RESOLUTION 2022-09

A Resolution Denying Setback Variance from Adjoining Property Lines for Aggregate
Industries – Larson Quarry

WHEREAS, Aggregate Industries has requested approval of a variance from Grey Cloud
Township Ordinance No. 49 Zoning Section V.A.1 Subsections a. and d. to allow mining within
500 feet of adjoining property lines at the north end of their Larson Quarry; and,

WHEREAS, the Planning Commission of Grey Cloud Island Township heard Aggregate
Industries request on May 9, 2022; and,

WHEREAS, the Town Board of Grey Cloud Island Township has reviewed said variance at a
duly called public hearing on June 1, 2022 which was continued to August 17, 2022.

NOW, THEREFORE, BASED UPON ALL THE FILES, RECORDS AND HEARINGS
HEREIN, BE IT HEREBY RESOLVED BY THE TOWN BOARD OF GREY CLOUD
ISLAND TOWNSHIP, MINNESOTA, that it should and hereby does deny the variance for
Aggregate Industries to allow mining within the 500 foot setback at the north end of the Larson
Quarry as depicted in the “Ries Variance Request Northern Close-Up” map submitted by
Aggregate Industries with the variance application, with the following findings:

1. Per MN State law Variances shall only be permitted when they are in harmony with the
general purpose and intent of governing ordinances.
Applicant Aggregate Industries submitted a variance request to mine within 500 feet from the
residence home at 9280 Grey Cloud Island Drive South. Current Grey Cloud Island Township
Zoning Ordinance 49.2 Section V. Mining Regulations A. Operating conditions 1. Setbacks. No
mining, stockpiling or land disturbance shall take place within; a. 500 feet of adjoining property
lines.

Aggregate Industries bases their request on a covenant agreement reached 11-02-2006 between
David Jasper and Aggregate Industries which was permitted under Grey Cloud Island Township
ordinance 49.0 at the time. The Township was not made aware of this agreement or made any
part of.

It has been in excess of 15 years since the execution of the property convenance between (Dave
Jasper and Aggregate Industries) and the first request to mine the property.
Aggregate Industries claims the property convenance runs with the property regardless of current
State Statues, County, and Local Government Zoning Regulations.

The Board does not believe the intent of MN State Statues and Rules is to allow (two private
parties) to enter into written agreements, which would be legal as per State and Local Statues at
the time the agreement was executed. And thereafter and forever the written agreement between
the two parties would be binding or supersede all future State Statues, County, and Local
Government Zoning Regulations.

Under MN Statue 462.37 granting the Board authority to issue variances. Nowhere does the
Board see where the statute grants the Board authority to issue variances based on contracts
between private entities without considering current zoning ordinances. If the Board granted the
requested variances the board would be in violation of MN Statue 462.357

Aggregate Industries contends wording in the 1985 Settlement Agreement between Grey Cloud
Island Township and the J.L. Shiely Company set certain zoning amendments. The agreement
did set the following zoning amendments which were adopted by the Township 12-10-1985.
Wording from the 1985 Settlement Agreement:

The applications described below are subsequently referred to as the "Zoning

Applications"; the amendments· which are the subject of the zoning
Applications are subsequently referred to as the "Zoning Amendments"):

A. Amend the Critical Areas/Comprehensive Plan by classifying mineral

resource extraction as a permitted use in a Commercial Excavation (CE)
District, making further amendments to the text of the plan indicating the
appropriateness of mining and the overall scope of mining development and
indicating the change to 2 1/2 acre minimum zoning for single family residential
use;
B. Amend the Critical Areas/Comprehensive Plan by designating Parcels A, B,
and C as "Commercial Excavation (CE)" and showing Parcel D as appropriate
for long range mineral development;
C. Amend the Zoning Ordinance use classification entitled "Commercial
Extraction" to allow mineral resource extraction as a permitted use and the use
classification entitled "Single Family Residential R-1" to permit 2 1/2-acre
minimum lot sizes;

D. Amend the Official zoning Map for the Township to designate Parcels A, B,
and C as CE;

E. Amend Section Five of the zoning Ordinance, "Mineral Extraction

Regulations," to provide for a five-year term for all mining permits with annual
information on current activities, to specify information to be supplied in the
permit application, to provide for annual inspections, to specify certain
reclamation standards and to establish notice of default and permit termination
provisions.

The zoning amendments agreed to in the settlement agreement all related, in general, to rezoning
certain properties from one use to another to allow for Commercial Extraction. Nothing in the
Settlement Agreement was agreed to pertaining to operating conditions. The current variance
request is asking for a variance which is part of Operating Conditions. Operating Conditions
were not agreed to or part of the 1985 Settlement Agreement.
A public Hearing was held 12-08-2010 to amend Grey Cloud Island Township Zoning
Ordinance 49.0. Sections were changed, added, removed, and adopted by the Town Board. Many
requirements contained under Section V Mineral Excavation Regulations were removed. Among
the several changes was removal of the authorization of an owner of property to enter into a
written agreement to authorize mining within 500 feet of such owner’s property.
Minutes from the 12-08-2010 hearing show no opposition or documentation from Aggregate
Industries opposing changes to the adopted zoning ordinance 49.1

The variance request does not meet Grey Cloud Island Township Zoning Ordinance 49.1 adopted
12-08-2010, or as readopted Zoning Ordinance 49.2 adopted 03-10-2021. Both require by
Section V. A.1.a, Setbacks: No mining, stockpiling, or land disturbance shall take place within
500 feet from adjoining property lines. The variance request is requesting an 80 feet setback
from adjoining property lines.

The variance request does not meet Washington County Development Code Chapter Seven
section 6.1(1)(C) which requires a 100 feet setback from any contiguous property subdivide into
residential lots. The variance request is requesting an 80 foot setback from adjoining property
lines.

The proposed use is not considered reasonable due to the severity of the request. The applicant is
not asking to mine (20) or (30) feet closer to neighboring property line; it is asking to mine
within 80 feet of neighboring property lines, when Grey Cloud Island Township ordinance
requires a 500 feet setback from neighboring property lines.
Variance request is not in harmony with the general purpose and intent of Grey Cloud Island
Township Zoning Ordinance, or Washington County Development Code as required by State
Law in order for the variance to be granted.

2. Per state law the variance request if granted would not alter the essential character of the
locality.

Aggregate Industries mining activities include, but are not limited to, drilling, blasting,
vibrations, noise, dust, trucking, crushing of material, dewatering, vegetation clearing, material
storage, large equipment operation, building of berms, etc. The closer these activities are to
roads, property lines, and homes, the greater the effect on the essential character of the locality.
The townships ordinance is in place to protect our resources and adjoining properties. Approving
the variance to conduct mining closer to neighboring properties would change the essential
character of the locality. Where mining has occurred closer than current ordinances, the physical
characteristics of the area have changed.

Current Grey Cloud Island Township zoning ordinance 49.2 requires Mining Operations to
maintain a setback of 500 feet from adjoining property lines.
The proposed variance shows mining operations as close as 80 feet from adjoining property
lines. This is closer than Grey Cloud Island Township has ever allowed mining to take place
from adjoining property lines.
The setback area requested in the variance from the required 500 feet setback from adjoining
property lines consists almost entirely of wooded areas. The big wood oak savannas that make up
the townships uniqueness and essential character are meant to be protected by the 500’ setback
for reasons which include; dust barrier, sound barrier, sight barrier, protect damage to
homesteads and provides home for the great wildlife such as deer and turkeys. The removal of
these big mature woods would create problems for the homes and the wildlife that occupy Grey
Cloud Island. The proposed variance request if approved would result in a setback of 80 feet
from adjoining property lines, and removal of 420 feet of an existing wooded buffer area.
Past history of allowing mining operations to take place less than 500 feet from road right of
ways, and or adjoining property lines has had detrimental effects to the locality. Where setbacks
have been reduced there has been considerable opposition and complaints from affected
residents including but not limited to the following:

 Reduction in assessed property values. The change in the essential character of neighboring
properties due to mining activities has been enough, as to where the Washington County
Property Tax Assessor has given a permanent reduction to the Assessed Property Valuation
to certain properties due to the effects of the mining operation.

 Visual sightline losses

 Increased noise levels
 Increased vibrations from blasting
 Reduction of natural ventilation or breezes
 Decrease in water level in private wells.
 Loss of vegetation and natural screening of the mining operation from neighboring
roadways and properties.
 Where the mining operations were fully screened by natural vegetation a reduction in
setback requirements and vegetation clearing has made portions of the mining operation
now visible from roadways and neighboring properties.
 Where there once were trees, there are now berms.
 Where you once could watch the sun set, you now have a berm creating an earlier sunset.
The current variance application may not contain all the previously listed effects as what has
historically happened. But would include the following.

 Increased noise levels as mining generated noises would be closer to residential properties.
 Increased vibrations from blasting, as blasting would be closer to residential properties.
 Decrease in water level in private wells. Well monitoring historical data has shown the
closer mining is taking place to water wells, the lower the water level in the wells get.
 Reduction in assessed property values. The change in the essential character of neighboring
properties due to mining activities has been enough, as to where the Washington County
Property Tax Assessor has given a permanent reduction to the Assessed Property Valuation
to certain properties due to the effects of the mining operation.
 Loss of vegetation and natural screening of the mining operation from neighboring
roadways and properties.
 Where there once were trees, there are now berms.

Blasting nearer to residential properties can cause damage to homes. This is why Aggregate
Industries has offered to do property inspections to monitor damages which may be caused by
blasting. In the last few years. Grey Cloud Island Township homeowners 4300 feet away from
the quarry have complained about blasting as it shakes their homes and its contents. Most
recently there have been complaints from blasting vibrations as far as 7000 feet from the blast
sight. There are approximately 40-45 homes within 4500 feet of the proposed variance area
which all are affected by the mining operation. Any decrease in setbacks in the direction that
Aggregate Industries is requesting would put mining and blasting effects closer to many existing
homes.

Allowing the requested variances would further change the essential character of the locality
which would be a violation of MN State Law.

3. As per state law variances may be granted when the applicant for the variance establishes that
there are practical difficulties in complying with the zoning ordinance. Economic considerations
alone do not constitute practical difficulties.

MN State Statues 462.357

Subd. 6. Appeals and adjustments. Appeals to the Board of Appeals and Adjustments may be
taken by any affected person upon compliance with any reasonable conditions imposed by the
zoning ordinance. The Board of Appeals and Adjustments has the following powers with respect
to the zoning ordinance:
(1) To hear and decide appeals where it is alleged that there is an error in any order, requirement,
decision,or determination made by an administrative officer in the enforcement of the zoning
ordinance.
(2) To hear requests for variances from the requirements of the zoning ordinance including
restrictions placed on nonconformities. Variances shall only be permitted when they are in
harmony with the general purposes and intent of the ordinance and when the variances are
consistent with the comprehensive plan.Variances may be granted when the applicant for the
variance establishes that there are practical difficulties in complying with the zoning ordinance.
"Practical difficulties," as used in connection with the granting of a variance, means that the
property owner proposes to use the property in a reasonable manner not permittedby the zoning
ordinance; the plight of the landowner is due to circumstances unique to the property, not created
by the landowner; and the variance, if granted, will not alter the essential character of the
locality.Economic considerations alone do not constitute practical difficulties.

Applicant Aggregate Industries has shown no “practical difficulties” in complying with the
existing ordinances. The applicant has been allowed to use their property for mining operations
as allowed by current ordinances but must adhere to required setbacks from roads, neighboring
property lines, etc. As where setback requirements allow mining in certain areas, setback
requirements also forbid mining in certain areas. The request for the variance has been created by
the landowner (Aggregate Industries) desire to mine additional areas not allowed to be mined by
current zoning setback requirements to increase economic gains. The applicant’s variance
request is based on economic considerations to mine and sell more aggregate products.
The plight of the landowner is not due to circumstances unique to the property.
The variance request does not meet the practical difficulties test as required by State Law for
Grey Cloud Island Township to grant the variance request.

ADOPTED by the Town Board of Supervisors of Grey Cloud Island Township this 17th day of
August 2022.

Chairman
Grey Cloud Island Town Board of Supervisors

ATTEST:

Cheryl McColley, Town Clerk