Frac sand ordinance draft in rough form
By Emily Bialkowski
Rough is a fair word to use to describe the frac sand ordinance presented Feb. 12 at a special joint meeting of Houston County Board, the frac sand study committee and the county plan commission.
The county’s attorney in the matter, Jay Squires, presided over the meeting and offered several suggestions about what the county should hone in on to really seal the regulations and make them defendable in court. Squires repeatedly said that any decision has to be based on sound reasoning. By the evening’s end several examples of how this philosophy impacts regulation surfaced.
Interim versus conditional
Squires introduced the concept of Interim Use Permit (IUP), and encouraged the county to consider that terminology over the Conditional Use Permit (CUP) the county traditionally gives out. Minnesota statutes define IUP: “An interim use is a temporary use of a property until a particular date, until the occurrence of a particular event, or until zoning regulations no longer permit it.” Additionally, “Zoning regulations may permit the governing body to allow interim uses. The regulations may set conditions on interim uses.”
The concept was well received and has legal purpose. The topic was rather straightforward and allowed the meeting to proceed with other, possibly more pressing matters.
The county is currently being litigated against by a landowner that has a CUP for mineral extraction and says frac sand mining falls under the accepted uses of that CUP. In an effort to avoid such sticky ground – and more litigation – Squires recommends adding into the county’s draft ordinance on industrial mining a section specifically pertaining to those who possess a CUP.
His recommendation includes: “Mining and extraction operations operating with a valid Conditional Use Permit issued by Houston County prior to the adoption of this chapter, which remain in compliance with the terms and conditions of the CUP, shall be permitted to continue until the permit has expired. Any expansion or change in the operation shall require a new CUP.”
Squires said this language allows property owners to continue to operate as they did before, but if they want to change the operation into something else they would have to come through the permitting process.
“This ensures the CUP isn’t utilized for a concept or scope that wasn’t considered when the CUP was first approved,” Squires said.
Again, the recommendation drew little to no contention.
When the county sent its draft ordinance over to Squires for review they had a density restriction of six – meaning that no more than six excavation or mining sites shall exist in Houston County at one time.
Squires said the county certainly has the ability to regulate density, but he recommends the number reflect some sort of rationale. He said it would behoove the county to come up with a quantitative limit based on any number of variables, such as no more than X within a certain geographically area or township; no more than X within a certain mile radius; or any combination thereof.
“Saying no more than six in the whole county doesn’t help the neighbors if all six are concentrated in one area,” Squires said.
The topic helped bring full circle this idea that it’s OK to regulate but it must be done with some sort of rationale, preferably one that is defendable in court.
Squires went over a proposed road upgrade and maintenance agreement. He said state law defends the county’s need to remain fiscally whole despite large projects/mines and defends the county’s need to address traffic safety concerns.
Essentially, the law allows the county to require that money be set aside up-front and preserved in an account for road maintenance issues – subject to county control – that might present themselves because of a project.
This same concept also applies to the reclamation portion of the ordinance.
Squires said it’s good to put in place a “system that says we’ll analyze the impact and require them to establish a fund to address those particular impacts.”
He said, “That’s a common provision when a project of this complexity presents itself.”
In light of the fact that there is much to chew on and much to refine within the draft ordinance, Squires suggested the county consider extending the frac sand mining moratorium – a suggestion duly noted by the county board, who will vote on the matter at their Feb. 19 meeting.
Various questions and areas of concern were discussed throughout the meeting by members of the commission. The public was also allowed to ask questions at the end.
Some of the key areas of concern included:
• Water-related regulation
• Construction mining versus industrial mining regulations – a poignant topic sure to get due attention
• The reintroduction of the frac sand study committee to discussion
All the areas will continue to be scrutinized, and the frac sand study committee, which had ceased meeting while the draft ordinance was being created and reviewed by legal counsel, will resume meeting.
In conclusion, Squires said he felt Houston County had a good start.
I think it’s a good document. You have a good representation of various interests. Everybody is struggling with it – there was no template,” he said.
Houston County Board Chair Justin Zmyewski echoed the sentiment, saying, “We’re not out of the woods yet, but I think the process is moving along well.”