The city council of Duluth make the following findings of fact:
        (a)     The Duluth City Council did on May 8, 2000, adopt Resolution 00-0336, which did grant a special use permit, as the district court had ordered, to Demolition Landfill Services, LLC, for a demolition debris land disposal facility, in accordance with Section 50-35(y) of the Duluth City Code, on property described therein;
        (b)     Demolition Landfill Services, LLC, has requested an amendment to the special use permit to expand the permit to include the area described in its application and the planning staff report, expand the amount of material to be accepted at the facility and to extend the life of the facility to 2018;
        (c)     The existing permit is for a landfill of about 12 acres (540,000 cubic yards) on a 30 acre site. The operator has acquired adjoining property and now applies for an amendment to the permit to allow a landfill of about 37.5 acres on a 74.5 acres site;
        (d)     The applicant has a permit with a plan for final elevation of about 30 feet above grade. The applicant requests approval of a plan for final elevation about 90 feet above grade;
        (e)     Part of the area is zoned S, and part is zoned M-2. The proposed landfill use is allowed in these zones;
        (f)      The city has need for M zoned land. The final elevation and configuration of the proposed use would hinder redevelopment and alternate manufacturing uses of the area when the landfill is closed and capped;
        (g)     The proposed use is the same as prior use on this property, and the use of adjacent property to the south of it;
        (h)     The MPCA has concluded that the current use, which is the same as the proposed use, does not present a threat of significant environmental harm, and that it is a permitted use;
        (i)      When the landfill operation is complete, the re-use of the property is largely dependant upon proper closing and capping of the landfill;
        (j)      The record in this case consists of this resolution, the record of the planning commission in the matter, the staff report and exhibits presented to the planning commission, the application and its exhibits, the materials presented to the city council;
        (k)     Proper notices were given, hearings held, and procedures followed.

        Based upon these findings, now, therefore, be it resolved:
        (a)     That a special use permit is hereby granted to Demolition Landfill Services, LLC, to allow for the operation of a demolition debris land disposal facility at 1100 West Gary Street for a term commencing at the date this resolution takes effect, and continuing for five years additional to that term authorized by Resolution 00-0336 or, in the alternative, the term shall be such other term required by law, on the condition that the facility be limited to, operated and maintained in accordance with plans as identified as Public Document No. 00-0508-24 and the following terms and conditions:
                (1)     That a certified land survey of the above described property be filed with the St. Louis County registrar of titles and the city of Duluth engineering division and the boundary corners of the property be identified with permanent survey monuments so as to provide definitive reference points to monitor the limits of the fill and cover site for compliance with this permit and the requirements of Section 50-35(y) of the Duluth City Code (DCC);
                (2)     That there be no land disturbing activities and the existing landscaping, including ground cover, trees and shrubs, within 150 feet of the residential and suburban zoning boundaries be maintained so as to provide a visual buffer from the adjacent residentially zoned properties and adjacent roadways;
                (3)     That the materials to be placed in the facility be limited to those defined as demolition debris and construction debris pursuant to Sections 50-1.14 and 50-1.16 of the Duluth City Code and select industrial waste as listed in the application;
                (4)     That copies of the annual reports required by the Minnesota pollution control agency (MPCA) be submitted to the city of Duluth department of planning and development (planning department) within 15 days;
                (5)     That dust control measures identified in the application and as required by DCC 50-35(y)(2)(I) be implemented and enforced by the applicant;
                (6)     That copies of all MPCA inspection reports be submitted to the planning department within 15 days;
                (7)     That the applicant obtain and maintain compliance with all provision of MPCA and Western Lake Superior Sanitary District permits as required by DCC 50-35(y)(3)(B);
                (8)     That applicant maintain adequate marking of the boundaries of the subject property described in (c) below and security barrier. This barrier marking shall consist of permanent fencing at least four feet high of welded wire mesh or rail construction of the site perimeter, or, in areas where topography or vegetation make fencing unnecessary or hazardous to people, operations, animals or plants, such as the southwest boundary, an alternate system and material approved in writing by the city planning department;
                (9)     Should the state permitting agency (MPCA) fail to require adequate compliance funding requirements, then the permittee shall furnish to the city a security bond, or other form of security, as set out in City Code Section 50-35(y)(3)(O), to secure compliance and site closure, in the amount specified therein, but not to be less than $20,000;
              (10)     That the special use permit granted by this resolution is valid only during the time that the grantee possesses valid permit or permits required by Minnesota pollution control agency in order to carry out the landfill operation;
        (b)     That the applicant may operate the landfill in a manner that increases the elevation of the landfill areas of the site subject to the following conditions:
                (1)     Before operations increase the elevation of any portion of the landfill to 840 feet or greater, the applicant shall submit to the city, for approval through the regular application process, a final site plan;
                (2)     Operations shall not result in creating a grade elevation anywhere on the site in excess of 840 feet;
        (c)     The property that is now subject to the special use permit is described as set out in the application as follows:
                        The north one-half of the southeast one quarter (N1/2 of SE1/4)of Section Four (4) T48N, R15W, except that part of said north one-half of the southeast one quarter (N1/2 of SE1/4) south of the following described line:
                                Commencing at the southeast corner of the north one-half of the southeast one quarter (N1/2 of SE1/4) thence north 87 degrees 34 minutes 56 seconds west, assumed bearing, along the south line of said north one-half of the southeast quarter 159.74 feet; thence north 34 degrees 18 minutes 48 seconds west 86.22 feet; thence north 57 degrees 44 minutes 34 seconds west 87.16 feet; thence south 88 degrees 16 minutes 38 seconds west 122.93 feet; thence south 28 degrees 59 minutes 03 seconds west 115.82 feet to said south line of the north one-half of the southeast quarter; thence north 87 degrees 34 minutes 56 seconds west along said south line of the north one-half of the southeast quarter 415.60 feet; thence north 55 degrees 03 minutes 41 seconds west 195.78 feet; thence south 66 degrees 33 minutes 51 seconds west 117.81 feet; thence south 2 degrees 25 minutes 04 seconds west 54.35 feet to said south line of the north one-half of the southeast quarter; thence north 87 degrees 34 minutes 56 seconds west along said south line of the north one-half of the southeast quarter 434.22 feet; thence north 2 degrees 25 minutes 04 seconds east 114.18 feet; thence north 63 degrees 27 minutes 48 seconds east 127.49 feet; thence north 8 degrees 33 minutes 18 seconds east 113.00 feet; thence north 79 degrees 36 minutes 32 seconds west 133.05 feet; thence north 41 degrees 41 minutes 18 seconds west 176.95 feet; thence south 77 degrees 56 minutes 39 seconds west 97.45 feet; thence south 57 degrees 38 minutes 00 seconds west 107.03 feet; thence south 36 degrees 16 minutes 44 seconds west 60.35 feet; thence south 31 degrees 49 minutes 11 seconds west 100.04 feet; thence south 2 degrees 25 minutes 04 seconds west 226.80 feet to said south line of the north one-half of the southeast quarter and there ending.  (The areas described in the state of Minnesota Consent Decree as filed May 13, 1998, are excluded from this property description; re: Sixth Judicial District Court File No. CO-91-600831) and located at 1100 West Gary Street.

STATEMENT OF PURPOSE:  This resolution amends a special use permit granted to Viet/DLS LLC.

On May 8, 2001, a special use permit (Resolution 00-0336) was issued to Demolition Landfill Services L.L.C. (DLS), for a demolition debris land disposal facility (under Minnesota Rule 7035.285) with a capacity of 540,000 cubic yards over a period of five years.  The permitted plan called for a landfill working area of approximately 12 acres of a 30 acre site with fill and cover materials reaching a finished cover height of approximately 36 feet above the current ground elevation.

Since May of 2000, the applicant has acquired the former Twin Ports Environmental Recovery Center and Aggregate Sales properties, all properties fronting on Gary Street and adjoining the current permitted site.

The amendment requests expansion to a 37.5 acre working landfill area on a property of 74.5 acres.  The amendment will provide overall dimensions of the ultimate landfill, with finished cover material, to be 2,370' E-W by 1,200' N-S.  The finished grading plan calls for elongated mound to be created with an elevation change of up to 90' feet above the highest point of the existing grade.  The request also seeks to extend the projected working life of the facility from the year 2005 (under the current permit) to 2018.

The planning commission, following a lengthy public hearing and discussion, approved this resolution at its April 25, 2001, meeting.

In making their recommendation, the commission found that the submitted finished grading plan for this project is not conducive to development and use for manufacturing uses and so a final site plan was needed.

Therefore, the recommendation is limited to amending the existing resolution to reflect the additional property now owned by Veit/DLS.  As a condition of the amendment, the commission recognizes, "in concept," the long range plan of Veit/DLS but require that prior to renewing the permit beyond the current five year permit, the long range plan be amended to reflect the anticipated reuse of the site when final cover conditions are complete.

The commission also considered the following findings offered by staff:

        1.     Will the proposed special use result in a random pattern of development with little contiguity to existing or programmed development?   This property is Zoned M-2 & S.  The provisions of Sec. 50-35 (y) provide for this type of facility to be considered for permits in M-1, M-2 & S zones.  This is an amendment of an existing landfill facility.  The changes requested include the expansion of the legal description of contiguous properties within M-2 and S zones.  The request is consistent with the historic use of this and adjacent property to the south and current zoning of property.  This solid waste disposal facility is the same as the demolition waste landfill special use permit request previously approved by court order by the city council.

        2.     Will the requested use cause anticipated negative fiscal or environmental impacts upon the community?   The MPCA has previously concluded that there would be no impact on this facility from the previously closed ERI landfill.  The existing facility has been permitted by the MPCA.  This application includes Hydrogeological Site Investigation Report to show that proper separation between fill levels of this facility and expansion and groundwater has been sufficiently addressed.  The MPCA permit requirement and process provides adequate protection to the city regarding any environmental concerns that have been raised over the history of this and adjacent facilities.

        3.     Will conditions and safeguards protect the comprehensive plan and conserve and protect property and property values in the neighborhood?   The conditions attached to this recommendation are considered adequate to achieve this requirement.

        4.     What appropriate conditions and safeguards, including performance bonds and a specified period of time for the permit, are necessary?   The conditions attached to this recommendation are considered adequate to achieve this requirement.  Appropriate safeguards do exist, in the form of MPCA permitting and the conditions of this permit, to protect the comprehensive plan and to conserve and to protect property values in the neighborhood.

The city council considered a previous resolution on this application, 01-0336R.  In it, it required that a final site plan, showing the capped landfill, be prepared before elevation reaches 840 feet.  That resolution was vetoed.  The veto message pointed out inconsistent language.

This resolution is the same as 01-0336R except that the offending language has been removed (as the council did by amending 01-0336R) and a term commencing at the date this resolution takes effect, and continuing for five years additional to that term authorized by Resolution 00-0336, or as required by law, has been added.