County Board probes frac sand dispute
By Clay Schuldt
Special for the Argus
The Houston County Board decided at its June 19 meeting to delay any decision on the legality of the frac sand mining operation until its next meeting.
County commissioners heard arguments from both sides regarding the sand mine that has been open two miles from the border of Fillmore and Houston counties border off Highway 16.
Houston County’s attorney on the frac sand issue, Tom Canan, attended the commissioner meeting to advise the board on how to legally handle the situation.
Earlier in the year commissioners passed a moratorium to prevent any new frac sand mining operations from being opened in Houston County. Recently it was announced that this sand mine could be open since it was given a conditional use permit in 1992 before the moratorium was put into effect.
It has been argued that this mine does not fall under the moratorium as it is not a new application, but a previously existing permit that has been renewed every five years since 1992 with a possible renewal coming up in 2013.
“My initial reaction is that if the operation has not materially changed since the last time the (conditional use permit) was last issued four and a half years ago and it is not affected then by the moratorium,” said Canan. “I took a look back at the language put into your interim ordinance resolution and it clearly says it applies to new operations.”
Canan informed commissioners they will have to decide if a substantial change in the mining operation has occurred that goes beyond the scope of what the board envisioned four and a half years ago.
County Environmental Director Rick Frank attended the meeting and explained that the original application for the mine came from Minnowa to take out sand for a road building project. The permit for the mine was renewed to keep sand available for future projects.
Frank further explained that during the renewal process the Planning Commission would investigate any complaints against the mine for water pollution, erosion, or anything out of the ordinary. Passing this inspection, the mine was granted a permit extension.
Canan commented that since the mine had not yet begun operation and it would be difficult to prove it had grown beyond its original use permit without a baseline of comparison. However, Canan did advise the Commissioners they had authority to regulate the mine based on the terms agreed upon in the conditional use permit, such as putting limits on noise and air pollution.
“I don’t think you can materially stop the operation,” said Canan “but at the same time you haven’t completely lost your ability to put reasonable restrictions to prevent the collateral effect on the neighbors.”
Attorney Terry Chiglo addressed the commissioners on behalf of Corey and Jacqueline Baker, who reside in a home neighboring the sand mine. Chiglo argued that the current permit was no longer valid since it belonged to the original owner of the property. Language on the original permit states the permit is only for a year and is not transferable. Chiglo’s interpretation is that the permit is still owned by Alan Thorson of Minnowa Construction and not the current owners of the property, Tracie and Michelle Erickson.
Chiglo went on to compare the transfer of permits with current feed lot operations in which a change of ownership for a feed lot permit requires an application process. Chiglo said this same procedure is necessary for mineral extraction; the change in ownership represented a substantial change since there is a new owner and a new operator that needed to comply with the rules and regulations of Houston County.
Following Chiglo’s comments, Rick Frick of Minnesota Sand, Attorney Mark Utz, and G Cubed Engineer Jeff Griffin addressed the board, defending the mine’s right to operate under the conditional use permit.
Utz argued that the Bakers moved to their current property after the initial permit was granted in 1992, fully aware they would be next to this sand mine. The Bakers were in fact required to apply for a variance to build near the mine, which Utz referred to as “moving to a nuisance.”
Chiglo noted that in the public records prior to the Bakers buying their property, the amount of material to be removed from the mine was listed as 10,000 cubic yards of sand, but now the plan has been raised to two million cubic yards, which is evidence of a substantial change in the scope of the operation.
Commissioner Tom Bjerke asked for Utz take on the “non-transferable” argument put forth by the Baker’s attorney. Utz argued that since there had already been two prior transfers without any restriction the point is considered waived, as the county cannot now begin enforcing a law or ordinance ignored in the past.
Members of the public were also given a chance to speak. John Griggs agreed with the Bakers that the mine was operating without a valid permit. Griggs also read from a letter submitted by Bryan Van Gorp, who referenced the Minnesota nuisance statutes in his letter. Anything that causes injurious to health, or indecent or offensive to the senses or an obstruction to the free use of property is considered a nuisance.
Action may be brought against any person whose property is considered a nuisance.
Gorp argued that the mine operation qualifies as a nuisance by devaluing the Baker’s home. After reading Gorp’s statement, Griggs also commented that since the permit was non-transferable, the issue seems black and white.
Commissioner Jack Miller noted that to many residents the issue might seem black and white, but the situation is open to interpretation.
“One party says this and the other party says that,” he said. “It’s fertile ground for argument and we are going to need to rely on our legal counsels to decide this.”
Commissioners did not make a decision on legality of the sand mine, deciding to weigh in on the evidence at next week’s meeting.
Steve Hartwick requested, on behalf of the moratorium petition signers, all files on all mines in Houston County. Zoning and Planning Administrator Bob Scanlan explained that first a request must be submitted, but further commented that “Our files are open to the public, we’re not withholding anything. Everything you guys have we have.”
Frank informed the board that the information is available but it will take a considerable amount of staff time.
Human Service redesign
It was announced June 12 that both Winona and Fillmore counties voted “no” to joining the Human Service Redesign Collaborative, while both Steele and Dodge counties voted “yes.”
The original plan called for a redesign that would combine the Human Service departments of 12 counties in southeast Minnesota. Early estimates had the 12 counties saving $34 million collectively over the course of five years; however, each county would be required to give an upfront payment.
Houston County is not required to vote on joining the county collaborative anytime in the future and has time to check the new figures without Winona and Fillmore’s inclusions.
However, Bjerke pointed out that both Winona and Fillmore are in talks of possibly combining services.
“If Fillmore and Winona are working on something, we should be at that table and saying we want to be part of this,” he said, noting concern that if Houston County waits too long to decide, it might be more difficult to align with Winona and Fillmore.
Commissioners hoped to have a better understanding of Houston County’s options after the Redesign Steering Committee meeting June 21.
More Vehicles Needed
Human Services Director Linda Bahr reported to the County Board that though her department currently has three county-issued vehicles, there’s a need for additional transportation because social workers have sometimes needed to transport clients in personal vehicles because the county vehicles are already in use.
The concern is that insurance deductibles could be seriously affected if a county worker is involved in an accident while transporting a client in a personal vehicle.
Commissioner Justin Zmyewski suggested pulling a vehicle off the county auction and giving it to Human Services. This would give Human Services access to a fourth vehicle and limit the use of personal employee vehicles as well as save the county from having to purchase a new vehicle.
Zmyewski noted that many of the old squad cars being put up for auction had plenty of use left in them.
However, Commissioner Steve Schuldt explained that the vehicles being sold at the auction were already “listed,” meaning the county could not pull the cars without risking legal action for false advertising.
Schuldt suggested purchasing one of the vehicles via auction bid this time, and in the future look into holding onto vehicles that could be utilized by other departments.
Sheriff’s Office Items
The County Board approved a request from the Houston County Sheriff’s Office to hire Nathan Smith as a probationary sheriff’s deputy upon completion of a required background check.
A second request came in to hire David Breault and Darrin Devaux to perform Boat Patrol duties. Human Resource Director Tess Arrick-Kruger explained this will not affect the budget, but will allow the county to be more flexible in staffing.
Additionally, Chief Deputy Scott Yeiter explained that an employee was injured earlier in the year and would not be able to work Boat Patrol. Both hires are full-time licensed, and neither will require further training. The board approved the request.
Commissioner Jack Miller inquired if it’s possible for the Boat Patrol to keep a presence on the West Channel near La Crescent to prevent boaters from speeding through the area.
Yeiter said that Boat Patrol can’t do much about bass boats, as there is no speed limit on the river, or even a designated “no wake” zone on the West Channel. However, the hope is that law enforcement present on the West Channel could alleviate some of the problem with wakes and noise.
The County Board awarded bids for three bridge projects.
One involves replacing a bridge on County Road 4, which received four bids. The low bid went to VanGundy Excavating at $195,996, which was 4.3 percent below the county’s estimate.
Another bridge replacement will take place on County Road 249 near Freeburg; that project received three bids. The low bid came in at $270,160 from Brennan Construction out of Iowa. Brennan’s bid was 2.3 percent under the county’s estimate.
The third item was a request for bridge maintenance items with a low bid of $97,150 from Minnowa Construction. The maintenance includes sealing, crack fixing, painting, and grout work to extend the life of 24 bridges throughout Houston County.