5.4. SR 05-19-2008REQUEST FOR ACTION
To Item Number
Ci Council 5.4.
Agenda Section Meeting Date Prepared by
Communi Develo ment Ma 19, 2008 exem Barnhart, Plannin Mana er
Item Description Reviewed by
Request by Jason Bebeau fox a Conditional Use Permit fox
Mineral Excavation, Public Hearing Case CU 08-08 Reviewed by
Action Requested
Staff and the Planning Comtnission recommend approval of the Conditional Use Permit request,
with the following conditions:
1. All conditions of the 2004 Conditional Use Permit shall apply, except letter of
credit amount (9d) and haul routes (10).
2. A written agreement between Schmidt and the applicant shall be provided,
verifying the land hank purchase agteement, prior to mining operations.
3. A letter of credit in the amount of $97,101.40 shall be provided to guarantee the
completion of the reclamation plan.
Summary
The applicant received a Conditional Use Permit (CUP) in 2004 (CU 04-21). A CUP is permitted
indefinitely, unless action ceases fox a period longer than 6 months. Mining licenses were received
fox 2005, 2006, and mining activity was occurring those years. No license was applied fox in 2007,
and no mining activity occurred; therefore, the Conditional Use Permit expired.
Jason Bebeau, of J & B Mining, is requesting Conditional Use Permit approval fox a gravel/peat
mining operation on his property, legally described as: South Half of the Northeast Quarter of the
Northeast Quarter (S'/a of NE'/a of NE'/a), Section 10 and Northwest Quaxtex of the Northwest
Quarter (NW '/a of NW '/<), Section 11, all in Township 33, Range 26, Sherburne County,
Minnesota.
T'he mining proposal includes a proposal to mine approximately 40 acres out of the 60-acre site.
Approximately 1,190,000 cubic yards of materials are proposed to be mined; about 1 /3 of this
consists of peat. `fhe proposal includes a desire to excavate approximately 40 feet below ground
water using a dxagline.
While the subject property was not included in the original 1994 Environmental Impact Statement
(EIS) on Mineral Excavation, an Environmental Assessment Worksheet (EAW) has been
completed. The City Council made a negative declaration regarding the need fox an EIS at their
September 7, 2004 meeting.
The Conditional Use Pernut request is identical to the origina12004 approval, with the exception
of changes to the haul routes and increasing the amount of the letter of credit.
Transportation
The original Conditional Use Permit included proposed haul routes north to 225`x' Avenue. This
raised some concerns from the public during the original review. The current proposal uses 217`"
and 219`h Avenues to access Highway 169 for greater distribution of traffic. No improvements to
these intersections have been identified, but if required, will be the responsibility of the applicant.
Wetlands
Mining activity completed and proposed impacts existing wetlands on the site. A portion of the
approximately 4 acres of mitigation will occur on site, with approximately 1 acre to occur off site,
in the form of wetland banking credit purchase.
Reclamation plan
The reclamation plan is identical to the original 2004 approval. The finished perception will be 40
acres of open water, with water depths varying between 2 to 30 feet.
Planning Commission Discussion
The Planning Commission reviewed the application at their May 13, 2008 meeting. The
Commissioners had no concerns with the proposal, but had some questions regarding the wetland
banking purchase.
Public Comment
The adjacent property owner, Roger Schmidt was in attendance, noted that he and the applicant
axe nearing an agreement fox the wetland banking purchase. No other comments were received in
support ox opposition to the Conditional Use Permit.
Attachments
• Letter of Credit amount breakdown
• Staff Repart to Planning Commission dated May 13, 2008.
Action Motion by Second by _ Vote
Follow Up
S:\PLANNING MAIN\Case Files\COP\CO 0&08 Bebeau\CC staff report 5-19-08 CU 08-0S.doc
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Location Map
Case Number: CU 08-08 BEBEAU
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Wetland impacts
Impacted in 2004:
Mitigation ratio:
Mitigation amount
Mitigation area on site
Mitigation area off site
Mitigation amount for on site
mobilization costs
Mitigation amount, off site
85,294.00
2:1
170,588.00
116,684.00
53,904.00
$ 39,270.36
10% of mitigation amount $ 3,927.04
$43,560 per acre ($1.0 per
sq ft) $ 53,904.00
Letter of Credit amount $ 97,101.40
Ctty of
El .~... REQUEST FOR ACTION
River
To
Plannin Commission Item Number
5.4
Agenda Section Meeting Date Prepared by
Plannin Items Ma 13, 2008 erem Barnhart, Plannin Mana ex
Item Description Reviewed by
Request by Jason Bebeau for a Conditional Use Permit fox
Mineral Excavation, Public Hearing case CU 08-08 Reviewed by
Action Requested
Staff supports a Plam~ing Commission recommendation of approval of the Conditional use Pernut
request, with the following conditions:
1. All conditions of the 2005 Conditional use Permit shall apply.
2. A written agreement between Schuxer and the applicant shall be provided, verifying
the land bank purchase agreement, which shall be provided prior to mining
operations.
3. A letter of shall be provided to guarantee the completion of the reclamation plan.
Background/Discussion
A Conditional Use Permit for rnitung was issued in 2004 fox the subject property; however, mining
operations ceased, expiring the Conditional Use Permit The 2008 application is largely a copy of the
original, although the application is reviewed based on 2008 requirements.
Financial Impact
None
Attachments
• Location Map
• Applicant's Narrative
• Applicants proposed haul roads
• Staff comment letter dated Apri17, 2008
• Original Conditional Use Permit
General Information
Case File: CU OA-OA
Page 2
]~ Mpg
Condi[irnal Use Permit
Applicant Jason Bebeau
60 Day Rule The application has been deemed complete as of April 7, 2008.
The Ci must take action b une 7, 2008
Requested Action Conditional Use Permit approval
Location and Size Appxoxanately 60.23 acres north of 219s` Avenue, east of Hwy
169.
Location Existing Use Land Use Plan Designation Current Zoning
Subject
Property Mrnrng Commercial Reserve CRT/ ME
North Rural Residential Commercial Reserve CRT/ ME
South Rural Residential Commercial Reserve CRT/ ME
East Rural Residential 2008 Rural Residential A-1 / ME
West Rural Residential Commercial Reserve CRT/ ME
Overview
The applicant received a Conditional Use Permit in 2004 (CU 04-21). Mining licenses were received
for 2005, 2006, and Honing activity was occurring those years. No license was applied fox in 2007,
and no mining activity occurred, therefore the Conditional Use Permit expired.
Jason Bebeau, of J & B Mining, is requesting Conditional Use Permit approval to manage a gravel/
peat mining operation on his property, legally described as: South Half of the Northeast Quarter of
the Northeast Quarter (S '/z of NE 1/a of NE '/a), Section 10 and Northwest Quarter of the
Northwest Quarter (NW '/a of NW '/a), Section 11, all in Township 33, Range 26, Sherburne
County, Minnesota.
The mining pxoposai includes a proposal to mine approximately 39 acres out of the 60 acre site.
Approximately 1,190,000 cubic yards of materials axe proposed to be mined, about 1/3 of this
consists of peat. The proposal includes a desire to excavate approximately 40 feet below ground
water using a dragline.
While the subject property was not included in the original 1994 Environmental Impact Statement
(EIS) on Mineral Excavation, an Environmental Assessment Worksheet (EAW) has been
completed; which the City Council made a negative dedaxadon regarding the need for an EIS at
their September 7, 2004 meeting.
i~1v~t G imia rvi~...,.'>l
Case Pilo CU 0&OR
Page 3
Aoolicable Regulations
Conditional Use Permit
J&B Mining
Conditional Use Pemut
The issuance of a Conditional Use Permit can be ordered only if the use at the ptoposed location:
7. Widl 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.
2. Will be consistent with the comprehensive plan.
3. Will not impede the normal and orderly development and improvement of surrounding vacant proper y.
4. Will be served adequately by and will not adversely affect essential public facik'ties and services including
streets, police and fare protection, drainage, refuse disposal, water and sewer systems, parks and schools; and
will not, fn particular, create traffic congestion or inte~rence with traffic on adjacent and neighboring public
thoroughfares.
5. Will not involve uses, activities, processe ,materials, equipment and conditions of operation that will be
detrimental to any persons arpmperty because of excessive traffic, noise, smoke, fumes, glare, odors, dust or
vibrations.
6. Will not result In the destruction, lost ar damage of a natural, scenic or historic feature of major importance.
7. Will fully comply with all other requirzments 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.
If denial of such a pettnit should occur, it shall accompany recommendations ox determinations by
findings ox 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 fox CUP as outlined, it appears that the request is consistent with all
of these standards, provided the conditions axe applied without reduction.
Analysis
The applicant wishes to begin training the property again, and is requesting approval of the original
2004 application.
Main issues raised during the original review included transportation routes and wetland impacts.
Transportation
Transportation routes: Material excavated ox otherwise removed from the site will follow one of
two paths to Highway 169. Trucks will access either 219`" or 217x'. A map of the proposed haul
routes is attached.
Wetland
As part of the original review and approval, there were impacts ptoposed to 85,294 square feet of
wetland. With mitigation ratio requirements at 2:1, 170,588 square feet (3.91 acxes)of wetlands were
Case File: CU OR-OS
Page 4
J~ ~g
Conditional Usc Perrsuc
required to be replaced (mitigated). All but 53,904 square feet were to be mitigated on the subject
property. The balance (1.24 acres) is proposed to be mitigated on the adjacent Schuer land bank,
not yet created. To guarantee that the mitigation is completed, Staff is recommending a letter of
credit in an amount to complete the work and acquire additional property. This amount remains to
be determined.
Reclamation Plan
The reclamation plan as approved in 2004 is not proposed to be changed, and indicates a plan to
create a large open water/ wetland complex on the property. The entire eastern 40 acres will be
water covered in varying depths, which may impede orderly location of surface roads and general
development between 221" and Brook Road.
Action Motion by _ Second by _ Vote
Follow Up
E~LE COPY
March 27, 2008
Mr. Jeremy Barnhart
Planning manager
City of Elk River
13065 Orono Parkway
Elk River, Minnesota 55330
~l~TE ~'•~C~t'~~~
----~%~~
~-____
VIA MESSENGER
RE: Conditional Use Permit Application Submittal and Variance Request, J & B Mining,
11349 219a' Street NW, Elk River, Minnesota (the Property).
Dear Steve:
Liesch Associates, Inc. (Liesch) is submitting this letter and accompanying Conditional Use Permit
(CUP) Application submittal package (the Application} on behalf of Jason Bebeau (J & B Mining)
for the above referenced Property, )figure 1 shows the location of the Property and Figare 2 shows
the Existing Conditions, as of Apri12004.
The following documerrts are included with this letter and complete the Application:
1. Completed CUP Appligtion signed by the applicant, including the application fee of
$520.00 and consultant retainer fee of $1000.00;
2.
3. Plan Sheets 1 through 3: Existing Conditions Plan, Mining Area Grading Plan, Drainage
and Restoration Plan prepared by Liesch Associates, Inc., dated May 27, 2004;
4. Storm Water Pollution Prevention Plan, Schmidt Gravel Mine, Elk River, Minnesota,
prepared by Liesch Associates, Inc., dated May 2004;
S. Labels for property owners within 350 feet of the Property.
6. Rewning;
7. EAW;
8. Environmental Spill Plan;
Liesch submitted a Jurisdictional Wetland Identifigtion and Wetland Delineation for the subject
property to the City of Elk River on May 17, 2004.
A completed Part 1: Basic Application and Part 2: Replacement Plan Supplement Minnesota
LocaUState/Federal Application Form for Water/9Vetland Projects, signed by the applicant; and
accompanying Plan sheets are being submitLad by Anderson Engineering of M;nne~cnta, LLC under
separate cover.
Page 2
Background Information
The Property is currently zoned agricultural and land use is idle with portions of the property
containing wetlands. This is the first submittal from the property owner to the City of Elk River in
an effort to have the Property rezoned and under a Conditional Use Permit for min of aggregate
and peat resources:
• Environmental Assessment 9Jorksheet (Draft), J & B Mining, Elk River, Minnesota,
prepared by Liesch Associates, Inc., dated May 2004.
• Stone Water Pollution Prevention Plan, J & B Mining, Elk River, Minnesota, prepared by
Liesch Associates, Inc., dated May 2004.
• Environmental Spill Plan, J & B Mining, Elk River, Minnesota, prepared by Liesch
Associates, Inc., dated May 2004.
• Plan Sheet 1 of 3 - EXtsting Conditions, Plan Sheet 2 of 3 - Mining Grading Plan, Plan
Sheet 3 of 3 Drainage and Restoration Plan, J & B Mining, Elk River, M;nne_cnta, prepared
by Liesch Associates, Inc., dated May 2004.
Description of Proiect
J & B Mining is proposing to mine approximately 41 acres of the 60 acre property with most of the
mining to occur on the 40 acre parcel as shown on the mining and grading plan (Refer to Plan Sheet
2 of 3). Approximately 1,750,000 cubic yards of material will be removed as part of the proposed
mining activities on the site. Mining of the property is proposed to connect with Phase 4 of the
Schmidt Gravel Mine to the west at the north end of the 40 acre parcel. Shallow mining is also
proposed within the wetland areas B, E and a portion of area A to obtain peat resources in these
areas. The resulting restoration of these areas will involve the transformation of type 2 wetlands
invaded by Reed Canary Grass into deeper water type 4 and 5 wetlands. A portion of wetland A on
the 20 acre parcel will not be mined and restoration of this area will consist of vegetation restoration
in an effort to remove the existing reed canary grass ami plant native species in this area. The deeper
excavations within the minlrrg area as shown on the mining and grading plan will be restored as
deeper water fisheries habitat with assistance proposed by the Minnesota Department of Natural
Resources -Urban Fisheries Program.
Test pits have been completed in the area of the proposed mining and the test pits indicate that soils
in that area consist of poorly graded sand with silt and gravel and heroic peat. Water levels were
not measured at the time of test pits however, one area was left open to observe water levels and it
would appear that groundwater exists an approximate elevation of 945. On May 25s' and 26'~ soil
boring were completed at locations throughout the proposed mining area. and soils observed in the
test pits consisted primarily of poorly graded sand with silt and gravel with a few areas of lean clay
or clayey sand encountered. No soil borings were completed at this tune to farther identify depth of
peat resources in the proposed mining area. In conjunction with the soil borings at the site, three
monitoring wells were installed on the property to better define the local water table elevation in the
vicinity of the property. Documeptation of the soil borings, monitoring wells and recorded ground
water observations to date for the proposed mining area and the Schmidt Phase 4 mining area are
included with the submittal package. Additional ground water observations will be presented at the
Page 3
June 8, 2004 WTEP meeting with water levels recorded in feet NGVD for four rounds of water
level observations.
Mining is proposed to be conducted to 45 feet below the water table or to an elevation of
approximately 900 feet at the deepest point of mining. It is anticipated that the mining will
uitimately result in approximately 10 acres of Type 5 wetland being created where there is currently
type 2 wetland with reed canary grass making up the dominant vegetation (refer to Plan Sheet 2). In
the process, one small wetland, Area C (0.43 acres -impact area 2) on the north side of the site, a
portion of wetland Area B (1.10 acres -impact area 3) and a portion of wetland Area A (0.51 acres
- impact area 1) are located within the proposed mining area and would be excavated (Impacted)-
Anderson Engineering of Minnesota, LLC is ~~hmitting a wetland application and replacement plan
for the impacted wetlands under separate cover which outlines the on-site mitigation activities
required to replace the impacted wetlands at the site.
.Due to the elevation of the water table in the area of the project (approximately 944-945 fed, based
on existing hydrogeologic data for the region and observations of the on-site monitoring wells) it is
not believed that mining of the. property will significantly impact the existing wetlands on site. The
results of the topographic survey mapping and observed water table elevations support the opinion
that these wetlands Dave hydrology that is supported primarily by groundwater. In addition, the soil
borings completed at the site did not indicate the presence of a significant low permeability soil
layer that would lead to perched shallow water table conditions in the area_
ruing below the water table is proposed to be conducted using a drag line. No dewateriag will be
conducted at the site at any time. Drainage from mining area will be directed to the open areas
created during mining. (Refer to Play Sheet 3). J & B Mining wa71 apply for coverage under a
National Pollirtant Discharge Elimination System {NPDES) Permit MNG490000 and a Storm Water
Pollution Prevention Plan (SWPPP) has been prepared and is included with the CUP submittal
package. As i~icated in the SWPPP, surf~e water ronoff and erosion cools are proposed to
control surface water discharge off site. "~ proposed co~rnls will include installation of sib fence
and/or vegetative buffers, hay bales, rig-rap Placemerrt m drainage ways. a~ P~ ~PanR
replanement and seeding of completed mining areas. Silt fencelvegetative buffers, hay bales a~ rip-
rap will be placed in areas deemed necessary during mining operations. The SWPPP also includes
discussion of Best Management Practices (BMP's) to be utiliDed duuing miming operations.
The mined gravel material will be hauled primarily to Elk River Bituminous located approximately
'14-mile southwest of the Property using a private access mad. Mining operations be conducted
between the hours of 7:00 AM ate 7:00 PM as required by the City of Ells River.
Variance R~tnest
In c~njundion with the Conditional Use permit application the applicant requests a variance to
allow mining activities within five feet of the property line instead of 40 fed as required is Section
16 of the Sherburne County Zoning Ordinance. Slopes within the 40 foot area of the property line
are proposed to be no greaten than 4:1. The reduced setback is requested to allow for connextim- of
the open water area with that on the Schmidt Mining area tQ make open water area suitable for the
p~mposed shared fisheries habitat that will cross the property line. The applicant believes that this
Page 4
land use proposed in the variance will not result in hardship or adversely affect the health, safety or
welfare for the surrounding Properties in the area which are zoned agricultural and mineral
exhaction. The margins of the mining area are proposed to be restored as wetland buffer area upon
completion of mining.
If you have any questions or commerrts regarding the enclosed, please call me at (763) 489-3167 or
Jason Bebeau, Site Manager at (612) 369-7183. Thauk you for your time and assistance with this
ProJ~
Sincerely,
LIESCH ASSOCIATES, INC.
Warren Tuel, P.S.S.
Soil Scienfist
Enclosures
Cc: Jason Bebeau - J & B Mining
John Lichter - Liesch
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13065 Orono Parkway
Elk River, MN 55330
Apri17, 2008
Jason Bebeau
11349 219"' Avenue NW
Elk Rivet, MN 55330
Re: Conditional use Petmit, Staff Comments
Dear Mt. Bebeau:
VIA EMAIL
jasonbebeau@yahoo.com
I have had an opportunity to review your application materials, submitted March 28`", and
some additional information will be necessary to complete the review. I note that your
application references your 2004 conditional use permit application fox the application
materials, and you noted that nothing has changed in terms of proposal from the original
request.
Please confirm that you agree to all conditions outlined in the attached 2004 Conditional Use
Permit, notably Section 10 (traffic), Section 11 (dust control), Section 12 (Hours of
Operation), Section 17 (Groundwater protection measures). This 2004 Conditional use
Permit will be a starting point far review by you and the City, and the City Council may
make any changes it deems necessary.
One issue remaining unresolved from the 2004 Conditional use Pexxnit is satisfaction of
wetland mitigation requirements. The original Conditional Use Permit included a provision
to purchase wetland credits from Schuex, plus provision of a letter of credit fox the wetland
restoration.
Please verify the acres of wetland disrupted, (from 2004) and the amount of wetlands to be
mitigated on site. Please provide a written estimate of costs to perform this work once
mining has been completed (including mobilization, plant materials/ seed). Once verified,
this number will be used to establish a letter of credit amount to protect the City from costs
to mitigate the wetland, and be included in the new Conditional Use Permit (Section 9 d).
Phone: 763.635.1000
Fax: 763.635.1090
www.ci.el k-river.mn.us
Please do not hesitate to contact me should you have any questions, I can be reached at
(763) 635-1034.
Sincerely,
L
/~,
Jeremy Barnhart
Planning Manager, AICP
Enc: 2004 CUP
Phone: 763.635.1000
Fax: 763.635.1090
www.ci.el k-river.mn. us
Office of the County Recorder
Sherburne County; MN
STATE OF MINNESOTA
COUNTY OF SHERBURIVE
CITY OF ELK RIVER
In the matter of: J & B Mining
Request: Conditional Use Permit for Mineral Excavation
(Case No. CU 04-21)
Jason Bebeau, Owner
CONDITIONAL USE
ORDER GRANTING
CONDITIONAL USE
The above entitled matter came to be heard before the City Council on the 20th day of
September, 2004, on a petition for a Conditional Use pursuant to the City of Elk River Zoning
Ordinance, for the following described property:
The South Half of the Northeast Quarter of the Northeast Quarter of Section 10, Township
33, Range 26, Sherburne County, Minnesota,
AND
The Northwest Quarter of the Northwest Quarter of Section 11, Township 33, Range 26,
Sherburne County, Minnesota.
IT IS ORDERED that a Conditional Use be granted as upon the following conditions or reasons:
See Attached Agreement for Issuance of Conditional Use Permit for Mineral Excavation
Doc. No. 570095
Certified filed and/or recorded on
11-22-2004 at 08:00
Michelle Ashe, County Recorder
ByDeputy Fee: $ 20.00
CITY OF ELK RIVER CITY COUNCIL
DATED this 20th day of September, 2D04.
STATE OF MINNESOTA )
COUNTY OF SHERBURNE) ss.
CITY OF ELK RIVER
OFFICE OF CITY PLANNING
AND ZONING
ELK RIVER
I, Michele McPherson, Director of Planning for the City of Elk River with and in for said
City, do hereby certify that I have compared the foregoing copy and Order granting a Conditional
Use with the original record thereof preserved in my office, and have found the same to be a true
transcript of the whole thereof.
If the proposed work described in a conditional use permit has not been substantially
completed within two (2) years after its date of issuance, the pemut shall expire and become void
except that the Council may, following recommendations of the Planning Commission, extend the
permit for an additional period determined by the council on the receipt of a request for a permit
extension prior to its expiration. A Conditional Use pemut authorizes only the tue specified in the
permit an¢ shall expire if, for any reason, the authorized use ceases for more than one (I) year.
of Planning
IN TESTIMONY
Minneso a, m the County
, zaoa.
DRAFTED BY:
City of Elk River
Elk River, Minnesota 55330
DEBORAH KAY HUEBNEfI
NOTARY PUBLIC -MINNESOTA
L'ti ~-mmission Expires Jan.31. 2005
:'^~~ ~~'
V~IIEREOF, I have hereunto subscribed my hand at F~1 t River,
of Sherburne, in the Gity of Elk River, on the ~ day of
Signed bGGefole me a NOTARY PUBLIC
this ~ O day of ~ , 2004.
5:\PLANNING\Case Files\2004\CU 0421 I & B Muting\Recording doc.doc
CITY OF ELg RIVER
AGREEMENT FOR ISSUANCE OF
CONDITIONAL USE PERMIT
FOR MINERAL EXCAVATION
THIS AGREEMENT', made and entered into this ~ day of2004,
by and between the CITY OF ELK RIVER, a municipal corporation organized under the
laws of the State of Minnesota (City), and J & B Mining, Inc., a Minnesota corporation,
hereinafter referred to as (Operator);
WITNESSETH:
WI~REAS, Operator has made application to Ciry for approval of a conditional use
pernut to operate a gravel mini a operation within the City on property legally described as
follows:
South Half of the Northeast Quarter of the Northeast Quarter (S 'h of NE '/a of NE '/a),
Section 10 and Northwest Quarter of the Northwest Quarter (NW '/a of NW'/a), Section 11,
all in 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 pemut, at which
hearings all citizens of the Ciry 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 September 20, 2004, 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 conditional use
permit agreement with City so as to fully comply with the City's Mineral Excavation,
Zoning, and other applicable ordinances; and
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.) Conditions- The following general conditions shall apply to the Operation:
(01) This Conditional Use Permit authorizes mineral excavation (gravel) from the
Property.
(02) All mineral excavation and processing operations on the property shall
comply with the City's Mineral Excavation, Zoning and other applicable
ordinances; with the terms of this Conditional Use Permit agreement and the
license agreement to be executed by the City and Operator, with the City of
Elk River's Environmental Impact Statement on Mineral Excavation; and
with the application materials and plans submitted by the Operator, which
plans and materials are the basis for the Cit}~s approval of the Conditional
Use Permit.
(03) The Operator shall orally notify the City of arty violations of this pernut
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.
(04) The license shall be renewed annually and shall run from June 1~ through
May 31~`. 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.
(O6) The City Building and Environmental Administrator and/or his/her agents
shall be pernutted to inspect the Operation for compliance with the
conditions of this pemut 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.
Page 2
b. Each year a plan for that year's reclamation shall be approved by the
Building and Environmental Admuustrator prior to issuance of the
mineral excavation license.
c. Upland reclamation shall include topsoil from the site being
preserved and put back into place after mining and seeded as per the
approved plans. The vegetation established for the reclamation must
be maintained until it is self-sufficient.
d. Wetland restoration shall be in compliance with the approved
wetland mitigation plan. The Operator shall provide a letter of credit
in favor of the City for wetland restoration in the amount of $37,500
(renewed yearly at time of licensing). Said letter of credit shall be in
place prior to commencing the Operation. A formal wetland
monitoring plan shall be submitted for Ciry approval one year after
wetland restoration has been completed on the Property and the
Schuer, Inc. site. The wetland letter of credit maybe released upon
approval of the first year monitoring report, but monitoring shall
continue for an additional 2 to 4 years after, as detemuned by city
staff. The Operation shall only commence after that portion of the
wetland mitigation covered by purchasing wetland credits is
completed.
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 measures as
determined by city staff maybe required.
(10) Traffic
a. Product mined as part of the Operation shall be hauled directly to the
Schuer site or to Bauerly Bros.' existing access onto 225`h Ave. via
easements and then west to US Tntnk Highway 169. No traffic will
be allowed to go east on 225a' Avenue. Said easement shall be in
place prior to commencing the Operation.
b. In the case that the referenced options for hauling cease to be
available, an alternative haul route shall require review and approval
by the City through the conditional use permit process. The
Operation shall cease until an acceptable alternative haul route is
approved.
(11) Dust Control
a. A permit from MICA 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.
Page 3
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 tniniug activities are
taking place to control dust as necessary. Chemicals shall not be used
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 Operation
All mineral excavation, processing, and sales activities shall be conducted
between the normal hours of 7:00 a.m. to 7:00 p.m., Monday through
Saturday, except the hours may be extended by the Building and
Environmental Admuustrator for special cases.
(13) Noise
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) Li tin
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 .5 foot candles on
atry part of the adjacent property.
(15) Debris
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 maybe stored on the mineral excavation site provided that it is
Page 4
in a location that cannot be viewed from adjacent properties or is totally
screened.
(16)
(17)
Vibration
Mining activities shall not cause excessive vibration off site. If excessive
vibration becomes an issue, the Ciry reserves the right to take appropriate
measures to alleviate the problem.
Groundwater Protection Measures
a. The Operator shall file with the City an Environmernal Spill Plan and
a Storm Water Pollution Prevention Plan. 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.
c. Refueling shall take place only at designated locations.
d. All incidences that have the potential to adversely affect groundwater,
including but not limited to spills, shall be verbally reported to the
Ciry 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. Prior to commencing mining, the monitoring well located at the site
shall be monitored for diesel range organics (DRO), pH, temperature
and conductivity to establish baseline data. The reference parameters
shall be monitored a minimum of once each mining season
thereafter. In the event of a spill, the City may require additional
testing events, parameters and monitoring wells, as well as the
cessation of operations until the spill is deemed clean by the City.
g. Gravel washing operations and dewatering are prohibited at this site
and will require an amendment to this permit to be allowed in the
future.
h. Except for minor repairs, maintenance of vehicles and equipment
shall take place in the shop at the Elk River Bituminous site. The
Operator shall have an approved hazardous waste license for this
facility and properly dispose of all waste.
i. Rip Rap and a vegetative buffer to remove nutrients shall be
established on the outlet end of the ditch on the site.
Page 5
The Operator shall provide the City updated groundwater data as it
becomes available.
k. The proposed wetland restoration plan is based on the premise that
the groundwater level incurred is not a perch water table. If
information to the contrary is discovered, the Operation shall cease
until new mining and restoration plans are submitted and approved
by the city.
(18) Siena¢e
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) Fencine
All cut faces with slopes greater than 3 to 1 shall be fenced on the high sides
to provide a clear wanting of the potential danger until properly sloped.
(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 15, not leaning roots exposed
and avoiding mechanical damage on remaining trees.
(21) BlandinQ's Turtles
Department of Natural Resources flyers with an illustration of a Blanding's
Tuttle shall be distributed to all site workers. If observed, turtles in
i*.~*n~nent danger shall be removed to a safe location and turtles not in danger
shall be left undisturbed. All construction areas shall be surrotmded by silt
fence to keep turtles from entering and no wetlands shall be altered as a
result of the work authorized in this permit.
(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.
Page 6
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 claims or actions arising
from the operations of the Operator on the Property.
(02) Binding Effect- The terms and provisions hereof shall be binding upon, and
inure to the benefit of the heirs, representatives, successors, and assigns of the
parties hereto and shall be binding upon all future owners of all or any part of the
Operation and shall be deemed covenants rnnn~ng with the land. 'T'his 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 arty portion of this Agreement shall be held
invalid for arty reason, the same shall not affect in any respect whatsoever the validity
of the remainder of this Agreement.
(04) Waiver- Arty 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.
(OS) 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 Ciry at: Ciry of Elk River
ATIN: Building & Environmental Adm.
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Operator at: J & B Mining, Inc.
ATTN: Jason Bebeau
21310 Brook Road NE
Elk River, Minnesota 55330
(06) Incorporation by Reference- All plans, special provisions, proposals and
specifications, submitted pursuant to this Agreement shall be and hereby are made a
part of this Agreement by reference as fully as if set forth herein in full.
Page 7
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:
J & B Mining, Inc.
By: By:
Its: May Its: ~~~,{~
~-- , r~..y~c.c~.c'L
By:
Its: City Clerk
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
e foregoing instrument was acknowledged before me this ~~day of
,t~Gyyz(~~ , 2004, by Stephanie A. Klinzuig, the Mayor of THE CITY OF
ELK RIVER, a Minnesota municipal corporation, on behalf of the corporation.
}G~ICL,~~' Y~G~ ~GtiD'~Zvc~
Notary Public
DEBORAH KAY HUEBNEI~
NOTARY PUBLIC-MINNESOTA q!
;,,,,;- M} Commission Ezpires Jan 31.2005 ti
Page 8
STATE OF MINNESOTA
COUNTY OF SHERBURNE
ss.
The~f"oregoing instrument was acknowledged before me this ~~day of
~iA21~~,- 2004, by Joan Schmidt, City Clerk of THE CITY OF ELK
RIVER, a Minnesota municipal corporation, on behalf of the corporation.
DEBORAH KAY HUEENER a
NOTARY PUBLIC-MINNESOTA
,,,: My CommissionE~iresJan,31,2005
STATE OF MINNESOTA
ss.
COUNTY OF
Notary Public
The foregoing instrument was a nowledged befo e me this ~ day of
~, 2004, by /~e ,the
[y~(J-n.t~c..~ of J & B ~ ' g, Inc. a Mumesota corporation, on behalf of
the corporation, fee owner of a portion of the subject property and Operator on the
subject property.
DEBORAH KAY HUEENER `
NOTARY PUBLIC-MINNESOTA
My Commission E~iroaJan.31, 2005
Notary Public
This instrument was drafted by:
City of Elk River
Building and Environmental Dept.
13065 Orono Parkway
Elk River, MN 55330
Page 9