands or the use of mats to
support equipment in wetlands. These activities would constitute a discharge of
dredged or fill material and require a'Corps permit prior to commencing the work.
~~/~~
CEMVP-OP-R-2005-5066-YSB
5. There would be no bank shaping or placement of riprap within the excavated area or
wetland limits. These activities would also constitute a discharge of dredged or fill
material and require a Corps permit prior to commencing the work.
6. There would be no construction of structures within the wetland that could have the
effect of fill, which may require a Corps permit prior to commencing the work.
Any activity that results in more than the incidental fallback of dredged material into a
water of the U.S. during the construction. of the proposed action would require a Corps permit
under §404 of the Clean Water Act. Section 301 of the Clean Water Act (33 U.S.C. § 1311)
prohibits discharges of dredged or fill material into Waters of the United States, including
wetlands, unless the work has been authorized by a Departrnent of the Army permit under
section 404 (33 U.S.C. 1344). Violations of the Clean Water Act can result in administrative
penalties, civil penalties of up to $27;500 per day of violation, criminal fines or imprisonment.
Restoration of the site to its pre-violation condition may also be required.
It is strongly recommended that the depth of the pond not exceed 3 feet and that one
larger pond be constructed in lieu of several smaller ponds.
Enclosed is an approved jurisdictional determination. The wetland azeas on your project
site are part of the tributary system to the Mississippi River, a navigable water of the United
States. Those wetland areas are, therefore, within the Corps of Engineers regulatory authority
under the Clean Water Act. If you disagree with the enclosed jurisdictional determination, you
may appeal this decision. Please follow the directions in Section D of the enclosed Notification
of Administrative Appeal Options and Process and Request for Appeal
If any change in design, location, or purpose is contemplated, contact this office to avoid
doing work that maybe in violation of Federal law. PLEASE NOTE THAT THIS LETTER
DOES NOT ELIlvIIl~IATE THE NEED FOR STATE, LOCAL, OR OTHER
AUTHORIZATIONS, SUCH AS THOSE OF THE DEPARTMENT OF NATURAL
RESOURCES OR COUNTY.
If you have any questions, please contact Ms. Yvonne Berner in our St. Paul District
Office at (651) 290-5365. In any correspondence or inquiries, please refer to the Regulatory
number shown above.
Sincerely,
~~~
be~rt J~~ting
hief, Regulatory Branch
Enclosure
NOTIFICATION OF ADMII~tISTRATNE APPEAL OPTIONS AND PROCESS AND
.REQUEST FOR APPEAL
`~~plicant. Kevin Meland File Number: 2005-5066 Date: August 25, 2005
ached is: See Section below
INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) ,~
PROFFERED PERMIT (Standard Permit or Letter of permission) g
PERMIT DENIAL C
X APPROVED JURISDICTIONAL DETERMINATION D
PRELIMINARY JURISDICTIONAL DETERMINATION E
SECTION I -The following identifies your rights and options regarding an administrative appeal of the above
decision. Additional information maybe found at http://usace.army.miUinet/functions/cw/cecwo/reg or
Corps regulations at 33 CFR Part 331.
A. INTTIAL PROFERRED PERMIT: You may accept or object to the permit.
ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal
the permit, including its terms and conditions, and approve jurisdictional determinations associated with the permit.
• OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that the
permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. Your objections
must be received by the district engineer within 60 days of the date of this notice, or you will forfeit your right to appeal the permit in the
future. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a) modify the permit to address all of
your concerns, (b) modify the permit to address some of your objections, or (c) not modify the permit having determined that the permit
should be issued as previously written. After evaluating your objections, the district engineer will send you a proffered permit for your
reconsideration, as indicated in Section B below.
''ROFFERED PERMIT: You may accept or appeal the permit.
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on
the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit,
including its terms and conditions, and approved jurisdictional determinations associated with the permit.
• APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you may
appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and
sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice.
C. PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by
completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer
within 60 days of the date of this notice.
D. APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information.
• ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of
this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD.
• APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative Appeal
Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division
engineer within 60 days of the date of this notice.
E. PRELIlVIINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the preliminary JD.
The Preliminary JD is not appealable. If you wish, you may request an approved JD (which maybe appealed), by contacting the Corps
district for further instruction. Also you may provide new information for further consideration by the Corps to reevaluate the JD.
:EMVP-OP-R (MVP-2005-5066-YSB
ECTION II -REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT
EASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial
~ered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons or
ejections are addressed i:n the administrative record.)
>DITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the record
the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to clarify the
ninistrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide
iitional information to clarify the location of information that is already in the administrative record.
INT OF CONTACT FOR QUESTIONS OR INFORMATION.
you have questions regarding this decision and/or the appeal If you only have questions regarding the appeal process you may also
~cess you may contact: contact:
U.S. Army Corps of Engineers Division Engineer
Regulatory Branch c/o Martha S. Chieply, Appeal Review Office
190 East Fifth Street CEMVD
Saint Paul, MN 55101 P. 0. Box 80
Telephone: 651-290-5365 Vicksburg, MS 39181-0080
Telephone (601) 634-5820
iHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government consultants
to
,
duct investigations of the project site during the course of the appeal process. You will be provided a 15 day notice of any site
~stigation, and will have the opportunity to participate in all site investigations.
Date: Telephone number:
nature of appellant or agent