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Home My WebLink About9A - EIS for Ryan Contracting CUP MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: Maintenance Center 17073 Adelmann Street S.E. Prior Lake, Minnesota 55372 CITY COUNCIL AGENDA REPORT DECEMBER 18, 2006 9A JANE KANSIER, PLANNING DIRECTOR CONSIDER APPROVAL OF A RESOLUTION POSTPONING A DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE RYAN CONTRACTING CONDITIONAL USE PERMIT PURSUANT TO MINNESOTA RULES 4400.1700, SUBP. 2B Introduction The purpose of this agenda item is to review a resolution which would allow the City to postpone the decision on the need for an Environmental Impact Statement as a result of the Environmental Assessment Worksheet (EAW) for the Ryan mining and excavation permit. Historv 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 impacts. www.cityofpriorlake.com 'Phdnli!952.4.40.96'75:YFax 952.4.4.0.9678 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 advised Ryan the CUP had expired by operation of law. 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). 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 very good idea" to prepare a supplemental EAW. ISSUES: FINANCIAL IMPACT: ALTERNATIVES: The City Council ordered the preparation of the supplemental EAW on April 3, 2006. The EAW was completed, published and distributed, as per Minnesota Rules, on October 19, 2006. The 30-day public comment period expired on November 22, 2006. Current Circumstances Minnesota Rules 4400.1700, subp. 2, requires a decision on the need for an EIS be made within 30 days of the expiration of the comment period. The decision must be based on the following criteria: a) The type, extent and reversibility of environmental effects; b) The cumulative potential effects of related or anticipated future projects; c) The extent to which the environmental effects are subject to mitigation by an ongoing public regulatory authority; d) The extent to which the environmental effects can be anticipated and controlled as a result of other environmental studies undertaken by public agencies or the project proposer, or of EIS's previously prepared on similar projects. Minnesota Rules 4400.1700, subp. 2a (B), also allows the RGU to postpone the decision on the need for an EIS, for not more than 30 days, in order to obtain lacking information. The comments submitted by the SMSC in response to the EAW are very lengthy and state the EAW has not addressed the new information. In order to clarify these statements, the staff suggests deferring action on this decision until January 16, 2007. This will allow the staff and our consultant to do further research on these comments. Conclusion: In order to make a proper determination on the need for an EIS, the staff needs to compile additional information. Therefore, the staff recommends the City Council postpone a decision on the need for an EIS until January 16, 2007. The project proposer is responsible for the costs associated with preparation of an EAW. The original budget for this project was $10,000, and Liesch Associates has advised staff that they have reached that amount. The staff will be contacting Ryan for a deposit to cover the cost of completing this project. 1. Adopt a resolution postponing the decision on the need for an EIS until January 16, 2007, in order to clarify and obtain additional information. 2. Adopt a resolution making a negative declaration on the need for an EIS for this project. In this case, the Council must direct the staff to prepare a resolution making a negative declaration on the need for an EIS based on specific findings of fact. 3. Determine there is a need for further environmental review of this project. In this case, the Council must direct the staff to prepare a resolution RECOMMENDED MOTION: Reviewed by: (J Frank BOYleo", declaring the need for an EIS based on specific findings of fact. A motion and second adopting a resolution postponing the decision on the need for an EIS until January 16, 2007. I ager 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. WHEREAS, Pursuant to Minn. R. 4410.1100, the City of Prior Lake has prepared an Environmental Assessment Worksheet (EAW) for this proposed project; and WHEREAS, The 30-day public comment period expired on November 22, 2006; and WHEREAS, Minnesota Rules 4400.1700, subp. 2a (B), also allows the RGU to postpone the decision on the need for an EIS, for not more than 30 days, in order to obtain lacking information; and E:;\V/VilVYW. cityofpriorlake. com Phone 95244-7.4-230 / Fax 952.4-47.4-24-5 WHEREAS, The City Council has determined an additional 30 days is necessary to respond to the submitted comments. 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. Pursuant to Minnesota Rules 4400.1700, subp. 2a (B), the City Council postpones the decision on the need for further environmental review as a result of the EAW until January 16, 2006. PASSED AND ADOPTED THIS 18TH DAY OF DECEMBER, 2006. YES NO Haugen Dornbush Erickson LeMair Millar Haugen Dornbush Erickson LeMair Millar Frank Boyles, City Manager R:\Agenda Reports\2006\December 18, 2006\Ryan EAW.DOC