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Minutes - 1998 - City Council - 12/15/1998 - SpecialEAGLE CITY COUNCIL SPECIAL MEETING MINUTES December 15, 1998 1. CA, I_I. TO ORDER: 2. ROll C.~tla MERRILL, BASTIAN, SEDLACEK, GUERBER. BASTIAN ABSENT. A QUORUM IS PRESENT. 3. UNFINISHED BUSINESS: A. Prime Earth Non-Compliance with Conditional Use Permit. Mayor introduces the issue. Vern Brewer, Holladay Engineering. I am not an engineer but I did visit the site and I have been in touch with engineers on this issue. I looked at the site with Bill Vaughan and Nancy Merrill. We looked at several of the improvements that have been done. The 10' buffer strip, at least on the East side against the State Land, has been completed. The reconstruction of the fence was just being completed on the property boundary between the property acquired by the City and the Prime Earth property. The slopes when I measured them, on two faces were both right at 85% slopes which does not meet the 3:1 criteria. Those are the items I observed. General discussion. Work is still in progress on the slope. A lot of work had been accomplished since the last time I was there. Council discussion with Staff as to how the property looked in April and what work had been done at the site and what has been reclaimed. (Bastian is in attendance at 5:10 p.m.) Fred Shoemaker, 815 W. Washington, Attorney for Prime Earth. We appreciate the opportunity to meet. Discussion on some of the work history and the Conditional Use Permit. I have never seen excavation slopes at 3:1 in any other operation. Provides an explanation of how mining needs to be done with a 3:1 slope requirement and a definition of 3:l slope. Mr. Patterson will soon be submitting a subdivision apphcation for part of the property. Distributes an engineering report to Council. Discusses the work that is in progress. We have a 21 foot buffer and a 10 foot buffer is required by the Conditional Use Permit. Prime Earth is moving in earnest to comply with the Conditional Use Permit. General discussion. Joe Canning, 5505 W. Franklin, Boise. Discusses the report that was distributed to Council and the measurements that were taken. We were contacted by Mr. Patterson in the middle of October and was told that the gravel operation was nearing completion and there was a possibility of development of the property. We are currently working on that option. General discussion. Guerber would like to know how many years Mr. Patterson was out of compliance. Fred Shoemaker. For much of the mines operation the monitoring was done by the Department of Lands. The assumption has been that if the Department of lands was satisfied the City would also be satisfied. I would surmise that there has been some period of noncompliance. General discussion. Bastian would like to know how long the mining operation will continue. Floyd Patterson. We are going to clean up to the North. We have approximately one year of mining, clean up and restoring and then the operation will move. Mayor: The question for Council is whether or not Mr. Patterson is in compliance with the Conditional Use Permit. Council discussion on the issue. Bastian wants to know what the slopes should be if not 3:1. Joe Canning. Typical the slopes I have seen in mining operations are vertical. General discussion. Vern Brewer. Gravel pits can be managed at 3:1 slopes. I can take you to some in Canyon and Payette County. Requiring a 3:1 slope is not unusual, it goes on all the time depending on the site conditions. Stair stepping is one of the methods of extracting gravel. It does not have to be vertical it can comply with the permit. General discussion. Floyd Patterson. 30 days was not the agreement. We presented to the Council that we would drop the wall. We don't know yet if we access through the City park property as was agreed to by the State as they have not given us a deeded access and the two years are up. We were told to drop the wall by the State Department of Transportation and by the Department of Land. They took 27' of our property and they took the old fence out, they took all of the gravel straight up and down. It was assumed that the Council would benefit from the donations and the dropping of the wall and the removal of the dirt back in the park and the free gift of all of the equipment work but it did not happen. Final reclamation will take a year and we can enter into an agreement. General discussion. We are probably 30 days off from being in compliance but I would like to a longer period of time because we have to make sure that we can compact for subdividing. There is no mining on the West and South wall. The excavation wilt be east of Highway 55. There will be mining to the North for a year. Council discussion and comments. Rich Butterfield. Addresses the issue of the berm. We bought the property after the Conditional Use Permit was issued. We never raised the issue of the berm being there. Idaho Power is concerned about having a berm in that area because of their access to the power lines. We did not request the berm be removed, Prime Earth removed the berm. We would be willing to go with a smaller berm but we do not want any of the berm to be on the 10' area. We always assumed the berm would be outside the 10' area. The berm that was there was outside the 10' area. I would be willing to have 14' foot berm to be outside the 10' area. We have maintained the 10' strip. Discussion on where the berm is to be placed in accordance with the Conditional Use Permit. Fred Shoemaker. I filed a suit against the Butterfield family for trespassing. Idaho Power has an easement and Prime Earth is still the owner of the land. The berm was there to prevent noise and dust. West and South wall 90 days is workable. The mining will be complete West of Highway 55 in about a year but not the reclamation process. Merrill moves that we give Mr. Patterson 90 days to bring the project in full compliance and that it is inspection every two weeks by the City Engineer to make sure they are in compliance and each time that they are not in compliance their Conditional Use Permit will be pulled. That they replace the berm where it was, to do a 3 V2'-4' berm behind the Butterfields' home area to a maximum width 14' wide and the mining is to be completed within one year West of Highway 55 and one year from today we will again revisit this issue to make sure they are in full compliance. Seconded by Guerber. Discussion. Merrill withdraws her motion, Seconded withdraws the second. Merrffi moves to bring the Conditional Use Permit in full compliance within 90 days which is a 3:1 slope and they will have one year to be completed with the mining and the berm has to be in compliance. Seconded by Bastian. 3 AYE: 1 NAY: MOTION CARRIES ............ Discussion and clarification of the motion that has passed. Floyd Patterson. Idaho Sand is mining vertical right up to my fence line. The State of Idaho was been allowed to mine straight up and down. Why is this being imposed upon us? We are being penalized. The mining is done except the property to the North. General discussion between Council, legal counsel and the parties. Guerber moves to reconsider the Motion. Seconded by Merrill. 2 AYE: 2 NAY: Mayor: AYE: Motion to reconsider carries ............. Guerber moves for full compliance with the existing Conditional Use Permit, a 90 day period to come into compliance in regard to the 3:1 requirements, compliance with the berming and a 1 year period to complete the extraction process on their side. Seconded by Merrill. Discussion. ALL AYE: MOTION CARRIES ............ 4. ADJOURNMENT: Guerber moves to adjourn. Seconded by Merrill. ALL AYE: MOTION CARRIES... Hearing no further business, the Council meeting adjourned at 6:45 p.m. Respectfully submitted: .,~ OF ~ ~q%.~, CITY CLE~A$~K ~ .~ ~PRO~D: mc zxa , ~YOR ~ PRIME EARTH, INC. Mayor Rick Yzaguirre Eagle City Hall Eagle, Idaho Dear Mayor Yzaguirre: I2 -tom -9 December 10, 1998 This is an update to our conversation of December 9, 1998. Bruce and I, as well as our attorney will attend the special meeting Tuesday, December 15, 1998, at 5:00 P.M. As we discussed yesterday, this meeting is to discuss Prime Earth's permit and our reclamation plan. It is our understanding that Mark Butler and the City Council members will be in attendance. At this time, we wish to advise you that we are in compliance with the ten -foot set -back for a buffer zone, and in many places the set -back ranges from twenty-one to fifty-two feet of undisturbed buffer zone. We welcome your and the Council's inspection of the site on Monday, December 14th, prior to Tuesday's meeting with the Council. If you have questions, please feel free to call me at 939-0771 or 869-1220 (cellular). Sincerely, cpt Floyd Patterson General Manager c: Mark Butler, Planning and Zoning Administrator P.O. Box 4055 • Boise, Idaho 83711 • (208) 939-0771 COSHO, HUMPHREY, GREENER & WELSH, P.A. COUNSELORS AND ATTORNEYS AT LAW CARNEGIE BUILDING 815 WEST WASHINGTON STREET BOISE, IDAHO 83702 FREDRIC V. SHOEMAKER TELEPHONE (208) 344-7811 FACSIMILE (208) 338-3290 e-mail: fshoemaker@chgw.com December 7, 1998 Mr. Eric Wilson Department of Lands 8355 West State Street Boise, Idaho 83703 ((4) OFFICE ADMINISTRATOR KRISTINE THOMSEN ALFA' AMERICAN LAW FIRM ASSOCIATION RECEIVEC & FILED CITY OF EAGLE DEC 0 9 1998 File: Route to`- 1 6, c c, Re: Prime Earth, Inc. Reclamation Plan 1020 CHGW File No. 13310-005 ,o'►, Dear Mr. Wilson: This is a partial response to your letter to Floyd Patterson and Prime Earth, Inc. of November 24, 1998 and follows our meeting at the mine site that same day. It is true that Mr. Haugebak no longer owns the mine site and Prime Earth, Inc. does. I have sent the Transfer of Surface Mining Reclamation Plan form that you provided Mr. Patterson to Mr. Haugebak and anticipate having it hand and ready to submit with the requisite $20.00 by December 15, 1998. However, it is conceivable, if not likely, that we will submit an amended reclamation plan. To assist Prime Earth, Inc. and me in that task, I would ask that you send me a copy of the current regulations and application form or amendment form that are currently required. Since November 24, 1998, I understand you have met one additional time with City of Eagle officials and Mr. Patterson at the mine site. I also understand from that inspection you are aware that the asserted non-compliance with the Reclamation Plan as stated in your November 24, 1998, letter has almost been cured. I also understand that the City of Eagle and the Department of Lands personnel indicated a willingness to allow the slopes to stabilize at a 1:1 slope. If I am mistaken in this regard, please advise. Mr. Eric Wilson December 7, 1998 Page 2 In all events, in specific response to your letter of November 24, 1998, I respond as follows: 1. The restoration of the west wall has now nearly been completed. The mining in the vicinity of the west wall beyond the parameters outlined in the August 25, 1994 letter only occurred because Prime Earth, Inc. had reasonably anticipated, given discussions with City of Eagle Mayor and Mr. Mark Butler, that the City was prepared to allow Prime Earth, Inc. to "take down" the vertical wall between the AD - 78 that the City intended and still intends to purchase, and the Prime Earth, Inc. mine site. Unfortunately, the complaints of a few surrounding neighbors drowned out the public interest and Prime Earth, Inc.'s rights and what was in the overall public interest is not now at least going to occur. As a result, Prime Earth, Inc. has undertaken on a best efforts basis, the reparations of the west wall and has now nearly returned it to compliance with the August 25, 1994 letter. Indeed, by my own measurements, the average horizontal setback from the barb wire fence on the west wall is 21 feet and the slope is about 1:1. This at least seems to comply with the letter, if not the spirit, of the alternative 30 foot wide buffer with a vertical working face or a ten foot wide buffer with a working face of 3H 1 V. 2. Some top soil has been stripped from the mine and temporarily stockpiled north of the mine location that was originally permitted in 1990 under Reclamation Plan 1020. Prime Earth, Inc. acknowledges and understands that no mining is allowed outside of the permitted area; however, Prime Earth, Inc. is now moving from the mining stage to the residential subdivision stage for its property and you may expect to see some earth -building and reclamation work both in the mine and in lands adjacent to the permitted mine site. Mr. Joe Canning, P.E., will be responsible for engineering the subdivision and also satisfying the City of Eagle's requirements. You may wish and this letter is to authorize you to communicate directly with Mr. Canning should you have any technical questions regarding this process. Certainly too you can feel free to communicate with me or with Mr. Patterson. In all events, Prime Earth, Inc. acknowledges that no material, including topsoil, can be removed from below original grade, north of the permitted area. 3. The amount of the reclamation bond is at issue. According to the information I have, Prime Earth, Inc. holds two certificates of deposit obtained from U.S. Bank which are currently on deposit with the Treasurer for the State of Idaho on Mr. Eric Wilson December 7, 1998 Page 3 account of the Department of Lands, being Certificate Account No. 3 533 0069 2079 with a 12/03/98 maturity date balance of $1,047.11, and Certificate No. 3 533 0069 2061 with a 12/03/98 maturity date balance of $11,115.16 for a total deposit of $12,162.27. Copies of recent correspondence from U.S. Bank addressed to Prime Earth, Inc. and the State of Idaho Department of Lands is enclosed to document this fact. The approved Reclamation Plan requires a reclamation bond of $750.00 per affected acre, not $1,000 per affected acre. Although I have requested a new legal description post -condemnation for the westerly site, it would appear the current bond should satisfy the 1990 regulations then in place under which the Reclamation Plan was approved. This is so because Reclamation Plan No. 1020 was originally approved in 1990 for 19.7 acres. After the IDOT condemnation, there remains less than 17 acres. If exactly 17 acres, the bond would be required to be in the amount of $12,750.00. As soon as Prime Earth, Inc.'s engineer determines the exact amount of the acreage for the permitted site, we will submit a new CD or otherwise satisfy the bond requirements. Lastly, your letter references mining along the south wall near the Butterfield residence. At least by my own last observation last week, reclamation was then ongoing. The August 25, 1994 letter only requires a 30 foot wide buffer with a vertical working face as one alternative. The horizontal buffer exceeds 30 feet and as with the west wall, the south face is not vertical. I do not believe there is any basis to file a formal complaint, seek a restraining order, or civil penalties as allowed by Idaho Code § 47-1513. I am informed that both the Department of Lands and City of Eagle staff are inclined to agree based upon the most recent inspection. FVS/srb Enclosures cc Floyd Patterson Mike Butler, City of Eagle rs very jtruly, Fredri V. Shoemaker v 1' Nov 23 98 09:51a t'bank. 'P.0 Box 64770 St. Paui. MN 55164.0770 916 369'4 CS U„lA,„Ldi,undun=,ddullhd,>uldidhd PRIME EARTH INC STATE OF IDAHO DEPT OF LANDS PO BOX 4055 BOISE ID 83711-4055 . Account Number 3 533 0069 2079 Current Business Date Oct. 30, 1998 UBank5M, 24-hour Phone Banking from U.S. Bank Idaho: 1 -800 -US BANKS p. 1 Thank you for investing your funds in a U.S. Bank Savings Certificate. Your certificate will be maturing soon and we want you to know how much we appreciate your business. We invite you to take another look at our certificate rates - we think you will be delighted with what you see': We offer great rates on all terms all the time -- simply choose the term that meets your needs. - We'd like to draw your attention to some important orniation regardin your account: Certificate Account # Maturity Date Bra�ilance at Maturity drm at Renewal 3 533 0069 2079 12/03;98 $1,047.11 / 6 months the terms, no action erin and your next Renewal. If you wish to automatically renew yo - certT is required on your part. It will renew into another maturity date will be 06/03/99. If your certificate account had a variable interest rate, it will renew into a fixed rate certificate. The interest rate_and annual percentage yield (APY) will be determined as of the 12/03/98 maturity date. Just call UBank;s:.t, 24 -Hour Phone Banking for your new rate at that time. Other Options. You have a grace period of 10 calendar days from the maturity date to make changes to your certificate. Simply call UBankzsti„ 24 -Hour Phone Banking or stop by your nearest branch and a representative will be happy to assist you by quoting rates, switching terms, or redeeming your certificate. FDIC Insurance. As always, savings certificates are insured by the FDIC up to 8100,000, with retirement savings certificates separately insured for an additional $100,000. Thank you for choosing U.S. Bank. ,40116, .Y7 ra\ Ik fiov 23 98 09:51a bank P.C. Box 64770 St. Paul, MN 55 64-0770 916 3693C6 II'tI.LIII�hpilIIIIIin1IiIilI1hIlshI,,Il1uIsJ�,IIh,II jI PRIME EARTH INC STATE OF IDAHO DEPT OF LANDS Po BOX 14055 71) BOISE ID 83711-14055 • Account Number 3 533 0069 2061 Current Business Date Oct. 30, 1998 UBank,sxi124-hour Phone Banking from U.S. Bank Idaho: 1 -800 -US BANKS p.2 Thank you for investing your funds in a U.S. Bank Savings Certificate. Your certificate will be maturing soon and we want you to know how much we appreciate your business. We invite you to take another look at our certificate rates - we think you will be delighted with what you see! We offer great rates on all terms all the time -- simply choose the term that meets your needs. We'd like to draw your attention to some important info m tion rega'ding your account: Certificate Account # Maturity Date Baha ce at Maturity Term at Renewal 3 533 0069 2061 12/03/9$ X11,115.16 6 months Renewal. If you wish to automatically renew y.. r certificate - ' er the terms, no action is required on your part. It will renew into ano . • er 6 _ erm and your next maturity date will be 06/03/99. If your certificate account had a variable interest. rate, it will renew into a fixed rate certificate. The interest rate and annual perct tltage yield (APY) will be determined as of the 12/03/98 maturity date. Just call UBank,s", 24 -Hour Phone Banking for your new rate at that time. Other Options. You have a grace period of 10 calendar days from the maturity date to make changes to your certificate. Simply call UBa nk,s+,, 24 -Hour Phone Banking or stop by your nearest branch and a representative will be happy to assist you by quoting rates, switching terms, or redeeming your certificate. FDIC Insurance. As always, savings certificates are insured by the FDIC up to $100,000, with retirement savings cer tifieates separately insured for an additional 3100,000. Thank you for choosing 11.S. Bank. Prime Earth. Inc. Existing Slopes West and Southwest Property Line December 14. 1998 & A Engineers. Inc. 102.11 63.89 105.5.1- 1.3:1 1.6:1 +60.79 • • 107.15 . $:1 `E-80. 63 5.5:1 Top of Ban k e 1.4:1 + 68.93 Toe of Existing Slope 1 58.12 I . 1 4 - Approx. 3: I Catch Point 69.65 1.3:1+.. 61.34 + 59.19+ .+...---- 61:02 103. 58 � N -96.87+ 100.60 /07.26- p