6.1. SR 04-19-2010REQUEST FOR ACTION
To Item Number
Ma or & Ci Council 5.1.
Agenda Section Meeting Date Prepared by
Communi Develo ment A ri119, 2010 Rebecca Hau ,Environmental Admin
Item Description Reviewed by
Request by the City of Elk River to Zone Certain Property Lori ohnson, Ci Administrator
Mineral Excavation (ME) Overlay and Solid Waste Facility Reviewed by
(SWF) overlay -Public Hearing, Case No. ZC 10-05 Peter Beck, Ci Attorne
Action Requested
Staff and the Planning Commission support a recommendation to zone the subject property as
presented.
Background/Discussion
The City's Zoning Ordinance was amended in 1986 to create the Solid Waste Facilities Overlay Zoning
District. Two years after adoption of the SWF Overlay District, Elk River Landfill applied for rezoning
to the Solid Waste Facility Overlay District and approval of a CUP for a Solid Waste Facility. The CUP
for the Landfill has been renewed and/or amended numerous times since the original approvals in 1988.
The legal descriptions for the area zoned to the SWF Overlay District were provided by the Landfill.
The legal descriptions covered several parcels and almost two pages of text. The City's assumption at
the time these descriptions were provided, and over the course of time since then, has been that the
legal descriptions provided by the Landfill for the zoning, as well as legal descriptions provided in
connection with the CUP renewals and amendments over the years, covered the entire Landfill property.
We assume the Landfill also made that assumption, and did not intentionally seek approval of
Conditional Use Permit amendments and renewals for areas outside the SWF Overlay District.
Recently, in connection with litigation commenced by the Landfill against the City as a result of the
denial of the Landfill's application to expand onto the Tiller property, the Landfill is taking the position
that their entire property is not within the SWF Overlay District. The Landfill has submitted maps
attempting to show that the SWF Overlay District runs along a section line and does not extend west to
the right of way for the City trail. If this were true, the Landfill has deposited solid waste outside the
SWF Overlay District, which is illegal under the City's Zoning and SWF Ordinances.
Staff has reviewed the legal descriptions provided at the time of the zoning to the SWF Overlay District
and determined that most, if not all, of the area in question does fall within the legal descriptions and is
within the SWF Overlay District -notwithstanding the location of the zoning district line on some
versions of the City's zoning maps over the years. Nevertheless, in order to eliminate the possibility of a
gap, staff is recommending that the entire Landfill property be zoned SWF Overlay District. Staff has
prepared a new description for the property to be zoned which is a simple, straight forward description
that clearly covers the entire Landfill property (the property located south of the City's northern
boundary, north of the Tiller property and between the Ciry trail and Highway 169). This description is
S:\Public Bodies\Council\Lori\2010\ZC to CC 419.doc
attached to this memo and will be incorporated in the proposed ordinance for adoption by the City
Council. This ordinance will be available at the council meeting.
The Landfill submitted the attached letter to the Planning Commission stating that they do not object to
the staff recommendation. At the Planning Commission hearing, the Landfill pointed out that a closed
portion of the landfill in the northeast corner is presently not covered by the CUP and therefore had
SWF zoning but not a CUP. Staff does not consider this a big concern and does not anticipate coming
forward with an amendment to the CUP to cover this area. If the Landfill comes forward to amend the
CUP to address this issue, staff would likely recommend that the CUP be amended to incorporate the
new description.
In addition, staff anticipates processing a comprehensive plan amendment to amend the land use map
element of the comprehensive plan to ensure that the area zoned SWF, as described in the new
description, is the area identified on the land use map for Landfill land use.
Financial Impact
None
Attachments
• Comprehensive Plan Land Use Map
• Area to be zoned
• Notice of Public Hearing with new description
• Letter from Landfill addressed to Planning Commission
Analysis
Adoption of an Ordinance zoning the entire Landfill property into the SWF and Mineral Excavation
Overlay Districts will eliminate the possibility of any gaps in the zoning districts; will eliminate the
potential for illegal deposits of solid waste outside of the SWF Overlay District, and will ensure that the
zoning of the Landfill property is consistent with the Comprehensive Plan designation of the property
as "Landfill". For these reasons, staff and the Planning Commission recommend to the City Council
that an Ordinance be adopted zoning the property described on the attached legal description Solid
Waste Facility and Mineral Excavation C-verlay District. A proposed ordinance for adoption by the City
Council will be available at the council meeting.
The alternative is to adopt the Landfill's position regarding the location of the SWF Overlay District and
to commence a zoning enforcement action against the Landfill for deposition of solid waste outside of
the SWF Overlay District.
Recommendation
Staff & Planning Commission recommend zoning the property as presented.
Action Motion by Second by Vote
Follow Up
S:\Public Bodies\Council\Lori\2010\ZC to CC 419.doc
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CITY OF ELK RIVER
NOTICE OF PUBLIC HEARING
The Elk River Planning Commission will conduct a public hearing on Tuesday, April 13, 2010 at 6:30
p.m. at Elk River City Hall, 13065 Orono Parkway, to consider a request by the City of Elk River for
a Zone Change to rezone certain property to ME (Mineral Excavation Overlay) and SWF (Solid
Waste Facility Overlay). The property is currently owned by Waste Management and operated as Elk
River Landfill, Case No. ZC 10-05.
The Elk River City Council will also conduct a public hearing concerning this matter on Monday,
Apri119, 2010 at 6:30 p.m. at Elk River City Hall, 13065 Orono Parkway.
The property is described as:
That part of the NW'/4 of Section 3, Township 33, Range 261ying west of U.S. Highway 169; and
That part of the SW '/4 of Section 3, Township 33, Range 26 lying west of U.S. Highway 169 and
north of a line 525 feet south of and parallel to the north line of said SW'/4; and
That part of the NE '/a of Section 4, Township 33, Range 26 lying east of the Great Northern
Railway; and
That part of the SE'/a of Section 4, Township 33, Range 26 lying east of the Great Northern Railway
and north of a line 525 feet south of and parallel to the north line of said SE '/a, Sherburne County,
Minnesota.
The described property includes the following Parcel Identification Numbers: 75-103-2100, 75-103-
2105, 75-104-1102 and 75-103-2400.
As part of the review process for requests of this nature, we attempt to notify all property owners at
least 350 feet in distance from the subject property. The tax records from the Sherburne County
Auditor's Office indicated that you own property within or near the 350-foot requirement.
All interested persons are invited to attend the public hearing to express their questions and/or
comments. Hearing impaired persons planning to attend who need an interpreter or other persons
with disabilities who require auxiliary aids should contact Tina Allard, City Clerk, at 635-1000 by
April 9, 2010. If you would like information regarding the above-described public hearing notice,
please call Elk River City Hall at 635-1000.
Jeremy Barnhart, Planning Manager
BRIGGS
~.~
April 13, 2010
VIA EMAIL
City of Elk River Planning Commission
13065 Orono Parkway
Elk River, MN 55330
ATTN: Dana Anderson (dra55330@yahoo.com)
Paul Bell (Paul_Bell@prodigy.net}
Troy Ives (tpives@charter.net)
Eric Johnson {ericj 13@charter.net)
Pete Lemke
Kevin Scott {kevin scoff@charter.net)
Chad Westberg (crw4383@hotmail.com)
Jack Y. Perry
(612)977-8497
jperry@briggs.com
Re: City's proposed expansion of SWF overlay district to comport with CUP
Dear Commission Members:
ERL does not object to City Staffs "recommendjed] zoning [ofj the property as
presented." As City Staff concedes, "Staff has reviewed the legal descriptions provided [by
ERL] at the time of the [January 16, 1996] zoning to the SWF Overlay District and determined
that most, if not all, of the area in question does fall within the legal descriptions and is within
the SWF Overlay District -- notwithstanding the location of the zoning district line on some
versions of the City's zoning maps over the years." Staff Report at 1. Indeed ERL's surveyor
confirmed the same. Ex. 167; compare Ex. 45, Tab C (Ex. A to 1/16/96 City of Elk River
Agreement for Issuance of Amended Conditional Use Permit). ERL is, nevertheless, compelled
to clarify a few adverse suggestions in City Staff s report.
First, City Staff erroneously suggests at page 1 of its report that "the location of the [SWF
overlay] zoning district line on some versions of the City's zoning maps over the years" was
different on those maps which were previously submitted to City Council - i.e., {1} 2000
Vicinity Map (Ex. 162); (2) 2002 Location (Ex. 163); (3) 2003 Zoning Map {Ex. 45, Tab 2);
(4) 2006 Zoning Map (Ex. 165}; (5) 2007 Zoning Map (Ex. 45, Tab 3); {6) 2009 Zoning Map
(Ex. 45, Tab 4}; and {7) 2010 Zoning Map (Ex. 166). Despite ERL's earlier Data Practices Act
requests to City and City's briefs to the Court on this issue, there are no "versions of the City's
zoning maps" which show "the location of the [SWF overlay] zoning district line" different than
represented by ERL on these maps.
22001DS Center
80 South 8th Street
Minneapolis MN 55402-2157
rel 612.977.8400
fax 612.977.8650
Briggs and Morgan, Professional Assodation
Minneapolis I St. Paul I www.briggs.cam
Member - Lex Mundi, a Global Association of Independent Law Frms
BRIGGS AND M O R G A N
City of Elk River Planning Commission
April 13, 2010
Page 2
Second, City Staff erroneously suggests at page 1 of its report that the SWF overlay
district line may not "run[] along a section line and does not extend west to the right of way for
the City trail." There is no contrary understanding of where the SWF overlay district line is
shown on all seven of the above-cited City maps.
Third and finally, City Staff erroneously suggests at page 2 of its report that City has
"[t]he alternative" of "commenc[ing] a zoning and enforcement action against the Landfill for
deposition [of] solid waste outside of the SWF Overlay District." To the contrary, City, through
its January 16, 1996 issuance of the CUP for the Landfill Property (Ex. 45, Tab C), "effectively
approved of the SWF overlay district for the entire 137.4-acre property." 9/29/09 ERL
Mandamus Petition at ¶ 3; but see 10/I9i09 City Answer ¶ 3 {denial}.
With Judge Varco's April 2, 2010 ruling in favor of ERL (Ex. 168), the parties' respective
finger-pointing should end and a global solution reached. To that end, City Staffs
"recommend[ed] zoning," minus its erroneous suggestions, is a critical first step. ERL looks
forward to, using Judge Varco's language, "proceed[ing] with its proposed landfill expansion"
(id. at 32) and resuming the good relations with City.
Sincerely,
Ja k Y. Perry
JYP/kg
Enclosures
cc: R. Haug {via email)
L. Johnson (via email)
M. Ayers (via email}
D. Walters (via email)
B. Jeffry (via email)
'i .r ' ,
Perry, Jack Y. _
From: Brian Praske [bpraske@bogart-pederson.com]
Sent: Thursday, February 18, 2010 3:42 PM
To: Wafters, Debra
Subject: ERLF
Attachments: ERLF-1.pdf
These turned out to be big files, I will send one at a time.
BP
EXHIBIT 167
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Perry, Jack Y.
From: Brian i?raske [bpraske@bogart-pederson.comj
Sent: Thursday, February 18, 2010 3:44 PM
To: Walters, Debra
Subject: ERLF
Attachments: ERLF-2. P D F
Hope this helps. I think your tax parcels are correc#. 1t is jus# the underlying deed descriptions that make up the tax
parcels that are a mess.
BP
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Ordinance No. l o-
CITY OF ELK RIVER
An Ordinance of the City of Elk River zoning certain property into the Solid
Waste Facilities Overlay Zoning District and the Mineral Excavation Overlay
Zoning District.
FINDINGS OF FACT
The City Council of the City of Elk River makes the following Findings of Fact:
1. The City of Elk River Solid Waste Facilities Ordinance (SWF Ordinance)
was initially adopted in 1986.
2. The Elk River Landfill (Landfill) was subsequently zoned into the Solid
Waste Facilities Overlay Zoning District and a conditional use permit (CUP) for the
Landfill was initially approved in 1988.
times.
3. Since 1988, the CUP for the Landfill has been renewed and amended 10
4. The legal descriptions of the area to be zoned into the SWF Overlay
District and the area to be covered by the CUP for the Landfill were provided by the
Landfill. The legal descriptions covered several parcels and almost two pages of text.
The City has always assumed that the descriptions provided by the Landfill covered the
entire Landfill property.
5. In connection with the recent litigation regarding the Landfill's application
to expand onto the Tiller property, the Landfill is taking the position that their entire
property is not within the SWF Overlay District. If this were true, the Landfill has
deposited solid waste outside the SWF Overlay District, which is illegal under the City's
Zoning and SWF Ordinances.
6. In order to eliminate the possibility of a gap in the SWF zoning of the
Landfill property, to implement the intent that the entire Landfill property be zoned SWF
Overlay District, and to bring the Landfill into compliance with the City Zoning and
SWF Ordinances, the City has determined to zone the entire Landfill property into the
SWF Overlay District and the ME Overlay District
ORDINANCE
THEREFORE, the City Council of the City of Elk River does hereby ordain as
follows:
Section 1. That the property described as follows shall be zoned into the Solid Waste
Facilities Overlay Zoning District and the Mineral Excavation Overlay Zoning District:
That part of the NW 1/4 of Section 3, Township 33, Range 26 lying west of U.S.
Highway 169; and
That part of the SW 1/4 of Section 3, Township 33, Range 26 lying west of U.S.
Highway 169 and north of a line 525 feet south of and parallel to the north line of
said SW 1/4; and
That part of the NE 1/4 of Section 4, Township 33, Range 26 lying east of the
Great Northern Railway; and
That part of the SE 1/4 of Section 4, Township 33, Range 26 lying east of the Great
Northern Railway and north of a line 525 feet south of and parallel to the north
line of said SE 1/4, Sherburne County, Minnesota.
Section 2. That this Ordinance shall take effect upon publication as provided by law.
Passed and adopted by the City Council of the City of Elk River on April 19,
2010.
By:
Its:
By:
CITY OF ELK RIVER
Stephanie Klinzing
Mayor
Tina Allard
Its: City Clerk
GP:2764608 vl
2