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5.2. PCSR 06-12-2007REQUEST FOR ACTION To Item Number Plannin Commission 5.2 Agenda Section Meeting Date Prepared by Conditional Use Permit June 12, 2007 Nicola (Vicki) Blake-Bradley, Environmental Technician Item Description Reviewed by Request by Tony Powell for Conditional Use Permit to create an Rebecca Haug, Environmental open water pond in a wetland, Case No. CU 07-11 Administrator Reviewed by Action Requested Staff is recommending the Planning Commission recommend approval of the request for a Conditional Use Permit to excavate more than 100 cubic yards of soil with the conditions as outlined below. Background/Discussion When excavation exceeding 100 cubic yards is proposed, over the de minimus exemption level of 5,000 square feet in a Type 2 wetland, a Conditional Use Permit is required. Ordinance Code Section 42-51 (c) allows the work to be done without a zone change or license since work will be done within two years. The applicant has proposed excavation of a 9,000 square foot pond in a wetland near his home which will result in 500 cubic yards of spoils (wetland soils) being excavated. He proposes to use the wetland soils for fill around his home to establish a yard. The following conditions are recommended by the Technical Evaluation Panel (TEP) and Staff: ^ All excavated spoils must be removed from the wetland boundary prior to spreading around the home; ^ Erosion Control Best Management Practices (BMP's), i.e. silt fence, must be installed between the wetland and upland areas prior to excavation and placement of spoils; ^ BMP's must be removed following final stabilization of soils; ^ Primary septic drain field and secondary sites must be roped off to prevent compaction of soils; ^ Attach the standard archaeological disclaimer requiring work to stop if archaeological artifacts are found during excavation (or land spreading the spoils) ;and ^ Approval by the Army Corps of Engineers for the project (submitted to the City of Elk River, Environmental Department). ^ Hours of operation during construction of the open water pond and placement of spoils around the home will be 7:00 a.m. to 5:00 p.m., Monday through Friday. Attachments Location map Applicant's Narrative Case File: CU 07-11 Open Water Pond Excavation Page 2 'T'ony Powell • Site Plan(s~ • Letter from County Ditch Inspector dated October 11, 2006 • Wetland Conservation Act amendment request dated Apri120, 2007 • WCA amendment decision dated May 22, 2007 Action Motion by Second by Vote Follow Up S:APLANNING\Case I'ilcs\CUP\CU 07-11 Powell\Powell Staff Report for PC - 6-07 (2).doc Case File: CU U7-11 Pagc 3 General Information Open Water Pond E~caeation Tony Powell Applicant Tony Powell 60 Day Rule The application has been deemed complete as of April 30, 2007. The City must take action by June 30, 2007 Requested Action Excavation of 9,000 square feet of a Type 2 wetland for an open water ond. Location and Size Approximately .21 acres west of the new home at 14323 225`h Avenue, Elk River, MN (I'ID# 75-760-0115). Location Existing Use Land Use Plan Designation Current Zoning Subject Residential A-1 Rural Residential Property North Residential A-1 Rural Residential South Residential A-1 Rural Residential East Residential A-1 Rural Residential West Big Lake Big Lake Township Big Lake Township Townshi Overview The original request from Mr. Powell was fora 135,000 square foot open water pond in a Type 2 wetland behind (west of) his house. The TEP for the City of Elk River reviewed the project and approved it, contingent upon a Conditional Use Permit being issued for the excavation since it is in excess of 100 cubic yards. The Army Corps of Engineers requested further information on the project from Mr. Powell. Subsequently, the applicant's request was reduced to create a 9,000 square foot open water pond closer to his home and further from the County Ditch along the west property boundary of his property (see Map). Mr. Powell's agent, Shane Steinbrecher, submitted a request for an amendment to the Wetland Conservation Act (WCA) permit. The amendment was issued, but the CUP is still a requirement. Since the work will be conducted within two years, there is no need for licensure or a zone change by the City of Elk River. Applicable Regulations Conditional Use Permit The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 7. lYlill not endanger, injure or detrimentally affect the use and enjoyment of otherproperty in the immediate vicinity or the public health, safety, morals, comfort, convenience orgeneral welfare of the neighborhood or the city. The proposed excavation is entirely within Mr. Powell's property, located within a Type 2 wetland. The excavation is intended to remove invasive reed canary grass, create a shallow, open water pond, and increase the number of biological niches in S:APLANNING\Case Piles\CUP\CU 07-71 Powell\Powell Staff Report for PC - 6-07 (2).doc Case File: CU 07-11 Page 4 Opcn Water pond Fscavation 'Pony Powell the area. A greater number of wildlife species are expected to be able to use the wetland complex as a result of the excavation. 2. mill be consistent with the comprehensive plan. The project is consistent with the Comprehensive Plan. 3. lYlill not impede the normal and orderly development and improvement of surrounding vacant property. Mr. Powell currently owns the surrounding property. 4. mill 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 sewer ystems, parks and schools; and will not, in particular, create traffic congestion or interference with tra~c on adjacent and neighboringpublic thoroughfares. N/A due to location ofpond 5. Dill not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons or property because of excessive tra~c, noise, smoke, fumes, glare, odors, dust or vibrations. Mr. Steinbrecher, the contracted excavator, has stated that the project will take approximately three days and work will be conducted from 7 a.m. to 5 p.m. (M - F only). 6. lYlill not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. Due to the potential for archaeological sites on the property, the standard disclaimer will be attached. 7. Dill fully comply with all other requirements of this Code, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the proposed use in the city. A license and zone change are not required due to the fact that the work will be completed in less than two years. 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 request is consistent with all of these standards. Analysis The TEP for the City of Elk River has reviewed the application and subsequent amendment request to reduce the size and have approved both requests. The amended permit is the valid permit and has been attached for your convenience. Comprehensive Plan The project is consistent with the comprehensive plan. Natural Resources Natural Resources Inventory (NRI~ - no significant features in the vicinity of the project Trees -None to be removed Wetlands - 9,000 square feet of the Type 2 wetland will be excavated to form an irregularly shaped, open water pond no more than three feet deep with a maximum slope of 5:1. All spoils will be S:APLANNING\Casc Files\CUP\CU U7-11 Powell\Powell Staff Report for PC - 6-07 (2).doc Case File: CU 07-ll Page 5 Open Water Pond Excavation Tony Powell removed from the wetland boundary to an upland site. Erosion control measures are required until full soil stabilization has been achieved. Grading/Drainage The gradient within the open water pond will not exceed 5:1 slope. The County Ditch setback of 50' has been met and approved by the County Ditch Inspector. Landscaping Spoils from the wetland excavation will be spread around the new home and then sodded to prevent erosion into the wetland. Erosion Control measures such as silt fence and/or erosion control blankets are required between the wetland and upland areas to prevent erosion into the wetland until all areas are completely stabilized. Recommendation Staff recommends that the Planning Commission recommend approval of the request, as illustrated on drawings dated, with the following conditions: 1. All comments and conditions of the Sherburne County memo dated October 11, 2006 shall be addressed; 2. All excavated spoils must be removed from the wetland boundary prior to spreading around the home; 3. Erosion Control BMP's (i.e. silt fence and/or erosion control blankets) must be installed between the wetland and upland areas prior to excavation and placement of spoils; 4. BMP's must be removed following final stabilization of soils; 5. Primary septic drain field and secondary sites must be roped off to prevent compaction of soils; 6. Attach the standard archaeological disclaimer requiring work to stop if archaeological artifacts are found during excavation (or land spreading the spoils); 7. Approval by the Army Corps of Engineers for the project must be submitted to the City of Elk River, Environmental Department; 8. This approval of the Conditional Use Permit shall expire after 1 year, unless the property owner or owner's agent has submitted a letter of request for extension: And 9. Hours of operation during construction of the open water pond and placement of spoils around the home will be ?:00 a.m. to 5:00 p.m. Monday through Friday. Respectfully Submitted, Nicola Blake-Bradley Environmental Technician S:APLANNING\Case Files\CUP\CU 07-ll Powell\Powell Staff Report fox PC - G-07 (2).doc Mi.'• ~ ~ ~ w ~ ~ ~4 ~ ~ •.~Y' ~~ , ~~ 9~- ~ ~~ ~x ~~ ~ . ~~vti ~~.eti ~ i~. -~u ~ ~ f ~S v{e = < „ ~v ... 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Ny'1 {~ 'Z _. *i N k ~" ~ ~. ~ '1 pe-, W „_ A ~T~~ k' ~J ,C ~#: § y~ b. '' t.. k .ry.Y ~. ter. .. J '~~ ,' ~ ~_ 4* ~' ~ , ,-~_~ . M Me. sy-F. 4r °p s , ~ "` r- ~ .rf. } = ~~IE~DO WVALE C_ E_IIETD'FY SITE I ~~ __ __ . __ ........_.. _...... . ___ __ __ " J' Location Map ctY of N El -~ R1VeY' Case Number: CU 07- I I TONY POWELL • ~omp~ne~, lnc, 13792 247m Avenue = Zimmerman, MN 55398 Phgne (763) X74-Q~5 Fax (763) 274-098 Rf~i-~-~?~'FS _ • ~~~$ DI~t`~" _ • _ ~E~9LIT19N IANASCAI'ING i EXeAVA'I'ING Apri130, 2007 SITE PLAN 90` x 100' Pond with a depth of 2' -3` and 5:1 slopes is to be dug as located on aerial. Material is going to be hauled up and dumped around house and graded off as topsoil; taking special care not to do any grading behind the house and in the wetland area. LANHSCAI'INO PLAN Material from pond that has been graded around house will be seeded or sod as per homeowner. GIl;AD1NG AND tjRAINA~E PLAN Material will be graded and tilled in to current soils around house, averaging an additional 4" of coverage. Drainage will continue to slope in the same manner as it currently does. DIZAINAO>~ eALeULATI©NS The pond will be dug at a minimum 5:1 slope. WET1=.Al~Tfl flEI.INEAfI©N The wetland is outlined by the tree line behind the house. An amendment to the wetland application is available through the environmental department. If you have any questions please contact Shane at 612-222-8675. '3~~~ FOWELL DATE --„- ~;. ~~ C ~~ aM ~ 4( y~~ ter:' 4' ~ ~ ~*"-~ Y+1~~ "„"~ ~~ ~ .. ~£ y_ `~ .~s ~Y,~ yam} ~ ~ ~ ~ f _ g3 'gTr '~.. try ,. ~ 2. '~ ~ ~ ~ ,mss.. dir. .~.,~ ~ ~ ,~ 1 ,~~ M . ...~', t..,. ~~_ '.F. ~+~ w.an~ lG.- ~~ r j~"^ z^ i' may, ~ ~ ~ ~ ~ ~ ~ i?o ~`O~c ~ It ;~ .~w.~ ~ ~{ ~ ~*ev ~.., y~y~ fro * .~ ~Y _ A' •e .; ~.;~ ~. •_~-- .ice. .. ~~: W~, -.~ ~ - ~ ~` .. ` M - - -- _L , _ A. ,_ i~ ~. ~~ ~ '~ ~. ~. 'T ~ 5 „.~ L ...~. _ 1 ~. ~ yd` ~- ~ ~ rte.:. _. ~t3'w ~'." ~: . # ~ r, t~~ r e ~ ; -w I~ ~. t c ..: . '_. .._ _.. _ ~: _ •. ,""' ~_ 4 r r + i wx i ~~ ~ r • L `' ~ _ v__ ~ ~ .. ~~. t a r ~.. .... .. _y ,. a -y t~ ` ~~~ ,~ -- ~ ~_~_ -t _.. 3. <. ,~ _ _.. - S... - .r w.~ ... ... ~..... .. .. .. .._.. _..... ..~ ~ s ~._.-. _~~ --ti a_ .. _ -. ~ •i _, _ _. _: -' _ _ •. i ~ _~ ~ ~ +~ -.~ ~ N ~ ~ ~- .~ - _ ~~, ~ ~ ; '~ Q ~~ ~ ~ w ' » 'k i ? q - .v ,+ ' .r ~ x r .*.~`+.i `} r ~~r r' r `~~ 1 ~~'~ i Y !' rr J ~ l..* 7~y +R`i" "" Wi ,=~ 11f ~ ti 1 h. `~'~' ~' r '~ n. } ? ~«'4` ,w~ ~ti{ .. _ !~ y,,. ,. .~'. .r rt ' ' tibr. i ~ ~ : da ' n ~ ~{~ . ~ ~~ dr_. ',a p s . :.. ~ _ Sherburne County PUBLIC WORKS JOHN N. NORGREN October 11; 2006 Ditch and Drainage Technician Mr. Shane Steinbrecher 13880 Highway 10 13792 - 24.7 Avenue Elk River, MN 55330-4601 Zimrnennan, MN 55398 763-241-7184. 1-800-438-0576 Cell 612-940-4777 _ RE: Setback fiom County Ditch #1 Branch 12, Section 6, Township 33, Range 26W. City of Elk Riser; Sherburne County. Dear Mr. Steinbrecher; Reference our phone conversation earlier today regarding locating a wildlife pond adjacent to a County Drainage Ditch: The County's policy, in accordance to State Statute 103E, no private waters inay connect to a public drainage system, unless a petition is received for an outlet. Therefore a separation of 50 feet must be established between the top edge of said drainage ditch to the top edge of the proposed pond. The County's ditch system begins at 22~t1i Avenue (Branch 12) and proceeds. in a southeasterly direction where it connects to the main portion of Ditch ~1.. The area you described is on a private ditch that connects to Branch 12 of Ditch ~1; where we have no jurisdiction. However, if you connect a pond to the private ditch; then you would be changing the original drainage impact to the County's ditch system, thereby triggering a change in the County's. assessment benefit for your parcel. Therefore I recommend-that you follow the same procedure as if the ditch was a public ditch. I will. be forwarding a copy of this letter to Nicole Blake-Bradley, Enviromnental Technician, Cityof Ell: River, as to the County's position regarding your request. _All environmental requirements and procedures will have to be channeled through the City of Elk River. Should you have any concerns regarding impacts to the County's drainage. system please contact me any time:. Respectfully,- ~~~~~ ~-' /" John N. Norgren _ Sherburne County-Ditch and Drainage Technician cc: Ramona Doebler; Auditor/Treasurer John Mente~•, Public Works Director _ - IVicoleBlake-Bradley, EnvironmentaTTechnician, City of Elk River - Todd Schoffehnan, Assistant County Attorney An Affirmative Action/Equal Opportunity Employer 1306 Orono Parkway E(k River. MN X5330 May 18, 2007 Subject: Amendment Request to Permit for Tony Powell - WCA 07-O1 To whom it may concern: Attached is a copy of the amendment request from Agent Shane Steinbrecher for Tony Powell. The applicant would like to reduce the amount of excavation from the approved amount of 13 x,000 square feet to a total of 9,000 square feet of a Type 2 wetland (NWI shows as a Type 3, drained) to create an open water pond and use the spoils for fill around the new house. This request was discussed at the May TEP meeting. The excavation is approved contingent upon issuance of a Conditional Use Permit for Mining/Excavation of soils over 100 cubic yards from the City of Elk River. Best management practices are required between the wetland and the upland spoil placement site until no chance for erosion into the wetland (due to revegetation) occurs. If you have any questions, please feel free to call me at (763) 635-1073. incerely, Nicola Blake-Bradley, Environmental T~~hnician ~. _~ 13792 247m Avenue -Zimmerman, NfN 5398 Phone (763) 274-4925 Fax (763) 274-0928 RL3I.L-OAFS ~ BLACK D~R`I' ~ DEYIt31.ITI©N LAi°dDSC.~,PiNG ~ E~C~V:~"~'i`rO April 20, 2fl07 City of EIk River Attn: Nicola Blake-Bradley 13065 Orono pkwy EIk River, ~v11~155330 Dear Nicola, ~i e are amending the application for t'~e excavation flf wetland at Tonv Po~rell residence, address is 1~3~ ~5rh Avenue -EIk River, tii~ti'. The new dimensions will be 100' x 90', 2 -3 ft deep with 5:1 slopes. All material will be e xcavated out and placed around house anti graded out. We intend to start this project as soon as we get approval from planning commission, should be mid June. Included is an aerial photo showing house and proposed pond. Stein K i t ~ ~ -~ ~ ~ ~tr~v~ ~Lt a_ ~ ~ t ,}t'7„Y t'' ~' s -.- v # ~= ~,~,~" - _ r ~- ~~ ~,~5;~ `°'~-Tm~.~.., sue. -~. ~`~ ~_ - ~~ I \ ~~~_.~r _ ~W ~ ~ r~~` _ `=J 1, \ Yom,. Z'~!^" .; ~' ~ ,~, } ~ K 4'. .' ~~ r 'Yi, I t: ~'~ -.-tc 1 . ~' C ~ .. ~'I' its ~ Y~~ ``,' - r. l~„ `:4. FFrr M ~, ~ wfi ~ -.. - ~ fr~~ ~~ 1. `.k ~~ . Y `^/ ~...a~~ ~7~r./ -xt~,t s ~~ ry~, ` ~ `>. r ~, 5 . •~:. i. ~~1 iy~' ~ ~ /~ \f ~' t ~. .., -~_ 3 ~.~ ~; _. ~. .~. ~- - ~p r S R M'~ ~,, ~'~ ~;. ~%T ~' I Q4444444~_ ~ ~~__ . .~ „~~I y . ~; 1 .* P ~ ,d T~~ i ~ ~~. _t . • x' ,~ ?~ ~ a ~: , ~~y~ . 4 ~ ~'__t ~• .-s ~" ~; E' x ~.. ~` ~~ 4 H ti ° ~ `,.a. s ~~~;<~- s, 4 ~'~"~. ~ ~ • a;, Y f ~.y.~- River MN 55330 (763) 635-1073 Name of Applicant: Agent• Shane Steinbrecher 13792 247`h Avenue Zimmerman, MN 55398 (612) 221-8675 for Tony Powell 14323 225th Avenue, Elk River, MN 55330 Project Name: Amended permit for excavation of a Type 2 wetland to create an open water Pond for aesthetics with a maximum size of 9 000 square feet (reduced from 135 000 square feet) with a maximum depth of three (3Zfeet and a minimum slope of 5.1 on parcel #75-760-0115 located in the NWl/4 of the SW1/4 and also the SW 1/4 of the NW1/4 of Section 6 Twp 33N, Range 26W, City of Elk River. Application Number: 07-01 Type of Application (check one) Date of Decision: Mav 18, 2007 ^ Exemption Decision X No Loss Decision ^ Replacement Plan Decision ^ Banking Plan Decision ^ Wetland TypeBoundary Decision Check One: ^ Approved X Approved with conditions (see Project Summary below) ^ Denied Summary of Project/DeC1s10n (indicate exemption number per MN Rule 8420.0122, if applicable): This project is allowed continent upon issuance of a Conditional Use Permit (CUP) for minim and ~radin~ black (wetland) soils If a CUP is not issued by the City of Elk River, this permit is nullified and the protect cannot be approved without modification of the plan and review by the Technical Evaluation Panel (TEP) This project is allowed because no wetland loss will occur, but rather a thane in Type from a Type 2 to a Type S wetland. This permit allows the excavation of an open water pond approximately 100' x 90' x I S'(avera~e) depth with a minimum slope of S:l on parcel #75-760- Oll S located in the NWI/4 of the SWI/4 and also the SWI/4 of the NWI/4 of Section 6, Twp 33N, Raise 26W, City of Elk River No excavation is allowed within SO' of the County Ditch. All spoils must be removed from t/xe wetland boundary to an upland site. Spoil piles are to be spread around the existin (tome outside the wetland boundary and must be placed so that no erosion will occur which results in sediment bein deposited back into the wetland. Best Management Practices for erosion control (silt fence and/or erosion control blankets) must be placed between the wetland edge and the area where spoils are placed It js the applicant's responsibility to know where the limits of this permit lie The project must follow the plan submitted unless chance is authorized by the ?'ethnical Evaluation Panel The applicant must ensure approval from the Army Corps of Engineers. This permit will expire on May 18, 2009. List of Addressees: Landowner: Tony Powell 14323 225th Avenue Elk River, MN 55330 Agent: Shane Steinbrecher 13792 247th Avenue Zimmerman, MN 55398 -Page 1 of 2 No loss notice -Powell amendment ~-18-07 9/16/04 Name and Address of Local Government Unit: City of Elk River li065 Orono Parkway, Elk Members of Technical Evaluation Panel: Keith Grow, BWSR Bill Bronder, Sherburne County SWCD Paul Diedrich, MN DNR Julie Olson, MN DNR Roger Stradal, MN DNR Tom Hingsberger, ACOE John Norgren, Sherburne County Ditch Inspector Nicola Blake-Bradley, City of Elk River Rebecca Haug, City of Elk River Terry Maurer, City of Elk River and/or John Anderson (Engineer) Watershed District or Watershed Management Organization (If Applicable): N/A Department of Natural Resources Regional Office (select appropriate office): NW Region: NE Region: Central Region: Southern Region: Regional Director Reg. Eriv. Assess. Ecol. Reg. Env. Assess. Ecol. Reg. Env. Assess. Ecol. 211 Birchmont Beach Rd. NE Div. Ecol. Services Div. Ecol. Services Div. Ecol. Services Bemidji, MN 56601 1201 E. Hvry. 2 1200 Warner Road 361 Hwy. 15 South Grand Rapids, NIN 55744 St. Paul, MN » 106 New Ulm, MN 56073 DNR TEP Representative (if different than above) Paul Diedrich Corp of Engineers Project Manager @ Department of the Army, Corps of Engineers, St. Paul District ATTN: CO-R. 190 Fifth Street East St. Paul, MN 55101-1638 Individual members of the public who requested a copy, summary only: none You are hereby notified that the decision of the Local Government Unit on the above-referenced application was made on the date stated above. A copy of the Local Government Unit's Findings and Conclusions is attached. Pursuant to Minn. R. 8420.0250 any appeal of the decision must be commenced by mailing a petition for appeal to the Minnesota Board of Water and Soil Resources within thirty (30) calendar days of the date of the mailing of this Notice. NOTE: Approval of Wetland Replacement Plan Applications involving the use of wetland banking credits is conditional upon withdrawal of the appropriate credits from the state wetland bank. No wetland impacts may commence until the applicant receives a copy of the fully signed and executed '`Application for Withdrawal of Wetland Credits," signed by the BWSR wetland bank administrator certifying that the wetland bank credits have been debited. THIS DECISION ONLYAPPLIES TO the Minnesota Wetland Conservation Act. Additional approvals or permits from local, state, and federal agencies may be required. Check with all appropriate authorities before commencing work in or near wetlands. L CAL GOV MENT IT Signature ~ ~ ~~ Date Nicola Blake-Bradley, Environmental Technician - Page 2 of 2 No loss notice -Powell amendment ~-18-07 9/16/04