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HomeMy WebLinkAbout6.l. Request by Valley Paving, Inc. for an Interim Use Permit to operate and Asphalt Plant at 12955 Courthouse Boulevard through December 31, 2011AGENDA ITEM: Case 11 -09 -IUP: Request by Valley Paving, Inc. for an Interim Use Permit to operate an Asphalt Plant at 12955 Courthouse Boulevard through December 31, 2011 AGENDA SECTION: Consent PREPARED BY: Eric Zweber, Senior Planner AG NDA NO. ATTACHMENTS: Resolution; Site Map; Truck Haul Route; Site Plan; Portable Asphalt Plant Photos; Continental Nitrogen Letter of Understanding; Origin to Destination, LLC Access Agreement; Excerpt from the April 26 Planning Commission Minutes. APPROVED BY: Doi RECOMMENDED ACTION: Motion to adopt a resolution approving the Interim Use Permit for Valley Paving, Inc. to operate an asphalt plant through December 31, 2011. ROSEMOUNT CITY COUNCIL City Council Meeting Date: May 17, 2011 EXECUTIVE SUMMARY ISSUE The City had approved an Interim Use Permit (IUP) for Valley Paving, Inc. in 2009 and 2010. Valley Paving, Inc. had leased the southeastern corner of the Continental Nitrogen site at 12955 Courthouse Boulevard to install an asphalt plant and associated stockpile material through December 31, 2011. APRIL 26 PLANNING COMMISSION MEETING At their April 26 meeting, the Planning Commission conducted a public hearing for the Valley Paving interim use permit. No residents spoke during the public hearing. Charlie Borene, representing Valley Paving, stated that there would be no mining association with the asphalt plant. The Planning Commission had no question for Mr. Borene. The Planning Commission recommended approval of the Valley Paving interim use permit for 2011. BACKGROUND Applicant Property Owner(s): Location: Area in Acres: Comprehensive Plan Designation: Current Zoning: Surrounding Businesses: Surrounding Zoning: Valley Paving, Inc. Continental Nitrogen Origin to Destination 12955 Courthouse Blvd (Mn Hwy 55) 105 acres; asphalt plant approximately 6 acres GI General Industrial HI Heavy Industrial West Flint Hills Resources North Dixie Petro Chemical and Walbon Trucking East Pine Bend Paving GI General Industrial and HI Heavy Industrial Valley Paving, Inc. has received an IUP to operate an asphalt plant on property owned by Continental Nitrogen in 2009 and 2010. The asphalt plant is located in the southeast comer of the Continental Nitrogen Property, approximately 1,100 feet south of Minnesota Highway 55 (MN Hwy 55) and 1,400 feet from US Highway 52 (US Hwy 52). Since the 2010 permit, Continental Nitrogen has sold a portion of their site to Origin to Destination, LLC (aka Feed Products) which includes the access road serving the Valley Paving asphalt plant site. Valley Paving has received an access agreement from Feed Products to continue to use the internal roads as truck haul routes to their asphalt plant. The asphalt plant is shielded from the view of travelers driving on MN Hwy 55 by existing warehouses and elevator of Feed Products, as well as from the view of travelers driving on US Hwy 52 by the trees that are located south of the asphalt plant and the Continental Nitrogen tanks located west of the asphalt plant. The asphalt plant is not visible from any of the public right -of -ways surrounding Continental Nitrogen and Feed Products. The asphalt plant itself is a truck mounted hot mix asphalt plant that stands approximately 35 feet tall. Additionally, a baghouse that handles and cleans the emissions from the hot mix asphalt is included; it stands approximately 40 feet tall, and a series of granular material stockpiles are on site approximately 35 feet tall. Valley Paving's trucks and other vehicles use the existing Continental Nitrogen truck access located at the west side of the site. The access is suitable for the size and volume of trucks that Valley Paving uses and there have not been any complaints received by the City or accidents caused by Valley Paving's use of this access. Valley Paving requests an extension of the IUP for the asphalt plant run through December 31, 2011. The Zoning Ordinance requires year round 100% opaque screening for 30% of the height of the asphalt plant and 50% opaque screening for the 30% to 50% of the height of the asphalt plant. This is accomplished through the existing Continental Nitrogen warehouses, elevator, and tanks to the north and west, the Pine Bend Paving facility to the east, and the existing mature trees to the south. The City has received no complaints in 2009 or 2010 from the operation of the Valley Paving asphalt plant. INTERIM USE PERMIT The IUP is subject to: 1. The specified expiration date, and if there is a mechanism for Council approval of an extension. 2. A particular event that might cause the termination of the IUP. 3. A change in zoning that would cause the asphalt plant to be non conforming with zoning. 4. Violation of conditions of operation of the use. The permit will be structured to expire on December 31, 2011. At that time, the applicant would need to remove the asphalt plant to another site, or apply to renew the IUP. 2 Findings for Interim Use Permits: 1. The extent, location, and intensity of the use will be in compliance with the Comprehensive Plan. The use is in an area with a land use designation of General Industrial, consistent with the Heavy Industrial Zoning. 2. The use will provide adequate ingress and egress to minimize traffic congestion in the public streets. The existing Continental Nitrogen truck access on the west side of the faciu0 provides an adequate ingress and egress. 3. The use will not be detrimental to the existing character of the development in the immediate neighborhood or endanger the public health, safety and general welfare. The proposed location is Zoned HI Heavy Industrial and is surrounded by other industrial uses. There is no immediate residential neighbor to this proposed location. Staff would like to note that there is one house that is located approximately 1,500 square feet south of the proposed site but this is an inholding surrounded by industrial uses. 4. The use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district. The IUP by definition is a temporary use. The development or improvement of the site can occur after the interim use permit expires at the end of the year. Staff is not supportive of a multiple year I UP for Valley Paving because the remaining portions of the Continental Nitrogen site are currently being marketed for sale and staff would not want to limit the possible redevelopment or reuse of the Continental Nitrogen site by a longterm temporary use like Valley Paving 5. The use shall, in all other respects, conform to the applicable regulations of the district in which it is located. The proposed location of the asphalt plant, along with the associated proposed berming and screening conforms to the standards of Zoning Codes section 114 -16 -1 E. RECOMMENDATION Staff recommends that the City Council approve the Valley Paving interim use permit for 2011. 3 CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2011- A RESOLUTION APPROVING THE INTERIM USE PERMIT FOR VALLEY PAVING, INC. TO OPERATE AN ASPHALT PLANT WHEREAS, the Community Development Department of the City of Rosemount received an application from Valley Paving, Inc. requesting an Interim Use Permit (IUP) to operate an asphalt plant on property Continental Nitrogen property located at 12955 Courthouse Boulevard; and WHEREAS, on April 26, 2011, the Planning Commission of the City of Rosemount reviewed the Interim Use Permit application; and WHEREAS, the Planning Commission adopted a motion to recommend that the City Council approve the Interim Use Permit for Valley Paving, Inc., subject to conditions; and WHEREAS, on May 17, 2011, the City Council of the City of Rosemount reviewed the Planning Commission's recommendation for the Interim Use Permit and agreed with the Planning Commission's findings. NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Rosemount hereby approves the Interim Use Permit for Valley Paving, Inc. to operate an asphalt plant subject to: 1. Conformance with the standards of the Asphalt Plant Interim Use Permit of the Zoning Code Section 11- 4 -16 -1 E. 2. The asphalt plant and associated material stockpiles shall be limited to the boundaries of the "plant site" shown on the site plan. 3. The expiration date of the IUP will be December 31, 2011; any extension must be approved by the City Council. 4. No significant or heritage trees, as defined by the City Code, shall be removed as a result of the operation of the asphalt plant. ADOPTED this 17th day of May, 2011, by the City Council of the City of Rosemount. ATTEST: Amy Domeier, City Clerk William H. Droste, Mayor Valley Paving Disclaimer. Map and parcel data are believed to be accurate, but accuracy is not guaranteed. This is not a legal document and should not be substituted for a title search, appraisal, survey, or for zoning verification. Mao Scale 1 inch 800 feet UOITT: /ASPVIT 1_,ANi AN fti if; OPUA) (7) IAKEVITUT,, 04 t-; CONTINENTAL NITROGEN RESOURCES CORPORATION 12955 COURTHOUSE BLVD. ROSEMOUNT, MN 55068 PHONE: 6 5 1 )437 -3 I 0 1 FAX: (651 (437 -4 1 36 December 15, 2010 Ed Mathews Valley Paving, Inc. 880 13 Ave. East Shakopee, MN 55379 Re: Letter of Understanding Dear Ed: This will confum the Agreement between Valley Paving [Valley] and Continental Nitrogen Resources Corporation [CN &R] under which Valley will operate its portable asphalt plant on CN &R's Rosemount property at a site to be determined during the period from January 1 through December 31, 2011, and under the following terms and conditions: Valley will have the use of a portion of CN &R's property at a site to be determined in the southern portion of the property. Valley will limestone or take other measures to minimize dust formation from the trucking of products in and out of the property. All trucks will adhere to the posted speed limits on the ingress and egress roads assigned to Valley for its use. CN &R will not be responsible for any services during Valley's tenancy Valley will compensate CN &R at a royalty rate of $0.45 per ton of asphalt produced during this period, with a minimum annual royalty of $20,000. Payments shall be made on a quarterly basis. Valley will issue a Certificate of Insurance naming CN &R as an additional insured for its liability and automobile policies. Valley will issue a waiver of subrogation under its Workmen's Compensation policy. Valley will be responsible for repairing any and all damage to the property and attributable to Valley's operations during its tenancy. This would include but not be limited to environmental damage and road destruction. Valley will have the use of CN &R's west entry gate, which will remain open during the times Valley deems necessary for its projects. Valley will provide its own security guards at any time that CN &R's offices are closed. If you are in agreement with these understandings, please have this letter agreement executed by the appropriate officer of Valley and return to my attention. Sincerely, Accepted: Valley P David H. Bednar By: President Its: A DNB HOLDINGS Company 75111590 LICENSE AGREEMENT (Valley Paving, Rosemount, MN) This LICENSE AGREEMENT "License" March, 2011, by and between ORIGIN TO DESTINATIONS LLC ("Licensor a d VALLEY th day of PAVING, INC. "Licensee RECITALS A. Licensor is the fee owner of certain real property depicted on Exhibit A attached hereto "Licensor's Property B. Licensee desires to have ingress and egress over and across the southerly ortion of Licensor's Property via the existing driveways shown on Exhibit A hereto (the "Licensed Premises), said Licensed Premises to be used by Licensee for the sole purpose of vehicular access between Pine Bend Trail to the west of the Licensed Premises and Licensee's mobile asphalt plant located southeasterly of Licensor's Property (the "Permitted Activity AGREEMENT NOW, THEREFORE, in consideration of the foregoing and agreement by Licensee to use the Licensed Premises solely for the Permitted Activity, and valuable consideration, the receipt and sufficiency of which is�h above ackno�vledg t parties agree further as follows: b the 1. Grant of Rivht of Entry. Licensor hereb conditions hereinafter stated, on a temporary, y grants to Licensee, upon the terms and non exclusive basis, the percussion and right seasonal (April through November), revocable and Activity in a manner that does not interfere with Licensors use of the Li ensed #Premise a mitted nd or the Per Property. Such use is granted only for the term of this License as set forth below, and only y for the purpose set forth above. y 2 Term. The teen of this License shall be fora period of one (1) year beginning on the date of this License, unless sooner terminated as herein provided. This License may be renewed by the mutual written agreement of the parties for subsequent periods, upon the arse terms and conditions as herein contained. A letter agreement executed setting forth a statement to renew this License shall be sufficient to extend by usb any d subsequent period(s). 3. Term ination. Licensor may terminate this License early (i) for Licensee's material breach of any of the terms and conditions of this License, any such breach constituting a default hereunder, (ii) if Licensor sells the Property, (iii) if in Licensor's sole and absolute Judgment Licensee's use of the Licensed Premises interferes with Licensor's use of the Property, (iv) if Licensor and Licensee cannot agree on the construction standards, extent, location, cos other aspects of the improvements to be made by Licensee pursuant to Section 4 below; or v ()rf the Permitted Activity will materially diminish or adversely affect any insurance coverage benefiting Licensor; provided, however, that Licensor shall give Licensee thirty paragraph days advance notice of any termination pursuant to clauses (ii) or (iii) of this an i,inthe case of clause (v) of this paragraph, Licensee may, at its option, keep this Agreement in effect by paying any additional premium required by the insurer to avoid the diminution of or adverse affect on Licensor's insurance coverage. 4. Consideration.' As consideration for the rights herein granted and for the initial term herein granted to Licensee, Licensee agrees to improve the Licensed Premises by constructing a private bituminous asphalt roadway to commercially reasonable standards, suitable for two lanes of semi -truck traffic associated with Licensee's and Licensor's businesses, and in all respects (including construction standards and the extent of the improvement) mutually acceptable to Licensor and Licensee, and thereafter to maintain such roadway throughout the term of this License, all at a discounted cost to Licensor acceptable to both Licensor and Licensee. At Licensor's option, Licensee shall also, at a discounted cost to Licensor acceptable to both Licensor and Licensee, improve all or portions of Licensor's other driveways, by constructing bituminous asphalt driveways to commercially reasonably standards and suitable for two lanes of semi truck traffic associated with Licensor's business, and in all respects (including construction standards and the extent of the improvement) mutually acceptable to Licensor and Licensee. All such work shall be completed in consultation with and subject to approval by Licensor, in compliance with all applicable laws and ordinances (including obtaining any required permits or governmental approvals at Licensee's expense), in a manner than does not unreasonably interfere with Licensor's use of the Property, and as soon as reasonably practicable fbllowing the date of this License. 5. Licensor's 1Reserved Rights. Licensor reserves the right, at any time and from time to time, to make such use of the Licensed Premises and Licensor's Property as Licensor may desire, at its sole discretion and for any purpose. T Iowever, Licensor shall not in any event be liable for inconvenience, annoyance, disturbance or other damage to Licensee, or the Permitted Activity, by reason of the exercise of the foregoing rights or any other rights of Licensor to enter or use the Licensed Premises, and the obligations of Licensee under this License shall not be affected in any manner. 6. Non-exclusive License. This License is issued subject to any prior licenses, easements, leases or other such rights granted by the Licensor or otherwise affecting the Licensed Premises. Licensor also reserves the right to permit others to use the Licensed Premises and Licensor's Property provided that the same shall not unreasonably interfere with the Permitted Activity. 7. Licensee to Indemnify. Licensee shall bold harmless, defend and indemnify Licensor, its tenants, affiliates, agents and contractors, and their respective members, shareholders, employees, successors and assigns, from and against any actions, suits, ud�r y and all losses, costs, claims, j �rnents and expenses in any manner arising out of or related to the acts or omissions of Licensee in its entry onto the Property or any adjoining property, or the exercise of any right under this License. Licensor's obligations under this paragraph shall survive expiration, termination or revocation of the License. 7i11159y3 2 8. Insurance. Licensee shall maintain such insurance as shall protect Licensee and Licensor front claims which may in any way arise out of or be in any manner connected with the performance of this License. Licensee shall deliver to Licensee a certificate of insurance namin g Licensor and Licensor's tenant (currently Feed Products North, Inc.) as additional insureds on its liability and automobile policies, and shall obtain a waiver of subrogation in favor of Licensor and Licensor's tenant from its \vorktnen's compensation insurance carrier. 9 Asia_ nit, Licensee shall not assign, sell, delegate, subcontract or otherwise transfer or encumber in any manner whatsoever, all or any portion of the rights, duties or obligations under this License. Any such transfer or encumbrance shall be null and void and shall permit Licensor to terminate this License immediately without written notice. 10. Other Authority or Rivhts. Licensee shall bear the sole obligation of obtaining such other authority or rights as the Licensee may need in addition to the rights provided in this License for the Permitted Activity and for construction of the private roadway. 11. Nos. Any and all notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered if delivered personally, (b) three (3) business days after the mailing thereof by first class, postage prepaid, registered or certified mail if mailed, (c) one (1 business day after being dispatched by a nationally recognized overnight deliv immediately upon being sent by ery serf ice or (d) contem immediately by e -mail or facsimile and followed by a duplicate copy sent y first class mail, postage prepaid, in any event, addressed to the party's respective addresses set forth below or at such other address as may be designated in a written notice and given in accordance with this paragraph: To Licensor: 7511159v3 Origin to Destination, LLC.' Attn: John C. Fallin 1300 McKnight Road North Maplewood, MN 55119 Fax: (651) 777 -8939 F.,,nail: jcfallin(cufeedproducts.corn 3 To Licensee: Valley Paving Incorporated Attn: Charlie Borene 8800 13th Avenue East Shakopee, MN 55379 Fax: (952) 445 -8615 Email: charlie@valleypaving.coiii j Amendment. This License may be amended only by a written instrument signed by both parties. 1 3• RelationshiU of Parties. Nothing in this License shall be interpreted or construed as a partnership or joint venture between Licensor and Licensee concerning the Permitted Activity on the Licensed Premises. This License shall not he interpreted to be any type of lease or easement on the Licensed Premises and does not convey an interest in the Licensed Premises to the Licensee. 14. Governin��l i ai TThis License shall be construed governed by the laws of the State of Minnesota. 15. Severance. Should any portion of this License unenforceable, then such portion shall be deemed to be severed from affect the remainder thereof 4 7 511159x3 in accordance with and be declared invalid and this License and shall not 1 6. Counter art Execution- Facsimile Si natures. This License may be executed in two or more counterparts, each of which shall be deemed an original of this instrument. Authentic and duly authorized signatures on any pages transmitted by email or facsimile shall be deented original signatures for purposes of this Agreement. 17. Additional Provisions: (a) No Int lied Waiver. No assent, express or implied, to any breach of any one or more of the agreements herein shall be deemed or taken to be a waiver of any other breach. (b) Default. If Licensee defaults in any of the covenants contained herein, it shall be lawful for the Licensor to immediately declare the term ended without written notice, and to enter the Licensed Premises, either with or without legal process, and to remove the Licensee or any other person occupying the Licensed Premises, using such force as may be necessary, without being liable for prosecution, or for damages, and to repossess the Licensed Prernises free and clear of any rights of the Licensee. if, at any time, this License is terminated under this paragraph or Paragraph 2 above, the Licensee agrees to peacefully surrender the Licensed Premises to the Licensor immediate upon termination, and if the Licensee remains in possession of the Licensed Premises, the Licensee shall be deemed guilty of forcible entry and detainer, and, waiving notice, shall be subject to forcible eviction with or without process of law. Any default by Licensee under the Letter of Understanding between Resources Corporation and Licensee, dated December 16, 2009, as a si ,ntne to i s nsoen and modified by letter agreement between Licensor and Licensee, dated Decernber 8, 2010, shall constitute a default under this License. (c) Safety and Maintenance. Licensee agrees, at Licensee's sole cost, to (a) keep the Licensed Prernises in a safe and sightly condition at all times, free from all rubbish, waste, debris and obstructions of any sort; and (b) keep the Licensed Prernises in a condition as required by law, including the ordinances of the City of Rosemount. (d) Not to Record. Licensee shall not record this License in the Recorder's Office of Dakota County. (e) Non transferable Rioht. This License shall not pass with title to Licensee's personal property or improvements and shall not run with the Licensed Premises. (1) Liens and Encumbrances. Licensee shall keep the Licensed Premises free of all liens and encumbrances arising out of the Licensee's activities on the Licensed Premises. 75111590 (g) Disclaimer of Warranty. Licensee has conducted its own investigation and inspection of the Licensed Premises and is familiar with the physical condition of the Licensed Premises and surrounding terrain, and is fully informed as to the existing conditions and limitations, Licensor makes no representation or warranty, express or implied, as to the suitability of the Licensed Premises for use by Licensee and no such representation, warranty, or any other representations, are made by Licensor or shall be implied by operation of law or otherwise. The Licensee accepts the Licensed Premises in an "As -Is, Where -Is" condition with all faults, defects and deficiencies and any entry onto Licensor's Property shall be at sole risk and without any liability or responsibility on the part of Licensor except to the extent o any material breach by Licensor of an express covenant in this License. of (h) Costs. Licensee shall timely pay all fees, taxes, wages and other charges and expenses in any manner associated with Licensee's activities under this License. Nothing in this subsection shall be interpreted to mean the Licensee is responsible for any of Licensor' obligations. s tax [Remainder of this page intentionally left blank] 5 7j1IIi9,•i IN WITNESS ‘\'HEREOP, this instrument has been executed the day and year first above written. VALLEY PAVING, INC. Fay: Its: 6 Exhibit A Drawing Showing Licensed Premises t i. EXCERPT OF DRAFT MINUTES PLANNING COMMISSION REGULAR MEETING APRIL 26, 2011 e. Request by Valley Paving, Inc. for Renewal of Their Interim Use Permit (11 09 IUP). Valley Paving, Inc. has submitted an application for renewal of their interim use permit for a portable asphalt plant used in the production of hot mix asphalt. Valley Paving, Inc. had leased the southeastern corner of the Continental Nitrogen site at 12955 Courthouse Boulevard to install an asphalt plant and associated stockpile material through December 31, 2011. Since the 2010 permit, Continental Nitrogen has sold a portion of their site to Origin to Destination, LLC (aka Feed Products) which includes the access road serving the Valley Paving asphalt plant site. Valley Paving has received an access agreement from Feed Products to continue to use the internal roads as truck haul routes to their asphalt plant. The applicant, Charlie Borene, with Valley Paving, approached the Commission and stated there is no mining involved, only a commercial asphalt plant. The public hearing was opened at 8:13p.m. There were no public comments. MOTION by Ege to close the public hearing. Second by Powell. Ayes: 7. Nays: None. Motion approved. The public hearing was closed at 8:13p.m. MOTION by Kolodziejski to recommend that the City Council approve an Interim Use Permit for Valley Paving, Inc. subject to: 1. Conformance with the standards of the Asphalt Plant Interim Use Permit of the Zoning Code Section 11- 4 -16 -1 E. 2. The asphalt plant and associated material stockpiles shall be limited to the boundaries of the "plant site" shown on the site plan. 3. The expiration date of the IUP will be December 31, 2011; any extension must be approved by the City Council. 4. No significant or heritage trees, as defined by the City Code, shall be removed as a result of the operation of the asphalt plant. Second by Irving. Ayes: 7. Nays: None. Motion carried. Mr. Zweber stated this item will go before the City Council on May 17, 2011.