7.a)1) PC Resolution 01-07-13-01D Denying CUP for Zavoral Mine and Reclamation Project CITY OF SCANDIA,NIINNESOTA
PC RESOLUTION NO. 01--a"1—�3-�b1 L�
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
WIiEREAS, the Properry is located in Washington County, Minnesota and legally
described in Attachmen#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
Apri121,2009,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
VyHEREAS,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 Firadings of Fact and Record of Decision that
found that the Zavoral Mine and Reclamation Project EIS was adaquate 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 11
WHEREAS,The EIS and CUP application analyaed a number of complex issues about
cornpliance 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,regionai and national significance; and
WHEREAS,the App3icant 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 Pennit application;and
WHEREAS,the Planning Commission held a public hearing on the Project on
December 4 and December 12,2012;and
WHEREA8,1. The City of Scandia Development Code,Chapter 1,Section 8.0
Conditional Use Permits,8.4 General Cariteria states, "As may be appiicabie, the
evaluation of any proposed Conditionai Use Permit request shall be subject to and
include,but be not limited tv, the following general criteriu:
(1) The conditional use wiil be in compliance with and shaIl nvt have a negative efjSect
upon the Comprehensive Ptarc, including public faciIities and capital impravemenf plans.
(2) The establishment, maintenance or operation of the conditionai use wiil promote and
enhrmc�e the generai pubIic welfare and wilt not be defrimental to ar endanger the public
healtii,saf+eiy, »wrals or comfort.
(3) The conditional use wiIl not be injurious to the use and enjoyment of other property
in the immediate vicinity,�'ivr the purposes already permitter� nor substantialiy diminish
and impair property values or scenic views.
(4) The establishment of the conditional use urill not impede the nor»ial and orderly
development and improvement of surrounding property for uses permitted in the district.
(5)Adequate public f�acilities and services are available ar can be reasonabiy�rovided to
accommodate the use which is proposed.
(6) The conditional use shali conform to the appIicable regulations of the district in which
it is Iocated and aIi ot.her appiicable standurds of this Chapter.
(7) The condifionul use cnmplies with the general and specific perfiormance standards as
specified by this Section and this Chnpfer."
WHEREAS,Planning Commission's findings related to the request for approval of the
Conditional Use Pernut include the following:
Resolurion No.:
Page 3 of 11
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 2030 Comprehensive Plan
including public facilities and capital improvement plan,"based on the following findings:
1. 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 recommendatiorrs contained in
the City Comprehensive Plan, as developed and amended by the Planning Commission
and City Council of the Ciry. The Council recognizes the City Comprehensive Plqn as the
of�'icial policy for the regulation of land use and development in accordance with the
policies artd purpose herein set forth. In accordance with Minnesota Statutes Chapter
273, the City will not approve any rezoning or other change in these regulations that are
inconsistent with the Comprehensive Plan;"and
2. The City of Scandia spent almost two years developing the 2030 Comprehensive Plan,
the first Cornprehensive 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 Comrnittee,and citizen representatives. The CPC considered background
materials compiled by a consultant team as well as extensive public input prvvided
through public meetings,focus groups and public surveys. The planning process
included three rvunds 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 goup.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
nual character; and interviews were conducted with 26 existing Scandia businesses
focusing on perceptions of the current businesses environment and expectations for the
future;and
3. 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 statements,standards and
programs for guiding the physical, social attd economic development of the community,"
and
4. The completion of the 2030 Comprehensive Plan in 2008 and its adoption in March 2009
foliowed the city's taxpayer's direct expenditures of $60,000 and,conservatively
counted,hundreds of citizen volunteer and city staff hours, and
5. The completion of the 2030 Comprehensive Plan followed a year and a half of twice-a-
mottth committee meetings,numerous additional consultation sessions, 5 public
meetings,multiple focus groups, and 2 citywide surveys,and
Resolution No.:
Page 4 of I I
6. 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
7. The 2020 Comprehensive Plan has been obsolete for almost four years,and
8. The 2030 Comprehensive Plan has been the governing document of the city for almost
four years,and
9. The 2030 Comprehensive Plan was adopted by the City Couneil 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
10. 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
ordi.nances into conformance with the 2030 Comprehensive Plan;and
11. The City of Scandia Comprehensive Plan provides guiding principles fox defining future
land use in the azea through 2030,embodying a new vision for Scandia, "Emphasizing
the protection of natural resources that define Scandia's character, economy, and quality
of life;"and 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
12.The 2030 comprehensive Plan states the vision is "to maintain Scandia's unique rural
character, agricultural heritage, rural charm and natural resources. Development in all
areas protects and enhances the City's green infrastructure—trails, green corridors,
natural systems, surface and groundwater systems, scenic vistas and night skies."; and
13.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 in northwest Scandia and one in southeast Scandia. (p. 113)and Future Land Use
Areas and Parcels with Homes Map#29(p.115);and
14.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 Pit"(p.21);and
15.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,Cl�apter One—Section 8 and Chapter 4 the Mining
Ordinance; and
Resolurion No.:
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16. 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
17.In Apri12009,inirial 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
18.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 Corpora#ion for gaining approval for the Zavoral
Mining Project is a calculateti business risk expense;and
19.The actual money allocated by the city of Scandia,and the additional value in terms of
the hundreds of hours volunteered by its citizens for the development of the city's 2030
Comprehensive Plan was a s+ecure civic decision—not a risk—expense; and
20.The City of Scandia 2030 Comprehensive Plan does not contemplate additional active
rnining 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
21.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 the entire proposed mine lies within a"Natural
Resource Priority Azeas"overlay Map 26 ;and the Comprehensive Plan states, "In
overlay areas, increased consideration of natural resources is required in addition to the
requzrements of the underlying land use area';and
22. 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 City's
Development Code and applicable Comprehensive Plan,"in that it presents an
unacceptable risk of irrepazable harm to the city's"most precious assets."
B. The pmposed Project does not comply with Section 8.4(2)of Chapter 1 of the Development
Code which 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:
1. 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 and the intersection
of Lofton and 223'�St. 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.
Resolution No.:
Page 6 of 11
Testimony from citizens and a traffic control professional,Vernon Swing,
President/CEO,and Principal Transportadon Engineer,RLK Inc., agree that
reconfiguxat�on of that intersection that will accommodate the mining project will 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. 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 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,Research Scientist and Environmental Health Specialist,
Departments of Geology&Geophysics and Environmental Health&Safety, 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. Higtily focused or point recharge
will raise water levels in a concentrated area following storm events,increasing localized
risk. (Ref. Alexander, "A LIDAR Based Review of the Ti11er/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 gravel pit leading
to Crystal Springs—pages 2,3 and 4 of Alexander's report] and the Groundwater Study
conducted on behalf of the City during the EIS and subsequent conflicting expert testimony
did not establish assurance that there would be no negative impact to the groundwater
resowces and the groundwater dependent resources down gradient of the Project Site;atid
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/Zavaral Mining and
Reclamation Project for discussion regarding implications of potentially higher water
table at the site relative to exposure of groundwater to surface c�ntaminants;and
5. 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 enjoyment of other property in
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 rnay experience a potential loss in property value,that may
disproportionately impact low income homeowners, for whom their property essentially
represents their personal estate.Anyone attempting to sell or remortgage their house or
land during the duration of mining activities could be subject to a potential financial loss
Rcsolution No.:
Page 7 of 11
of from 2%to 5%(EIS Analysis) and the Property Value Study conducted on behalf of
the City during the EIS did not establish assurance that there would be no significant
negative irnpact to the value of existing properties and presented no opportunity for
fiarther study or mitigations sufficient to ensure no negative impact;and
2. As witness testimony citizens an.d business owners in the community testified about their
own knowledge and experience,that property values in the vicinity of the mine and the
haul route has already been impacted by location near a rnine 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 thei�e is considerable disagreement on the degree of Project impact to property
values,the Planning Commission agrees a potential loss of 5% per EIS analysis is
possible 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 agreed 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 total5%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. 05-15-12-01,Exhibit A,states "In Scandia, views with
highest Visibility/Duration were those at gateway points (e.g...Hxry. 97 and 95)that
sustained themselves along corridors creating a density of scenic views, (e.g... Hwy 97
east of the village approaching Hxy 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 firucks hauling
gravel cannot be screened from other traffic,and in fact,the trucks themselves create a
screen tv 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
significance 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
Resolution No.:
Page8of11
the future for such status. Views from private property are not considered for this status,
just views that aze 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 far
Duration of View along the haul route will be shortene�by any vehicle taller than the
vehicle containing the viewers, and in proportion to the number of these vehicles present.
It is not possibie for this impact to be removed through screening or other conditions,
other than to remove the truck traffic responsible for the obshuction. 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 dimuush the ephemeral quality of the viewscape and the soundscape
and therefore irnpair 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 be 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 potential of 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 ar�d conduct deliberations with Tiller Corporation. This will
represent a substantial additional worklaad on city staffin 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. The Noise studies conducted on behalf of the City during the EIS did not ensure that
there would be no significant negative impact an 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
fu11 diversity of resident and migrant wildlife communities,and which presented no
opportunity for further study or mitigations sufficient to ensure no negative impact; and
2. It cannot be shown that highway noises will be within the City's noise standards at all
times. As Mr. Caron of Tiller Corporaiion stated in a September 15,2012 letter
referencing the FEIS,"Noise standards would be exceeded at a limited number of
residences along Hwy 97 during maximum hauling conditions.However,the low and
Resolution No.:
Page 9 of l 1
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
3. Operation of the Project may result in an increase in mine-related noise audible to
reereational users of the St. Croix National Wild& Scenic Riverway, at a levei
considered by the National Park Service to excced 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 Orgazuic Act which established the NPS, and the 1968 Wild and
Sr.enic Rivers Act and;
4. 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
regudation 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
5. The 114acre Zavoral site is designated as part of a Regionally Significant Ecological
Area(RSEA)Map 9 of the 2030 Scandia Comprehensive Plan;it is unmediately
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
6. 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
Wildlife Management Area is on the river ir�nmediately below the bluff where the mine is
proposed; and
7. 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
Resolution No.:
Page 10 of 11
8. 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
9. 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
10.The CUP Application propases 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 nafive plant comrnunity rare in the St. Croix Valle}�'and"a loss of
biodiversity value;"and
11. The Planning Commission believes that the history of damaging environmental
accidents, for example the Grantsburg mine accident in April 2012 and the 1976 blow out,
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 Irnown to be
highly sensitive to irreparable harm;and
12.The City of Scandia recognazes that the combined impacts of the mining operation as a
whole{including those cited above) shall be considered to constitute a significant negative
impact on the 2030 Comprehensive Plan,the interpretation of the Development Code,the
City of Scandia and its citizens.
NOW,TIiEREFORE,BE IT HEREBY RESOLVED BY THE PLANI�IING
CONIlVIISSION OF THE CITY OF SCANDIA,WASHINGTON COUNTY,
MINNESOTA,that it should and hereby does recommend that the City Council deny the
Applicant's request for 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,2413.
4 '
Christine Maefsky,Chair
ATTEST:
Resolution No.:
Page 11 of 11
�_ �+�--
Knstina Handt,Administrator/Clerk