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5.a) Conditional Use Permit for Zavoral Mine and Reclamation Project, for property East of the Intersection of TH97 and TH95, Scandia, MN. CITY OF SCANDIA, MINNESOTA
PC RESOLUTION NO. C�I-c,��l -13--�r� �}
APPROVING A CONDITIONAL USE PERMIT FOR THE ZAVORAL MINE AND
RECLAMATION PROJECT
WHEREAS, Tiller Corporation ("Applicant") has applied for a Conditional Use Permit
(CUP) to operate the Zavoral Mine and Reclamation Project ('Project") on a property owned by
James Zavoral, located east of the intersection of State Trunk Highway 97 and State Trunk
Highway 95 ("Site"); and
WHEREAS, the Property is located in Washington County, Minnesota and legally
described in Attachment A; and
WHEREAS,the Applicant submitted an application for a CUP for the Project to the City
on November 25, 2008, including the required Environmental Assessment Worksheet (EAW);
and
WHEREAS,the Site proposed for the Project is located within the Agriculture (AG)
Zoning District in the City's 2020 Comprehensive Plan and related Development Code, and
those were the adopted Comprehensive Plan and regulations at the time of the application; and
WHEREAS, the City reviewed the EAW for the project and the City Council approved
the Findings of Fact and Record of Decision for the EAW for the Project on March 3, 2009 that
concluded that an Environmental Impact Statement(EIS) was needed to determine the project's
potential for si�nificant environmental impacts; and
WHEREAS,the City Council approved a Scoping Decision Document for the EIS on
April 21, 2009, hired a consultant to complete the E(S, and established a Project Advisory
Committee for the EIS in December, 2009; and
WHEREAS,the Applicant revised the project to eliminate all aggregate processing
activities at the Site, and based on the revised Project, the City conducted a formal Scope
Amendment Process and approved a Revised Scoping Decision Document for the Project in
January 2010; and
WHEREAS,the City and its consultant completed the Zavoral Mine and Reclamation
Project EIS to meet the requirements of Minnesota Rules 4410, and the EIS concluded that if the
mitigation recommendations included in the EIS were implemented that the Project will not have
significant environmental impacts; and
WHEREAS, the City Council approved the Findings of Fact and Record of Decision that
found that the Zavoral Mine and Reclamation Project EIS was adequate to serve as the
environmental review for the Project because it met the criteria set forth in Minnesota Rules
Resolution No.:
Page 2 of 11
4410.2800 and the reyuirements of Minnesota Statutes Chapter 1 16D on September 25, 2012;
and
WHEREAS,the Applicant submitted a revised application for the Conditional Use
Permit for the Project on October 9, 2012 and the City determined that it was complete for
review on October 23, 2012; and
WHEREAS,the Planning Commission held a public hearing on the Project on
December 4 and December 12, 2012; and
WHEREAS, the Planning Commission recommends that the Project be implemented as
described for Alternative 3 in the Zavoral Mine and Reclamation Project EIS; and
WHEREAS, Planning Commission's findings related to the request for approval of the
Conditional Use Permit include the following:
1. The Project meets the Criteria for approval of a CUP included in the City's Mining
Ordinance No. 103:
• The property size meets the ordinance requirement.
• The Project meets the standards for approval of a conditional use permit included
in Chapter One of the Development Code.
• The Project is consistent with the goals and policies of the City's 2020
Comprehensive Plan.
• The application complied with all rules of the Minnesota Environmental Quality
Board Environmental Review Program, and completed the required
environmental review to comply with State Statutes and Rules.
2. When the mitigation recommendations included in the Zavoral Mine and Reclamation
Project EIS and the conditions included in the CUP are implemented, the project will
meet the Provisions and Performance Standards included in Ordinance No. 103:
• The Project meets the reyuirements for protection of groundwater, includes the
required Groundwater Quality Protection Plan, and monitoring.
• The Project will obtain the required permits for air quality, noise, water quality.
rare species and roadway access.
• The Project includes the required surface water protection plan that addresses
ongoing monitoring, accident response and remediation, and will obtain the
required surface water management and erosion control permits from the MPCA
and Carnelian-Marine-St. Croix Watershed District.
• The Project includes the required Dust Control Plan that when implemented, will
meet MPCA requirements for dust control.
• If all mitigation and monitoring requirements are implemented, the Project will
meet the MPCA standards for noise.
• The Project adequately addresses the required operating conditions identified in
Ordinance No. 103.
3. The Project's Reclamation Plan exceeds the requirements of Ordinance No. 103.
Resolution No.:
Page 3 of 1 1
4. The conditional use is in compliance with and will not have a negative effect upon the
City's 2020 Comprehensive Plan, including the public facilities plan and capital
improvement plan.
5. The establishment, maintenance and operation of the conditional use will promote and
enhance the general public welfare and will not be detrimental to or endanger the public
health, safety, morals or comfort.
• When the required mitigation and monitoring are implemented, the traffic
generated by the Project will be controlled to prevent congestion, hazards and
excessive traffic through residential areas.
• When the required mitigation and monitoring are implemented, the Project will
meet the MPCA standards for hazardous materials, noise, air and water pollution.
• The Project will have an economic benefit to the community and the Twin Cities
region, because it will provide a resource that is critical to the maintenance and
development of infrastructure, buildings and other products that are needed by
Scandia and Twin Cities residents.
6. The conditional use will not be injurious to the use and enjoyment of other property in the
immediate vicinity for the purposes already permitted and will not substantially diminish
or impair property values or scenic views.
• When the required mitigation and conditions are implemented, the Project will
meet the ordinance and regulatory requirements for traffic control, environmental
hazards, noise, air, surface and ground water management, and will not
significantly affect the use and enjoyment of properties in the vicinity.
• There is no available factual evidence that the implementation of the Project will
substantially diminish or impair property values.
• When the required mitigation is implemented, the Project will not diminish or
impair scenic views.
7. The establishment of the conditional use will not impede the normal and orderly
development and improvement of surrounding property for uses permitted in the district.
• Uses permitted in the zoning district include agricultural uses, low-density
residential, parks, recreation and open space. W ith the implementation of the
required mitigation and conditions, the establishment of the Project will not
impede the orderly development and improvement of surrounding property for
those uses.
8. Adequate public facilities and services are available or can be reasonably provided to
accommodate the use which is proposed.
9. The conditional use will conform to the applicable regulations of the Agriculture district,
and all other applicable standards of the Development Code if the mitigation
recommendations of the EIS and conditions of the CUP are implemented.
10. The conditional use complies with the general and specific performance standards of the
development code.
NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE PLANNING
COMMISSION OF THE CITY OF SCANDIA, WASHINGTON COUNTY,
MINNESOTA, that it should and hereby does recommend that the City Council approve the
Applicant's request for a Conditional Use Permit for the Zavoral Mine and Reclamation Project
Resolution No.:
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located on the Site east of the intersection of State Trunk Highways 95 and 97, with the
following conditions:
1. The Conditional Use Permit is granted only for the Project identified in the plans and
application submitted to the City on November 14, 2008, and revised and resubmitted on
October 9, 2012.
2. The applicant shall comply at all time with the City's ordinances and all applicable rules and
regulations of Federal, State, County and local agencies, including the Carnelian-Marine-St.
Croix Watershed District, and shall maintain existing permits granted by those agencies for
all operations at the site.
3. The maximum depth of mining shall be 840 feet above mean sea level (amsl). The EIS
indicates that the separation between the maximum depth of mining and existing ground
water level shall be 25 feet or more. The City or its consultant shall monitor ground water
levels as specified in the AOP, and if the separation between the maximum depth of mining
and ground water level is less than 25 feet, the consultant shall report this information to the
City CounciL The City shall report ground water levels on the site on a quarterly basis to the
Minnesota Department of Natural Resources.
4. No mining for silica sand ('`frac sand mining"') shall be permitted during this Project.
5. No dewatering shall be permitted.
6. Daily pumping from the Zavoral Site Well shall not exceed 10,000 gallons at a maximum
pumping rate of 1,200 gallons per minute. Annual pumping shall not exceed 1 million
gallons.
7. The applicant shall keep records of when the Zavoral Site Well is pumped, and provide the
records to the City, WCD, Washington County Department of Public Health and Minnesota
Department of Natural Resources for groundwater monitoring activities. The records shall
document both the daily use and total annual pumped volume from the Zavoral Site Well.
8. The applicant shall revise the Groundx�ater Qualiry Protection Plan (GWPP) (October 2012)
to address the corrections and issues identified in the Leggette, Brashears, and Graham Inc.
(LBG) letter to the City dated November l5, 2012. The applicant shall revise the locations of
the proposed borings and monitoring wells as requested by LBG.
9. The applicant shall install groundwater observation wells or piezometers on the mine site in
locations approved by the City. The applicant shall coordinate the number and locations of
the observation wells and/or piezometers and frequency of monitoring in consultation with
the City and its consultants.
10. The City's consulting hydrogeologist shall make scheduled site visits to download
groundwater monitoring data and collect manual measurements. The hydrogeologist shall
evaluate the data and report the results to the City at least annually with the AOP application,
or more frequently if the consultant identifies issues or problems during the monitoring
activity.
Resolution No.:
Page 5 of 11
1 1. The City shall review and evaluate the GWPP on an annual basis or more frequently if a
significant change in the groundwater conditions occurs. The applicant shall modify the
GWPP as needed to address identified concerns.
12. If diesel fuel is stored at the site, the applicant shall sample and analyze groundwater for
diesel range organics. If�asoline is stored at the site, gasoline range organics and benzene
shall be added to the analyte list.
13. The applicant shall meet Federal, State and City requirements for storage of fuels on the site.
14. Equipment fueling for the Project shall be conducted in a designated area over a hard-
surfaced fueling pad.
15. The applicant shall provide spill cleanup equipment on-site.
16. The applicant shall obtain the reyuired agency permits for stormwater management, and
provide to the City copies of the permits approved by the Carnelian-Marine-St. Croix
Watershed District(CMSCWD) and the Minnesota Pollution Control Agency.
17. The applicant shall obtain the required Air Emissions Permit from the Minnesota Pollution
Control Agency, and provide a copy of the approved permit to the City.
18. The applicant shall obtain an Endangered Species Take Permit before removing any
Butternut(Juglans cinerea)trees identified on the site, if the Minnesota Department of
Natural Resources (DNR) reclassified Butternut trees from a Special Concern to Endangered
species.
19. The applicant shall comply with the "Summary of Recommendations for Avoiding and
Minimizing Impacts to Blanding's Turtles Populations" included in Appendix C of the
Zavoral Mine and Reclamation Project EIS. Tiller Corporation shal) provide the City or its
consultant with its Blanding's Turtle Standard Operating Procedures guidelines for review
and comment. The City or its consultant will conduct annual site visits to verify compliance.
20. The applicant will inspect all trees for raptor nests prior to tree clearing. Trees with active
nests may not be cleared while the nest is actively used.
21. The applicant shall implement the Best Management Practices (BMP's) included in the
Storm Water Pollution Prevention Plan (SWPPP) (July, 24, 2012), Surface Water Plan
(October 2012), and CMSCWD permit to protect surface waters and manage erosion and
sedimentation.
22. The applicant shall construct the proposed berm on the south end ofthe Site as close to the
mining and reclamation limits as possible to reduce off-site peak flow rates.
23. The applicant shall minimize the amount of unnecessary equipment on the Site and reduce
soil tracking by off-site by vehicles.
24. The applicant shall monitor all on-site construction equipment for leaks and complete regular
preventive equipment maintenance. Fueling and maintenance of vehicles shall occur within
the area of active mining and no "topping off' of vehicle fuel tanks is allowed.
25. Any above-ground storage tank (AST) at the Site shall be located more than 500 feet from
surface waters.
Resolution No.:
Page 6 of 11
26. The applicant shall notify the Minnesota Pollution Control Agency of all AST's within 30
days of installation by submitting an AST Notification Form.
27. The City or its consultant shall monitor the potential impacts of mining activities on the
water resources at the site. The monitoring locations, protocols, and methodology shall be
specified in the AOP. The City shall submit all status reports and ground and surface water
monitoring reports to the CMSCWD and the Minnesota DNR.
28. The City or its consultant shall monitor the WCD monitoring point installed for the EIS
pump test that gathers baseline data in Zavoral Creek for the lifetime of the project.
Monitoring shall include water quality and quantity parameters.
29. The City or its consultant shall install a monitoring station downstream of Crystal Springs in
order to isolate potential effects due to mining from other effects to due unrelated activities
within the watershed. The City or its consultant will analyze the data to determine the effect,
if any,to the springs due to the Zavoral Mine operation, and identify any negative impact.
30. The City or its consultant shall complete an annual field review of the wetland boundaries of
wetlands within the project area, including black ash seepage swamps (Wetlands A, B, and C
as shown in the CCES wetland delineation report dated January 14, 201 1), to determine if the
mining activities have any impact on the wetlands. The review shall occur within the
growing season as defined by the U.S. Army Corps of Engineers Wetland Delineation
Manual (North Central and Northeast Regional Supplement), and shall be coordinated with
the applicant and when active mining operations are occurring.
31. The applicant shall obtain the required Minnesota Department of Transportation (Mn/DOT)
Access permit (TP 1721) for the Project.
32. The applicant shall construct the new driveway access directly across from TH 97 as required
by Mn/DOT for safe access.
33. The applicant shall construct a new north-bound right-turn lane as required by Mn/DOT
(letter to the City of Scandia, January 22, 2009). The design of the right-turn lane shall be
consistent with the design of the existing left-turn lane.
34. The City or its consultant shall complete traffic monitoring of the Project. The traffic
monitoring protocol and requirements shall be identified in the AOP.
35. The City shall request that Mn/DOT complete speed studies in the following locations: 1) on
TH 95 north and south of TH 97; on TH 97 near the Scandia Elementary School; and on TH
97 near the intersection with County Road 91 (Lofton Avenue).
36. The applicant shall record and report the numbers of trucks hauling Class C add-rock from
the Zavoral Mine site and the number and source location of trucks hauling add-rock to the
Scandia Mine to the City quarterly to ensure that additional truck traffic would not result
from hauling from the Zavoral Site at peak demand concurrently with other sites. The
applicant shall submit annual truck number and source reports with the Annual Operating
Permit application.
Resolution No.:
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37. Traffic generated by the Project shall not exceed the maximum levels analyzed in the EIS for
the selected alternative (Alternatives 1 or 3--600 round trips per day; Subalternative 3A--736
round trips per day).
38. All truck traftic generated by the project shall utilize TH 97, TH 95, CR 15 (Manning
Avenue) and CR 1 (Lofton Avenue). No truck traffic shall be permitted on local streets.
Trucks shall not back onto roadways.
39. The applicant shall install truck warning signs that comply with the Minnesota Manual on
Uniform Traffic Control Devices (MMUTCD)on State Scenic Byway TH 95 to advise
drivers of trucks crossing TH 97 in and out of the Zavoral Site and on TH 97 at County Road
91 to advise drivers of trucks turning onto TH 97.
40. The applicant shall provide parking for all employees and visitors within the site. Circulation
and parking shall minimize internal and external traffic conflicts.
41. If the applicant has knowledge of a crash or traffic violation occurs involving a truck hauling
for Tiller, Tiller shall contact the City to report the incident immediately. The applicant shall
report actions it will take to respond to the incident.
42. The applicant shall construct the fence included in the Project plans prior to beginning
mining operations, and shall maintain the fence until reclamation is complete.
43. The hours of operation and hauling shall be conducted only between 7 a.m. and 7 p.m.,
Monday through Friday, excluding Federal holidays, during daylight hours, or one hour
before sunrise and one hour after sunset during seasons when daylight is not available
between 7 a.m. and 7 p.m., unless the City authorizes other hours or days of operation.
44. The applicant shall coordinate any proposed berm removals associated with Project
completion with the City.
45. The applicant shall implement the Dust Control Plan (dated 10/8/l2 and updated by 3/l/13),
including all activities proposed during stripping, grading and active mining operations.
46. The applicant shall utilize non-chloride agriculturally derived organic polymers or naturally-
occurring polymers on internal haul roads to control dust. The applicant shall review the
coverage of the material on a regular basis, and reapply the polymers if they are no longer
effective.
47. The applicant shall water unpaved haul roads on the site, including milled portions, at least
twice daily, unless recent precipitation is keeping these roads wet; and more frequently as
needed during hot, dry conditions.
48. The applicant shall wash hauling and loading equipment on a regular basis.
49. The applicant shall complete sweeping activities using vacuum-assisted sweeping equipment
or similar equipment that ensures that sweeping operations do not generate visible airborne
emissions.
50. The applicant shall perform employee exposure monitoring or similar onsite testing at the
site at least once per season and submit the results of the testing (with employee personal
Resolution No.:
Page 8 of 1 1
information redacted) to the City for review. Monitoring shal be specific for respirable dust
and respirable silica, shall include mining, loading and hauling personnel and shall represent
worst-case exposure conditions.
51. The City and its consultants shall perform periodic on-site review and monitoring of dust
control activities to assure compliance with this permit. The monitoring locations, protocols
and methodology shall be specified in the AOP.
52. The Dust Control Plan and air monitoring procedures shall be reviewed and updated as
necessary on at least an annual basis with the AOP application.
53. The applicant shall implement the berms and screens proposed in the site plan.
54. Trucks shall not idle on the site and approach area for more than 30 minutes.
55. The City and its consultant shall complete noise monitoring at the Project site. The
monitoring locations, protocols and methodology shall be specified in the AOP.
56. The applicant and owner shall cooperate with the City and allow access to the site as
necessary to conduct noise monitoring.
57. If the noise levels at the Project exceed State Standards for any of the testing, the applicant
will identify and take corrective actions to bring the noise levels into compliance. The City
may order additional testing to confirm that the Project is in compliance.
58. The applicant shall require that all Tiller-owned equipment on the site use broadband alarms
and haul trucks shall utilize a circular traffic pattern or other traffic pattern to the extent
feasible that minimizes the need for haul trucks to back up on the site.
59. The applicant shall ensure that on-site Tiller-owned equipment is properly muffled and shall
inspect mufflers on the on-site equipment on at least a weekly basis and document
inspections.
60. The applicant shall ensure that the mining plan will minimize any time when the noise from
the on-site equipment and haul trucks are operating without noise mitigation from berms
and/or the mine face.
61. The applicant shall complete the clearing of previously-unmined areas during the winter to
minimize noise impacts.
62. The applicant shall recycle debris created by clearing, grubbing and excavation, or dispose of
stumps, trees and debris in another manner approved by the City.
63. The applicant shall maintain the mine site and equipment in an orderly condition. Weeds
shall be controlled in planted and reclaimed areas. Existing trees, berms and topsoil along
existing public rights-of-way shall be preserved, maintained and supplemented as proposed
in the Site Plan and Reclamation Plan.
64. The applicant shall provide and maintain portable sanitary facilities to serve the site and shall
meet all applicable standards and regulations for wastewater disposal.
65. The applicant shall dispose of any waste generated from the mining operation, including
waste from vehicles or equipment maintenance, in accordance with Federal, State and City
requirements.
Resolution No.:
Page 9 of 1 I
66. The applicant shall meet Federal, State and Local requirements for storage of fuels on the
site.
67. The applicant shall fund improvements to the existing pedestrian/bicycle trail along State
Scenic Byway Trunk Highway 95 in the mine area, and maintain connections to existing
trails.
68. If the proposed trail on TH 97 is developed while the Zavoral Mine is operational, the
applicant shall fund signage for the trail crossing on TH 95.
69. Within 60 days of the approval of the CUP, the applicant shall prepare and provide to the
City an updated reclamation plan (revising the Reclamation Plan dated October 9, 2012),
which includes performance standards identified in the conditions that follow for approval by
the City. Reclamation on the site shall be implemented in accordance with the updated
reclamation plan.
70. Reclamation shall proceed concurrently and proportionally to mining operations. Progress
on reclamation shall be demonstrated in each AOP application.
71. The applicant shall use clean, non-contaminated fill material and topsoil for all reclamation.
The applicant shall use sandy subsoil available at the site with added organic soil
amendments for reclamation topsoil. The applicant shall successfully establish permanent
native vegetation in reclaimed areas as per the schedule, extents and methods as provided in
the Zavoral Reclamation Plan and Zavoral Reclamation Plan Topsoil and Prairie
Establishment Memorandum (October 3, 201 1) by CCES.
72. Reclamation success shall be defined as follows:
• 90% areal coverage of vegetation for each reclaimed area, within 3 years post seed
installation;
• Non-native and invasive plant species (as defined and listed by the Minnesota DNR) and
potentially-aggressive native plant species (Rhus spp. And Juniperus virginiana) shall
account for no more than 20% cover of the reclaimed areas;
• The reclaimed areas shall contain at least 50%of the species for both grasses and forbs
contained in the specified seed mixes at the end of the St" growing season, post seed
installation;
73. Vegetation establishment and monitoring shall continue for a period of 5 years after
completion of the Zavoral Mine Project, in its entirety.
74. The City shall monitor the transplantation of trees to ensure a survival rate of at least 80% for
all transplanted trees. The Applicant shall provide the City with the quantity, location,
species and proposed maintenance plan for all trees transplanted as part of the reclamation.
Survival rates of less than 80%will require replacement of the dead trees by the applicant.
Replacement tree species will be selected in consultation with the City and its consultant and
approved by the City.
75. The applicant shall submit annual reclamation monitoring reports to the city, on or before
November l, that describe the reclamation activities that occurred in the specified year, and
the status of all reclaimed areas. The applicant shall provide detailed information such as
Resolution No.:
Page 10 of 11
percent coverage of vegetation, species composition, etc., pertaining to compliance with the
perforrr►ance standards, as provided above. If the reclaimed areas do not meet the
performance standards, the applicant shall include corrective action plans in the reclamation
monitoring report.
76. If the City determines that a reclaimed area has not met the vegetative performance standards
listed above, the city shall order corrective action(s) including, but not limited to, reseeding,
overseeding, spot seeding, or other actions so that the reclamation meets the criteria for
success. The specific corrective actions may be dependent on site conditions. The city will
determine the appropriate actions in consultation with its consultants, the applicant, and other
experts, as necessary.
77. The City and its consultants shall complete monitoring of reclamation activities on the site on
behalf of the City. Monitoring locations, protocols and methodologies shall be specified in
the AOP.
78. The applicant shall provide funds to conduct all reclamation monitoring on the site.
79. Final reclamation shall include removal of any equipment and backfilling and seeding the
operations area.
80. Approval of the reclamation plan shall not constitute an approval by the City of Scandia of an
ultimate use for the site. Ultimate use shall be determined based on the Scandia
Comprehensive Plan and ordinances in effect at the time the mining is complete and
applications for development of the site may be submitted.
81. The applicant shall maintain existing woodlands and screening outside the mine area limits.
82. The applicant shall establish a maximum stockpile height of 880 feet above mean sea level.
Stockpiles shall not be located on the west side of the site.
83. All lighting on the site shall be hooded or controlled and meet the requirements of the City's
Development code. Lighting shall be limited to the hours of mine operation. Lighting shall
be arranged to deflect light away from any adjoining residential property or from public
streets.
84. The applicant shall obtain the required sign permits for all signs proposed at the site.
85. The applicant shall pay all costs associated with site monitoring activities identified in this
permit and the AOP including, but not limited to monitoring of traffic, air quality, noise,
ground water and surface water, and the costs of equipment, installation, site visits, data
collection, data analysis, reporting, maintaining compliance and all other costs associated
with all of the monitoring activities identified in these conditions.
86. The applicant shall cooperate with the City and provide access to the site as needed to
conduct the monitoring activities required by this permit.
Resolution No.:
Page 1 1 of 1 I
87. The applicant shall provide a final, corrected copy of the Application materials and plan
sheets to the City within 60 days of approval of the CUP.
88. The applicant and owner shall enter into a Developer Agreement with the City. The
developer agreement shall specify that the project will be implemented to comply with
Alternative #3 in the E[S. The Agreement shall specify that all Project activities shall be
completed within 3-5 years from the authorized Project start date, identified in the AOP,
including site preparation, clearing, aggregate mining and transporting of mined materials.
Reclamation activities and monitoring shall continue after completion of the mining
activities, as specified in this permit.
89. The Agreement shall include a financial guarantee acceptable to the City to assure
compliance with the reclamation plan, and provide for an escrow that the City will use to pay
for monitoring and reporting activities.
90. The applicant must apply for and obtain an Annual Operating Permit from the City.
91. The applicant shall, within 60 days of the date of this resolution, provide to the City an
Irrevocable Letter of Credit or other security satisfactory to the City in the amount of
$ to guarantee the completion of the reclamation plan and the performance of its
obligations set forth by this permit. The City may require the amount of this security to be
adjusted in future years based on inflationary increases in construction and monitoring costs,
or upon re-evaluation of the needs for reclamation, as a condition of approval of an Annual
Operating Permit. Future reductions in this security shall be made as provided by the
ordinance. The City may allow reductions in portions of the Letter of Credit or other security
for completed and approved reclamation on a five-year basis.
92. The applicant shall pay all fees and escrows related to this application.
Adopted by the Scandia Planning Commission this 7th day of January, 2013.
Christine Maefsky, Chair
ATTEST:
Kristina Handt, Administrator/Clerk
CITY OF SCANDIA, MINNESOTA
PC RESOLUTION NO. p�-c��� - 1�-�I 17
DENYING CONDITIONAL USE PERMIT FOR THE ZAVORAL MINE AND
RECLAMATION PROJECT
WHEREAS, Tiller Corporation ("Applicant") has applied for a Conditional Use Permit
(CUP) to operate the Zavoral Mine and Reclamation Project ("Project") on a property owned by
James Zavoral, located east of the intersection of State Trunk Highway 97 and State Trunk
Highway 95 ("Site"); and
WHEREAS, the Property is located in Washington County, Minnesota and legally
described in Attachment A; and
WHEREAS, the Applicant submitted an application for a CUP for the Project to the City
on November 25, 2008, including the required Environmental Assessment Worksheet (EAW);
and
WHEREAS, the City reviewed the EAW for the project and the City Council approved
the Findings of Fact and Record of Decision for the EAW for the Project on March 3, 2009 that
concluded that an Environmental Impact Statement (EIS) was needed to determine the project's
potential for significant environmental impacts; and
WHEREAS, the City Council approved a Scoping Decision Document for the EIS on
April 21, 2009, hired a consultant to complete the EIS, and established a Project Advisory
Committee for the EIS in December, 2009; and
WHEREAS, the Applicant revised the project to eliminate all aggregate processing
activities at the Site, and based on the revised Project, the City conducted a formal Scope
Amendment Process and approved a Revised Scoping Decision Document for the Project in
January 2010; and
WHEREAS, the City and its consultant completed the Zavoral Mine and Reclamation
Project EIS to meet the requirements of Minnesota Rules 4410, and the EIS concluded that if the
mitigation recommendations included in the EIS were implemented that the Project will not have
significant environmental impacts; and
WHEREAS, the City Council approved the Findings of Fact and Record of Decision that
found that the Zavoral Mine and Reclamation Project EIS was adequate to serve as the
environmental review for the Project because it met the criteria set forth in Minnesota Rules
4410.2800 and the requirements of Minnesota Statutes Chapter 116D on September 25, 2012;
and
Resolution No.:
Page 2 of 12
WHEREAS, The EIS and CUP application analyzed a number of complex issues about
compliance with, or possible negative effects on, the Comprehensive Plan; the general public
welfare; public health and safety, enjoyment of other property in the immediate vicinity;
impairment of property values and scenic views; and significance of, or potential for impacts on
environmental and cultural resources of local, state, regional and national si�mificance; and
WHEREAS, the Applicant submitted a revised application for the Conditional Use
Permit for the Project on October 9, 2012 and the City determined that it was complete for
review on October 23, 2012; and
WHEREAS, Scandia Ordinance No. 103 regulates the mining of sand and gravel and
related activities and each operation requires a CUP and is also required to obtain an Annual
Operators Permit; and
WHEREAS, The Planning Commission is responsible to provide guidance to city staff
and make findings of fact and recommendation to the City Council regarding acceptance or
denial of the Conditional Use Permit application; and
WHEREAS, the Planning Commission held a public hearing on the Project on
December 4 and December 12, 2012; and
WHEREAS, 1. The City of Scandia Development Code, Chapter 1, Section 8.0
Conditional Use Permits, 8.4 General Criteria states, "As may be applicable, the
evaluation of any proposed Conditional Use Permit request shall be subject to and
include, but be not limited to, the following general criteria:
(1) The conditional use will be in compliance with and shall not have a negative effect
upon the Comprehensive Plan, including public facilities and capital improvement plans.
(2) The establishment, maintenance or operation of the conditional use will promote and
enhance the general public welfare and will not be detrimental to or endanger the public
health, safety, morals or comfort.
(3) The conditional use will not be injurious to the use and enjoyment of other property
in the immediate vicinity for the purposes already permitted, nor substantially diminish
and impair property values or scenic views.
(4) The establishment of the conditional use will not impede the normal and orderly
development and improvement of surrounding property for uses permitted in the district.
(5)Adequate public facilities and services are available or can be reasonably provided to
accommodate the use which is proposed.
(6) The conditional use shall conform to the applicable regulations of the district in which
it is located and all other applicable standards of this Chapter.
(7) The conditional use complies with the general and specific performance standards as
specified by this Section and this Chapter."
WHEREAS, Planning Commission's findings related to the request for approval of the
Conditional Use Permit include the following:
Resolution No.:
Page 3 of 12
A. The proposed Project does not comply with Section 8.4 (1) that requires that the Project "be
in compliance with and shall not have a negative effect upon the 2020/2030 Comprehensive
Plans (PC should decide which it is basing the recommendations on and select appropriate
findings), including public facilities and capital iinprovement plan,"based on the following
findings:
1. Under Growth Management Strategy Overview, the old New Scandia Township 2020
Comprehensive Plan, adopted in 1998, states, "The primary goal of this plan is to
preserve and enhance the rural character of New Scandia as the community continues to
move away_from an economy based on traditional commercial agrica�lture to one
increasingly related to the diverse metropolitan area."; and
2. The 2020 Comprehensive Plan identifies as a General Community Goal, to "protect and
enhance the natural resources of the area (including rivers and streams),for the
enjoyment of present and.future generations, " and "Establish a development pattern that
ensures a safe, efficient, and scenic road system consistent with the rural character of the
township."; and
3. The 2020 Comprehensive Plan states under the heading of Community Vision and
Values that "(New) Scandia's natz�ral landscape—the St. Croix River Vallev, the woods
and wetlands are our most precioits assets... Our natural resources must be managed
with care."; and
4. The 2020 Comprehensive Plan closes the Summary of Major Growth Management
Issues with the statement, "Through careful planning and development revie��, the
natural resource base can be protected, existing development respected, and options,for
the_future preserved. "; and
5. The 2020 Comprehensive Plan states, "plan the vision is: "the basic issue that must be
addressed is how to strike a balance between the desire to accommodate some additional
residential and commercial development while still rraaintaining the rural character and
sense o f community that makes the City so attractive and valuable to both current and
prospective residents. Too much additional development, scattered throughout the City
with little regard for its long range impact could present serious problems for the
communiry. The scenic qualiry of the landscape and the rural lifesryle so cherished by the
residents could be destroved."; and
6. The City of Scandia Development Code, Section 1.3 states, "It is the policy of the City of
Scandia that the enforcement, amendment, and administration of the Scandia
Development Code be accomplished consistent with the recommendations contained in
the Citv Comprehensive Plan, as developed and amended bv the Planning Commission
and City Council of the Cit��. The Council recognizes the City Comprehensive Plan as the
official policv for the regulation of land use and development in accordance with the
policies and purpose lzerein set,forth. In accordance with Minnesota Statutes Chapter
Resolution No.:
Page 4 of 12
273, the City will not approve any rezoning or other change in these regulations that are
inconsistent with the Comprehensive Plan;" and
7. The City of Scandia spent almost two years developing the 2030 Comprehensive Plan,
the first Comprehensive Plan adopted by the City of Scandia, in accord with the system
statement [requirement] of the Metropolitan Council issued to Scandia in November
2005, and a Comprehensive Plan Committee (CPC) was formed, chaired by the Mayor
and including members of the City Council, the Planning Commission, the Parks and
Recreation Committee, and citizen representatives. The CPC considered background
materials compiled by a consultant team as well as extensive public input provided
through public meetings, focus groups and public surveys. The planning process
included three rounds of public meetings to solicit input from a diverse group of
individuals; and focus groups representing the St. Croix River corridor, the village, the
lakes, and the rural residential areas and agricultural producers helped create a
Comprehensive Plan that is responsive to the needs of each area and group. Residents
were surveyed to complete the sentence "In 2030, I believe Scandia should . . .," and they
were also asked to select their top three picks from a list of factors defining"rural
character" and to describe how development should occur in an area that maintains its
rural character; and interviews were conducted with 26 existing Scandia businesses
focusing on perceptions of the current businesses environment and expectations for the
future; and
8. Scandia's 2030 Comprehensive Plan is "the official public document adopted...as the
policy guide for decisions about its future development and redevelopment. It consists of
a vision for the community,background data, goals, policy stateinents, standards and
programs for guiding the physical, social and economic development of the community,"
and
9. The completion of the 2030 Comprehensive Plan in 2008 followed the city's taxpayer's
direct expenditures of $60,000 and, conservatively counted, hundreds of citizen
volunteer and city staff hours, and
10. The completion of the 2030 Comprehensive Plan followed a year and a half of twice-a-
month committee meetings, numerous additional consultation sessions, 5 public
meetings, multiple focus groups, and 2 citywide surveys, and
11. Scandia is more than half way through the life span of the 2030 Comprehensive Plan: it
has been almost 6 years since work on the 2030 Comprehensive Plan was first begun, 4
years and 4 months since work on the 2030 Comprehensive Plan was completed, and 3
years and 10 months since the 2030 Comprehensive Plan was officially adopted by the
city, and
12. The 2020 Comprehensive Plan has been obsolete for almost four years, and
13. The 2030 Comprehensive Plan has been the governing document of the city for almost
four years, and
Resolution No.:
Page 5 of 12
14. The 2030 Comprehensive Plan was adopted by the City Council at their March 17, 2009
meeting, and the Metropolitan Council found that the City's Comprehensive Plan update
met all of the Metropolitan Land Planning Act requirements and conforms to the regional
system plans, and is consistent with the 2030 Regional Development Framework and is
compatible with the plans of adjacent jurisdictions; and
15. The Metropolitan Council authorized the City of Scandia to put its 2030 Comprehensive
Plan Update into effect without any modifications, and the City has brought its
ordinances into conformance with the 2030 Comprehensive Plan; and
16. The City of Scandia Comprehensive Plan provides guiding principles for defining future
land use in the area through 2030, embodying a new vision for Scandia, "Emphasizing
the protection of natural resources that define Scandia's character, economy, and quality
of life;" an.d the 2030 Comprehensive Plan does not allow gravel pits as a permitted use
under current Agricultural Core Area (AG C) zoning of the proposed mine site; and
17. The 2030 comprehensive Plan states the vision is "to maintain Scandia's unique rural
character, agricztltural heritage, rural charm and natura!resources. Development in all
areas protects and enhances the City's green infrastructure—trails, green corridors,
natural svstems, surface and groundwater systems, scenic vistas and night skies. "; and
18. According to the 2030 Comprehensive Plan, "the Mining Area (of Scandia) includes
areas in the City of Scandia with active, permitted mining operations."These include
one are in northwest Scandia and one in southeast Scandia. (p. 113) and Future Land Use
Areas and Parcels with Homes Map #29(p.115); and
19. According to the 2030 Comprehensive Plan, Map #6 Extent of Sand and Gravel
Deposits", the proposed Zavoral Mining Project land is keyed as a"Previous Sand and
Gravel PiY' (p.21); and
20. The city has determined it shall apply to this CUP application the current criteria, which
were the same as the criteria in the code that implemented the 2020 Comprehensive Plan,
related to CUP applications, Chapter One— Section 8 and Chapter 4 the Mining
Ordinance; and
21. Under the city's current Development Code, Chapter Two Zoning Regulations, the area
proposed by the Zavoral Mining Project is zoned Agriculture District—Core; and mining
is not a permitted use in the Agriculture District—Core; and
22. At the time of the Zavoral Mining Project CUP application, initial city input suggested
that the city believed that the 2020 Comprehensive Plan would have to be used to
evaluate the CUP application, the applicant Tiller Corporations' legal staff would have
known that the city could, in fact, apply the newly completed 2030 Comprehensive Plan
to the CUP application; and
Resolution No.:
Page 6 of 12
23. The applicant Tiller Corporation knew it was taking a calculated business risk when it
chose to allocate funds to pursue city approval for mining at the Zavoral Project Mining
site and the money allocated by Tiller Corporation for gaining approval for the Zavoral
Mining Project is a calculated business risk expense; and
24. The actual money allocated by the city of Scandia, and the additional money in terms of
the hundreds of hours volunteered by its citizens for the development of the city's 2030
Comprehensive Plan was a secure civic decision—not a risk—expense; and
25. The City of Scandia 2030 Comprehensive Plan does not contemplate additional active
mining operation within the city. In fact, there is a requirement in the 2020 CP that calls
for reclamation of"gravel pits"—an obligation that has been ignored on the Zavoral
property for decades; and
26. The City's Comprehensive Plan Map 4, Natural Resources, identifies the proposed mine
site as High Sensitivity for Ground Water Sensitivity to Groundwater Pollution - Prairie
du Chien and Jordan Aquifers; and he entire proposed mine lies within a "Natural
Resource Priority Areas" overlay Map 26 ; and the Comprehensive Plan states, `7n
overlay areas, increased consideration of natural resources is required in addition to the
requirements of the underlving land use area"; and
27. The Planning Commission therefore concludes that the proposed mine fails to meet the
criteria of being"in harmony with the general purposes and intent of the Ciry's
Development Code and applicable Comprehensive Plan,"in that it presents an
unacceptable risk of irreparable harm to the city's "most precious assets. "
B. The proposed Project does not comply with Section 8.4(2) of Chapter 1 of the Development
Code requires that "the establishment, maintenance or operation of the conditional use will
promote and enhance the general public welfare and will not be detrimental to or endanger
the public health, safety, morals or comfort," based on the following findings:
L The applicant is non-compliant with this requirement because it presents an
endangerment to public safety with truck traffic particularly at the intersection of
highways 95 & 97 and at the intersection of highway 97 and Lofton. Traffic volume on
Hwys 95 & 97 has increased significantly over the past four years and has likely more
than doubled again in the past two years. Testimony from citizens and a traffic control
professional agree that reconfiguration of that intersection that will accommodate the
mining project is may make it less safe, at an intersection that is already considered to be
one of the most dangerous in the community; and
2. An increase in the potential for severe or fatal accidents at the intersection of
TH97 and Scenic Highway 95 has been testified to by Vernon Swing, President/CEO,
and Principal Transportation Engineer, RLK Inc. Citing Federal and State Access
Management Manuals, Swing testified that "Even if the Tiller mine access were
constructed according to MnDOT guidance [as required to receive the access permit to
Resolution No.:
Page 7 of 12
operate the mine],there would still be a 100% increase in the risk for severe or fatal
collisions;" and
3. A report by Scott C. Alexander stated that "The existing blow out area may be related to
the end of the paleo-channel where it intersects the St. Croix River Valley. Increased
recharge on the Zavoral site, during mining operations, could reactivate the blow out
area. Highly focused or point recharge will raise water levels in a concentrated area
following storm events, increasing localized risk. (Re£ Alexander, "A LIDAR Based
Review of the Tiller/Zavoral Mining and Reclamation Project). Alexander also noted
"that a ravine is beginning to form on the side of the current sand mine berm." [on the
north side of the existing gavel pit leading to Crystal Springs—pages 2, 3 and 4 of
Alexander's report]; and
4. The Separation between the excavation and groundwater may be insufficient to protect
groundwater and groundwater-dependent resources if the separation is less than 25 feet.
See: a) Alexander, "A LIDAR Based Review of the Tiller/Zavoral Mining and
Reclamation Project for discussion regarding implications of potentially higher water
table at site relative to exposure of groundwater to surface contaminants, and b)
communication from M. Doperalski, Minnesota DNR, estimating increase of 8.69
degrees Celsius in the waters of the trout stream, wherein a temperature swing of+4
degrees could be detrimental to trout; and
5. The Project may result in an increased risk of potential impacts to downstream water
resources, associated with a major erosion/sedimentation event that could occur during
the period " immediately after soil stripping and prior to overburden removal" (See ES-8
and ES-22, Environmental Impact Statement), in particular if a storm event should
coincide with this period if the mitigation measures identified in the EIS are not required
and implemented. If this should occur, the risk exists that habitat for trout and listed
mussel species may be negatively impacted. (See comment to DEIS, A. Horton, U.S. Fish
and Wildlife Service); and
6. A nearby landowner has expressed concern that increased exposure of residents and
water resources to silica and particulate matter over the life of the mine, may lead to
detrimental effects on public health due to cumulative impacts of total mitigated
emissions on vulnerable populations, including children and adults with documented
respiratory illnesses such as asthma and COPD and the potential for incremental
increases in particulate matter to trigger �-eater incidences of air quality alerts. (Personal
communication, neighboring landowner, Dec. 4 public hearing); and
7. The EIS analysis stated that the proposed Zavoral Mine does not create or add jobs to
Scandia's job base,but merely moves jobs onsite, temporarily, from other city and county
locations; and
C. The Project does not comply with Section 8.4(3) of the Development Code, which requires
that "the conditional use will not be injurious to the use and enjoyrnent of other property in
Resolution No.:
Page 8 of 12
the immediate vicinity for the purposes already permitted, nor substantially diminish and
impair property values or scenic views, based on the following:
1. Nearby landowners may experience a potential loss in property value, that may
disproportionately impacting low income homeowners, for whom their property
essentially represents their personal estate (Personal communication, neighboring
landowner, Dec 4 public hearing) Anyone attempting to sell or remortgage their house or
land during the duration of mining activities could be subject to a potential financial loss
of from 2% to 5% (EIS Analysis), or up to 25%, based on testimony by industry analysts;
and
2. Citizens and business owners in the community testified about their own knowledge and
experience, which is witness testimony and not hearsay per standards of federal evidence,
property values in the vicinity of the mine and the haul route has already been impacted
by location near a mine site. Such data does not appear in sales records when a property
is evaluated for purposes of refinancing a mortgage or when a property is valued too low
for a sale to occur; and
3. Although there is considerable disagreement on the de��ree of Project impact to property
values, the Planning Commission agrees a potential loss of 5% is possible (up to 5%, or
as little as 5%, depending on the testimony or analysis) and that this amount may be
enough to prevent refinancing, per witness testimony. If a property is devalued to the
extent that the owner is unable to refinance a mortgage, it is reasonable to view this as
"substantial" impact; and
4. The a��reed upon impact of 5% of value, if it were applied to assessed values for
calculating property taxes, when taken in aggregate of the total properties affected, could
amount to a sum far exceeding the $75,000 in taxes that may be collected from the
project, leading to a net loss, not a net benefit to the community. The applicant has
referred to the taxes to be paid as "substantial." The taxes to be paid by the applicant may
be a far smaller sum than the total 5% of properties that may be affected; and
5. The access road to the mine would be directly off of Highway 95, a Minnesota State
Scenic Byway; and Highway 95 Highway 97 intersection adjacent to the proposed mine
is designated as a Scandia Gateway on Map 15, Character Districts; and the City's
GUIDELINES FOR THE PROTECTION OF SCANDIA'S PRIORITY SCENIC
VIEWSHEDS, Resolution No. OS-15-12-01, Exhibit A, states "In Scandia, views with
highest Visibiliry/Duration were those at gateway points (e.g... Hwy. 97 and 95) that
sustained themselves along corridors creating a densitv of scenic views, (e.g... Hwy 97
east of the village approaching Hwy 95)"; and
6. The Mining Project will require hundreds of trucks hauling on TH 97 and TH 95 may
negatively impact Scenic Views because while it may be possible to screen the mine
entrance from public views, it is not possible to screen the truck traffic from public
views. Nearly all non-commercial vehicles that may travel on the roadways through
Scandia are smaller than a gravel truck. The proposed number of large trucks hauling
Resolution No.:
Page 9 of 12
gravel cannot be screened from other traffic, and in fact, the trucks themselves create a
screen to through---traffic which obstructs and interferes with scenic views along 5.5
miles of roadway; and
7. Multiple areas along Scandia roads that have been identified as viewsheds of
si�mificance are located along the proposed haul route, but any view in Scandia as seen
from roads and highways, including the entirety of the proposed haul route (which
constitutes nearly the entirety of the main route through Scandia), may be considered in
the future for such status. Views from private property are not considered for this status,
just views that are visible to through traffic. Trucks hauling gravel in the numbers
proposed by this project would impair the entire haul route from being scored as scenic
per the viewshed rating process; and
8. Viewsheds in Scandia are evaluated on the basis of objective and subjective criteria,
among which are scores for duration of view and ephemeral qualities. Scores for
Duration of View along the haul route will be shortened by any vehicle taller than the
vehicle containing the viewers, and in proportion to the number of these vehicles present.
It is not possible for this impact to be removed through screening or other conditions,
other than to remove the truck traffic responsible for the obstruction. Scores for
Ephemeral Quality of the view considers several factors, including the nature and quality
of the soundscape. The industrial quality of sounds at the mine and inherent to the trucks
along the haul route diminish the ephemeral quality of the viewscape and the soundscape
and therefore impair the scenic value of the views along the route, independent of
Federal, State, or City noise limits; and
D. Section 8.4(5) of Chapter 1 of the Development Code requires that"adequate public facilities
and services are available or can reasonably provided to accommodate the use which is
proposed, " and the proposed Project does not comply with this criteria based on the
following:
1. It does not include an analysis which shows how much additional City resources will be
needed to monitor approximately 150 conditions (including AOP) if the CUP is granted
to provide the following: services to monitor and analyze compliance and support
deliberations of such with Tiller Corporation; and accounting resources to collect billable
expenses, prepare invoices and conduct deliberations with Tiller Corporation. This will
represent a substantial additional workload on city staff in preparation of and defense of
non-compliance claims in addition to the normal execution of the city's business; and
E. Section 8.4(6) of Chapter 1 of the Development Code requires any conditional use "to
conform to the applicable regulations of the district in which it is located and all other
applicable standards of this chapter," the applicant is non-compliant with this performance
standard based on the following:
1. Because it cannot be shown that highway noises will be within the City's noise standards
at all times. As Mr. Caron of Tiller Corporation stated in a September 15, 2012 letter
referencing the FEIS, "Noise standards would be exceeded at a limited number of
Resolution No.:
Page 10 of 12
residences along Hwy 97 during maximum hauling conditions. However, the low and
maximum traffic conditions (with the exception of Subalternative 3A) would not change
as a result of the project, and the noise impacts to residences and Scandia Elementary
School are not predicted to change from current conditions." Even though we have a
condition for monitoring noise which includes a mining shutdown if the standard is
exceeded, mitigation is very difficult and Tiller concedes that some above-standard noise
readings will occur in certain situations; and
2. Operation of the Project may result in an increase in mine-related noise audible to
recreational users of the St. Croix National Wild & Scenic Riverway, at a level
considered by the National Park Service to exceed its policies. Based on the reasonable
expectations of the public when visiting this section of the National Scenic Riverway
(managed as "quiet waters") this noise would unreasonably diminish the unique values
for which the river was designated Wild and Scenic; and
3. Testimony by Chris Stein, superintendent of the St. Croix National Scenic Riverway, the
National Park Service objects to the project on the basis that the use and enjoyment of the
riverway in the vicinity of the mine will be impaired and the St. Croix National Scenic
Riverway is a unit of the National Park Service whose authority stems from two Acts of
Congress: the 1916 Organic Act which established the NPS, and the 1968 Wild and
Scenic Rivers Act and;
4. Chapter 4, Section 7 of the City's mining ordinance requires adherence to all federal,
state, and city noise limits and allows for discretion in application of City rules and
requirements. The City of Scandia is required to cooperate with Federal authority where
possible. State noise statutes do not prevent the City of Scandia from cooperating with
Federal authority on noise issues, and specifically allows for stricter standards for some
types of noise; and
5. The City of Scandia Development Code, Section 1.5 Application states,
"(1)In their interpretation and application, the provisions of this Chapter shall be held to
be the minimum requirements necessary to accomplish the general and specific purposes
of the Development Code.
(2) Where the conditions imposed by any provisions of this Chapter are either more or less
restrictive than comparable conditions imposed by other law, ordinance, rule, or
regulation of the city, state, or federal government, the law, ordinance, rule, or
regulation which imposes the more restrictive condition, standard, or requirement shall
prevail;" and
6. The 114-acre Zavoral site is desi�mated as part of a Regionally Significant Ecological
Area (RSEA) Map 9 of the 2030 Scandia Comprehensive Plan; it is immediately adjacent
to the lands and waters of the St. Croix National Scenic Riverway, and the area is
designated as part of the St. Croix Bluffs Important Bird Area; and
7. There is a high quality native brook trout stream that runs on the Zavoral property and
neighboring property that is under consideration for state designation, and the Rustrum
Resolution No.:
Page 11 of 12
Wildlife Management Area is on the river immediately below the bluff where the mine is
proposed; and
8. The neighboring property north of the proposed mine has been determined by the DNR to
meet the standards for a State Scientific and Natural Area designation, with documented
rare features such as old growth forest, significant geologic features and documented
occurrence of nearby Minnesota special concern species (November 21, 2012 DNR letter
to Gregory Page); and
9. Federally endangered freshwater mussel species are known to occur in the St. Croix
within 2000 feet and downriver of the site. These mussels are part of a diverse assemblage
of mussel species in the St. Croix that is of international significance. The City recognizes
that all of these resources (including the handful of butternut trees on the site) meet the
definition of"environmentally sensitive resources" according the Environmental Quality
Board Guidelines; and
10. Some of the comments received on the EIS stated that many of these outstanding and
remarkable community assets are known to be highly sensitive and vulnerable to impact,
with narrowly defined habitat requirements; and
11. The CUP Application proposes mining 9 acres of white pine-hardwood forest, which the
DNR describes as a community of moderate quality and in comments for the public
record, as "a native plant community rare in the St. Croix Valley" and "a loss of
biodiversity value;" and
12. The Planning Commission believes that the history of damaging environmental accidents
at mining operations in the St. Croix Valley has made clear the reasonable limitations of
Best Management Practices, mitigations, establishment of permit conditions and
monitoring, both broadly and in the specific case of this site and this mine operator and
therefore a higher standard of caution and care is prudent and reasonable when managing
community assets such as these that are at the same time valuable, rare, and known to be
highly sensitive to irreparable harm; and
13. State statute and Environmental Quality Board Environmental Review guidelines allow
for the City's consideration of cumulative impacts. Cumulative Impact is defined in
Minnesota Administrative Rules 4410.0200, Subp. 11 as "the impact on the environment
that results from incremental effects of the project in addition to other past,present and
reasonably foreseeable_future projects regardless of what person undertakes the other
projects. Cumulative impacts can result from individually minor but collectively
significant projects taking place over a period of time. "As such, the City of Scandia
recognizes that the combined impacts of the mining operation as a whole (including those
cited above)may be considered to constitute a significant impact.
NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE PLANNING
COMMISSION OF THE CITY OF SCANDIA, WASHINGTON COUNTY,
Resolution No.:
Page 12 of 12
MINNESOTA, that it should and hereby does recommend that the City Council deny the
Applicant's request far a Conditional Use Permit for the Zavoral Mine and Reclamation Project
located on the Site east of the intersection of State Trunk Highways 95 and 97.
Adopted by the Scandia Planning Commission this 7th day of January, 2013.
Christine Maefsky, Chair
ATTEST:
Kristina Handt, Administrator/Clerk
ATTACHMENT A
LEGAL DESCRIPTION
Legal Description for Zavoral Mine and Reclamation Project
(see attached)
,
DESCRIPTION OF PROPERTY
(Per Warranty Deed Doc. No. 850286)
A I1 that part of the Southwest Quarter of the Southwest Quarter(S W 1/4 of S W 1/4) of Section
18, Township 32 North, Range 19 West, described as follows, to-wit: From a point on the South
line of Section 18, Township 32 North, Range 19 West, distant 171 feet East of the Southwest
corner thereof, run Northeasterly at an angle of 107 degrees 03 minutes with said South section
line (measured from West to North), for a distance of 263.5 feet, thence deflect to the right at an
angle of 72 degrees 57 minutes for a distance of 1 13 feet, more or less to the point of beginning
(which point being on the Easterly right of way line of Trunk Highway 95 as now established
and being a distance of 100 feet from the centerline of Trunk Highway 95 measured at right
angle to said centerline), thence continuing Easterly for a distance of 375.4 feet, thence deflect to
the left at an angle of 89 degrees 00 minutes for a distance of 1048.3 feet, thence deflect to the
left at angle of 90 degrees 32 minutes for a distance of 75.5 feet to a point on the Easterly right of
way line of Trunk Highway 95 as now established and being a distance of 100 feet from the
centerline of Trunk Highway 95 centerline measured at right angle to said Trunk Highway 95
centerline, thence running Southwesterly along Easterly right of way line of Trunk Highway 95
to the point of beginning.
(Per Warranty Deed Doc.No. 544408)
PARCEL A.
That part of the Northwest 1/4 of the Southwest 1/4 of Section 18, Township 32 North,
Range 19 West, Washington County, Minnesota, described as follows: Commencing at
the West quarter corner of Section 18; thence South 0 degrees 00 minutes assumed
bearing, along the West line of Section 18, a distance of 441.6 feet;thence North 89
degrees, 58 minutes East, a distance of 860.6 feet to the point of beginning, on the center
line of State Highway No. 95: thence continuing North 89 degrees, 58 minutes East, a
distance of 573 feet, more or less, to the East line of the Northwest 1/4 of Southwest 1/4,
Section 18; thence Southerly along said East line, a distance of 863 feet, more or less, to
the Southeast corner of the Northwest 1/4 of Southwest 1/4, Section 18; thence Westerly,
along the South line of the Northwest 1/4 of the Southwest l/4, Section 18, a distance of
874 feet, more or less, to the center line of State Highway No. 95; thence Northeasterly
along said highway center line, a distance of 913 feet, more or less,to the point of
beginning.
PARCEL B
The Southwest 1/4 of the Southwest 1/4 of Section 18, and the Northwest 1/4 of the
Northwest 1/4 of Section 19, both in Township 32 North, Range 19 West, excepting
therefrom the following:
(a) All those parts thereof that lie West of the Centerline of County State Aid
Highway No. 53 and State Highway No. 95.
(b) That part of the Southwest 1/4 of the Southwest 1/4 of Section 18,
Township 32 North, Range 19 West and that part of the Northwest 1/4 of the
Northwest 1/4 of Section 19, Township 32 North, Range 19 West, all in
Washington County, Minnesota, described jointly as follows:
Commencing at the Southwest corner of said Section 18; thence East along the
South line of said Southwest 1/4 of the Southwest 1/4 of Section 18, a distance of
171 feet; thence Northeasterly, deflecting to the left 72 degrees, 57 minutes, a
distance of 263.5 feet to a point hereinafter referred to as "Point A"; thence East
parallel with the South line of said Southwest 1/4 of the Southwest 1/4 to the
point of beginning on the center line of State Highway No. 95 as the same is now
laid out and traveled; thence continue East along same parallel line to a point
distant 870.51 feet East of aforementioned "Point A", thence South at a right
angle, a distance of 1460 feet, more or less,to the North line of the South 100 feet
of the Northwest 1/4 of the Northwest 1/4 of Section 19; thence West along said
North line to the center line of County Road No. 53 as the same is now laid out
and traveled; thence Northwesterly along said center line to the intersection with a
line drawn perpendicular to the North line of said Section 19 from a point of said
North line distant 689.6 feet Easterly of the Northwest corner of Section 19;
thence Northerly along said perpendicular line 675 feet, more or less,to the South
line of the North 150 feet of said Section 19; thence West along the South line of
said North 150 feet, a distance of 443 feet, more or less, to the center line of State
Hi�hway No. 95; thence Northerly along said center line 403 feet, more or less, to
the point of beginning.
(c) Beginning at a point on the South line of said Section 18, distant 171 feet
East of the Southwest corner thereof, run Northeasterly at an angle 107 degrees,
03 minutes with said South Section line measured from West to North for a
distance of 263.5 feet; thence deflect to the right at an angle of 72 degrees, 57
minutes for a distance of 1 13 feet more or less to the point of beginning, which
point being on the Easterly right-of-way line of Highway 95 as now established
and being a distance of 100 feet from center line of Highway 95 measured at right
angles to said center line; thence continuing Easterly for a distance of 375.4 feet;
thence deflect to the left at an angle of 89 degrees, 00 minutes for a distance of
1,048.3 feet; thence deflect to the left at an angle of 90 degrees, 32 minutes for a
distance of 75.5 feet to a point on the Easterly right-of-way line of Highway 95 as
now established, and being a distance of 100 feet from the center line of Highway
95 measured at right angles to said center line of Highway 95; thence run
Southwesterly along the Easterly right-of-way line of Trunk Highway 95 to the
point of beginning.
(d) That part of the Northwest 1/4 of the Northwest 1/4 of Section 19
described as follows: Commencing at the Northwest corner of the Northwest 1/4
of the Northwest 1/4 of Section 19; thence East assumed bearing along the North
line of the Northwest 1/4 of the Northwest 1/4 a distance of 689.6 feet; thence
South, at right angles, a distance of 150 feet to the point of beginning, thence
continuing South a distance of 675 feet, more or less, to the center line of County
State Aid Highway No. 53; thence Northwesterly along said road center line, a
distance of 440 feet, more or less, to the Easterly right-of-way line of State
Highway No. 95; thence Northerly, along the Easterly right-of-way line a distance
of 340 feet, more or less, to the point of intersection with a line drawn parallel
with and distant 150 feet South of the North line of the Northwest 1/4 of the
Northwest 1/4 of Section 19; thence East along said line a distance of 342.2 feet
to the point of beginning.
PARCEL C
That part of the Southeast 1/4 of the Southwest 1/4, Section 18, Township 32 North,
Range 19 West, Washington County, Minnesota, which lies Westerly of the
Minneapolis, St. Croix Railway Company right-of-way and also all that part of the
Northeast 1/4 of the Southwest 1/4; Section 18, Township 32 North, Range 19 West,
Washington County, Minnesota, described as follows: Commencing at a stone
monument at the Southwest corner of the said Northeast 1/4 - Southwest 1/4; thence
North along the West line of the said Northeast U4-Southwest 1/4 a distance of 17 rods
to an iron pipe monument; thence North 75 degrees East a distance of 35 rods to an
iron pipe monument; thence South 30 degrees East, a distance of 25 rods to an iron
pipe monument in the South line ofthe said Northeast 1/4-Southwest 1/4; thence West
along the South line of the said Northeast 1/4-Southwest 1/4 a distance of 44 rods to
the point of beginning.
PARCEL D
That part of the Northeast 1/4 of the Northwest 1/4 of Section 19, Township 32, Range
19 lying West of the right-of-way of the Minneapolis, St. Paul and Sault Ste. Marie
Railway Company, as the same runs over and across said tract, except that portion
thereof platted as Otisville.
All according to the United States Government Survey thereof, according to the recorded plat
thereof, and situate in Washington County, Minnesota.
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Commissioner Philippi — Suggested Resolution Clauses
Zavoral Mining and Reclamation Project
2012/01/07
[Insert the perfunctory Whereas clauses here, e.g. "Tiller Corporation has applied
for a Conditional Use Permit [CUP] . . .]
[Insert the clauses where appropriate that relate to BOTH the mineral resource
goals and policies AND the natural and scenic resources and goals, sufficient to
communicate the necessary balancing of those aspects through the CUP review]
Whereas, the Planning Commission has no expressly prescribed role in an EIS in
the City of Scandia Development Code and
Whereas, the Planning Commission is required, under the procedures of Chapter
One Section 8.2(7), to make a finding of fact related to a request for a CUP and
Whereas, [the Purpose from Ch. 1 / Sec 8 here]
Whereas, [the General Criteria from Ch. 1/ Sec 8 here]
Whereas, [the Performance Standards from Ch. 1 / Sec 8 hereJ
Whereas, [the Amendment from Ch. 1 / Sec 8 here]
Whereas, the Planning Commission's independent analysis of the Traffic studies
conducted on behalf of the City during the EIS did not ensure that there would be
no significant negative impact on public safety, including but not limited to the
intersection of Hwy 95 and 97, the haul route(s) and the intersection of Hwy 97
and Lofton, and which presented no opportunity for further study or mitigations
sufficient to ensure no negative impact and
Whereas, the Planning Commission's independent analysis of the Noise studies
conducted on behalf of the City during the EIS did not ensure that there would be
no significant negative impact on the enjoyment of existing adjacent uses,
including but not limited to nearby homes, businesses and institutions along the
haul routes, as well as users of the adjacent St. Croix National Scenic Riverway,
including the full diversity of resident and migrant wildlife communities, and which
presented no opportunity for further study or mitigations sufficient to ensure no
negative impact and
Whereas, the Dust studies conducted on behalf of the City during the EIS did not
establish assurance that there would be no negative impact on the life, health
and safety of the existing adjacent uses, as well as homes, businesses and
institutions along the haul routes, as well as users of the adjacent St. Croix
National Scenic Riverway and presented no opportunity for further study or
mitigations sufficient to ensure no negative impact and
Whereas, the Property Value Study conducted on behalf of the City during the
EIS did not establish assurance that there would be no significant negative
impact to the value of existing properties and presented no opportunity for further
study or mitigations sufficient to ensure no negative impact and
Whereas, the Scenic View Study conducted on behalf of the City during the EIS
did not establish assurance that there would be no significant negative impact to
the views of the St. Croix National Scenic Riverway and the St. Croix National
Scenic Byway and
Whereas, the Groundwater Study conducted on behalf of the City during the EIS
did not establish assurance that there would be no negative impact to the
groundwater resources and the groundwater dependent resources down gradient
of the Project Site and
Whereas, the Hydrogeologic Studies conducted and testimony given on behalf of
the City during the EIS failed to establish with assurance that there would be no
significant impact on the stability of adjacent fragile slopes and
Whereas, the cumulative and complex regime of monitoring of activities on site
that have been contemplated and would be required to mitigate the numerous
significant potential impacts have not been determined to be within the City's
capacity to manage, nor can they reasonably be expected to establish assurance
that there would be no significant negative impacts to life, safety, health, property
values, enjoyment of use, etc. and
Whereas, the AOP Process has been demonstrated to be an unreliable means of
assuring compliance with the conditions of a CUP or concordance with the
original stated intent of operation and
Whereas, the Proposer alone may request an additional extension of the time
limit of the CUP review process but to date has made no indication to the
Planning Commission that it is willing to do so and
Whereas, the Proposer would need to consent to the request for and agree to be
responsible for the expense of any additional expert testimony the Planning
Commission may request, but to date has made no indication to the Planning
Commission it is willing to do so and
Whereas, the Proposer has indicated to the public and the RGU of Scandia that
the Zavoral Mining and Reclamation Project is already the most extensively
studied simple gravel mine without processing in their experience
Now therefore, be it resolved by the Planning Commission of the City of Scandia,
Washington County, Minnesota finds the proposed Zavoral Mining and
Reclamation Project CUP Application fails to meet the standards for approval as
enumerated in Chapter One, Section 8 of the City of Scandia Development
Code:
Larkin
HO�an Larldn Hoffman Daly&Lindgren Ltd.
wrroaNers
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis,Minnesota 55431-1194
ceN Ew��: 952-835-3800
F�x: 952-896-3333
wes: www larldnhoffman.com
Memorandum
To: City of Scandia City Council and Planning Commission
From: Greg Korstad, Larkin Hoffman
Date: January 7, 2013
Re: Zavoral Mining and Reclamation Project:
This memo reviews some of the issues considered by the Scandia Planning Commission in its.
deliberations on conditions for Conditional Use Permit(the CUP) to govern the Zavoral
Reclamation and Mining Project(the"Project").
General Approach
Under state law, the City has the ability(and in some cases the obligation)to impose conditions
on the land use approvals for a project when it issues a condition al use permit. This ability to
impose conditions is not, however unfettered, but rather only authorizes conditions needed to
implement the City's exercise of its zoning power. The City has the ability to impose conditions,
but only where those conditions will aid in assuring that the performance standards of the City
Code or unique requirements of a Conditional Use Permit for the Project(the CUP) will be met.
It is also important that the Planning Commission consider that it must have a rational basis for
any determination it makes on the merits of approving the CUP. The City has standards that it
directed be followed in deliberating on whether to issue a CUP. The 7 points in the Ordinance
are not suggestions or guidelines. A landowner is entitled to have an objective consideration
whether each of the standards are met by the proposal. We review the information presented in
the pubic hearings and the EIS as well as presentations to the City by the various consultants
against this standard. The result is the conclusion that the City's record to date does not support
a denial of the CUP
CITY CODE PROVISIONS GOVERNING CONSIDERATION OF CUP's
General Criteria. As may be applicable,the evaluation of any proposed conditional use permit request
shall be subject to and include, but be not limited to,the following general criteria. Each of those criteria
are discussed below:
(1)The conditional use will be in compliance with and shall not have a negative effect upon the
Comprehensive Plan, including public facilities and capital improvement plans.
The City council has determined that the City's 2020 Comprehensive Plan is the land use plan which
governs the Project. The City's EIS describes how this project meets the requirements of that plan. The
Planning Staff inemos further describe the staff analysis of these issues. Tiller Corporation presented its
analysis of the various segments of 2020 Comprehensive Plan applicable to the Project in a letter dated
December 12,2012.
Project opponents would have the Planning Commission apply the 2030 Comprehensive Plan, however
that plan still accommodates the gravel mining use in the City and supports the current facilities.
"(2)The establishment,maintenance or operation of the conditional use will promote and enhance
the general public welfare and will not be detrimental to or endanger the public health,safety,
morals or comfort."
The City has prepared an Environmental Impact Statement for the Project(the"EIS") as the culmination
of a four year long environmental review. The EIS describes the beneficial effects of the Project from
reclaiming an un-reclaimed gravel pit. The current circumstances of the Project site presents a 60 acre
parcel where there is little vegetation to prevent erosion and no resistance to invasive plants. The project
presents the vehicle to obtain reclamation of the mined area, protect the vegetative screening surrounding
the Project Site and to prevent invasive vegetation. These benefits clearly promote and enhance the
general public welfare. The EIS also describes the production of important construction aggregates and
the economic benefit of aggregate taxes generated from this property. This commercial production is
another positive aspect of the Project.
The EIS directly studied and evaluated public health,safety and comfort concerns. These issues were
presented in the various segments of the EIS relating to Traffic, noise, groundwater, surface water, air
emissions so that each aspect of the Project was thoroughly reviewed and critically evaluated.. The EIS
made it clear that an unmitigated project could have the potential for concerns in these areas, but also
described how the extensive mitigation discussed in the EIS would protect from those concerns. There
are dozens of mitigation points identified in the EIS notwithstanding that this project is simply excavation
of naturally existing materials and reclaiming an historic mine thereby rectifying an existing situation.
The Planning Commission conducted two public hearing sessions. In none of those hearings did any
presenters describe more than a concern that the Project could affect the public health safety marals or
comfort. None of the dozens of presenters described an adverse impact that would occur from the
Project.
The EIS presents an analysis of traffic analysis and mitigation recommendations. In addition the
City has obtained further analysis in order to"...determine the potential need for monitoring...."
The TKDA Memorandum: Traffic Monitoring Scandia EIS Scoping Process Zavoral Mine
(the "TKDA Memo") is presented to describe how traffic impacts can be monitored to protect
the public interest. Each of the issues identified for monitoring—traffic safety, wear and tear on
the roadway system and roadway capacity were addressed thoroughly in the EIS with the
conclusion that the worst case scenario evaluated in the EIS would not present any unique safety
hazards based on roadway geometry and sight distances. Thus the EIS did not identify any
specific safety hazard or significant reduction in level of service. The EIS also confirms that the
applicable load limits would be met for the haul routes thus not presenting any increase in wear
and tear than currently allowed on these roads.
Traffic safety in the City is provided by the City. the state and the county. The Minnesota
Department of Transportation (MN/DOT) has approved the roadway configuration. The Project
2.
traffic has also undergone a critical review by AECOM's traffic consultants who also support the
proposed access.
The most telling item in the traffic analysis is found in the key element of the Project. Traffic generated
from hauling the material generated by the Project is not new or additional traffic or trucks. Rather it
simply replaces existing traffic already on the state highways in the City. With or without the Project
there will be trucks hauling materials on both Trunk Highway 95 and 97.
The E1S provides a thorough evaluation of the mitigations provided for groundwater and surface water
resources in the City. The Project and its mitigation measures will operate to protect those resources.
The City's consultants have proposed significant monitoring requirements to assist the City in
understanding Project performance which also will operate to assure none ofthose resources are impaired
as a result of the Project.
"(3)The conditional use will not be injurious to the use and enjoyment of other property in the
immediate vicinity for the purposes already permitted,nor substantially diminish and impair
property values or scenic views."
The EIS has an extensive description of the land uses in the immediate vicinity of the Project. These uses
are the variety of uses currently found throughout the City. Each of the land uses surrounding the Project
is also represented in the collection of land uses found surrounding the Scandia Mine, and the other
facilities in the City, each of which are not only authorized uses in the 2020 Comprehensive Plan which
the City is using to review the Project, but also are specifically identified as authorized uses in the City's
2030 Comprehensive Plan. The Project site is in a zoning district in which crop agriculture is an
authorized use. In allowing that use,the City's Zoning Code does not require any special performance
standards to be followed notwithstanding the agriculture use involves heavy machinery operations,
refueling, stripping large tracts of land of all vegetation for long periods of time producing dust and
erosion of valuable topsoil and uncontrolled runoff. In contrast,the EIS,the City Zoning Code and the
Project application describe how the Project is to be operated in conformance with several operating
plans:
• A Conditional Use Permit
• And Annual Operating Permit
• A Stormwater Pollution Prevention Plan
• A Reclamation Plan
• A Groundwater Monitoring Plan
• A Surface Water Monitoring Plan
• A Traffic Monitoring Plan
• An Air Monitoring Plan
all of which operate to assure that the Project would not be able to be injurious to the use or enjoyment of
the land uses in the vicinity.
In addition, it is important to note that none of the testimony presented to the Planning Commission
described any way in which land in the vicinity would not be useable for the uses currently found.
Certainly there was a large volume of testimony that expressed the opinion that the Project was dis-
favored, however there is nothing in the record that prevents the current use of lands surrounding the
Project. The City's Planning Report stated that the Project would not prevent continued residential and
agricultural uses from continuing.
The EIS and AECOM's Visual Assessment Technical Memorandum describes how the Project would be
well screened from view so as not to"significantly diminish and impair ...scenic views."
3.
• Currently the EIS reports that"very little ofthe Site is visible from sensitive viewpoints"and that
the current conditions already present an interruption to the view shed. Project cross sections in
the EIS show that the natural elevation changes on the Project Site combined with setbacks screen
the Project activity from both Trunk Highway 95 and the St. Croix River.
• The River is not visible from the mining area, thus the mining area would not be visible from the
River. The Scenic Easement buffer acquired by the U. S.National Park Service provides
additional screening at the River as it was intended to do.
• The EIS,the Project Application,the Conditional Use Permit and the Annual operating Permit
would all operate to assure that the Project site is screened by maintaining a vegetated buffer
surrounding the Project.
• The Reclamation Plan for the Project operates as the vehicle to assure that that current vegetative
buffer remains in place between the mining areas and Trunk Highway 95.
• The deletion of processing and stockpiling from the Project eliminates any substantial item which
could be visible on the Project Site. Inherently, because of this factor any visibility of the Project
would only be temparary while the trucks are being loaded.
• The Project screening is inherently improving as the Project is implemented and the working area
is lowered. All of the activity will occur at the floor or the excavated areas.
There has been a lot of testimony about impacts to property values, presenting concerns and fears and
conjecture about what might occur to values. There was, however, no evidence presented that the Project
would actually"significantly diminish and impair property values in the vicinity." Even the City's
consultant who prepared the property value segment in the EIS was unable to confirm objectively any
measurable impacts. This subjective analysis is further compounded by the fact that it ignores the
positive benefits to the area presented by reclaiming the old mine area and the certainty presented by
completing the site. The objectively measured information presented to the Planning Commission
includes both a critical analysis of the EIS as well as a separate appraisal report that shows objectively
that the market values would not be substantially adversely affected by the Project.
"(4)The establishment of the conditional use will not impede the normal and orderly development
and improvement of surrounding propert,y for uses permitted in the district".
Generally,the immediate vicinity of the Project is developed and used for uses authorized as described in
the City `s Zoning Ordinance. The EIS described compatibility of the Project with the City's
Comprehensive Plan which governs any potential for further development. Tiller presented additional
information about development surrounding long term gravel mines in Washington County with similar
circumstances to the Project. This information shows that the presence of a gravel mines does not prevent
development of residential uses.
"(5)Adequate public facilities and services are available or can be reasonably provided to
accommodate the use which is proposed".
The Project is directly accessed by State Trunk Highways 95 and 97 without the need to rely upon either
local or county roadways. This means that the Project would only use the roads most capable of safely
and effectively handling the Project traffic. The Project needs no other infrastructure or public facilities.
"(6)The conditional use shall conform to the applicable regulations of the district in which it is
located and all other applicable standards."
The Project will only be operated pursuant to a Conditional Use Permit and an Annual Operating Permit
issued by the City Council. The City Staff, independent consultants and the Planning Commission have
identified dozens of proposed conditions which would operate to assure the Project meets the City's
4.
requirements. The City has taken the additional measure to reyuire monitoring to confirm that the Project
operates within the parameters of the EIS analysis and the City's permitting requirements.
"(7)The conditional use complies with the general and specific performance standards as specified
in ...[the Code.}"
The Planning Commission has developed conditions that assure the City Code's Performance Standards
are met.
5.