The URL can be used to link to this page

Home My WebLink About9B Supplemental EAW Ryan Contractinb MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 CITY COUNCIL AGENDA REPORT APRIL 3,2006 9B JANE KANSIER, PLANNING DIRECTOR CONSIDER APPROVAL OF A RESOLUTION PERTAINING TO THE NEED FOR A SUPPLEMENTAL EAW FOR CONDITIONAL USE PERMIT 01-19 (RYAN MINING AND EXCAVATION) I ntrod uction The purpose of this agenda item is to review a resolution which would bring the City into compliance with the Court's order as it relates to the need for an Environmental Assessment Worksheet (EAW) for the Ryan mining and excavation permit. 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. Just before the City Council was to consider this CUP, the Council received a petition for an EAW for the project. The City Council ultimately agreed to prepare an EAW. This process was completed in December, 2000. 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 #1). 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. 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, the Court denied the SMSC's request to prevent mining operations, but imposed several additional conditions on Ryan's operations to mitigate potential environmental www.cityofpriorlake.com Phonl:?952.447.4230 / Fax 952.447.4245 impacts. 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 CUP 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 on the CUP began to run. In January 2004, after staff concluded that Ryan had not satisfied the preconditions to the validity of the CUP 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 summary judgment 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. 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. On July 18, 2005, the City Council denied the Shakopee Mdewakanton Sioux Community's petition for a supplemental Environmental Assessment Worksheet (Resolution 05-130). Current Circumstances On August 15, 2005, the SMSC initiated a lawsuit against the City contending that the denial of its petition for a supplemental EAW was improper. On December 21, 2005, the City presented to the Court a motion for summary judgment in the SMSC's lawsuit, arguing that the City properly denied the EAW petition because Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules did not require a supplemental EAW if the project did not substantially change. The SMSC agreed with the City that the lawsuit presented a legal question about the interpretation of the Environmental Review Rules, but the SMSC argued that "the City was obligated to review the impacts of the gravel mine on the surrounding land use because of the significant changes in the area." On January 24, 2006, the Court issued the Order denying City's motion for summary judgment in SMSC's lawsuit, for reasons that implied the Court might have agreed with the SMSC's interpretation of Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules. Following a request for clarification of the Order, the Court explained that the Court agreed with the SMSC's interpretation of Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules, that the City should consider changes in the area surrounding the proposed gravel mine; and that it would be "a ve/y good idea" to prepare a supplemental EAW. ISSUES: FINANCIAL IMPACT: ALTERNATIVES: RECOMMENDED MOTION: Reviewed by: Conclusion To be consistent with the Court's order, the attached resolution directs staff to prepare a supplemental EAW. The cost to prepare an EAW is generally born by the developer. The staff generally solicits proposals and then chooses a consultant to prepare the EAW. The developer is required to escrow the cost of this preparation prior to any work. In this case, the staff suggests we contract with Liesch Associates, which prepared the original EAW, to prepare the supplemental EAW. Liesch Associates has provided staff with a preliminary estimate of $10,000-12,000 to do this work. The actual cost may be more or less, depending on what new information, such as traffic estimates, must be gathered. The cost if this work would be paid by the developer. The City would have the indirect cost of the staff time required to coordinate and review the preparation of the EAW. 1. Adopt the attached resolution directing staff to prepare the supplemental EAW. 2. Defer this item and provide staff with specific direction. The staff recommends alternative #1. Frank Boyles, City Manager 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 06-xx Motion By: Second By: WHEREAS, On July 18, 2005, the City Council denied the Shakopee Mdewakanton Sioux Community's petition for a supplemental Environmental Assessment Worksheet (Resolution 05-130); and WHEREAS, On August 15, 2005, the SMSC initiated a lawsuit against the City contending that the denial of its petition for a supplemental EAW was improper; and WHEREAS, On December 21,2005, the City presented to the Court a motion for summary judgment in the SMSC's lawsuit, arguing that the City properly denied the EAW petition because Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules did not require a supplemental EAW if the project did not substantially change; and WHEREAS, The SMSC agreed with the City that the lawsuit presented a legal question about the interpretation of the Environmental Review Rules, but the SMSC argued that lithe City was obligated to review the impacts of the gravel mine on the surrounding land use because of the significant changes in the area"; and WHEREAS, On January 24, 2006, the Court issued the Order denying City's motion for summary judgment in SMSC's lawsuit, for reasons that implied the Court might have agreed with the SMSC's interpretation of Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules; and WHEREAS, Following a request for clarification of the Order, the Court explained that the Court agreed with the SMSC's interpretation of Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules, that the City should consider changes in the area surrounding the proposed gravel mine; and that it would be "a very good idea" to prepare a supplemental EAW; and WHEREAS, The City Council wishes to act consistent with the Court's guidance and interpretation, as clarified. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The denial of the SMSC's petition for a supplemental EAW (Resolution 05-130) is hereby rescinded. 3. The City staff is hereby directed to prepare a supplemental EAW with respect to the project subject to CUP 01-19. www.cityofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 PASSED AND ADOPTED THIS 3RD DAY OF APRIL, 2006. Hauaen HauQen Dornbush Dornbush Erickson Erickson LeMair LeMair Millar Millar YES NO Frank Boyles, City Manager C:\Documents and Settings\frank.PRIORLAKECH\Local Settings\Temporary Internet Files\OLK2A\4-03-06resolution.DOC