HomeMy WebLinkAbout9G - Ryan Contracting CITY COUNCIL AGENDA REPORT
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
MEETING DATE:
AGENDA #:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
JULY 18, 2005
9G
JANE KANSIER, PLANNING DIRECTOR
CONSIDER APPROVAL OF A RESOLUTION DENYING A
PETITION REQUESTING AN ENVIRONMENTAL
ASSESSMENT WORKSHEET (EAW) FOR EXCAVATION OF
SAND AND GRAVEL FOR RYAN CONTRACTING ON
PROPERTY LOCATED IN THE SOUTH EAST QUARTER
SECTION OF SECTION 22, T 115, R22, LOCATED ON
MCKENNA ROAD
History: In 1999, the City received an application for a Conditional
Use Permit from Ryan Contracting to allow the excavation of sand and
gravel on 13 acres of the McKenna and Kinney properties located
north of CSAH 42, and north and east of McKenna Road.
On January 18, 2000, the City Council received a petition for an EAW.
Because of the size of this property, an EAW was not automatically
required. On February 7, 2000, the City Council reviewed the petition
for EAW and staff report relating to the request. The City Council
determined an EAW was warranted since there was potential for
significant environmental impacts based upon the petition.
2000 EA W: The City hired Liesch Associates to prepare the EAW on
its behalf. The EAW was completed in November, 2000, and
distributed to the Environmental Quality Board (EQB) mailing list and
other interested parties on November 15, 2000. Notice of the EAW
was published in the Prior Lake American on November 18, 2000, and
in the EQB Monitor on November 27, 2000. The comment period on
the EAW expired on December 27, 2000.
Comment letters were received from the Prior Lake - Spring Lake
Watershed District, the City of Shakopee, the Minnesota Department
of Natural Resources, Scott County, Dorsey and Whitney, LLP,
Peterson Environmental Consulting, Inc., the Shakopee Mdewakanton
Sioux Community and the Metropolitan Council.
The major issues identified in the EAW and in the comments
submitted pertained to the impact on groundwater, the number and
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type of wells on the site, the wetlands on the site and traffic on
McKenna Road.
This project is also subject to permit review and approval from several
other agencies, including the DNR and the Watershed District.
Approval of these permits must be received before any work will be
done on the site. These permits will assess the impacts of the project
based on current statutes.
In early 2001, based on the EAW and the comments to it that were
received, City staff substantially increased the number and nature of
conditions that they urged the Council to include in the CLIP. For
example, the draft CUP was revised to require Ryan to complete any
road repairs required as a result of this use, to use an impervious pad
for any on-site fueling, to test groundwater and wetlands water for nine
specified substances, and locate the source of any contamination and
take corrective action Decibel testing was required, hours of operation
were reduced, and the size of the required letter of credit more than
doubled.
Liesch Associates and City staff concluded in early 2001 that evidence
indicated an EIS was not necessary for this development. They
concluded that environmental impacts of this project would be
addressed adequately through the conditional use permit process,
including the addition of conditions of the kind described above.
On February 20, 2001, the City Council made a negative declaration
on the need for an Environmental Impact Statement. On February 27,
2001, the City Council adopted Resolution 01-19, which approved a
CUP subject to 37 conditions (see attachment/ti). Fifteen of those
conditions needed to be satisfied before the CUP would become valid.
Eight additional conditions needed to be satisfied before Ryan could
begin work. Fourteen additional conditions needed to be satisfied by
Ryan on an on-going basis. In addition, the CUP could be valid for
only one year, and was subject to renewal upon application. The need
for Ryan to seek renewal of the permit after one year gave the Council
the ability to consider the information regarding Ryan's performance
and environmental impacts of the project that would be created during
the first year of operations.
SMSC Litigation: In 2001-02, the SMSC challenged the City's
negative declaration on the need for an Environmental Impact
Statement, which included a request that the Court should either
prevent Ryan from mining or impose additional conditions on its
operation, beyond those already required in the CUP. In its first ruling,
the Court upheld the City's negative declaration, finding that no further
environmental review was necessary, based on the mitigative nature of
the conditions incorporated into the CUP. In 2002, following a trial,
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the Court denied the SMSC's request to prevent mining operations, but
imposed several additional conditions on Ryan's operations to mitigate
potential environmental impacts. Specifically, the Court's 2002 Order
required Ryan to satisfy the following additional conditions:
No more than 500,000 cubic yards of sand and gravel may be
removed during mining;
Clays and other impermeable soils may not be removed from
the site and shall be used to remediate the area;
Soil borings shall be taken prior to operation to determine the
tree level of groundwater beneath the site and no mining shall
occur within 50 feet of groundwater;
three monitoring wells shall be dug for each water system
present at the site to determine the direction and rate of
groundwater flow;
Monitoring shall continue for three years after operations
cease;
o
Sedimentation ponds shall be lined with clays or other
impermeable materials;
Water, not calcium chloride, shall be used to suppress dust
during operations;
No dumping or burning shall be allowed on-site during or
between operations and Ryan must remove any trash or refuse
now on the site;
o
Only one front-end loader, one conveyor, one screening plant
and one dump track may be present on-site at any time;
10.
This Court shall exercise continuing jurisdiction over this
matter.
11.
All reports or information obtained by Ryan in complying with
this Order shall be shared with Plaintiff in a timely fashion.
A copy of the Court Order is Attachment #2 to this report.
RFan Litigation: A separate City Ordinance authorized the City to
cancel Ryan's CUP if Ryan failed to make substantial use of the
premises pursuant to the CLIP with in a one-year period. This
provision is similar to provisions in the Building Code and in
Minnesota Statutes. The City tolled the commencement of that one-
year period until the appeal period in the SMSC Litigation expired.
After the litigation and appeal period expired, the one year time period
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on the CUP began to run. In January 2004, after staff concluded that
Ryan had not satisfied the preconditions to the validity of the CLIP
within the one year period following the litigation, the City cancelled
the CUP. Ryan disagreed with the City's conclusions and procedures,
and sued the City. Ryan also contended that the City lacked statutory
authority to impose a one-year term on the CUP or a requirement that
an applicant use a CUP within a one-year period. The SMSC
intervened in that action and aligned itself with the City. In May 2005,
cross-motions for summaryjudgrnent were argued, and soon thereafter,
a settlement dialogue began. The SMSC's counsel initially
participated in those settlement discussions, but when the potential for
a settlement appeared to be possible the SMSC dropped out.
The product of those settlement discussions was a draft Settlement
Agreement, a copy of which is attached as Attachment //7. The
concept behind the draft Settlement Agreement is that, if Ryan were to
satisfy within a specified period all of the preconditions to Ryan's
ability to use the 2001 CUP set forth in that CUP, the City would
reinstitute the 2001 CUP. However, the City would hold Ryan to the
same conditions imposed in the 2001 CUP, plus the conditions
imposed by the Court in its 2002 Order. As part of the draft
Settlement Agreement, Ryan would waive its ability to challenge the
legality of the terms of the 2001 CUP and the draft Settlement
Agreement, including the one-year period of validity. The draft
Settlement Agreement also created a mechanism for Ryan to report to
the City at specified intervals the status of its efforts to comply with
the conditions, and for the City to respond to Ryan within a specified
period with its reasons for any dissatisfaction with Ryan's
performance.
Current Circumstances: Several hours before the City Council was
scheduled to consider authorizing the execution of the draft Settlement
Agreement, the City Council received a copy of a petition requesting
the preparation of a revised environmental assessment worksheet on
June 20, 2005. The City received official notification of its RGU
status from the Environmental Quality Board on July 1, 2005. A copy
of the petitions are included as Attachment #3 to this report.
The basis for the petition is set out in a letter accompanying the
petition for an EAW from Attorney Michael Drysdale, on behalf of
Dorsey & Whitney LLP, to the EQB dated June 20, 2005, and also in a
memorandum to the City of Prior Lake, also from Michael Drysdale,
dated June 20, 2005. Additional signatures were received by fax on
Friday, July 8, 2005. Mr. Drysdale has also requested the opportunity
to address the City Council on this issue. The staff has advised Mr.
Drysdale to submit his comments in writing so they can be distributed
to the City Council with the agenda report (see Attachment #4). In
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response to this request, Mr. Drysdale submitted a letter attached as
Attachment//5.
The City has also received a letter from Kermit A. Mahlum, C.O.O.,
Shepherd of the Lake Lutheran Church, a copy of which is attached as
Attachment #6.
The Issues: As noted above, an EAW has already been performed for
Ryan's project, and a court has upheld the City's negative declaration
on the need for an environmental impact statement. The 2005 EAW
Petition asks "that the EAW be supplemented before the City takes
final action to restore, reinstate or revive Ryan Contracting Co.'s
conditional use permit.., or otherwise take action to reverse" the
City's cancellation of that CUP.
Minnesota Rules Section 4410.1000, subp. 5, addresses when a new
EAW is required. It states "If after a negative declaration has been
issued but before the proposed project has received all approvals or
been implemented, the RGU determines that a substantial change has
been made in the proposed project that may affect the potential for
significant adverse environmental effects, a new EA Wis required."
As the staff of the Environmental Quality Board interprets this Rule, it
only requires a new EAW if the project, not circumstances, changes
(see Attachment #8, page 2).
The 2005 EAW Petition lays out changes in the surrounding area, but
not in the project itself. The Petitioners do not seek to justify a new
EAW based upon any "substantial changes" in the project, for good
reason. Since the EAW was performed in 2000, the only changes in
the proposed project have occurred when the City (and later the Court)
imposed additional restrictions on Ryan's operations, for the purpose
of mitigating potential environmental impacts of the project. The draft
Settlement Agreement is designed to preserve all of the conditions that
Ryan was required to satisfy in the 2001 CLIP and in the Court's 2002
Order, and to keep the project from changing in a manner that would
give rise to a new kind of potential environmental impact that the City
had not already studied.
In addition, the draft Settlement Agreement (Attachment//7) would
eliminate the any question regarding the legality of the one-year term
of the 2001 CUP. The one-year term will allow the City to receive the
benefit of the data collected through the monitoring activities required
in the CLIP and allow the City to decide whether to renew the CUP
with the benefit of that data or renew the CUP with added conditions
to mitigate against any unforeseen potential environmental impacts.
The Memorandum attached to the Petition also relies upon Minn. R.
4410.3000, subp. 3A, which the Memorandum describes as "the Rules
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governing supplementation of environmental review." However,
Minn. R. 4410.3000, subp. 3A only describes the circumstances in
which an Environmental Impact Statement (EIS) must be
supplemented. As noted above, the City concluded in 2001 that an EIS
was not required, and the court affirmed that decision. Thus, the need
for a new EAW depends on the rule quoted above, not Minn. R.
4410.3000, subp. 3A.
The Memorandum accompanying the Petition also contends that the
City's future action regarding Ryan's CUP triggers "the citizen's right
to petition for a review of the environmental impacts of the decision,"
citing Minn. R. 4410.0300, subp. 3, and 4410.1100, subp. 1.
Assuming for the sake of argument that the Petitioners did indeed have
a right to file the Petition, it does not follow that the City has a duty to
grant the Petition. As described above, a different Rule specifically
addresses when a new EAW should be done, and that Rule focuses on
the potential environmental impact of substantial changes in the
"project" rather than changes in other circumstances. The more
specific Rule should provide the answer to the question before the
Council.
Because they had been involved in the preparation of the original
EAW, the City asked Liesch to review the new EAW petition.
Following review of the original materials, Resolution 01-19, the
Court Order, and the new information submitted, Liesch submitted a
letter expressing their opinion the need for a new EAW. This letter
states, in part:
"Collectively the EA W, CUP resolution, and Court Order specifically limit
the extent and operations of the proposed Project. These conditions are
reiterated by the draft Settle Agreement and Release. A majority of the
conditions were specifically imposed to mitigate against potential
groundwater impacts, minimize dust and noise effects, be protective of
surface waters, and minimize traffic effects. Specific conditions are required
prior to beginning work (mining), and must be met on an ongoing basis
during mining. The conditions that are required to be met during work
include semi-annual noise evaluation completed by a party approved by the
City, water quality monitoring, and McKenna Road inspection and repair if
necessary. In addition, the CUP Resolution 01-19 requires an irrevocable
letter of credit of (for $420,500) of which slightly less than a quarter is
specifically targeted at McKenna Road maintenance. Other dollars are
included for dust control, site reclamation, and environmental monitoring.
The letter of credit must be maintained at the designated level in the event
that funds are drawn from the account.
Ongoing and future development of the area is identified City and its
Comprehensive Plan. Also, both the City and Scott County have been
involved with planning and implementing improvements to area roads to
better accommodate the increased traffic associated with the ongoing
growth of Prior Lake and surrounding communities. It is also noted that the
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November 16, 2003 Scott County Court document (page 2) recognized the
planned future expansion of residential homes to the north, as well as the
proximity of the Project to water supply wells and surface water features."
The letter concludes that a new EAW is not required for this project.
A copy of this letter is attached at Attachment #9.
Conclusion: The June 20, 2005 letter and petition, and letters
supporting the Petition, do not contain any new factual documentation
or information of the kind required by Minnesota Rule 4410.1000
subp. 5 which, in the staff's opinion, would sustain the SMSC's
rationale that a new EAW must be prepared. The EAW prepared in
2000 addresses all of the potential environmental impact of this
project. The conditions required by the City Council as part of the
CUP process, and the additional conditions imposed by the Court, are
also intended to mitigate any potential impacts.
FISCAL IMPACT:
Budgetlmpact: This CUP has had a significant impact on the staff's
workload, requiring multiple correspondence each day and depositions,
some of which were quite lengthy and heated. The CUP will have no
fiscal impact on the City as a security for any costs to the City will be
held. The applicant will be responsible for bearing the costs of
complying with the conditions.
ALTERNATIVES: The City Council has two alternatives:
Adopt a resolution denying the petition for EAW.
Approve the petition for EAW and require Ryan Contracting to
submit an escrow for the preparation of an EAW. In this case the
City Council must direct staff to prepare a resolution with specific
findings of fact for requiring an EAW.
RECOMMENDED
MOTION:
REVIEWED BY:
ATTACHMENTS:
1.
2.
3.
4.
5.
Staff recommends Alternative # 1. This requires the following motion:
1. A motion and secot~d to approve a resolution denying the
petition
Frank Boyl~t~ Manager
Conditional Use Permit Resolution #01-19
Scott County Court Order
June 20, 2005 Petition for an EAW
E-Mail from Jane Kansier to Michael Drysdale, dated July 11, 2005
Letter to Mayor and Council from Michael Drysdale, dated July 11, 2005
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6. Letter from Kermit Mahlum, C.0.0, Shepherd of the Lake Lutheran Church, dated July
11, 2005
7. Draft Settlement Agreement
8. EQB Rules
9. Letter from Mark Olson, Liesch Associates, dated July 13, 2005
ADDITIONAL
INFORMATION:
Some of the materials listed below have been previously considered by
the City Council. These materials are available for review at Prior
Lake City Hall. The staff will also have these materials available at
the City Council meeting.
1. November 2000 EAW
2. June 29, 2005 letter from Jane Kansier to attorneys for SMSC and
Ryan Contracting.
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16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
RESOLUTION 05-XX
DENYING A PETITION FOR THE PREPARATION OF A SUPPLEMENTAL ENVIRONMENTAL
ASSESSMENT WORKSHEET (EAW) FOR THE EXCAVATION OF SAND AND GRAVEL ON THE
MCKENNA PROPERTY
MOTION BY:
SECOND BY:
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
Ryan Contracting has proposed to excavate sand and gravel from 12.91 acres of
the property located on the north side of McKenna Road, ¼ mile north of CSAH
42; and
On January 19, 2000 the City of Prior Lake received a petition requesting an
Environmental Assessment Worksheet (EAW) be completed prior to approval of
a Conditional Use Permit (CUP) for Ryan Contracting; and
On February 7, 2000, the City Council reviewed all pertinent information including
the petition, rebuttal from Ryan Contracting, and staff review regarding the
petition, and ordered the preparation of an EAW; and
Pursuant to Minn. R. 4410.1100, the City of Prior Lake prepared an
Environmental Assessment Worksheet (EAW) for this proposed project; and
On February 20, 2001, the City Council made a negative declaration of the need
for an environmental impact statement based on the criteria established in
Minnesota R. 4410.1700, and that the project does not have the potential for
significant environmental effects; and
Based on the EAW and the comments to it that were received, City staff
substantially increased the number and nature of conditions that they urged the
Council to include in the CUP; and
On February 27, 2001, the City Council adopted Resolution 01-19, which
approved a CUP subject to many conditions; and
Fifteen of those conditions needed to be satisfied before the CUP would become
valid; eight additional conditions needed to be satisfied before Ryan could begin
work; fourteen additional conditions needed to be satisfied by Ryan on an on-
going basis; and
The CUP could be valid for only one year, and was subject to renewal upon
application; and
In litigation commenced by the SMSC in 2001, the Court upheld the City's
Page 1
www.cityofpriorlake.com
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WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
negative declaration, finding that no further environmental review was necessary,
and denied the SMSC's request to prevent mining operations, but imposed
several additional conditions on Ryan's operations to mitigate potential
environmental impacts; and
In January 2004, after staff concluded that Ryan had not satisfied the
preconditions to the validity of the CUP within that period, the City cancelled the
CUP; and
In its suit, Ryan challenged the City's conclusions and procedures, and
contended that the City lacked statutory authority to impose a one-year term on
the CUP or a requirement that an applicant use a CUP within a one-year period;
and
Settlement discussions occurred in Ryan's suit, that culminated in the drafting of
a Settlement Agreement; and
The concept behind the draft Settlement Agreement, is that, if Ryan were to
satisfy within a specified period all of the preconditions to Ryan's ability to use the
2001 CUP set forth in that CUP, the City would reinstitute the 2001 CUP, but the
City would hold Ryan to the same conditions imposed in the 2001 CUP, plus the
conditions imposed by the Court in its 2002 Order; and
As part of the draft Settlement Agreement, Ryan would waive its ability to
challenge the legality of the terms of the 2001 CUP and the draft Settlement
Agreement, including the one-year period of validity; and
On June 20, 2005, a petition for an Environmental Assessment Worksheet
(EAW) was received by the City of Prior Lake to require preparation of a
supplemental EAW prior to the excavation of the McKenna site by Ryan
Contracting; and
At its June 20, 2005 meeting, the Prior Lake City Council extended the 15-day
deadline to act on the EAW Petition by an additional 15 days pursuant to Minn. R.
4410.1100 subp. 7; and
Staff reviewed Minnesota Statutes, Environmental Quality Board (EQB)
guidelines and documents, the petition dated June 20, 2005 and other
submissions; and
Minnesota Rules Section 4410.1000, subp. 5, addresses when a new EAW is
required, and states "If after a negative declaration has been issued but before
the proposed project has received all approvals or been implemented, the RGU
determines that a substantial change has been made in the proposed project that
may affect the potential for significant adverse environmental effects, a new EA W
is required", and
Staff evaluated the petition based on the rules; and
On July 18, 2005, the City Council reviewed all pertinent information including the
petition and staff review regarding the Petition.
Page 2
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE that it hereby
denies the request by petition to prepare a supplemental EAW prior to allowing the excavation of
sand and gravel on property located in the SE quarter of Section 22, T 115, R 22 with the following
findings:
FINDINGS
1. An Environmental Impact Statement is not automatically required for the excavation of sand and
gravel on 12.91 acres (project site).
The preparation of an Environmental Assessment Worksheet (EAW) and the comments received
on the EAW in 2000 generated information adequate to determine whether the proposed
development has the potential for significant environmental effects, resulting in a negative
declaration on the need for an Environmental Impact Statement in February 2001.
3. The District Court for Scott County upheld the City's negative declaration in 2002.
Minnesota Rules Section 4410.1000, subp. 5, addresses when a new EAW is required, and
states "If after a negative declaration has been issued but before the proposed project has
received all approvals or been implemented, the RGU determines that a substantial change has
been made in the proposed project that may affect the potential for significant adverse
environmental effects, a new EAW is required."
Rule 4410.1000, subp. 5 provides the most specific indication in the governing statute and
implementing rules of how the City as Responsible Governmental Unit should decide whether to
order a new EAW.
After the EAW was completed in 2000, the project was subjected to numerous additional
conditions intended to mitigate the potential adverse environmental impact of the project. The
City substantially increased the number and nature of the conditions included in the conditional
use permit (CUP) prior to its adoption in February 2001. In addition, the District Court imposed
several additional conditions on Ryan's operations in 2002.
7. Those additional conditions were imposed for the purpose of mitigating potential environmental
impacts of the project.
The draft Settlement Agreement is designed to preserve all of the conditions that Ryan was
required to satisfy in the 2001 CUP and in the Court's 2002 Order, and to keep the project from
changing in a manner that would give rise to a new kind of potential environmental impact that
the City had not already studied.
A substantial change has not been made in the proposed project that may affect the potential for
significant adverse environmental effects, so pursuant to Minn. R. 4410.1000, sup. 5, a new
EAW is not required.
10. Since the 2000 EAW was performed, an environmental assessments has been completed for the
Jeffers Pond Development. An EAW is currently being completed for the Shepherd's Path
development.
Page 3
11. The petition for the EAW, and other written submissions in support of the Petition, did not contain
any new material evidence and information that the City Council finds raises serious concerns
that the proposed sand and gravel mining operation may create the potential for significant
environmental impacts that have not already been studied.
12. The attached Findings of Fact and Conclusions were adopted as part of Resolution #01-16, and
are incorporated herein as Exhibit A as if fully set forth.
13. Said potential for significant environmental impacts have been previously addressed and do not
warrant further review.
CONCLUSION
Based upon the Findings set forth above, the City Council hereby denies a petition of request to
require an EAW be conducted in association with the approval of a CUP for Ryan Contracting to allow
the excavation of sand and gravel. This denial constitutes a dismissal of the Petition within the
meaning of Minn. R. 4410.3100 subp. 1.
Staff is hereby directed to prepare notices of this decision and deliver within five (5) working days to
the petitioner's representative and the EQB. Any aggrieved party may appeal the decision in district
court within 30 days of the date the this resolution is adopted.
Passed and adopted this 18th day of July, 2005.
YES NO
Haugen Haugen
Fleming Fleming
LeMair LeMair
Petersen Petersen
Zieska Zieska
{Seal}
City Manager,
City of Prior Lake
P~e4
ATTACHMENT 1
CONDITIONAL USE PERMIT
RESOLUTION 01-19
APPROVING A CONDITIONAL USE PERMIT TO ALLOW EXCAVATION OF SAND
AND GRAVEL ON PROPERTY LOCATED IN THE SOUTHEAST QUARTER OF
SECTION 22, T 115, R22 FOR RYAN CONTRACTING
MOTION BY: PETERSEN
SECOND BY: ZIESKA
The Prior Lake Planning Commission conducted a public hearing on
November 8, 1999, to consider an application from Ryan Contracting for a
Conditional Use Permit (CUP) to allow excavation of sand and gravel and the
City Council heard the case on December 6, 1999; and
Notice of the public hearing on said CUP has been duly published in
accordance with the applicable Prior Lake Ordinances; and
The Planning Commission proceeded to hear all persons interested in this
issue and persons interested were afforded the opportunity to present their
views and objections related to the CUP for Ryan Contracting; and
On December 6, 1999, the City Council considered the request for a CUP;
and
On December 6, 1999, the City Council continued their review of this CUP to
January 18, 2000 to allow time for a workshop on the request to be held and
said workshop was held on January 3, 2000; and
On January 18, 2000, the City Council heard the request and continued final
action pending a petition for EAW; and
On February 7, 2000, the City Council determined an EAW was necessary
and the 60-day rule was suspended as required by Minnesota Statutes 15.99
until action on the EAW was completed; and
On January 22, 2001, following review of the comments and responses to the
comments on the EAW, the City Council voted, to defer action on this
decision until February 20, 2001, in accordance with Minnesota Rules
4400.1700, subp. 2a, in order to allow staff the opportunity to clarify
some conflicting information about the wetlands on the site and on the
number of wells needed for this project; and
r:~resoluti\planres~2001 \01-19.doc Page 1
16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 247-4245
AN EQUAL OPPORTUNITY EMPLOYER
WREREAS,
On February 20, 2001, the City Council considered the EAW for this project
and made a negative declaration on the need for further environmental
review; and
On February 23, 2001, in accordance with Minnesota Rules 4400.1700, subp.
5, the City distributed a notice of the City Council decision and responses to
the comments received on the EAW; and
The Planning Commission and City Council find the CUP for Excavation of
Sand and Gravel located in the SE Quarter of Section 22, T115, R22 for Ryan
Contracting in accord with existing development in the area surrounding the
project; and
The Planning Commission and City Council find the proposed CUP is
compatible with the stated purposes and intent of the Zoning Ordinance as
they relate to conditionally permitted uses, and further, that the proposed
CUP meets the criteria for approval of CUP as contained in Section 1108 and
Section 1101.509 (2) Excavation of the Zoning Ordinance.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE:
III.
The recitals set forth above are incorporated herein as if fully set forth.
The Conditional Use Permit applies to the following legally described property:
The Northwest Quarter of the Southeast Quarter of Section 22, Township 115, Range 22,
except the West Half of said Northwest Quarter of the Southeast Quarter, Scott County,
Minnesota; and
The West 990.00 feet (as measured at right angles) of the northeast quarter of the
Southeast Quarter of Section 22, Township 115, Range 22 EXCEPTING therefrom the
following: The south 622.29feet of the West 700. OO feet (as measured at right angles to
the south and west lines) of said Northeast Quarter of the Southeast Quarter. Containing
20 acres more or less.
The City Council hereby adopts the following findings:
a. The use is consistent with and supportive of the goals and policies of the
Comprehensive Plan.
b. The use will not be detrimental to the health, safety, morals and general welfare of
the community as a whole. The conditions applied to the permit will protect the
health, safety and general welfare of the community.
c. The use is consistent with the intent and purpose of the Zoning Ordinance and the
Use District in which the Conditional Use is located.
d. The use will not have undue adverse impacts on governmental facilities, services, or
improvements, which are either existing or proposed. The potential impact on the
adjacent public roads is addressed in the conditions set forth herein.
r:~resoluti\planresX2001 \01-19.doc Page 2
IV.
e. The use will not have undue adverse impacts on the use and enjoyment of properties
in close proximity to the conditional use. The required berming, landscaping,
prohibition against on-site lighting and limitations on the hours of operation will
protect the adjacent properties.
f The use will be compatible with the general welfare, public safety and
neighborhood character when the conditions are applied and complied with.
The Conditional Use Permit is hereby approved subject to the following conditions
a. This resolution is the Conditional Use Permit.
b. The CUP is not valid until this resolution is recorded.
c. Prior to the recording of the resolution, the following revisions must be made to the
plans and reviewed and approved by City staff'
vised to indicate a one fo; one replacement of"~
1) The landscape plan must be re ........
trees removed (42 caliper inches) as part oJ tt~e rectamatton and stagtng /'
The lan must also indicate that plantings are to be installed upo-n/
plan. p -
completion of each phase.
The landscape plan must be revised to include landscaping of I tree per I0
2) lineal feet of berm as per item 7 on Recapitulation of CUP Application 0~
submi[t-ed by Ryan Contracting, and to include an additional 10 perimeter
trees as shown on the proposed landscape plan.
< - 3) The plans must be revised to identify a 24'wide paved driveway fro,n thex,,>rhO
public street to the parking lot, a paved parking lot, and a paved fueling pad.
4) The parking area must be buffered by screening with additional plantings~
This is to be shown on a revised landscaping plan.
5) Drainage and storm water rate calculations and plans for engineered
drainage and storm water controls must be submitted to the City for review
and approval.
6) The plans must be revised to eliminate the permanent above-ground fuel
storage area.
7) Utility plans indicating electrical line locations must be submitted, if there is
to be electrical equipment on the site.
/ ~ 8) The plans must be revised to identify a monitoring well at the northwest
\
corner of the site. The exact number, location, depth, and specification are to
be based on recommendations from a certified independent consultant
approved by the City Engineer.
9) The applicant and property owners must enter into a Developer's Agreement
with the City. The Developers Agreement includes provisions dealing with
right of entry and indemnification. Treatment of the required Irrevocable
Letter of Credit is also detailed within the Agreement.
i0). An Irrevocable Letter of Credit, on a form prepared by the City and approved
by the City Attorney, is to be submitted prior to the recording of the
resolution. The amount of the LOC is for $420,500 (approximately 125% of
the following costs) and ensures the following:
r:\resoluti\planresk2001 \01 - 19.doc Page 3
go
These
1)
Proposed traffic signs require approval from the City Engineer and must
meet MN Uniform Traffic Control Devices standards. Signs must be installed
prior to beginning work. In addition to those proposed, "Trucks Hauling"
signs must be placed on McKenna Road south to CSAH 42.
A secured gate and 6' high perimeter fence is to be installed prior to
beginning work. The property must be signed as private property.
The driveway from the public street to the parMng lot, the parking lot and the
refueling pad must be hard surfaced (paved) and installed prior to beginning
work.
The parking area and parking lot screening must be completed.
The resolution approving the CUP must be recorded on all affected
properties and proof of such recording presented to the Planning
Department.
Prior to beginning work on the site, the City will inspect McKenna Road and
document its current condition. Once work has commenced, the City staff
will inspect the road on an ongoing basis. Repairs required as a result of
this use must be completed no later than October 31st.
conditions are ongoing and must be met at all times:
No permanent fuel storage is allowed on the site. All vehicles and equipment
refueling must take place on an impervious pad, required in section IV, c, 3
of this resolution that has the capacity to contain a fuel spill of 500 gallons.
The fuel tank truck may not be stored overnight. When not in use, all
motorized equipment must be stored on the impervious fueling pad.
Refueling trucks, or truck mounted refueling tanks may not be stationed at the
site except for refueling and cannot be left unattended. All waste fluids and
oils exchanged from on-site equipment during maintenance must be removed
from the site the completion of equipment maintenance.
No lighting is permitted on site.
The project is limited to 12.91 acres as indicated in Exhibit A, and to an
elevation of 850' MSL.
The project approval is only for the extraction and screening of sand and
gravel. There is to be no crushing, washing or other mineral processing
conducted on site.
The installation of a water supply well on site is prohibited. Any water
needed on site is to be delivered from off-site sources. No water may be
drawn from the existing wells on the McKenna and Kinney properties on
which the site is located other than water to serve the residential needs of the
existing houses on the properties.
Monthly water testing from the required monitoring well is to be conducted
two times prior to initiation of mining at the site. All monitoring results are
to be submitted to the City of Prior Lake Engineering Department within 45
days of each sampling event. The initial two water analyses will serve as the
base line for subsequent biannual (spring and fall) monitoring. Testing shall
r:~resoluti\planres~2001 \01 - 19.doc Page 5
VI.
VII.
VIII.
and is not limited to roadways. Water for dust control shall be provided from
an off-site source.
The CUP is valid for one year, but is revocable at any time for noncompliance with any
condition contained herein. At the expiration of its one (1) year term, the property owner
may make application to the City to renew the CUP. The initial approval of this CUP does
not create any right, in law or equity, to the renewal thereof. Any renewal of the CUP is
subject to City Council approval and is to include a staging plan to date, reclamation to
date, along with road quality, wetland quality, air quality reports submitted by qualified
professionals and any other such information as requested by City staff or the City Council
that would aid the City Council in determining whether the excavation activities
conducted pursuant to this CUP created any adverse impacts to the health, safety or
welfare of the City or its residents.
Project Plan Book (application with revisions dated November 19, 1999) submitted by
Ryan Contracting is attached hereto as Exhibit (A) and incorporated as part of this
resolution. If there is any conflict between the Project Plan Book and this resolution, the
conditions of this resolution take precedence.
If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Resolution is for any reason held invalid by a court of competent jurisdiction, such decision
shall not affect the validity of the remaining portion of this Resolution.
A Development Agreement memorializing the contents of this resolution shall be prepared
by the City Attorney and approved by the City Council. Any conflict between this
resolution and the Development Agreement shall be resolved in favor of the document
which is more restrictive and whose conditions most protect the environment. The City
Council shall be the sole arbitrator of this decision.
CONCLUSION
Based upon the Findings set forth above, the City Council hereby grants a Conditional Use
Permit for Ryan Contracting. The contents of Planning Case File #99-075 are hereby entered into
and made a part of the public record and the record of the decision for this case.
Passed and adopted this 27th day of February 2001.
{Seal}
Mader
Ericson
Gundlach
Petersen
Zieska
X
X
X
YES NO
X Mader
Ericson X
Gundlach
Petersen
Zieska
Acgfng.' "~~i~~..na-t~-~Qity l nager,
C~ty of Prior Lake
r:\resoluti\planresX2001 \01-19.doc Page 7
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'~8/19/0Z 05:37 FA~ 651 438 ~2 DAI~OTA CO DIST COURT
ATTACHMENT 2
STATE OF MI1W1N~SOTA
COUNTY OF SCOTt
#~752 ?.005/~19
DISTRICT COURT
FIRST JUDICIAL DISTPJCT
· .ql~-~ope~ Mdewakanton S~oux
City of Prior Lake and
R.yaa Co.~ Co.,
File No. C-01-05256
FI1WI)~-OF FACT, CONCLUSIONS Ol~
LAW, AND ORDER ,FOR ,WJDG~
The abov~-catitlcd mawr came on for trial before Thc I-Ionorabl= Rex D. Staccy on Mai,
7, 8, 9, 14 and 21, 2002. A/=~tra B. Kla~ and Wil.ga Wahpepah ofDorscy & Whitney, LLP
appeared for Plaintiff. C, crald S. Duff-y and Brem~a E- Nelson of Sieg=l, BrilL Oreupncr, Duff7
& Foster, P.A. appctu~-d for Defendant Ryan Contracting Co. D~fcudant Ci~ of Prior Lake did
not appear, the claims agsinst the Ci~ having beea dismissal by Order dated August 31, 2002.
Ba~d upon the =v~dr. ac= submitted at triaJ~ this Court makes ~= foUowiag:
FINDINGS O1~ FACT
I. Plaintiff Shakol~= Mdev,akanton Sioux Com_~
Indian tn'be located in Prio~ Lake, Minnesota.
2. D:f~ndant R~an Contracting Co. is a commcmial construction company based in
Shakop:,-,
:~. In September 1 ~9, Ryan applied for a Conditional Use P~nit C~UP") ~m the
City of Prior La_k~to mi,e sand snd l~avel flora a 1231-acre parcel of leased lalld located on thc
AUG.26'2002 16:37 952 941 7968 HOFF BARRY KUDERER #1752 ?.006/019
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north side of Mclie~ma Road approximatr, ly one-quax~ mile ~xon5 of County Road ¢2. D~ Ex.
1; De~ Bx. 78.
4. Plaintiff's north residential neighborhood is lo~atcd appm~a~y one-quar~
mile wes~ of ~ ~,posed site across McI, Ienna Road. Thc nci?,kborhood consi~ of
appxx~imatcl7 51~ single-family hom~ and is expected ~o expand to aplm~rr~tely 200 homes,
all served by' ~he McKeana well.
:f The sand, and gravel overlies bedrock forming thc Prairie du Chieal Cra;rap and ',he
Jozdau Sandstorm foci, ration, The grouncl~atez r~ thxuu{ph this bedrock is known as thc
Prairie du Chic-n-Jordan aqui~r, a .-~_ ..jot smu,~e of&inking water in Sco~t County.
6. The McKcnna well is located appro~r-s~ely one-~Mni mile nortilWC~ of thc
proposed site. Th~ well draws its water from thc Prairie du Chien-Jordan aquifer.
7. A protected public wate~ wetland, PWW 70-247W, is located appmximmcly 150
fcct south of rim proposed sile, Thc wetland is a Type 3. Type 4 or combinalio~ wetland
a. pproxirrmt~ly 3 acres in size consisting ora shallow m.,.,,~h auct open water with caImils. Pl. Ex.
14 at 1.
ti. Public waters w~dands at~ protect~l and regulated by the Department of Natural
Resources ("DNR") under Minn. Stat. SeCtions I03G.001, ~ and may not be drained
without a pc. emit
9. Thc Minucsota Board of Water and Soil Resources ("BWSR") is,mod a report for
l!;99/2000 indicating ri,az S~ott County ~- los~ 88,2% of lis prc-seVlemen~ wetlands,
repres~-nzin~ the highest lX~Cnca~e toss of any counl~, in thc Twin Cities Metrc~litan Ar~ .PI.
Ex_ 26 at App~dix H- 1; Pl. Ex. 27.
2
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#1752 ?.007/019
10. The wetlsnd n~ar ~he proposed site is ~ by ~a~ ~ ~off ~ ~ ~.
~ of "ca~t" ~ ~e ~d ~ ~~ly 17 a~ ~
~on of ~c pmpo~ ~o~ U~ ~e c~t ~1~ ~
11. ~ pmpo~ ~te ~ to.md ~ ~ a~~ ~. ~e
is ~c~y ~~d ~ ~ ~!.g di~ ~ ~e Ci~ ~ a ~. S~n 110g.20 of
Ci~ Code s~ ~ ~ ~t~ f~ co~o~ ~e ~ ~clu~ng ~ foUo~g:
1. ~e ~ ~1 not ~ de~m~ m ~e ~ s~, mo~
~~ ~ ~ U~ Di~ ~ w~ch ~ ~o~ U~ P~t
4. ~ ~ ~ not ~w ~: ~v~s~ ~p~ ~ ~ ~= ~d
12. ~e p~os~ o~on ~ ~ a 1~ mi.i.E pl~
topso~ ~c~i~ it ~d ~c~ ~d md ~1 h ~ for ~
s~ ~e clay soils c~ ~o ~ch ~e s~ ~ ~avd. ~e pl~
~c ~h!~g or ~g ~ ~em ~l bc no o~si~ ch~c~ ~o~e of
13. ~ o~fion ~ ~ ~m 6:30 ~ ~ 7:30 p~ Money
A~UG.26'2002 16:37 952 941 7968 HOFF BARRY ~3DERER #1752 P.008/019
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the ntm~ber Of vehicles or pi~c~ of ~m~ on-~te d~ ~om ~ ~ ~e p~e
on-~ on ~ ~o~ c~e or bi~ous ~ ~
14. Fo~ ~dwa~ con~ ~ ~ ~ ~e~ ~~ lu~ ~d
~o ~t~ it m ~ ~t~ qu~ ~d ~ o~ ~on o~ ~o~e ~ ~~~ one mm~on
17. D~ ~ by ~ng ~ ~ ~~ ~ a ~ ~ck appl~ a ~i~
~ o~plac~ 4 ~ches o~t~so~ ~d see~g ov~ ~bcd ~. ~
~ ~ C~ ~t ~ay ~ o~cr ~ p~ble ~c~ b~ ~ ~ ~~ D~. ~ 1.
18. It ~ ~s~d ~ cl~ so~s ~ d~ ~d act ~ a b~
~d ~n~a~ ~c s~d ~d ~vcl ~ po~ ~d ~1~ ~tc ~d ~~~ ~ flow
m~ ~y.
1~. ~ c~ cl~ of ~ ~ ~ ~m 9~ to 922' ~o~
~ ~1 ~ 50 ~o ~ f~t ofov~~ ~ a~ ~~ ~y~t ~ov~
~30 ~o ~0Z~. ~~~es~~ ~m ~7' m~'. De~. ~ 1;D~.
20. ~~r m~~ ~ be ~c~li~ ~ a ~n~c ~11
~fom ~ni~ ~ ~d ~cc p~ ~ ~~. ~ C~ do~ not ~q~ mo~m~
4
%UG.26'2002 16:38 952 941 7968 HOFF BARRY I<UDERER
oB/19/o2 09:38 FAX SS1 43a 8~Z 9AKOTA C0 DIST COURT
#1752 ?.009/019
~ooe
m~n~,g is finish~[. Pl. Ex. 71. Ir'is undisputed that a ...min.~raura ofthr~ wells is n~ to
accurately d~rmine the ram an~ diI~'~on of llrou~dwatcr flow.
21. On Now~nb~r 18, 1999, th~ City PI-,-~,,S Commission h~ld a public h~ring to
cousidcr the CUP application ami r~uramcndcd approval of' it. DeC[ F.x. 16. Pl~ufiff vraz
rcp~..saut~d at th~ hearing and put forth objections to the proposed operation. The application
w~.~ discussed at three subsequent City Council meetiu~
22. On January 14, 2000. ~.n:mm~ttal conc~x~ ~ to the propom~ Ol:~on
~plz~f Plaintiff to pu~ilion for [~e lm~ion of s~ Environmental ~
C'EAW") under thc Minnesota Eu~_,unm~aml Policy A~ ~ S~c S~:. ll6D.01, ~ s~q.
2~. Pursuant to rules ir~n~d by the Enviro,~.~m~ QuaH~y Bo~ ("EQB"),
when au EAW' is uot mandatotT, the C{~' is not ~lvir~ to pmpsre aue. Sec ~ R.
4410,~000. subp. ~. In ~ case, sa EAW was not msudator), under Nfinne~ota P, vle 44! 0.4300.
24_ Thc City adol~d ~ r~solu~on r~lu~i~g tho l~cparation of ~n EAV~r and ~ the
cmviro-mcntsl cnginee~u~ and consul~ finn Li~sch & A~soc~es to prep,re ~t. Def. Ex. 2.
2f The ~ul~u~ ~gh~7-rix psse EAW described ~ eodstin~ si~c condkions,
dcvclopra~t ph~c~, tT~cal operation, spill pr~ventiou m~.~ums, runo~ amlxol, site s~urit~
and o~cr fcaua~s of thc pn:9osed Ol~n~iou. Th~ EAW listed th~ pcvm~s sad
~qvircd bc~9~m mining v.~uld bc au~orIz~d. T~ EAW also described the euvironmcutal ~sues
~ ~n ~e ?~utiff's peti6on sad the ar~a~ of study mandau~ by thc EQB includiug traffic,
noir, ~rouud~amr, wa~er qual~y, and g:ologi: and mil con~tions. Pl. ,Ex. ~4.
26. The EAW v,~as published ~n the EQ,~ Mo~r and sent to vm'ious agencies for
.~'vicw and comm~nZ ~ ,xlvir~ by Minnesota Rvlc 4410.1500. Th~ ~c~cies include the
%UG.26'2002 16:38 952 941 7968 HOFF BAR~Y I<UDE~E~
~,UC--19-~N~ 10:49 DOI~'~Y & WHITNEY lip
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#1752 P.010/019
~I~O~;B6B P.8~/lS
l~;,~nesota Pollution Con~ot AL'~t~y', lh¢ Board of Water and Soil Resources, ~e D~anment of
Nat'mat P,.cseum:~ ami ~ Dcpamnca: of AD'ira.dr'urn. Def. ~. 4.
27. ~ Ci~ ~:~ ~en~ ~m ~ ci~ ~ ~i~ ~u~g Pl~u~s
~, Ron~d P~son ~d S~,~ ~on. D~, ~x. 4. ~ ~e 3~y ~m~ ~od
~cd, ~e ~om ~~t ~Hc~ ~~ co~.~ on ~ ~W. DeE ~
2~. At a ~b~ lg, 2000, m~8, M~ O~n of ~sch & ~ia~
· ~ C~ Com~ ~ ~ ~ of ~ ~~ op~on did not m~ a ~~
~~t m~~ ~. His l~r da~ Feb~ 27, 2~1, s~ '.,.k ~ ~ch's
~ sight ~m~t~ ~." D~. ~. 70.
29, ~ Fc~ 20, 2~1, ~e Ci~ ~ ~ ~o ~e a nc~vc ~[~
o~fion ~d ~t have ~e ~~ for d~t ~~~ ~e~. ~ C~cfl
d~~ ~t ~ k had ~ei~d =d~ ~o~on abo~ ~ble eff~ of
~cd op~fion ~ ~ no ~ for ~o~ pubic ~. Deft ~ 6.
30. At ~ ~e~ 20 m~fint, ~ Ci~ ~dl h~ ~ PI~s a~
~~ co~!~o~ for app~ of~ C~. D~. E~ ~.
31. ~e Ci~ ~d ~c C~ Co Ry~ on Fcb~ 27, 200I, ~ 37 ~oas
w~ inw~o~ ~ ~ ~p. Pl. ~ 71.
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OSYlg/OZ 09;38 FAX 651 438 SlaZ DAKOT~ CO DIST COURT ~008
32. Plaintiff ftlecl a complaint on Mar~h 21, 2001, and an amemded compbalnt on Sunc
15. 2001, challengin$ thc sm%qciency of the City's ea,,iro, mental review under FfF._-PA, the
City's grant of th,, CUP under Mitre_ Stat, Sec. 462.361 and the Mimacsota EnwironmentaI Rights
A~t ('MBP~'9, ~d Rlrau's opcration of th~ sand and ~ ,-i-e trader lvr~--aUL The Corm
lpmntcd partial summary judgment on thc claims against the CiiT, leaving for izial Pl~i,tiff's
M~iP,~ claim agar, at P,~tam
33. At Ixial. Plsi,~.tiff asserted tha~ R0rea's Ima.poscd crpcration violates 19IHRA by:
1. The alleged dminag~ of deai?stmi wetland ~ 247W ia violatioa
of Minn. Stat Se~. 1030,221 and lVfi-.,. IL 6115,0270, subp, 3;
2. Thc permanent impalnnent of gxotmd water feedin~ the MelCcama
Well; and
3, The pollution and impainncat of surface water quality.
34. Thc Court heard zr. aiimony from Pl,~,.~ifr$ Land and Natuzal Resources ~,
Stanloy Elli~on, ~t geologist with prior experience ia mi,i,~$ and designer of thc McI~enna well
Pl. Ex. 43. Mr. EDison testifiecl to scarce mad diccfiaksh~ grotmclwatcr resourcca in Scott
County caused by the azea's rapid devclopmemt amd population growth.
35. Mr, Ellisoa d~cribed s0il borings taken on-si~e showing .up to l0 fcct of clay
top~oil overlying approximately 100-150 feet of sand --.~ gravel. Pl. F,x. 54, Attaohw~cot F. Thc
Scott Camay C~ologic Arias shows the axean water level for the Prairie da Ckien-$orclan aquifer
below thc sim at an ¢levatioa of 770' above sea leveL Def. Ex. !at. Thc only soil bofia~ mlam
at thc site show possible g~aundv, mlct at 808'. PI. Ex. $4 at 3.
36. Th~ Pnairi¢ da Chics-Jordan bedrock tmderlyimg the site contains wlmt Ls .ka~ov~.
as "~' feam~e.~ or fractured rock, cave~..c and fu~uras that set as a di~ct ~:onduit for flow of
water and contamhumts from :be {o1~ of thc bcd:ock to thc acluifcr. Pl. Ex. 60 at 15.
7
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1:~19-~:~ /0:49 DORSEY & WHITNEY LIP ~l~5402E~E;8 P.~'16
37. ~ 1999, lvh'. R~llson paxticipatcd in the dm.R~g of?laiotifl"s Wellh~ui lh~eetioa
Plan. Pl. F.x. 35. Thc Ylan eo~._ ~.ed the MclCerma well's susceptibility to eonmminmian and
looked for ways to px~tcct the wain- supply from comamhalion.
38. Th~ Prairie du Chien-$ordan aquifur cun~ntly has 110 fc~'t of pmtectiv~ s~ils
overlying th,,. Prairie du Chlcn formatkm in thc Drinking Water Supply ~ ~
("DWSMA") for thc we. Ii, which includes the site of the p~poscd opcrmion. Pl. ~ 35 al 25-29.
39. The purpose of the DWSMA is l~ ~e areas wh=e parti~ar land uses may
have a si~icant ~ffect on ~he qvalhy ofdrinki~ wal~-r. Id.. ,I 19.
40. Th~ depth of protec~vc soils or=lying the formation allowed thc Wellhead
Pr~u:ction Plan to classify the ~uifer as modernly suscepu'ble to contamination d~spite the
existence of kara features. Pl. Ex. 33 st 28-29, If the proposed operation and thc removal of
protective soils ar~ token into account, the lVicK~--a well could be classified as highly
susceptible to collmmination. Ellison Testimony.
41. Al',houg~ they did not object to issuanc~ ofth~ CUP, Scott County's co.mrnenls on
thc F~W staI~ that thc "proposed rem.oval of ~he aquifer protective soils will' ~ in au end
condition mnderint~ this site highly susceptible to 8xouud .water contamin,~ion." Pl. Ex. 58 a~ 3.
42. In its belated comments on the BAW, MDH cxpressed concern g~at %cmovaI of
fine-grained soils during ~he mi~5 operation,..may decrease the geologic pmtectiou thc]
crff~r." MDH recommended that further information be collected. Def. F,x. 63.
43. Mr. Ellison also ~astified that in his opinion the proposed operation would impair
surface wat~ quality bccau.se mn-off from the pi! will exi~ thc site, Mr. Bllison acknowledg~l
that a permit fixnn lhe MPCA is r~quired prior to operation ~mel that to ge~ the permh, thc .MPCA
must al~pn~w Ryan's storm water runoff plan.
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44. The Court hem'd t~ony from K.i~ Roj~na, a professional engineer and
geologist with experience in groundws~ ismes. Del, Bx. 6~. Ms. Rojina tr..q~cd that the
Im:~posc4 operation is no~ likely u~ knl:,a/r or impact the quality of water su~l'ying lbo McK~m-
4:5. 1%~. P, oj~a testified t~,~ ',he ~ encountc~! at gO8 f~ above sc~ level =~ght
bca "l~'Ched" stu'fi~ial aquifc.r confined by a clay layer rather ~ a pan of 'dtc Prairie du
ChieuJordan aquifer. She a=lmowlcdg=cl th~,t the~e is Lnsufficien~: data =o couftnn her belief
b~ause adequa~ soil boziags have =o~ been ~akgn in the area.
46, According to Ms. P,,ojina, thc McKcnna well is not down gmdien~ ~,,~ th=
pz=po~cd site. as the m~-year time of travel d=i~oj~._ cd by thc Minnesota Department o£ Health
does not include a=y portion of thc proposed silo. She also tcstiEed that w'~ter in the well is over
40 ygazs old and ~ even ii' there wgze contsmi~wrion, it is ,~likcly l~a~ The well will bc
operable 40 yea~ from now given thc Wellhead Proration Plan's svztcmeat that thc well won'~
be used aft= 2020,
47. Mr. Ellis. on ~'tilied that l:h= well is doral grsdi~ to ~ proposed si~e and is,
~o~, subjec-~ to c,o=tamination f~m.it. He also indicated ~a~ time off travel or' gn~mdwat=r
can't bc derermi-ccl because no l=ercola~ion teas hay= been perfo=cd in thc ~
48. Thc Court hcat~i l=suimony ~om Mr. Slanley Pcic:so=, a ccrdied wgd~na
scientis~ with more t.~n 20 years experience in wetland regulation. Pl. ~x. 8. M~. Pctczson bas
do-c mo~= than ~00 wetland dctlngmioz= and gav~ rte opinion d=a~ the proposed ope~i~ woukl
drain T2te lmbli= waters wetland 10ca~ed sout~ of thc proposed ~i~= in violstion ofl~i,,,,. Stst. Sc=.
103G.221 auc[ Minn. R. 6115.0270, subp. 3.
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05;'19/0Z 09:38 FAX $$1 4~8 ~152 DAKOTA CO DIST COURT ~01!
49. The DNR's com~.ent to ~hc BAW states that "~n ~ ~~ lo~on ~d
b~ ~m~ ~ oc~ ab~ ~e ~r ruble.~ D~. ~. 4. I~ ~ ~~ whe~ ~e ~
50. ~. Pc~on ~ ~a: a ~ ~on ~ n~ ~n p~~ ~ ~:
52. ~. P~on t~ ~ ~ ~s~ ~m ~ n~ ~ ~e ~d ~ it ~o~
for ~e ~v~ of ~e ~ce c~y lay~ ~ ~ ~ow ~off to ~ ~ ~c p~ ~ ~d
~ eq~ent ~a ~g 1~
53. ~. ~j~ ~e~ ~t ~e w~d ~1 ~ sp~d ~ ~c vo~c of ~e
~i~ ~ ~c ~d ~1 not ~c si~~y ~e 1) ~o~ ~e slo~ of ~ffto
~t ~ so~s ~d 3) ~e ~ ~ ~ ~n ~ ~e ~ She ~ ~cd ~t ~e
54. ~c C~ ~ R~ not to ~ ~e ~d ~ mq~ms R~ to o~ a
~DE~S~ Wat~ Dis~hs~ p~t ~m ~c ~ ~d a w~ a~~on p~t ~m
55. ~c Co~ h~ ~mony ~ ~. p~ Bo~ a ~e~
~eolo~ ~d ~ profcssi~ hy~g~lo~. PI. Ex. 29. ~. ~ok ~v= ~e ~on ~
10
A. UG.26'2002 16:39 952 941 7968 HOFF BARRY K'UDERER #1752 P.015/019
08/19/02 0.3;3~ FAX. 651 438 8162 D~OTA CO DI~ C0~ ~o12
the proposed, operafou will knpaJ: ~ M~ ~ell b~e of~e ~y~g~o~c S~, ~e
~6. ~. ~o~ ~fi~ ~ ~. Book's ~on7 ~~ W~a ~d ~
~i~Uy ~ d~ to ~ ~ ~ ~ ~t ~ ~ n~ b~ a s~olc ~ Sc~
Co~ wh~ ~e d~ m be~ck ~ o~r 50'. ~ ~ ~se, ~e ~d ~e mining p~ &o~d
1~ 100' ~d ~c of ma~i ~ ~e ~pos~ im ~ ~ ~~ d~g ~ ~e
acm~ d~ of ~e ~t~ble,
~ ov~ ~e ~ ~ b~ o~y ~c ~d ~d ~ may ~ fo~d. He ~so ~~ t~
5~, ~. ~t ~so t~ ~a R~ ~d no ~ for clay so~ ~d ~t ~e ~
~m ~im for o~y one ~d lo~ ~d ~e s~.
CON~USIONS OY~W
1. ~ou~ ~ Co~ p~o~ a do novo ~ of ~~ a~ ~,
De~t ofN~ R~o~e~ ~67 N. W2d ~4 ~ ~ A~, 1~; R~e ~ Co
· . ~b~ ~6 H.W~d ~08 ~ 1977).
2. ~ ~vi~ ~: ~ ~n may p~ a p~v~ c~e of ~on ~ ~
11
AUG.26'2002 16:~0 952 941 7968 HOFF BARRY KUDERER
08~19/02 p9~8 F~ 6~1 ~38 8102 D~A CO DIST CO~
#1752 P.016/019
~0~
located within the state.., from pollution, impairmen~ of d~on."
Scctio~ 116B.02, subd. 5 defines "pollul/on, imp~rm=n% or destruction" as "auy
limitation, rule, order, license, stipulation agreemen% or permit of the ~ate" or "is likely to
materially adveraely affect thc cnvi.rvnment."
Section 116B.04 establishes thc burdens of proof of the c~ntm3ding panics and
...[W]lmr~ thc ~lbjc~-t of thc aciion is conduct /ov~n~=d bi any
environmental quality standmd, limitation, rulo, order, lic~mc, stilmlalion
agreement, or permit promulgated or issued by the pollution co~twl
agcu:y, d~partm~m~ of natural ~sourc~s, d~p~ of heslih, or
department of agriculture, whenever thc plainii~ shell hav~ made a prima
fncic showin~ that the coflduct off the defendant violates or is tikely to
violate said envircmm,mtal quality standard, rn:nitalion, rule. order, license,
stipulation agrceme, ut, or permit, tho defead~ut may rebut thc prima faci~
showing by the submission of evidence l~ the contrary...
Sec. 116B.04.
order ~o make a prima facie case, Plaintiff must show thc cxismnce of a
~ble mmml ~source, and pollution, impairm~m% or dea',mctiou of that v:~ourcc.
Peovle for En .vironmculaL.E~di~hl~men~
Bnvironmmial Ch!aliw .Council 266 N.W.2d 85K S67 (Minn. 1978); Freeborn Counw v~
Brvson, 297 bfma. 218, 210 N.W.~1290, 297 (1973).
6. Uad= ~ pollution, im~t, or destm~on of the enviromnent may be
shown by:.
proof tha~ thc conduct in ques~i0n violau:d, or may viol;,,,, amy
envkonmentai quality standard, rule. or xegulation of the =ate ,:= a~
political subdivision rismm~, er
12
conduc~ by any person which'violates, or is likely l~ violam, lmy enviwnmeutal quality standard,
AUG.26'2002 16:~0 952
RUG-19-;~ 10:~9
00/19/OZ O9:0% FAX
941 7968 HOFF BARRY KUDERER
DORSEY& WHITNEY LLP
651 4~S ~10Z DAKOTA C0 DIST COURT
#1752 ?.o17/o19
2. proof that thc conduct complaiaed of materially adversely
lik'~ly to affe:t the envimmm~,
Interest I{e~..Cn~u~ .fMP. IRG) v. ~~o5t~ _..& Cnm Club. 257
N.W.2d762, 768(lvfi.-_1977).
7. .Plaintiff must show that any alleged violation of an environmental standaxd has in
fact occtured m' is likely, to occur or that ~he proposed opcmdon is likely to ma~i,~y' adversely
a~ a naZuralresom~,e, lvri.., Stat. sec. 116B.02, mbd. S,
In StaTe by S. catler_y. Cmm~-/of Blue ~. _.~,h. 563 N.W.2d 260, 267 (MTmn. 1997),
the M;~-.esola Supreme Court adopted a list of £actm~ as the mst of wh~hcr condu~ is ~ to
n~terially adversely ulYect the euv~ronment:
1) The quality and severity of say adverse effect~ of r~ proposed action
on the natural resources
2) Whether the natural msour~ affected axe rare, unique, eudan~et~d, o~
have historical sili:nifii~a, oe;
3)
V~hcr the proposed action will have long-term m:i',,~m¢ cffccts on
replaceable;
4) Whether dm proposed action will have si?ificam consequential
eff'~-ots on other natural re--ources; arid
the affected mtural nmourc~s are signttcar~ incr~sing or
proposed action.
PLaintiff has mcr its burden of establishing a prhna facie case thru ~e proposed
operation is likely to violam ~i,,,. Stat. Sec. 1030.211 and 1Wrap. R. 6115.0270, subp. 3.
10. There is cvidc~ce support'ting Plaill~i~'S claims that the we~and is
chris,gear, that any decrease in the c~ttchm,,~_t is l~kely to have lo, g-term adverse c~ccts on
13
AUG.26'2002 16:40 952 941 7968 HOFF BAR~Y K'UDE~ER
0~/19~02 ~:,~9 F~I sS1 438
#1752 ?.018/019
11. ~~ ~ ~ ~ ~c ~ ~d ~s ~ ~ ~ent ~e~
12. Pl~fiff h~ ~ i~ b~den of ~b~ a p,:,-~ ~e ~e ,~t ~e ~sed
~jo~cnt of adjo~s
12. ~ ~ ~ce ~o~ Pl~s c~ ~t ~c ~~ ~on ~
~mble ~e s~ ~d clay o~l~g ~= ~d md ~av~ w~d ~mfly md
~v~bly ~ ~e aq~'s pw~on ~ c~~~. ~ e~ct on ~e ~r,
ho~v~, wo~d be
w~cr ~o~~ f~2 ~e M~ Well is ~y ~ bc con~a~d ~ ,~o1~: 1)
~ffi ~ely to ~ ~e Mc~ weE ~ 2) ~ ~e ~~ l~vc ~c ~a ~aMc ~
~on~on?
14. ~ ~o~ ~ Co~ ~ '~m~me ~n~om ~ ~ ~ ~ ~ ~ o~
pol~o~ ~~t ~ d~on.' ~ ~c S~. 11~.07.
14
AUG.26'2002 16:40 952 941 7968 HOFF BARRY k'UDERER #1752 P.019/019
OSY19/OZ 09;39 F~ 651 438.~162 D~A CO DIST COURT
1. No mom ~h.a 500,000 cubic Fards of
be ~ ~ ~~ ~ ~;
3- Soil ~ ~I b~ ~ ~ to ~~ to ~i-e ~ ~c 1~1 of
~d~ ~ ~ i~ ~d no m~ ~ ~ ~ ~0 f~ of
~d~
4. ~ mo~ ~l~ ~I ~ ~ ~ ~~o ~e ~~ ~d ~e of
6. S~~on ~ ~I be lined ~
8. ~o d~ ~ ~ ~ ~ Mlo~ ~-~ d~ ~ b~m ~~;
~~ one ~t~d load~, one ~r,
~ck may be ~amt on~ at ~y a~.e.
~ed ~ ~e above Conclmi~s of~w, ~c Co~ m~ ~ fotlo~
0~ FOR
1. ~ck ~ shMl pay i~ o~ ~ ~d ~s~~.
Dated: August 16, 2002.
~
15
ATTACHMENT 3
PETITION FOR EAW
The undersigned hereby petition the City of Prior Lake, pursuant to Minnesota Rule parts
4410.1100, 4410.1000, and 4410.3000, subpt. 3, to request the City order the supplementation of
an Environmental Assessment Worksheet prepared in November 2000 for Ryan Contracting
Co.'s proposed gravel mine located within the southeast quarter section of Section 22, T 115, R
22, on McKenna Road. We request that the EAW be supplemented before the City takes final
action to restore, reinstate, or revive Ryan Contracting Co.'s conditional use permit for the gravel
mine or otherwise take action to reverse the City's determination on January 23, 2004, that Ryan
Contracting Co.'s conditional use permit had expired for failure to make substantial use of the
premises. We state in support of this request that in the intervening years since the EAW was
conducted, the area surrounding the proposed location for the gravel mine has been so altered by
the construction of a neighboring church complex and pending residential and commercial
development as to pose a substantial change and new circumstances that pose the potential for
significant adverse environmental effects not examined in the prior EAW, including, but not
limited to: (i) dust, noise and air impacts on surrounding developments and planned
developments; (ii) unacceptable safety hazards and congestion on Scott County Road 42 and
McKenna Road; and (iii) other impacts as described in the attached memorandum.
PETITIONERS:
The signatures of 34 individuals supporting
this petition are attached hereto as Exhibit A.
LEGAL REPRESENTATIVE:
Michael Drysdale
Wilda Wahpepah
Dorsey & Whitney LLP
50 S. Sixth Street, Suite 1500
Minneapolis, MN 55402
Tel: (612) 340-2600
Fax: (612) 340-8800
PROJECT NAME:
Sand and gravel mining operation
PROJECT PROPOSER:
Ryan Contracting Co.
8700 13th Avenue East
Shakopee, Minnesota 55379
PROJECT LOCATION:
SE ¼, Township 115, Range 22 (located on
McKenna Road)
By copy of this document and the attachments hereto, Ryan Contracting Co. is served
Notice of this Petition.
EXHIBIT A
Signatures in Support of Petition
Company
Street !
City, State, Zip
Name~_.~
Company
.City' State,., -ZiP
iName
Company ~
street
City, State, Zip
Comply
City, State, Zip
Nme
S~eet
City, State, Zip
Company
Street ' ~2..~t77 ~¢J-~tg~t¢ "'~
City, State, Zip j0~t /~r~ &~-~~
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
City, State, Zip
Name
Company
Street
City, State, Zip
Name
EXHIBIT A
Signatures in Support of Petition
Company
Compm~ ' .- '
Street/' 7 ~6 'T77a~d .~z~;b/'/>-f '"' ,".
City, State, Zip~;/)a ~ope% ~/u ~ff7ff
Comply . "'
S~eet ~o~ 5we~r~ss
City, State, Zip ~~
il/i '
City, State, Zip ~a I~,$~
Nme
Company
City, State, Zip ~k~
Name -
Comply
City, State, Zip $~.~
Company
City, State, Zip
Name ///~ ~,.~
Company
Street ~'/~.~o
City, S~aje~ ZipS~/fl'~'
Co~-pany
City, State, Zip r [ d'~ v/~~'~.oq
Company /7
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
EXItIBIT A
Signatures in Support of Petition
Company .~ ~'.~
Street 3/7~l, '~lr' ~,
City, State, Zip ~5'~:~.~:
S~eet 3~9
City, State, Zip 5h~Ke~
Ci~, State, Zip 5~~
Str t
City, State, Zip ~ e~ '
~omp~y ~/~ ~
City, State, Zip ~
Comply ~ ~ ,[v "~
City, State, Zip~
Nme -
City, State, Zip
City, State, Zip ~
Nme
Company
Street
City, St~~
Comply
Street
City, State,
City, State,
Nam~ ~
City, State,
Nme
s eet
CiW, State,
City, St e,
Nme
4
EXHIBIT A
Signatures in Support of Petition
Company ' [Company
Street ~'2~.~' ~-~s'~~ ~ ~t'~ MJ4)Street
City, State, Zip ~~ ~a ~ /City, State, Zip
- ' - '~) ~7~
N~e ~ ~N~e
Comp~ ~
S~eet 3~ ~ ~Q~ ~ 0 F ~StreetC°mp~y
I ~~ ~i~, State, Zip
Name
Comply Comply
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
Company
Street
City, State, Zip
Name
4
MICHAEL DRYSDALE
(612) 340-5652
FAX (612) 340-8800
drysdale.mlchael(~dorsey, com
July 8, 2005
City of Prior Lake VIA FACSIMILE
Mayor and City Council
c/o Jane Kansier, Planning Director
16200 Eagle Creek Avenue, $.E.
Prior Lake, MN 55372-1714
Re: Petition for EAW
Dear Mayor and Council:
Enclosed on behalf of the Petitioners, please find the following document:
1. Additional signatures in support of EAW Petition.
The original signature document will be sent by U.S. mail.
On behalf of the Petitioners, I respectfully request an opportunity to address the City
Council before it makes a decision on the EAW petition.
Sincerely,
Michael Drysdale
Enclosure
cc: Ryan Contracting Co. (w/encl.)via facsimile
DORSEY & WHITNEY LLP · WWW.DORSEY.COM · T 612.340.2600 · F 612.340.2868
SUITE 1500 · 50 SOUTH SIXTH STREET · MINNEAPOLIS, MINNESOTA 55402-1498
07/08/2005 15:06 IFAX faxl.center
From:$M$O LE6AL
952 283 4218
Fax Central 1~003/005
EXHIBIT A
~nat~res in Support of Petition
Company
Street ~ q'7 5 ~ ~4t~~ ~q .~ t.Z/.
City, State, Zip X/j. _. / ..... g~ ' '.
Company '
Company ,
City, State, Zip .7~7~4~u[.~__;~,~ c,~--x.
Comply
Street o~
City, State,
Company
Street
City, State, Zip' ~'~
Street
City, State, Zip
Name ~hwl~ % ~., C¥~'~ec~t'lb~A}
Company ~~~.~ ~-Oe' g-Oaotr4.-
Street ~~ {t~ ~
Compa~'
Street [~'a~4~ ~~ T~ .,
Company
ui~, State, Zip ~~~
Company
Street 52~
City, State,
CiV, 8ta~
Comply
City, State,
City, State, Zip ,~'~/~t~
Company
Street ~$0~ ~
City, State, Zip
Company
City, State, Zip ¢[/,.~.k,rCe~ O,t~'- f~' ~ 7 ~
Company
Street ~'1 ~:~ ~"~ ~r-
City, State, Zip l~'r,'oe- L,~ M~ ~7~
Comply
Street ~ ~t 12,o..Icot'O_Tco...~
City, State, Zip Ivr
Company
City, St'at~, Zip ~(,0¢ (.c..i,..~, M,c .5~.57,~
Name
07/08/2005 15:06 IFA/ faxl.center
From:$M~ LEGAL
852 2~ 4218
* Fax Central ~]004/005
07/08/2005 15:02 ~025 P.004
EXHIBIT A
Signatures in Support of Petition
Company "' '_ ,~ 1/_,*(-~_.-(',~,-14~ ,. Company"
Street ~'0~'~ V,~,.r-,o ,~ ~.,- .
City, State, Zip ~0 ~ ( D/2, L~t ~ ~l [t~',~ Street
'City, State, Zip
Con, any ~'-~ Company
Street I$;/-gY Mck.~,~ ~ ,~'~ Street
City, State, Zip g,~.lr¢~',' ~'l't) ~"~ ~'~ City, State, Zip
Company Company
Street ~*p,~to~,~~~-~-~,~ ~-~c~, ~ Street
city, State, zip ~'~,~/~/.SS,~7q city, State,
Company ~'~J . , Company
Street d~t'~ O~.kd'/~, g/,,~/ Street
City, State, Zip f~,'o~ A~H-¢' ~q..--~. City, State, Zip
Name ~,~ -- / ~"ff~O~ Name
Company / Company
s~eet ~'//2' c,/,~,' ~. Street
City, State, Zip ,~/',,b~ (.z~,~.. City, State, Zip
Narn~(~~.. ~', Name
COmpany~"~fl ~ Company
street ,~'~ q ct D.q i /~ :1 street
~i~,_Z__s~t~. zip -~r;,~c' ka.~ _t~ city, state, zip
Company' . Company
Street ~al~ ,.~tt~t.c~' "Fb~.~[ A~LO Street
City, State, Zip ~(t~r' (~rc~e_ J4qA/o--~..~Z,~ City, State, Zip
Name ., .~ Name
Company ~ ~ff, Company
Street ..... ~),~.~ let ~- Street
City, State, Zi~ .) / o ~
.4 5 S//~ City, State, Zip
DORSI Y
DORSEY & WHITNEY LLP
MEMORANDUM
VIA MESSENGER AND FACSIMILE
TO:
CC:
FROM:
DATE:
RE:
City of Prior Lake
Ryan Contracting Co.
Michael Drysdale, Esq.. o.n_bghalf of the Shakopee Mdewakanton Sioux
Community ~ ~ ~ ~)t/
June 20, 2005
Petition for EAW
This Memorandum is submitted pursuant to Minn. R. 4410.1100, subp. 2, on behalf of
the Petitioners identified in Exhibit A to the attached Petition to supplement the Environmental
Assessment Worksheet ("EAW") prepared in November 2000 for the proposed sand and gravel
mining operation of Ryan Contracting Co. ("Ryan") in the City of Prior Lake. The Petition should
be granted because the area surrounding the proposed location has been so altered by the
construction of a church complex and pending residential and commercial development as to
constitute a substantial change and new circumstances that pose the potential for significant
adverse environmental effects not examined in the existing EAW.
The gravel mine would involve the mining and screening of 500,000 cubic yards of
aggregate from a 12.91-acre site located on property owned by Joe and Carolyn Kinney and
Richard McKenna. Ryan would operate from 6:30 a.m. to 7:30 p.m. Monday through Friday and
8 a.m. to noon on Saturdays for 10 years.
The substantial change and new circumstances that have occurred since the EAW was
conducted four and a half years ago include but are not limited to the following:
(i) the Shakopee Mdewakanton Sioux Community has begun development of a
residential community on tribal land located directly north of the proposed mining location, with
home sites separated from the mine by only a power line easement. Construction will begin on
August 1, and the development will include 58 home sites;
(ii) the Shepherd of the Lake Lutheran Church has been constructed at the church
campus off of County Road 42 and McKenna Road, and the church has unveiled plans for
Shepherd's Path, a 71-acre mix of commercial, residential, and park uses north of County Road
42. Shepherd's Path is to include 490 residential units, with a focus on assisted living and
senior housing, and will include a soccer dome and youth center. Construction is to begin this
year;
(iii) the City of Prior Lake has approved a planned unit development plan and final plat
for the Jeffers Pond development, which will involve construction on 336 acres at the southwest
corner of County Road 42 and County Road 21. Jeffers Pond will include significant retail,
DORSEY & WHITNEY LLP
commercial, and residential construction, an elementary school, a fire station, a transit station,
and public parks and trails for outdoor recreation. Construction of the school is to begin this
year, and construction of the fire station next year.
These projects are located on the map attached to this Memorandum as Exhibit B.
Under the Minnesota Environmental Policy Act, Minn. Stat. ch. 116D ("MEPA"), and the
applicable Minnesota Rules, a new EAW is required when there is a substantial change in the
proposed project that may affect the potential for significant adverse environmental impacts.
See Minn. R. 4410.1000, subp. 5. In addition, the Rules governing supplementation of
environmental review require additional study of impacts when either substantial changes have
been made in the proposed project that affect the potential for significant adverse environmental
effects or there is substantial new information or new circumstances that significantly affect the
potential environmental effects that have not been considered in the existing environmental
review. See Minn. R. 4410.3000, subp. 3A. Finally, the City Council's decision to revive,
reinstate, or reactivate Ryan's conditional use permit to mine gravel on the McKenna Property
constitutes a governmental action triggering MEPA protections, which include the citizens' right
to petition for a review of the environmental impacts of the decision. See Minn. R. 4410.0300,
subp. 3, 4410.1100, subp. 1. Therefore, at a minimum, the City Council is obligated to
supplement the EAW and examine the environmental impacts of its decision as conditions now
exist before making a decision.
The existing EAW's analysis is an outdated and insufficient basis for the City Council's
decision to revive Ryan's conditional use permit for reasons that include but are not limited to
the following:
the EAW's analysis of the impacts of the project and its compatibility with adjacent and
nearby land uses does not address the newly constructed church, the new residential
development on the Shakopee Mdewakanton Sioux Community's land, nor the
residential and commercial development planned as part of Shepherd's Path and Jeffers
Pond. See Exhibit C at 5;
the EAW's analysis of the impacts on nearby resources, defined as designated parks,
recreation areas or trails, is nonexistent because the EAW concluded that there were no
nearby parks, recreation areas, and trails. See Exhibit C at 16. Both Shepherd's Path
and Jeffers Pond will include park and recreational space;
the traffic study prepared for the EAW is based upon traffic volumes as they existed in
November 2000 and crash data that dated back to 1997. See Exhibit C, Attachment G.
Traffic volumes have and will continued to increase with development in the area,
including in particular the transit station and elementary school proposed for Jeffers
Pond. The impacts of increased congestion and disruption on McKenna Road and
County Roads 42 and 21 as well as wear and tear on the highway and McKenna Road
have not been analyzed. Under the City's 2030 Vision and Strategic Plan, the City of
Prior Lake plans to work jointly with the City of Shakopee and Scott County to complete
construction of County Road 21 from County Road 42 to Highway 169. The EAW's
traffic analysis fails to analyze the impacts, including the cumulative impacts, of the
gravel mine traffic, the increased traffic volume from the planned developments, and the
effect of a major, multi-year construction project on County Roads 42 and 21;
DORSEY & WHITNEY LLP
~ OORSl~Y
the EAW's analysis of impacts related to noise, dust, and air quality do not account for
new construction of homes by the Shakopee Mdewakanton Sioux Community, which
would now be located closer to the gravel pit than the homes that existed when the EAW
was initially conducted. See Exhibit B. Nor are impacts on the residential units for the
elderly that are planned as part of the Shepherd's Path development analyzed.
Mitigative measures in the existing conditional use permit will be inadequate to protect
the closer homes and adjacent residential and commercial development from dust,
noise, and air quality impacts, and should be re-examined. The EAW relies upon
vegetation to provide a dust and noise buffer, see Exhibit C at 15, and vegetation may
not be planted under the power line easement that separates several of the home sites
from the mine.
In sum, the City's decision to revive, reinstate, or otherwise permit gravel mining on the
McKenna property warrants the supplementation of the EAW to account for substantial changes
and new circumstances posed by the completed construction and planned development in the
adjacent area, including the gravel mine's overall compatibility with land uses now existing,
approved, or planned. Because the conditional use permit permits six-day-a-week operations
throughout the year, for 10 years, the City's obligation at a minimum should be to supplement
and update the now four-and-a-half year old analysis of impacts.
For the reasons set forth in the Petition, this Memorandum, and all Exhibits, the
Petitioners respectfully request that the City of Prior Lake grant their Petition and require
preparation of a supplemental EAW in accordance with MEPA and the Minnesota Rules
implementing the statute.
DORSEY & WHITNEY LLP
Jane Kansier
ATTACHMENT 4
Page 1 of 1
From: Jane Kansier
Sent: Monday, July 11, 2005 11:22 AM
To: 'drysdale.michael@dorsey.com'; ~Nahpepah.wilda@dorsey.com'
Cc: 'John M. Baker'
Subject: EAW Petition
Dear Mr. Drysdale,
I've received your submission last week of additional signatures, which will be included in the record. With
regard to your request for an opportunity to address the City Council before it makes a decision on the EAW
petition, we would prefer that you put your remarks in writing and send them to me by the end of the day today.
That way, your remarks will be sent to each of the Council members, and they will have the opportunity to
review them along with the rest of their agenda materials in advance of the meeting. The Council has a very large
agenda that evening, and you should not assume that the Council will be willing to entertain comments from the
audience.
Please let me know if you have other questions. Thank you.
Jane Kansier, AICP
Planning Director
City of Prior Lake
7/13/2005
ATTACHMENT 5
DORSEY & WHITNEY LLP
MICHAEL DRYSDALE
Partner
(612) 340-5652
FAX (6t2) 340-8800
drysdale, michael~dorsey, com
July 11, 2005
VIA FACSIMILE AND POSTAL SERVICE
Mayor and City Council Members
c/o Jane Kansier, Planning Director
City of Prior Lake
16200 Eagle Creek Avenue, S.E.
Pdor Lake, Minnesota 55372-1714
Re: Ryan Contractin.q Co. Gravel Pit CUP And EAW Petition
Dear Mayor and Council Members:
We are in receipt of Planning Director Jane Kansier's e-mail today informing us that we
will not have an opportunity to address the City Council and have until close of business today
to submit any additional information in the above-referenced matter. A principal reason
provided for the lack of opportunity to speak is that the Council's agenda for July 18 is "very
large." To the extent that it would facilitate the Council's review and allow the opportunity to
address the Council, the Shakopee Mdewakanton Sioux Community agrees in advance that the
Council may postpone the decision on the proposed settlement to a later date.
While our prior submittals address the reasons why supplemental environmental review
of the Ryan Contracting Co. gravel pit is necessary, the purpose of our request to address the
City Council orally was to respond to any questions of Council members, address any issues
that might arise at the meeting, and provide any further explanation or data that might assist the
City Council's deliberations.
The ultimate decision to be made in this matter is whether to revive or reinstate Ryan
Contracting Co.'s Conditional Use Permit to mine gravel at a site that will be surrounded by
homes, a church, senior housing and outdoor recreational facilities. In reviving the permit,
which lapsed due to Ryan Contracting Co.'s inaction, the City Council will necessarily be
deciding that the permit meets all criteria of the City Ordinance, including the requirement that
the use is consistent with and supportive of the goals and policies of the Comprehensive Plan,
the use will not be detrimental to the public health and safety, the use will not have undue
adverse impacts on the use and enjoyment of properties in close proximity to the gravel mine,
and the use is compatible with the general welfare, public safety, and neighborhood character.
See Zoning Ordinance Sections 1108; 1101.509(2). Without a supplemental and substantive
review of the project, the City Council will be making this important decision based upon five-
year-old data that analyzed factual circumstances that have significantly changed. It seems
difficult to conclude that the City Council can make a credible determination on compatibility and
other Ordinance-required criteria based upon five-year-old information, giving the changed
conditions in the vicinity.
DORSEY & WHITNEY LLP' WWW, DORSEY,COM cT 612,340.9600, F 612,340,2868
SUITE 1500- 50 SOUTH SIXTH STREET · MINNEAPOLIS, MINNESOTA 55409-1498
Mayor and City Council Members
July 11, 2005
Page 2
~_. ~ DORSEY
We respectfully request the City Council at a minimum undertake additional
environmental review before approving this conditional use.
Michael Drysdale
CC:
Ryan Contracting Co.
John M. Baker, Esq.
Steven Weintraut, Esq.
Wilda Wahpepah, Esq.
DORSI=Y & WHITNEY LLP
ATTACHMENT 6
,Tuly ].1, 2005
SheRhe. rd
of the Lake
LUTHERAN
CHURCH
Growing
in FaiLh,
Living
to Serve
Prior Lake City Council
City of Prior Lake
16200 Eagle Creek Ave. SE
Prior Lake, Minnesota 55372-1714
Dear 5irs:
Shepherd of the Lake Lutheran Church supports the petition to conduct a supplemental
Environmental Assessment Worksheet for Ryan Contracting Company's gravel mine
proposed for the McKenna property on McKenna Road.
As you are aware, we are currently involved in an EAW process for the Planned Unit
Development application which we have filed with the City. We have been informed that
you are certain that our EAW will require us to build the Mew McKenna Road at the time
we start our project. And, that we will also be required to resurface Old McKenna Road
when our construction is complete. We are very concerned what ten years of mining and
hauling will do to both of these roods.
The environmental study that was done five years ago is now substantially outdated and
certainly didn't include the extensive residential and commercial development in progress
on adjacent properties today. The City should closely examine the compatibility and
impacts of this mine, which are likely to include at a minimum increased dust, noise,
traffic in the area, just as the City examines the impacts of other proposed developments
before approving them.
Like the city, the Church has a strong interest in seeing the environment is protected and
urges the City Council to conduct a thorough examination that includes consideration of
the changed circumstances in the neighborhood.
Sincerely
! 3760 MdCenna
Road NW
Pdo~ Lake
Minnesota
5537c~9711
952.230.2988
fax 95Z.Z30.ZgG!
Kermit A. Mohlum
C.O.O.
Shepherd of the Lake Lutheran Church
ATTACHMENT 7
SETTLEMENT AGREEMENT
AND RELEASE
Ryan Contracting Company ("Ryan"), and the City of Prior Lake ("the City"), hereby
agree and covenant as follows:
The parties to this Agreement wish to avoid the time, expense, inconvenience and
uncertainties of litigation. Accordingly, without any of the parties admitting any
liability or admitting the validity of any claim, counterclaim, cause of action, or
defense asserted in this action, the parties wish to resolve and settle all disputes,
claims, counterclaims, cause of actions, and defenses arising from the events that
were the subject matter of the lawsuit described in Paragraph 2 of this Agreement.
The parties to this Agreement desire to dismiss with prejudice the lawsuit entitled
"Ryan Contracting Company v. the City of Prior Lake and the Shakopee
Mdewakanton Sioux Community," Case No. 2004-05618, in the Scott County
District Court of Minnesota ("the Action").
THEREFORE, in consideration of the foregoing, and the mutual covenants and
conditions contained in this Agreement, the parties agree as follows:
A. This Agreement is entered into in good faith for the purpose of settling completely those
disputes of the parties to this Agreement with regard to the matters involved in the Action.
B. The parties agree that the City will rescind the cancellation of the Conditional Use Permit
after Ryan completes the preconditions listed in paragraph C of this Agreement. After the City
rescinds the cancellation, the Conditional Use Permit Resolution 01-19 ("CUP") (attached as
Exhibit A) is valid and may be recorded by Ryan. Prior to the commencement of mining
activities, the resolution approving the CLIP must be recorded on all affected properties and
proof of such recording presented to the Planning Department. The one-year term set forth in
Section V of the CLIP will begin running when the CUP is recorded.
C. If, , Ryan completes the following items before November 30, 2005, and City staff
reviews and approves them, the City will rescind the cancellation of the CUP:
1)
2)
3)
The landscape plan must be revised to indicate a one for one replacement of
trees removed (42 caliper inches) as part of the reclamation and staging plan.
The plan must also indicate that plantings are to be installed upon completion
of each phase.
The landscape plan must be revised to include landscaping of 1 tree per 10
lineal feet of berm as per item 7 on Recapitulation of CUP Application
submitted by Ryan Contracting, and to include an additional 10 perimeter trees
as shown on the proposed landscape plan.
The plans must be revised to identify a 24' wide paved driveway from the
public street to the parking lot, a paved parking lot, and a paved fueling pad.
4) The parking area must be buffered by screening with additional plantings.
This is to be shown on a revised landscaping plan.
5) Drainage and storm water rate calculations and plans for engineered drainage
and storm water controls must be submitted to the City for review and
approval.
6) The plans must be revised to eliminate the permanent above-ground fuel
storage area.
7) Utility plans indicating electrical line locations must be submitted, if there is to
be electrical equipment on the site.
8) The plans must be revised to identify a monitoring well at the northwest comer
of the site. The exact number, location, depth, and specification are to be
based on recommendations from a certified independent consultant approved
by the City Engineer.
9) The applicant and property owners must enter into a Developer's Agreement
with the City. The Developers Agreement includes provisions dealing with
right of entry and indemnification. Treatment of the required Irrevocable
Letter of Credit is also detailed within the Agreement.
10) An Irrevocable Letter of Credit, on a form prepared by the City and approved
by the City Attorney, is to be submitted prior to the recording of the resolution.
(a) The amount of the LOC is for $420,500 (approximately 125% of the
following costs) and ensures the following:
(i) McKenna Road maintenance ($100,000);
(ii) Paved driveway and parking area ($37,200);
(iii) Landscaping costs ($11,687.50);
(iv) Dust control ($5,000);
(v) Reclamation (final site restoration, grading)($75,000);
(vi) Monitoring of the wetland and ground water (monitoring
we11)($7,500);
(vii) Any environmental contamination, including groundwater
pollution, wetland diminution or destruction ($100,000)
(viii) Any fees incurred by the City in the enforcement of the
Conditional Use Permit.
(b) If the City must draw upon the Irrevocable Letter Of Credit, the
applicant shall be responsible for bringing the irrevocable letter of
credit back to $420,500 within 15 days of any draw down.
11) The applicant is responsible to pay the City for all related costs per City Code
Section 1109.902. These costs will include, but are not limited to, fees
incurred by the City for the preparation and recording of the Developer's
Agreement, inspection costs, attorney's fees, and retaining of consultants.
2
These costs do not include any costs related to the litigation regarding the CLIP
in 2001 - 2002 or in 2004 - 2005.
12) Prior to beginning work, the required PCA permits must be obtained, and
copies provided to the City.
13) The required Watershed permits must be obtained, and copies provided to the
City prior to beginning work.
14) An Assent Form, as required by ordinance, is to be signed by the applicant and
all property owners.
15) A wetland delineation report must be prepared and submitted to the City to
determine if jurisdictional wetlands are present on the site, and is to include, if
necessary, wetland replacement or mitigation plans. The monitoring well is to
be installed at the site. Baseline water quality analysis of the DNR protected
wetland is to be completed and results submitted to the City as prepared by an
independent laboratory approved by the City. Testing parameters and
frequencies are identified in IV(e)6 and 7 in the CUP.
16) The operation of the pit cannot result in drainage or other degradation of the
DNR protected wetland. Ryan Contracting is to submit to the City for review
and approval a work plan to evaluate the potential effect of the proposed
mining operation on the DNR protected wetland and any other jurisdictional
wetlands on the site. The work is to evaluate potential impact from the mining
below the perched elevation of the wetland or by reducing the catchment basin
size of the wetland. At the completion of the work, a report is to be submitted
to the City that summarizes the findings and provides a wetland replacement or
mitigation plan, if needed.
17) Proposed traffic signs require approval from the City Engineer and must meet
MN Uniform Traffic Control Devices standards. Signs must be installed prior
to beginning work. In addition to those proposed, "Trucks Hauling" signs
must be placed on McKenna Road south to CSAH 42.
18) A secured gate and 6' high perimeter fence is to be installed prior to beginning
work. The property must be signed as private property.
19) The driveway from the public street to the parking lot, the parking lot and the
refueling pad must be hard surfaced (paved) and installed prior to beginning
work.
20) The parking area and parking lot screening must be completed.
21) Prior to beginning work on the site, the City will inspect McKenna Road and
document its current condition. Once work has commenced, the City staff will
inspect the road on an ongoing basis. Repairs required as a result of this use
must be completed no later than October 31st.
D. Ryan must complete the preconditions listed in paragraph C of this Agreement before
November 30, 2005.
3
1. From July 15, 2005 until November 30, 2005, Ryan will provide to the City
written reports by the 15th of each month updating the City regarding the status of its
completion of the preconditions.
2. At any time but no later than November 30, 2005, Ryan may request the City in
writing to meet in order to conduct an inspection and review for the purposes of
determining whether the preconditions listed in paragraph C of this Agreement have been
completed.
a. If Ryan makes such a written request, the City must convene this meeting
within 10 days of the request.
b. Ryan's satisfaction of these preconditions will be deemed sufficient 10
days after the meeting date unless the City notifies Ryan in writing by that date of
which conditions have not been satisfied and lists all of the ways in which they
are not satisfied, and the actions Ryan must take to satisfy the conditions from the
City's perspective.
3. Ryan will have the opportunity to request a reinspection for the purposes of
demonstrating that it has cured the deficiencies listed in the City's notice until November
30, 2005.
a. If Ryan submits such written request for reinspection to the City by
November 30, 2005, the City shall conduct a reinspection within 10 days of the
request.
b. Ryan's satisfaction of these preconditions will be deemed sufficient 10
days after the reinspection date unless the City notifies Ryan in writing by that
date of which conditions have not been satisfied and lists all of the ways in which
they are not satisfied, and the actions Ryan must take to satisfy the conditions
from the City's perspective..
4. Notwithstanding the process and schedule described above, Ryan must cure any
deficiencies identified in the City's notice of deficiencies by November 30, 2005, subject
to subsection 5 below.
5. Without limitation, the deadlines in paragraph D shall be tolled if an injunction is
entered that directly or indirectly prevents activities pursuant to the CUP or completion of
one or more of the paragraph C preconditions. Such tolling shall end upon the vacating
of all such injunctive relief. The deadlines are also tolled by litigation commenced by
one of the parties to this agreement to determine or enforce the rights and obligations of
the parties pursuant to this Agreement, which tolling shall end upon completion of the
litigation. If an action is filed by a third party to challenge this Agreement but no
injunction is entered, the parties agree to meet and confer regarding whether it would be
appropriate to toll the deadlines.
4
E. Ryan waives its right to challenge all conditions set forth in this Agreement and the
Conditional Use Permit Resolution 01-19 ("CUP") (attached as Exhibit A), including the one-
year term in Section V of the CUP. This agreement does not in any way impact or prejudice
Ryan's right to apply for a renewal of the CUP.
F. Ryan agrees to conduct its mining activities in compliance with the CUP, and further
agrees that it must comply with all conditions imposed by the Court's Order of November 16,
2002 in State of Minnesota by Shakopee Mdewakanton Sioux Community v. City of Prior Lake
and Ryan Contracting Co., File No. C-01-05286.
G. Prior to the parties' execution of this Agreement, the City will have: (1) reviewed
pursuant to Section IV(c)(1)-(8) of the CUP the plan revisions Ryan submitted in December
2004, (2) drafted and submitted to Ryan for its review a Development Agreement for this project
that the City is willing to approve after City staff approves Ryan's plan revisions, and (3)
provided Ryan with a Letter of Credit Form and an Assent Form. The City will review the work
plan Ryan is required to submit pursuant to Section IV(d)(2) of the CUP, and provide Ryan with
written feedback about whether the City approves the work plan or the actions that Ryan must
take to obtain the City's approval, within three weeks of its receipt by the City Planning Director.
The City will inspect McKenna Road prior to beginning work on the site and document its
current condition pursuant to Section IV(d)(8) of the CUP, and provide Ryan with that written
documentation of the road's current condition, within three weeks of Ryan's execution of a
Development Agreement with the City. The City will inspect the road on an ongoing basis once
work has commenced pursuant to Section IV(d)(8) of the CUP.
H. The parties agree that the one-year term set forth in Section V of the CUP does not
require Ryan to complete within that one-year period all the cleanup and restoration required by
the CUP or by the Court's Order of November 16, 2002. If the City does not renew a CUP for
Ryan's operations, Ryan is allowed 24 months after expiration of the CUP to complete its
removal of any stockpiles.
I. The parties agree that specific performance is an available remedy for any violation of
paragraphs C, D, F, or G of this Agreement.
J. Except only for the representations or obligations of the parties under this Agreement,
Ryan and the City and any and all of their beneficiaries, employees, agents, representatives,
successors, assignees, transferees, joint ventures, attorneys, and insurers, hereby release and
discharge the other, and their past and present officers, directors, partners, elected officials, board
members, employees, agents, representatives, affiliates, divisions, successors, stockholders,
assignees, transferees, joint ventures, attorneys, insurers, and risk pools (including the League of
Minnesota Cities Insurance Trust) from all manner of claims, demands, actions, causes of
actions, suits, debts, dues, sums of money, accounts, bills, covenants, contracts, rights,
obligations, controversies, agreements, promises, and demands whatsoever, whether in law or
equity, they ever had, or now have, or hereafter may have, whether known or unknown, against
each other, involving the matters involved in the Action.
K. All notifications and reports required or provided for under this Agreement shall be made
by fax and U.S. mail to the parties as follows:
a. Notice to the City of Prior Lake shall be provided to the following two
individuals:
i. Suesan Lea Pace, Halleland Lewis, 220 S. Sixth Street, Suite 600,
Minneapolis, MN 55402, fax no. (612) 338-7858
ii. Jane Kansier, Planning Director, City of Prior Lake, 16200 Eagle Creek
Ave., S.E., Prior Lake, MN 55372, fax no. (952) 447-4245.
b. Notice to Ryan Contracting Co. shall be provided to the following 2 individuals:
i. Tom Ryan, Ryan Contracting Co., 8700 - 13th Avenue East, Shakopee,
MN 55379, fax no. (952) 894-3207.
ii.
Steven J. Weintraut, Siegel, Brill, Greupner, Duffy & Foster, P.A., 1300
Washington Square, 100 Washington Avenue South, Minneapolis, MN
55401, fax no. (612) 339-6591.
L. Each party will bear its own costs, expenses and attorney fees that it has incurred in
connection with or arising out of the Action.
M. This Agreement shall be binding upon the successors and assigns of the parties, whether
by way of merger, consolidation, operation of law, assignment, purchase, or other acquisition.
N. All questions with respect to the construction of this Agreement and the rights and
liabilities of the parties to this Agreement shall be governed by the laws of the State of
Minnesota.
O. This Agreement effects the settlement and release of claims and defenses, which are
denied and contested by the parties, and nothing contained in this Agreement shall be construed
as an admission of liability by either party.
P. Ryan and the City will dismiss with prejudice the Action upon execution of this
Agreement.
Q. Each party represents and warrants that it has not assigned or transferred, or purported to
assign or transfer, any of the claims released pursuant to this Agreement to any other person and
that it is fully entitled to compromise and settle such claims. Each party shall indemnify the
other against all costs, expenses, and judgments, including all attorneys' fees incurred, in the
event that any third party shall assert any of the claims released pursuant to this Agreement based
on a purported assigrnnent or transfer of rights by a party to this Agreement.
R. This Agreement and its attachments and addenda represent the entire agreement between
the parties with respect to the subject matter of the Agreement and supersedes all prior and
contemporaneous oral and written agreements and discussions. Each of the parties covenants
that it has not entered into this Agreement as a result of any representation, agreement,
inducement, or coercion, except to the extent specifically provided in this Agreement. Each
party further covenants that the consideration recited in this Agreement is the only consideration
6
for entering into this Agreement, and that no promises or representations of other or further
consideration have been made by any person. This Agreement may be amended only by a
written agreement executed by all parties.
S. This Agreement is the result of arms-length negotiations among the parties. All parties
have participated in the negotiations, have had an equal opportunity to participate in the drafting
and revision of this Agreement, and have had the opportunity to review this Agreement with
their counsel. No ambiguity shall be construed against any party based upon a claim that the
party in question drafted the ambiguous language.
T. This Settlement Agreement may be executed by the parties by facsimile and in identical
counterparts, each of which shall constitute an original for all purposes.
WHEREFORE, the parties have executed this Settlement Agreement and Mutual Release
effective as of the date first above written.
RYAN CONTRACTING COMPANY
Dated: By:
Tom Ryan
President, Ryan Contracting Company
Dated:
THE CITY OF PRIOR LAKE
By:
Its Mayor
7
ATTACHMENT 8
Llc CH
:mm
ATTACHMENT 9
HYDROGEOLOGISTS · ENGINEERS · ENVIRONMENTAL SCIENTISTS
July 13, 2005
Ms. Jane Kansier
Planning Director
City of Prior Lake
16200 Eagle Creek Avenue S.E.
PriorLake, MN 55372-1714
RE: Ryan Contracting - ProPosed Gravel Pit
Dear Ms. Kansier:
Liesch Associates Inc. (Liesch) has recently received from your office materials concerning the
Ryan Contracting Co. (Ryan) proposed gravel pit near McKenna Road. Liesch previously assisted
the City of Prior Lake (the City) with the preparation of the Environmental Assessment Worksheet
(EAW) for the proposed gravel pit (the Project). The EAW was competed in November 2000 and
received a negative declaration from the City Council (indicating the Council's determination that
an Environmental Impact Statement, or EIS, was not required). We understand that the Project has
to date not been initiated, and that the City will likely be considering reinstating the Conditional Use
Permit (CUP) for the Project. Based on the materials Liesch has received, it is understood that a
petition has been submitted that requests that a new EAW be prepared for the Project. This letter
provides our opinion as to the necessity of preparing a new EAW for the Project.
The following materials have been provided to Liesch.
1. The November 2000 EAW;
2. Conditional Use Permit Resolution 01-19 (passed and adopted by City Council February 27,
2001);
3. Scott County District Court Findings of Fact, Conclusion Of Law, and Order For Judgment
(August 16, 2002 and November 16, 2002);
4. draft Settlement Agreement and Release between Ryan Contracting and City (undated and
unsigned);
5. Petition for EAW (June 20, 2005 letter to Environmental Quality Board from Dorsey &
Whitney LLP);
6. June 20, 2005 Memorandum to City of Prior Lake from Dorsey & Whitney on behalf of
Shakopee Mdewakanton Sioux Community regarding the Petition for EAW;
7. July 8, 2005 letter from Dorsey & Whitney LLP providing additional signatures for the Petition;
8. July 11, 2005 letter from Dorsey & Whitney LLP to Mayor and City Council Members
regarding EAW Petition and CUP for Project; and,
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LIESCH ASSOCIATES, INC. · J3400 15TH AVENUE NORTH · IVIINNEAPOLIS, PIN 55441 · 763/489-3100 · FAX: 763/489-3101
Page 2
July 13, 2005
9. July 11, 2005 letter from Shepherd of the Lake Lutheran Church in support of the EAW
Petition.
The above documents are briefly discussed below. Collectively the EAW, Conditional Use Permit
and Scott County Order for Judgment very specifically define the extent and operation of the
Project.
November 2000 EAW
The scope of the Project as described by the November 2000 EAW included the mining of
approximately 500,000 cubic yards of sand and gravel from approximately 12.91 acres of a 29.6-
acre parcel of land. The EAW was prepared in response to citizen petition as the size of the
proposed mining area was less than 40-acres which is the threshold from which an EAW would be
mandatory. A number of conditions were placed upon the Project by Conditional Use Permit
documents. These conditions were described in the EAW and included the following:
· prohibition of on-site storage of fuel in an above-ground fuel storage tank;
· construction of a paved access road and parking area; a tree replacement / landscaping plan;
erosion control and sedimentation basin;
· installation of a groundwater monitoring well and subsequent groundwater monitoring;
surface water monitoring from adjacent wetland;
· McKenna Road maintenance agreement with the City;
· use of only clean (non-contaminated) backfill materials suitable to the long-term urban end use;
· limitations to hours of operation and prohibition to on-site lighting;
· prohibition against sand and gravel crushing or washing;
· prohibition against installation of a water supply well for the gravel mining operation
· traffic leaving the site is to be routed from the site south to CSAH 42; and,
· CLIP annual review.
Conditional Use Permit Resolution 01-19 (February 27, 2001)
This resolution added additional requirements, and provided specifics to some requirements
included with the Conditional Use Permit documents considered part of the Project by the EAW.
The additions included the following:
· addition of a paved fueling pad, and stipulation that all motorized equipment be stored on the
pad;
· increase of the Irrevocable Letter of Credit from $200,00 to $420,500;
· requirement for a wetland delineation report and wetland replacement or mitigation plans, if
necessary;
· limitation of mining to an elevation no lower than 850 feet MSL;
· prohibits use of water from adjacent McKenna and Kinney residential wells for the gravel
mining operation; and,
· groundwater and surface water (wetland) monitoring parameters are specified.
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THE LIESCH COttPANIES · ~IlNNEAPOLIS, I~IlNNESOTA · MADISON,WISCONSIN · PHOENIX, ARIZONA
Page 3
July 13, 2005
Scott County District Court - Order For Judgment (August 16, 2002 and November 16, 2002)
The following additional conditions were imposed by the above referenced Court Orders:
No more than 500,000 cubic
clay or other impermeable
[reclamation];
· The groundwater static level
50 feet of the groundwater;
Three monitoring wells are
groundwater monitoring shall
Sedimentation ponds shall be
yards of sand and gravel may be removed during mining, and all
soils must be kept at the site and used for site remediation
(elevation) must be determined and no mining shall occur within
required to determine rate and direction of groundwater flow;
continue for three years after operations cease;
lined with clays or other impermeable materials;
·
· Calcium chloride shall not be used to supPress dust during operations;
· No dumping or burning is allowed on during or between operations;
· On site equipment is limited to one front-end loader, one conveyor, one screening plant, and one
dump track at any one time.
Draft Settlement Agreement and Release (between City and Ryan Contracting; undated and
unsigned)
This draft document proposes to rescind the cancellation of the CUP upon completion of
preconditions required of Ryan Contracting Co. Once the cancellation is rescinded the draft
settlement agreement states that Conditional Use Permit Resolution 01-19 is valid. The agreement
also requires compliance with all conditions imposed by the November 16, 2002 County Court
Order.
June 20, 2005 Petition for EAW and related June 20, 2005 Memorandum regarding the Petition
The Petition and Memorandum cite current and future development in the vicinity of the Project as
the rationale for requiring a new or supplemented EAW for the Project. The developments cited
include the proposed Shepherds Path project (adjacent to the southwest of the Project), the Jeffers
Pond Project (south of the Project across County Highway 42), and expanded residential
development by the Shakopee Mdewakanton Sioux Community north of the Project site.
July 11, 2005 letters from Dorsey & Whitney LLP and from Shepherd of the Lake Lutheran Church
Both letters were submitted to the City in support of the Petition. The Dorsey & Whitney letter
referenced prior submittals [June 20 Petition and Memorandum] that provide reasons for
completing a new EAW and also questions whether the Project can be assessed by the City as
meeting City Ordinance and the goals and policies of the Comprehensive Plan. The Church letter
specifically addresses concern regarding wear to the current McKenna Road and the planned "New"
McKenna Road.
Overview
It is acknowledged that the City has experienced growth since 2000 including the area near the
proposed Project. With regard to the necessity of preparing a new EAW, the Environmental Quality
Board (EQB) Environmental Review Rules have no time-limit for an EAW and the roles further
indicate that a new EAW needs to be prepared only if the project changes. The proposed Project has
not changed from that of the original November 2000 EAW, save for the additional requirements
(limitations) set forth by CUP resolution 01-19, and the Scott County Order For Judgment. The
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THE LIESCH COMPANIES m MINNEAPOLIS, MINNESOTA · MADISON, WISCONSIN I PHOENIX, ARIZONA
Page 4
July 13, 2005
overall magnitude of the Project (12.91-acres) is also significantly below the 40-acres that require a
mandatory EAW.
Collectively the EAW, CUP resolution, and Court Order specifically limit the extent and operations
of the proposed Project. These conditions are reiterated by the draft Settlement Agreement and
Release. A majority of the conditions were specifically imposed to mitigate against potential
groundwater impacts, minimize dust and noise effects, be protective of surface waters, and
minimize traffic effects. Specific conditions are required prior to beginning work (mining), and
must be met on an ongoing basis during mining. The conditions that are required to be met during
work include semi-annual noise evaluation completed by a party approved by the City, water
quality monitoring, and McKerma Road inspection and repair if necessary. In addition, the CUP
Resolution 01-19 requires an irrevocable letter of credit (for $420,500) of which slightly less than a
quarter is specifically targeted at McKenna Road maintenance. Other dollars are included for dust
control, site reclamation, and environmental monitoring. The letter of credit must be maintained at
the designated level in the event that funds are drawn from the account.
Ongoing and future development of the area is identified by the City and its Comprehensive Plan.
Also, both the City and Scott County have been involved with planning and implementing
improvements to area roads to better accommodate the increased traffic associated with the ongoing
growth of Prior Lake and surrounding communities. It is also noted that the November 16, 2002
Scott County Court document (page 2) recognized the planned future expansion of residential
homes to the north, as well as the proximity of the Project to water supply wells and surface water
features.
In consideration of the materials that Liesch has reviewed, as described above, it is our professional
opinion that a new or supplemental EAW for the Project is not required.
Sincerely,
LIESCH ASSOCIATES, INC.
Mark Olson
Project Manager
W:\env\64352\Ltr7-11-05 EAW revision.doe
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THE LIESCH COMPANIES w MINNEAPOLIS, MINNESOTA w MADISON, WIscoNSIN ·PHOENIX, AKIZONA