A.
For the purpose of this chapter, certain terms or words used herein
shall be interpreted as follows: words used in the present tense include
the future; words in the singular number include the plural number,
and words in the plural number include the singular number. The word
"shall" is mandatory, not permissive. All distances unless otherwise
specified shall be measured horizontally.
B.
ANNEXATION AGREEMENT
APPLICANT
BLASTING
CITY
CONSTRUCTION
CRUSHING
DEPARTMENT
DEVELOPMENT AGREEMENT
DRYING
EXPENSE REIMBURSEMENT AGREEMENT
EXTRACTION
HAULING
HOLIDAY
NONMETALLIC MINERAL MINING or NONMETALLIC MINING
(1)
(2)
NONMETALLIC MINERAL or NONMETALLIC MINERALS
OPERATION
PERMIT HOLDER
PROCESSING
RAIL-LOAD OUT
RECLAMATION
REHABILITATION
SCREENING
SITE
STRIPPING
WASHING
WATER TABLE
ZONING ADMINISTRATOR
ZONING BOARD OF APPEALS
As used herein, the following terms shall have the following meanings:
The agreement between the City and applicant regarding the
annexation of property into the City of Arcadia.
The person, corporation, limited liability company, partnership
or other legal entity which makes application for a conditional use
permit under this article.
The act of using a set charge of dynamite or other explosive
at one firing to free up, loosen, or dislodge a desired product at
the permitted mine site.
The City of Arcadia, a Wisconsin municipal corporation located
in Trempealeau County, Wisconsin.
The process involved in preparing a site for nonmetallic
mineral extraction activities, including but not limited to the stripping
of topsoil and overburden, the destruction of tree cover and other
vegetation, the building of access roads and the construction of accessory
structures and buildings to be used in the course of mining activities.
The act of breaking down, squeezing, pressing and pounding
an object or material so that the action destroys or deforms the object
into a usable or desired form.
The Wisconsin Department of Natural Resources, an executive
agency of the State of Wisconsin created pursuant to § 15.34,
Wis. Stats.
The agreement between the City and applicant related to the
development of the site and the operations that must be entered into
prior to any conditional use permit being issued under this article
for nonmetallic mining.
The action to remove moisture from the nonmetallic mineral.
The agreement between the City and applicant that must be
entered into prior to the Zoning Board of Appeals considering any
application for a conditional use permit for nonmetallic mining.
Obtaining the raw material from the permitted site following
the permitted conditions. This also includes the acts of blasting,
stripping, hauling, and construction.
The action of carting or transporting of any material on
public roadways, either raw or processed, from the original location
of the raw or processed material to another location not on the permitted
grounds.
Those legal holidays recognized by the State of Wisconsin
on which no work is performed by employees of the state. These shall
include New Year's Day, Martin Luther King Jr. Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Eve
Day, Christmas Day, and New Year's Eve Day.
All or any part of the process involved in the mining of
nonmetallic minerals, including but not limited to the commercial
extraction, agglomeration, beneficiation, removal of overburden and
the production of refuse. It does not mean exploration, prospecting,
or mining of nonmetallic minerals for a property owner's sole
use on the property owner's property.
"Industrial sand" is a high purity silica sand or silicon dioxide
(siO2). It is nearly pure quartz, very well rounded, of uniform particle
shape and size, having a high compressive strength, and meeting size
gradation standards for its various uses. Industrial sand is sold
for any of the following uses: glassmaking, metal casting, metal production,
chemical production, paint and coatings, ceramics and refractories,
moldings, abrasives, and otherwise preparing sand for uses other than
construction. It is most commonly used by the oil and gas industry
as a proppant for the hydraulic fracturing of shale for the exploration,
drilling, production, and recovery of oil and gas (i.e. "frac sand").
This sand is classified as 212322 Industrial Sand Mining according
to the NAICS (North American Industry Classification System), and
as 1446 Industrial Sand, and 1481 Nonmetallic Mineral Services except
fuels, according to the SIC (Standard Industrial Classification) System.
"Construction aggregate" is sand gravel, or crushed stone (stone
crushed from bedrock) that is predominately produced and used for
local construction purposes. Construction aggregate is sold for any
of the following uses: asphalt or concrete roads, concrete, asphalt,
building or dimension stone, railroad ballast, decorate stone, retaining
walls, revetment stone, and other similar uses. It is also used in
agriculture for fertilizers, aglime, and bedding sand for livestock
operations. Small amounts of sand and gravel or crushed stone may
be produced and used for other purposes such as salt and sand for
icy roads, water filtration systems in septic systems, landfills,
mortar sand, and sand for sand blasting. It is historically viewed
as for agricultural use on the farm and to construct the infrastructure
needed to transport supplies to the farm and products from the farm
to various markets. This aggregate is classified as 212321 Construction
Sand and Gravel Mining according to the NAICS (North American Industry
Classification System), and as 1422 Crushed and Broken Limestone,
1429 Crushed and Broken Stone not elsewhere classified, and 1442 Construction
Sand and Gravel, according to the SIC (Standard Industrial Classification)
System.
A product, commodity or material consisting principally of
naturally occurring, organic or inorganic, nonmetallic, nonrenewable
material. Nonmetallic minerals include but are not limited to stone,
sand, gravel, asbestos, beryl, diamond, clay, coal, feldspar, peat,
talc and topsoil.
All activities associated with nonmetallic mining; the conducting
of all activities associated with the mining of nonmetallic minerals
from the site, their removal from the ground and their processing,
except site preparation prior to the commencement of extraction and
processing.
That person, corporation, limited liability company, partnership
or other legal entity which holds a conditional use permit issued
under this article, whether or not the permit holder is also the applicant.
To convert raw material into a marketable form, on site,
by a special process that includes the actions of crushing, washing,
screening, drying or rail-load out. Processing shall not include moving
material by way of conveyor system or other forms of transportation.
To load the marketable material at a rail site and transport
the material to the necessary location by train.
The restoration efforts required to restore the site pursuant to Chapter 295, Wisconsin Statutes, Chapter NR 135, Wisconsin Administrative Code, Chapter 400 of the City Code, a reclamation permit, and any approved reclamation plan.
Returning the site to conform to the required land use as
provided for in the development agreement.
Sorting or sizing of material into a marketable product size.
The entire legally described location of a nonmetallic mining
operation, including but not limited to the actual sites of land disturbing
activities, nonmetallic mineral extraction, storage, access roadways
and associated structures, buildings and other facilities.
To take away or remove soil, rock, or other overburden materials
from nonmetallic minerals and use that material in the reclamation
process, where applicable.
The action that involves water or some other liquid for the
purpose of cleansing by removing impurities or undesirables from the
intended product.
The surface of unconfined groundwater where the water pressure
is equal to atmospheric pressure.
The person(s) designated by the City to administer the City
zoning ordinances.
The City of Arcadia Zoning Board of Appeals.
The purpose of this article is to set standards related to nonmetallic
mining and related operations in the City to protect the residents,
workers, and visitors in the City from adverse effects related to
unregulated nonmetallic mining and to ensure the orderly development
and safe use of sites used for nonmetallic mining.
A.
Any application for a conditional use permit issued under this article
shall contain, at a minimum, the following information:
(1)
A topographic map of the site showing existing contour with minimum
vertical contour interval of five feet or an alternative vertical
contour interval approved by the City. The topographic map shall show
the preexisting vegetation, including but not limited to tree cover,
the locations of existing and proposed access highways, rail-load
out locations, and the depth of all preexisting and proposed excavations.
The topographic map shall also include a complete legal description
of the site and indicate the boundaries of the site, all to be completed
by a land surveyor and engineer licensed in the State of Wisconsin.
The topographic map shall also include a statement regarding the current
use of the site.
(2)
A map depicting the layout and operational plan for the site, including
the location and height of all buildings and structures used on the
site, any proposed berms or other measures to be used to screen the
site and any easements of record affecting the site.
(3)
A list, including the names and addresses, of all the owners of property
adjacent to the site as of the date of the application for a conditional
use permit for nonmetallic mining. A parcel map indicating the foregoing
must also be contained in the application.
(4)
The source, quality, quantity and means of disposition of surface
water or groundwater encountered in the site for nonmetallic mining,
processing, or extraction.
(5)
A report of the geological composition of the site, including the
depth from the surface to the nonmetallic mineral deposit, the water
table and the bedrock.
(6)
A report of the composition of the soil on the site, including the
type, thickness and distribution of topsoil.
(7)
A fugitive dust control plan.
(8)
The elevation of the water table throughout the site.
(9)
The location of all septic systems and private wells within 1,336
feet of the site, including the owner(s) thereof, the distance from
each private well to the site, the depth of each private well, the
age and construction of each private well, and the static water level
in each private well.
(10)
A narrative description of the proposed operation, together
with a time line for commencement and reclamation and the nature and
degree of land disturbing activities.
(11)
A listing of the types of equipment and machinery proposed to
be utilized at the site, together with both the types and locations
of structures necessary for the operation thereof.
(12)
The conditional use permit application fee, as established by
the City.
(13)
If any blasting may occur, a blasting plan, with a list of all
property owners within 2,640 feet (0.5 miles) of the site who must
be notified before any blasting may occur.
(14)
A detailed listing of biological resources, plant communities
and wildlife located on the site.
(15)
State-approved plans for all buildings and structures on the
site.
B.
The Common Council will consider all conforming applications in the
order in which they were received. In considering any application
herein, the Common Council will consider the impact of the operation
on the following:
(1)
Public infrastructure, including but not limited to streets and highways,
schools and other public facilities;
(2)
Present and proposed land uses of land in the vicinity of the site;
(3)
Surface water drainage, water quality and supply;
(4)
Soil erosion;
(5)
Aesthetics, including but not limited to scenic beauty and the conservation
of natural resources of outstanding quality or uniqueness;
(6)
The market value of lands in the vicinity of the site;
(7)
The physical practicality of reclamation of the site after operations
have concluded; and
(8)
The public interest from the standpoints of smoke, dust, noxious
or toxic gases and odors, noise, vibration, blasting and the operation
of heavy machinery and equipment.
C.
The Common Council may require the applicant to provide it with additional
information, including copies of all plans and permits required under
this article or the laws, rules and regulations of any governmental
entity or subunit thereof.
D.
Prior to the consideration of any application for a conditional use
permit for nonmetallic mining by the Common Council, or any hearing
or meeting required or conducted pursuant to this article, the applicant
must first enter into an expense reimbursement agreement, annexation
agreement and development agreement with the City.
(1)
The expense reimbursement agreement shall cover, at a minimum, the
following expenditures:
(a)
All attorneys' fees incurred by the City arising out of
or related to the application for a conditional use permit;
(b)
All engineering fees incurred by the City arising out of or
related to the application for a conditional use permit;
(c)
All costs associated with the application for a conditional
use permit for any third-party reviews thereof, including any Department
reviews or reviews conducted by the Wisconsin Department of Administration
relating to any proposed annexation;
(d)
All enforcement costs arising out of or related to the operation
or the conditional use permit; and
(e)
All costs for legal notifications, publications, and hearings
and officials' costs arising out of or relating to the operations
or consideration of a conditional use permit.
(2)
The expense reimbursement agreement shall also require the permit
holder and applicant to reimburse the City within 30 business days
of notice of any such fees, costs and expenses. Notice shall be deemed
given upon mailing, via certified mail, of an invoice to the permit
holder and applicant at their last known address, which shall be listed
in the expense reimbursement agreement.
(3)
The development agreement shall address, at a minimum, the following:
(a)
Location of the site.
(b)
Post-mining land use of the site, compatibility with existing
land uses for adjacent properties, and what is the best and highest
post-mining use of the site.
(c)
Impact on transportation infrastructure and transportation generally.
(d)
Any possible need for electric, water, wastewater, storm sewer
and other utilities, the impact thereof on the current system and
capacity, and cost sharing for adding capacity.
E.
Any conditional use permit issued under this article, including the
proposed future land use of any site, must at all times be consistent
with the City's current Comprehensive Plan.
The Zoning Board of Appeals shall impose, at a minimum, the
following conditions upon any conditional use permit issued under
this article. The cost of compliance with any condition contained
in any such conditional use permit, and the cost of retaining any
engineer, scientist or other expert, shall be at the sole cost and
expense of the permit holder or applicant, as applicable, unless otherwise
stated herein.
A.
Hours of operation. The following shall be the hours of operation
under a conditional use permit for nonmetallic mining, subject to
the authority of the City Council to authorize longer hours of operation
expressly in the conditional use permit:
(1)
Extraction. Extraction shall be allowed Monday through Friday between
6:00 a.m. and 8:00 p.m. during daylight saving time and between 6:00
a.m. and 6:00 p.m. during standard time. Extraction shall be allowed
Saturday between 7:00 a.m. and 3:00 p.m. annually. No extraction shall
be allowed on Sundays or holidays.
(2)
Processing. Processing shall be allowed 24 hours per day, seven days per week, if the processing occurs in a fully enclosed structure and is subject to the conditions contained in this article and any conditional use permit issued to the applicant or permit holder. If the processing does not occur in a fully enclosed structure, then processing is subject to the times limited for extraction operations in Subsection A(1).
(3)
All times stated herein are for the central time zone.
B.
Noise limits. Audible noise emitted during any nonmetallic mining
is limited to the standards set forth in this subsection.
(1)
Processing during extraction hours. Noise due to processing during
extraction hours of operation is not limited by this article.
(2)
Processing during nonextraction hours. Noise due to processing during
nonextraction hours of operation shall not exceed 65 decibels (dB)
measured at the outside of any building or structure, within 2,640
feet (0.5 miles) of the border of the site, used for human habitation
or the housing of farm animals, including but not limited to cattle,
horses, and poultry, unless the permit holder obtains a written waiver
from the affected property owner(s). This limitation shall only apply
to buildings and structures in existence as of the date the applicant
submits its application for a conditional use permit and does not
apply to buildings and structures located on the site. "Affected property
owner(s)" shall be defined as the fee owner(s) or tenants of real
estate where noise at such building or structure is measured exceeding
65 dB and the nonmetallic mine processing contributes to the measured
noise.
(3)
Noise survey. Within 24 hours after commencement of actual processing during nonextraction hours of operation, a noise survey shall be completed. Processing during nonextraction hours shall not continue until a noise survey is complete and the survey indicates that the actual processing during nonextraction hours will be compliant with the noise limitations in Subsection B(2).
(a)
The noise survey shall be conducted by an independent noise
consultant contractor at the expense of the permit holder or applicant.
(b)
The noise survey shall measure the noise levels, in decibels,
at the outside of any building or structure used for human habitation
or the housing of farm animals, including but not limited to cattle,
horses, and poultry, on all properties that may be affected by the
actual processing noise. The party conducting the noise survey shall
obtain consent from each property owner to enter property to measure
noise. The noise survey shall also determine whether the actual processing
noise contributes to the measured noise levels at any such buildings
or structures.
(4)
Waivers. The permit holder or applicant may obtain a waiver from an affected property owner(s). Such waiver shall be in writing and shall be signed by all fee owners of the affected real estate and shall be recorded in the Trempealeau County Register of Deeds office. Such waiver shall state that the affected property owner(s) is aware of the noise limitations imposed by this article and that consent is granted to allow noise levels to exceed the maximum noise limits in Subsection B(2) above.
(5)
Noise complaints. Any complaint of excessive noise due to processing
during nonextraction hours shall be made in writing and shall state
the name and address of the party complaining. Any complaint shall
be forwarded to the Zoning Administrator. The Zoning Administrator
shall immediately forward any such complaint to the permit holder.
Within 72 hours of the permit holder receiving a second noise complaint
due to processing during nonextraction hours, the permit holder shall
install a decibel meter at the building or structure on the property
of the complaining party at the sole expense of the permit holder.
(a)
If the measured noise at the building or structure of the complaining party exceeds the limits stated in Subsection B(2) above, then all processing during nonextraction hours of operation shall immediately cease. The permit holder shall conduct a noise survey prior to recommencing any processing during nonextraction hours of operation.
(6)
Extraction. Noise due to extraction is not limited by this article
but may be regulated through the conditions of the conditional use
permit.
C.
Illumination limits.
(1)
All structural lights approved in the photometric plan to illuminate
exterior work areas shall be directed toward the interior area of
the site and not off the site and shall be equipped with shrouds to
reduce light pollution during use.
(2)
All lighting at the operation shall comply with a photometric plan
approved by the Zoning Board of Appeals. Further, prior to installing
any new or temporary outdoor lighting not approved by the Zoning Board
of Appeals, other than emergency lighting, the permit holder shall
submit a revised photometric plan to the Zoning Board of Appeals and
receive approval prior to implementation of the revised photometric
plan.
(3)
The photometric plan shall contain, at a minimum, the following information
and specifications:
(4)
All photometric plans shall be reviewed by a professional of the
City's choice who is qualified to review photometric plans.
D.
Screening/buffering. Berms shall be subject to the approval of the
Common Council.
(1)
To minimize dust, noise and light, a berm or other screening barrier
may be required between the site and adjacent properties.
(2)
The Common Council has the right to require any berms or other screening
barriers recommended by a licensed engineer selected by the City.
(3)
A berm or other screening barrier may be required between the site
and any public road.
(4)
A berm or other screening barrier may be required to mitigate visual
impacts of the site from existing historical, cultural, and recreational
features and dwellings, including but not limited to trails, navigable
waters, and sites identified in Trempealeau County and State of Wisconsin
cultural databases.
E.
Stormwater management plan. The applicant shall prepare and file
with the Department, with a copy to the Common Council, a stormwater
management plan. Operations may commence only after approval of the
stormwater management plan by the Department and after the applicant
has provided a copy of the Department's approval to the Common
Council. The applicant shall ensure that the stormwater management
plan is implemented, operated, and maintained strictly in accordance
with the approval issued by the Department. The applicant and permit
holder shall be jointly and severally liable for maintaining stormwater
retention ponds located on the site, or located on other property
but used in the operations, in a condition as approved by the Department.
F.
Air quality management. A fugitive dust control plan shall include
plans for monitoring and controlling fugitive dust from trucks, elevator/loader,
and rail cars. To mitigate public nuisances and public health concerns,
the Common Council shall require dust control for all nonmetallic
mining operations. The City shall select a licensed engineer to prepare
a fugitive dust control plan which shall contain, at a minimum, the
following measures:
(1)
Remedies to control dust may include methods such as berming, landscaping,
enclosures for processing equipment and watering stockpiled materials
and all roads within the site.
(2)
All equipment used in the operation shall be constructed, maintained
and operated in such a manner as to minimize, as far as practicable,
dust conditions.
(3)
The Common Council shall require air quality/air particulate monitoring
of an operation. An operation that excavates, transfers, processes
or stockpiles silica sand shall monitor air quality/air particulates
as described herein. Monitoring equipment shall be maintained, installed
and operated in accordance with all applicable Wisconsin and federal
regulations. Monitoring equipment shall meet all applicable Wisconsin
and federal regulations.
(a)
The applicant or permit holder, as applicable, shall begin air
quality/air particulate and weather monitoring at least six months
prior to commencement of the operation to create a baseline of the
area.
(b)
Stationary monitors shall be located at strategic locations
along the site property lines, within the site, with a minimum of
two monitors with one each located upwind and downwind of the site,
in accordance with the fugitive dust control plan.
(c)
Continuous remote readings shall be taken and reported to the
City in a real-time basis and in accordance with the fugitive dust
control plan. A summary report shall be provided to the City within
seven days of a request.
(d)
At a minimum, PM4 for crystalline silica shall not exceed 3
ug/M3 at any of the monitors. The permit
holder shall monitor for PM4 and immediately report to the City any
such report indicating that the foregoing threshold has been exceeded.
G.
Groundwater quality management.
(1)
A groundwater quality management plan shall include plans for monitoring
wells and groundwater testing.
(a)
Monitoring tests of wells used for drinking within 5,282 feet
(one mile) of the site shall be tested prior to the commencement of
operations to establish a baseline, annually thereafter while operations
are being conducted, and for a period of at least five years following
the successful reclamation of the site.
[1]
Monitoring wells shall test for the following to determine if
any are irregular or unsafe: pH; hardness; specific conductivity;
total coliform bacteria; nitrates; iron, manganese, arsenic and other
metals; sand; and volatile organic compounds (VOCs).
[2]
In the event any monitoring test reveals elevated or unsafe levels above the baseline of any factor discussed in Subsection G(1)(a)[1] above, the permit holder shall either take all measures necessary to reduce the levels of contaminants to a safe level, including drilling a new well, or pay for, at its sole expense, a licensed engineer of the City's selection to determine if the elevated contaminant levels are related to its operations. If the elevated contaminant levels, as determined by the City's licensed engineer, are related to its operations, then the permit holder shall take all measures necessary to reduce the levels of contaminants to a safe level, including drilling a new well. If the elevated contaminant levels, as determined by the City's licensed engineer, are not related to its operations, then the permit holder shall have no existing obligation to replace or repair the well. Notwithstanding the foregoing, the permit holder shall continue to monitor all wells as required herein.
(b)
Copies of all monitoring tests shall be provided by the permit
holder to the owner of the well within seven days of the permit holder
receiving the results of the monitoring tests.
(2)
Nonmetallic mining operations must at all times remain at least 20
feet above the water table level, unless an alternative level proposed
by the applicant and established by water table elevation monitoring
is approved by the Department.
(3)
The Common Council or the Department may require monitoring wells
to establish the groundwater level prior to the commencement of the
operation on a site.
(4)
The applicant must establish, to the satisfaction of a licensed engineer
selected by the City, that the operation does not pose a legitimate
risk as determined by the City to the water table level or groundwater
quality of the area. The operation must be located at least 1,336
feet (0.25 miles) from any City well.
(5)
If a high-capacity well is to be used in the operation, the applicant
shall obtain a permit for such high-capacity well from the Department
and provide a copy of the permit to the Common Council prior to commencement
of the operation.
H.
Surface water. All surface water originating outside of the site and passing through the site shall, at its point of departure from the site, be at least equal in quality to the point where it enters the site. Water quality shall be determined by testing conducted on a sampling or samplings drawn by a licensed engineer, selected by the City, at the point the surface water enters and leaves the site. Any such testing shall test for, at a minimum, the factors listed in Subsection G(1)(a)[1] above.
I.
Settling ponds and closed-loop systems. Sediments and slurries contained
in stormwater ponds shall not be discharged or used in reclamation
until all applicable standards for safe drinking water are met. All
stormwater ponds shall be of an adequate size and lined according
to specifications provided by a licensed engineer and in accordance
with Department requirements. The operations shall use a closed-loop
system to maximize the recycling of water used in the operations and
to prevent potential discharges into any groundwater or surface waters.
J.
Equipment. The applicant shall provide notice to the Common Council
of the location of equipment used to crush or separate nonmetallic
mining products as to each specific site. All equipment used on the
site shall be equipped with backup alerts that are designed to limit
noise. The permit holder shall also provide notice to the Zoning Administrator
as to any relocation of crushing or separation equipment from one
site to another no later than 24 hours after the relocation of such
equipment.
K.
Setbacks. A fifty-foot setback from the site boundary shall be maintained
within which no extraction or processing shall be allowed. In the
event two adjoining properties are permitted for mining activity,
the Zoning Board of Appeals may review the mining and reclamation
plans of the sites and may authorize a setback of less than 50 feet,
provided that if the two sites are separated by a public highway,
such setback requirement shall not be altered. All boundaries of a
site shall be set back at least 250 feet from any building or structure
used for human habitation or for the housing of farm animals, existing
at the time the applicant submits its application for a conditional
use permit, unless such setback is waived, in writing, by the fee
owner(s) of the applicable building or structure. All boundaries of
a site shall be set back at least 250 feet from any potable water
source.
L.
Blasting standards and regulations.
(1)
Generally. Blasting using dynamite or other explosives shall not
be allowed unless specifically authorized by the terms and conditions
of the conditional use permit.
(2)
Wellhead protection. Blasting is prohibited within 1,336 feet (0.25
miles) of an area designated by the City as an existing or planned
municipal well site. Blasting is further prohibited within a setback
requirement established by applicable law, including but not limited
to regulations adopted by the United States Department of Labor, Mine
Safety and Health Administration, or Chapter SPS 307 of the Wisconsin
Administrative Code.
(3)
Responsible party for damages. All blasting shall follow best management
practices. Damages caused by blasting to buildings, infrastructure,
water or sewer utilities (public and private) and any livestock or
other animals within one mile of the site shall be the sole responsibility
of the permit holder to repair or replace. Notwithstanding the foregoing,
if any buildings, infrastructure, water or sewer utilities (public
or private) or livestock or other animals are alleged to have been
damaged by blasting, and the owner thereof refused access to property
or livestock in a manner so that the consultant could not complete
the preblasting survey, then the permit holder shall have no obligation
for repair or replacement.
(4)
Preblasting survey. A preblasting survey, to be completed by a third-party
consultant approved by the City, shall be recorded on paper, video,
or unalterable electronic file to document the condition of dwellings,
structures, and wells within 5,282 feet (one mile) of the blasting
location. If blasting is to occur, then a preblasting survey shall
be conducted prior to commencement of the operations, expansion of
the operations, or change of blasting procedures. The preblasting
survey shall include the following:
(a)
The preblasting survey shall be provided to the landowner of
any documented dwellings, structures and wells within 5,282 feet (one
mile) of the site prior to commencement of the operations.
(b)
The permit holder shall send written notice to any and all landowners,
and receive their written consent, prior to conducting any preblasting
survey.
(c)
The preblasting survey shall include the record through inspection
of the baseline condition of a building or structure, including assessments
of both the interior and exterior condition of the structure, well,
and well testing.
(5)
Blasting notification. The permit holder shall provide notice of
blasting to the Zoning Administrator, the City of Arcadia Police Department,
the Chief of the Arcadia-Glencoe Fire Department or his or her designee,
the Town of Arcadia and the Trempealeau County Sheriff's Department
dispatch. Within 72 hours prior to a blasting event at the site, the
permit holder shall notify all residents and landowners within a radius
of 2,640 feet (0.5 miles) of the site, in writing, of an impending
blast event. Thereafter, the permit holder shall be required to develop
a blasting list of residents and landowners within 2,640 feet (0.5
miles) of the site who request that they be notified, and their preferred
method of receiving said notification. Within 72 hours prior to all
blasting events at the site, the permit holder shall use the aforesaid
list to contact all residents and landowners and notify them of the
impending blasting event. Prior to any blasting event at the site,
the permit holder shall also give the general public notice of the
impending blast event by displaying a fluorescent flag and a legible
sign within 100 feet of all public roads bordering the site. Additionally,
a distinctive warning signal shall be sounded by horn immediately
prior to the blasting event. If a blast does not occur or detonate
as intended, that blast shall still be considered complete and shall
not occur until the next scheduled blast with the proper notification,
unless otherwise required to do so by applicable state or federal
law. Failure of a blast to occur shall be reported the same as a successful
blast. Notwithstanding anything herein to the contrary, explosives
and blasting charges shall not be left in the ground. The City shall
post a notice of any blasting on the City's website.
(6)
Investigation of complaints. The Zoning Administrator shall investigate
complaints that blasting activity is damaging buildings, infrastructure,
water or sewer utilities (public and private) and any livestock or
other animals. The Zoning Administrator may order an investigation
to determine whether the alleged damage occurred; the cause of the
alleged damage; a solution to prevent future damage; and the costs
or damages to be repaired or paid for by the permit holder. The costs
of the investigation shall be paid for by the permit holder if it
is determined by the investigation that the cause of the damage was
blasting initiated by the permit holder. If the investigation determines
that the cause of the damage was anything other than blasting initiated
by the permit holder, then the complainant shall pay for the costs
of the investigation.
(7)
Blasting log. The permit holder shall maintain an accurate and complete
blasting log of each blasting event occurring at the site. The blasting
log will be maintained by the permit holder and by any entity actually
performing the blasting. Copies of the blasting logs shall be given
to the City at the end of every month, unless otherwise requested.
If the City makes a separate request for blasting logs, the permit
holder shall submit them to the City within three business days of
the City's request. The blasting log shall be maintained for
a period of not less than five years. Each blasting log shall contain,
at a minimum, the following information:
(a)
Name and license number of each blaster-in-charge;
(b)
Blast location;
(c)
Date and time of blasting event;
(d)
Weather conditions at time of the blasting event;
(e)
Diagram and cross section of blast hole layout;
(f)
Blast hole depth, spacing, and diameter;
(g)
Total pounds and type(s) of explosives used;
(h)
Distance to nearest inhabited dwelling; and
(i)
Seismic recordings of vibration and air blast levels.
(8)
Storage of explosives. The permit holder shall not store any explosives
or blasting agents at the site.
M.
Facility height. No improvements on the site shall exceed 100 feet
in height, unless otherwise permitted by the Common Council.
N.
Flocculants. All flocculants used for the operations or at the site
must be food-grade flocculants.
O.
Screening to limit visibility of facility. Depending on the location
and nature of the proposed site, the Common Council, upon its review
of the conditional use permit, and only upon the recommendation of
a licensed engineer selected by the City, may require screening from
adjacent public highways and adjacent noncompatible land uses, after
taking into consideration the height and density of the existing vegetation
on and adjacent to the site.
P.
Cultural resource site review. The applicant shall provide the Common
Council with written verification that the applicant has requested
that a cultural resource site review be performed by the Department
and that the site review has been completed. A copy of the site review
report must be filed with the Common Council prior to commencement
of operations.
Q.
Inspection and other fees.
(1)
The applicant shall provide an initial training and site visit to
emergency responders to help them learn about site-specific dangers
that may require additional precautions during emergency response
situations.
(2)
Due to the diversity of operations requiring a conditional use permit,
the Common Council may establish a schedule of fees by resolution
for conditional use permits to be issued under this article.
R.
Compliance with laws. The applicant and permit holder shall comply
with all applicable federal, state and local laws, regulations, rules,
ordinances, and court decisions.
S.
Permit expiration.
(1)
The City may preliminarily approve a conditional use permit if the
City requires certain actions to take place prior to actual issuance
of the conditional use permit. Any preliminarily approved conditional
use permit shall expressly identify that the conditional use permit
is only preliminarily approved and shall state that the issuance of
the conditional use permit is dependent upon the satisfaction of all
identified preliminary conditions.
(a)
The applicant shall be allowed 12 months from the date when
the conditional use permit was preliminarily approved to satisfy all
preliminary conditions. The preliminary approved conditional use permit
shall lapse as a matter of law upon the failure to satisfy all of
the preliminary conditions prior to the expiration of the twelve-month
period.
(b)
The City may allow one extension of time to the twelve-month
period to satisfy the preliminary conditions, upon the applicant showing
just cause. The length of any extension shall be for a fixed period
of time in the discretion of the City. In order to seek such an extension,
the applicant must submit a written request to the Zoning Administrator
prior to the expiration of the twelve-month period.
(2)
After a conditional use permit has been issued and if no activity
has taken place at an industrial sand mining site, or rail load out
facility under the permit whatsoever or, alternatively, where activity
was originally commenced but then has been terminated and such condition
of nonactivity, exclusive of required, ongoing reclamation under such
a permit, has continued for a period of 12 months in succession, the
permit shall lapse as a matter of law and no further or other activities
in operating the site other than reclamation will be allowed. Conditional
use permits for construction aggregate mining sites shall not lapse
regardless of whether activity is taking place or not. The City shall
identify at the time of permitting whether a site is industrial sand
or construction aggregate.
(a)
The Zoning Administrator shall determine whether activity or
nonactivity has taken place at a mining site. Activity shall include,
but is not limited to: blasting, construction, crushing, drying, extraction,
hauling (truck/rail load out), washing, screening, stripping, nonmetallic
mining, operation, and processing, all as defined in this chapter.
Upon the premise that the ultimate goal of nonmetallic mining is to
sell and/or remove nonmetallic minerals from a given mining site,
the Zoning Administrator shall consider whether progress is being
made at a mining site to produce a finished product intended to leave
the site in determining whether a mining site is active.
(b)
The legislative purpose of separating construction aggregate
mining from industrial sand mining is based upon the type, volume
of product, and the scale of the mining operations. Construction aggregate
sites are primarily used for infrastructure projects in a given area
to reduce hauling from sites that are not in the vicinity. The foot
print of a construction aggregate mining site is historically much
smaller in scale and correspondingly runoff and erosion concerns are
significantly reduced. Industrial sand mine sites are rarely if ever
used for local infrastructure projects; footprints are very large
in nature. The separated sand particles from an industrial sand mining
site are prone to both wind and runoff erosion at a much higher rate
than construction aggregate.
(3)
In order to seek to engage in further operations pertaining to a
nonmetallic mineral mine whose permit has lapsed, it shall be required
that the applicant file a new application for operation as if no permit
had been granted in the first place and such permit application shall
be processed in accord with all of the requirements of this action.
(4)
Upon the lapsing of a permit under this section the Zoning Administrator
shall immediately inform the permit holder of the lapsing of the permit
and notify of their obligation to engage in reclamation activities
to the extent that they are required under and in order to fulfill
the requirements of the original permit.
(5)
Should a permit holder wish to contest the conclusion of the Zoning
Administrator that no activity on site has taken place during the
twelve-month period immediately preceding notice to that effect, the
holder may request a public hearing before the Common Council to present
evidence of activity at the site. At such hearing the burden shall
be upon the permit holder to establish to the satisfaction of the
City that allowable activity did take place within that twelve-month
period of time other than site restoration or reclamation efforts.
The permit holder shall be responsible for all costs associated there
with. In the event the Common Council shall conclude that the Zoning
Administrator was in error, it shall continue the permit for the period
of time remaining under the original permit commencing with the date
of notice of its decision.
T.
Streets.
(1)
The applicant shall post and maintain a bond or cash security in
an amount determined by the City for the cost of maintaining, repairing,
replacing, and improving any City street utilized in the course of
the operations during the entire term of the conditional use permit
and for one year after the expiration or earlier termination of the
conditional use permit.
(2)
The permit holder shall cause all public roadways to be scraped clean
of materials at the end of the working day where nonmetallic mining
equipment leaves a nonmetallic mining site or site and enters a public
roadway. All such roadways shall be swept clean at the end of each
week.
(3)
Designating heavy truck traffic routes. The applicant shall ensure
that all of its employees and all third parties hauling materials
to or from the site only use heavy truck traffic routes as expressly
authorized in the conditional use permit. If no heavy truck traffic
routes are expressly authorized in the conditional use permit, the
applicant shall ensure that all of its employees and all third parties
hauling materials to or from the site only use state roads and highways
or county roads for heavy truck traffic.
U.
City water.
(1)
Use of City water. Use of City water for nonmetallic mining purposes
is prohibited unless otherwise approved by the City and is subject
to any conditions imposed in a conditional use permit by the Common
Council. The City has no obligation to provide water for use at the
site or for the operation.
(2)
Use of private well. The permit holder shall be responsible for obtaining
approval from all applicable government agencies for all private wells.
The permit holder shall provide a copy of such approvals to the City
prior to beginning an operation.
(3)
Emergency responders are exempt from the restrictions relating to
the use of City water in this article.
(4)
Any water extracted from a private well, and any water provided by
the City, shall be used only to support the operations. In no circumstances
shall the permit holder or applicant be allowed to market, or sell
to any third party, water that is extracted from a private well or
any City water.
V.
City sewer and septic.
(1)
Use of City sewer system. Use of the City sewer system for nonmetallic
mining purposes is prohibited unless otherwise approved by the City
and is subject to any conditions imposed in a conditional use permit
by the Common Council. The City has no obligation to provide access
to the City sewer system for use at the site or for the operation.
(2)
Private septic system with pretreatment. The permit holder shall
be responsible for obtaining approval from all applicable government
agencies for all private septic systems. The permit holder shall provide
a copy of such approvals to the City prior to beginning an operation.
W.
City Electric Utility. The applicant shall provide the Common Council
with proposed Electric Utility usage data, if applicable. Notwithstanding
the foregoing, the City has no obligation to provide electricity for
the operations.
X.
Certification from licensed City Engineer. A licensed engineer selected
by the City shall provide, at the sole expense of the applicant, a
utilities and infrastructure summary to the City containing, at a
minimum, the following information:
(1)
The need for any additional utilities, including water, wastewater
and electricity;
(2)
The risk of brownouts or other negative impacts of the operation
on the City's Electric Utility; and
(3)
The effect on and any risks to the City's water supply, including
the risk of groundwater contamination and draw down of the City's
water supply.
Y.
Impact on transportation.
(1)
All access points to the site shall be approved by the Common Council,
and said access points shall be clearly marked as such.
(2)
Residential streets in the City shall not be an access point to the
site.
(3)
Any spillage or dispersal on streets in the City of any substance
must be removed within one hour of such spillage. If the permit holder
fails to comply, the City may clean up any such spillage or dispersal,
the cost of which shall be borne solely by the permit holder.
(4)
All access roads to the site shall be paved for the first 200 feet
thereof. Thereafter, the access roads must be paved, or covered in
gravel that is treated with water or dust control agents to control
fugitive dust.
(5)
If the Common Council determines, based upon a transportation study
conducted by a licensed engineer selected by the City or the Wisconsin
Department of Transportation, that traffic related to the operation
will substantially adversely impact transportation in the City and
receives a recommendation to the effect, then the Common Council shall
not grant a conditional use permit to the applicant.
(6)
The licensed City Engineer or Wisconsin Department of Transportation
shall provide a transportation study to the Common Council and City
Clerk-Treasurer at the sole expense of the applicant. The transportation
study shall contain, at a minimum, an analysis of traffic and transportation
relating to the operations on the following:
(7)
The permit holder may be required to rinse the tires of all vehicles
leaving the site so as to reduce the amount of sand and other material
leaving the site.
Z.
Property value guarantee.
(1)
For the duration of each operation, the permit holder shall provide
a property value guarantee to all landowners whose properties are
within 1,336 feet (0.25 miles) of the site as of the date the applicant
applies for a conditional use permit under this article. The property
value guarantee shall include up to 40 acres of land that is contiguous
with the property that is within 1,336 feet (0.25 mile) of the site.
(2)
An adjoining landowner (hereinafter "owner" in this section) desiring
to sell his or her property and exercise the option provided in this
property value guarantee shall notify the permit holder of his or
her intent no later than the cessation of mining activity under the
conditional use permit issued to the permit holder under this article.
(3)
The owner and permit holder shall agree on the appraiser who is licensed
as a real estate appraiser in the State of Wisconsin. The permit holder
shall pay for the appraisal.
(4)
In the event the owner and permit holder are unable to agree on an
appraiser, each shall select a Wisconsin licensed appraiser, both
at the expense of the permit holder, and the average of the two appraisals
shall determine the fair market value.
(6)
The owner shall then enter into a listing contract with duration
of six months with a Wisconsin licensed real estate broker. The listing
contract shall list the permit holder as a potential buyer so that
if the permit holder purchases the property during the term of said
contract no commission shall be due.
(7)
Before accepting any offer of less than fair market value as determined in Subsection Z(3) or (4) above, the owner shall give the permit holder 10 business days' notice by fax, mail, e-mail, or personal delivery with a copy of the offer to the permit holder. If the notice is by fax or e-mail it shall also require confirmed receipt by the permit holder. If the permit holder objects in writing within 10 business days, the owner shall not accept the offer, and the owner shall promptly give written notice of rejection of the offer to the person or entity making the offer.
(8)
If the owner sells the property for less than the fair market value as determined in Subsection Z(3) or (4) above, the permit holder shall pay the owner the difference between the selling price and the fair market value. The permit holder shall make the payment within 30 days of the recording of the conveyance of the property.
(9)
If the property is not sold within six months of the date of listing contract, the permit holder shall immediately purchase the property for the fair market value as determined in Subsection Z(3) or (4) above. At the option of the seller, with the approval of the permit holder, the listing contract may be extended for an additional six months.
(10)
The guarantee shall apply only once for property within 1,336
feet (0.25 miles) of the site and shall only be available to owners
of record as of and immediately after the date of commencement of
the operation.
(11)
Properties shall not qualify for the property value guarantee
in the event the owner wishes to sell or otherwise convey the property
to a third party by a transaction which is not considered an arm's
length transaction, e.g., a sale or gift to a relative.
AA.
Other conditions. Other conditions may be imposed, including but
not limited to any conditions established by the Department as a result
of a cultural resource site review.
The applicant shall submit an erosion control and reclamation
plan to the City and Zoning Board of Appeals for approval prior to
the issuance of a conditional use permit. The goal of the erosion
control plan is to document what will be done to ensure that soil,
sediment and debris from the site and haul roads does not leave the
boundaries of the site at all times during nonmetallic mining operations.
The purpose of the reclamation plan is to tell when and what will
be done to properly close and return the site to an approved land
use after the operation ceases.
The permit holder and applicant agree to be jointly and severally liable for any fees and costs incurred by the City associated with inspection and monitoring of the site to determine compliance with Chapter 295, Wisconsin Statutes, Chapter NR 135, Wisconsin Administrative Code, Chapter 400 of the City Code, a reclamation permit, and any approved reclamation plan issued under this article or Chapter 400 of the City Code. The permit holder and applicant shall reimburse the City all actual fees and costs incurred by the City within 30 business days of notice of such fees and costs. Notice shall be deemed given upon mailing of an invoice to the permit holder's and applicant's last known address via certified mail.
A.
Conditional use permit application. The application form shall be
a form approved by the Common Council of the City. A fee, to be determined
by the City's Common Council, shall be paid by the applicant
prior to any consideration, review, hearings or meetings of or on
the application.
B.
Permitting and application process. Any person, corporation, partnership,
limited liability company or any other entity seeking a conditional
use permit shall meet with the Zoning Administrator, the firm contracted
to administer any conditional use permit issued under this article,
the Mayor, and City Attorney. In addition, the City Engineer, City
Clerk-Treasurer, Electric Utility Superintendent, Street Superintendent,
and the Water and Wastewater Superintendent shall provide a written
comprehensive review of the application for a conditional use permit
prior to any conditional use permit being issued under this article.
C.
Public hearings. The City shall conduct no less than one public hearing
independent of any other meeting for transparency, public input, and
full discussion of all applicants for a conditional use permit related
to nonmetallic mining.
(1)
Hearings shall be held in a location and at a time to allow the greatest
attendance and involvement from the general public. Cost of location
rental and police security for the hearing shall be paid for by the
applicant prior to any hearing being scheduled.
(2)
Once a public hearing has been scheduled, the chair of the hearing
shall set forth the ground rules for the hearing, to include:
D.
Notification to landowners and interested parties. All landowners
who own property within 5,282 feet (one mile) of the site, including
all residents who reside in that property, shall be notified of any
application for a conditional use permit and any public hearings.
The identity of landowners and residents shall be determined by contacting
the Trempealeau County Register of Deeds office for the addresses
of all landowners and further inquiring with those landowners for
the names and addresses of all those who reside on property owned
by those landowners that is within one mile of the site. In addition,
at the applicant's sole expense, notification shall be provided
to all residents of the City through a special notice mailed to their
address as well as notice in the City's official newspaper. The
applicant shall also provide notice to the Common Council of the City.
Finally, notification shall be provided on the City website.
E.
Review process of application.
(1)
Applicants shall provide a complete application with 12 copies to
the City Clerk-Treasurer. Additional copies shall be provided to the
members of the Common Council and Plan Commission of the City two
weeks prior to any of the respective body's meetings or hearings.
Applications shall be distributed by the City Clerk-Treasurer, or
his or her designee, to those individuals.
(2)
Each person receiving a copy of the application shall review and
provide a written summary of the application. Any revisions must be
made prior to the application proceeding through this review process.
(3)
The application shall receive no less than one public hearing. No
hearing shall be held until the application in its entirety has been
posted to the City's website and one public copy kept at City
Hall for review by the general public for a period not less than 14
business days where City Hall is open for business. A certification
of posting shall be completed by the City Clerk-Treasurer indicating
the date, time, and location(s) available for review.
(4)
The Common Council shall call for a minimum of two hearings on the
conditional use permit. The first hearing shall consist of a review
of the initial application and any testimony applicable thereto. The
second hearing shall review any additional information requested,
review all mandatory conditions and suggested conditions, and set
forth any additional conditions at the discretion of the Common Council
consistent with the purpose of this article. Additional hearings may
be required.
F.
Modification. If a permit holder seeks to modify any conditional
use permit issued under this article, it may request such modification
by submitting a written application therefor to the Common Council,
along with a nonrefundable review fee established by the Common Council
by resolution.
All requirements of Chapter 400, Mining, Nonmetallic, of the City Code shall apply to the permit holder and to the applicant.
A.
A failure of any permit holder or applicant to comply with any provisions
in this article, or any condition imposed in a conditional use permit,
upon conclusion of the required notice and hearing, shall result in
one or more of the following:
(1)
For a first violation, a forfeiture of at least $25,000, with the
Zoning Administrator having the discretion to increase the forfeiture
amount up to $100,000, depending upon the severity of the violation.
(2)
For a second violation, a forfeiture of at least $50,000, with the
Zoning Administrator having the discretion to increase the forfeiture
amount up to $250,000, depending upon the severity of the violation.
(3)
For a third violation and all subsequent violations, a forfeiture
of at least $75,000, with the Zoning Administrator having the discretion
to increase the forfeiture amount up to $500,000, depending upon the
severity of the violation.
(4)
Actual costs of any remediation or cleanup necessary to restore the
environment to the condition it was in prior to issuance of the conditional
use permit.
(5)
Revocation of the conditional use permit.
B.
Each day a violation occurs is considered a separate offense.
C.
Notwithstanding anything herein to the contrary, permit holder shall
have no less than five business days from receipt of the notice of
the violation to cure any such alleged violation, unless a licensed
engineer recommends to the Zoning Administrator that the alleged violation
is too egregious to warrant any such cure period. In the event the
violation cannot be cured within five business days, then the permit
holder shall have a commercially reasonable amount of time to cure
the alleged violation. The notice shall be in writing and shall be
delivered as follows, with notice deemed given as indicated: by personal
delivery, when actually delivered; by overnight courier, upon written
verification of receipt; or by certified or registered mail, return
receipt requested, upon verification of receipt. If not personally
delivered, the address used shall be the address of the permit holder
as stated in the permit holder's conditional use permit issued
under this article.
D.
In considering the forfeiture amount to be imposed, the Zoning Administrator
may consider, without limitation, the impact of the violation on:
Any conditional use permit issued under this article may be
amended or modified by the City if it finds that, due to changing
conditions, the site is no longer in compliance with this article.
In the event that any portion or portions of this article are
held, by a court of competent jurisdiction, invalid, illegal or unconstitutional,
it is the intent of the City's Common Council that all applications
for nonmetallic mining currently being considered shall be permanently
stayed and that no new applications will be considered until further
notice. Further, in the event that any portion or portions of this
article are held, by a court of competent jurisdiction, invalid, illegal
or unconstitutional, the remaining portion or portions shall nevertheless
be valid, enforceable, and carried into effect, and reinterpreted
so as to redefine said portion or portions within the bounds of enforceability,
unless to do so would clearly violate the laws of the State of Wisconsin.
