Rushford Zoning Committee Minutes

Wednesday, September 28, 2011


Committee & Board members present:  Tom Jackson, Larry Hildebrand, Dean Kaderabek, Jan Clausen, Fred Kasten, Tom Egan, Jerry Schoonover, Peggy Hendricks; also present for all or part of the meeting:  10 additional persons per attendance record on file.


Tom Jackson called the Public Hearings to order at 7:05 pm. 


Public hearing for Dennis Wilke, for Arlo pit, parcel # 022 0021 

Fred Kasten read the public notice for the Conditional use permit hearing for Dennis Wilke.

Mr Wilke explained he would like to take clay, sand and gravel out for fill and have basically the same conditional use permit as previously except with name change and on 40A instead of 80A.  He will not be washing sand.  Tom Jackson asked about the poor condition of the east sign and Mr Wilke explained it was damaged, but it will be repaired.

Fred Kasten explained what the Conditional use permit really does is amend the old conditional use permit that he had.  He will become owner/operator.  It will be for the 40A which will be mined, not the 80A.  He will not be washing sand.  He will be mining out clay, sand and gravel.   The name transfer is in progress and will come to the town board as soon as it is completed.

Comments from the floor:

Ellen Newman stated that the old permit had expired 3 years ago.  The CUP is dependent on 4 different documents.  The non-metallic mining operation & reclamation plan and that refers to the town’s ordinances and SS NR 135.  Mrs. Newman had done research and her concerns are the following:

1.       The water.   On page 3, section 4, that wells can be tested ¼ mile. 

2.      On page 3, section 5, it states that the owner/operator shall be subject to the NR 135 reclamation standards as adopted by the State of WI and Winnebago Co.

3.       Page 4, section 6, she has concerns on the reclamation bond per the requirements of Section 7 of the CUP.

4.      On page 4, section 7 concerning insurance where the town gets 1 million comprehensive liability with the combined aggregate of $5 million.

5.      Page 4, Section 8 concerning roads where it has a bond for the number of trucks,

6.      In the non-metallic mining operation & reclamation plan, under the executive summary, it states the primary end land use as wildlife grazing habitat with pond and there will be a financial assurance fee reduction when the area has final reclamation.  She feels nothing has been reclaimed on the 3+3 acres and now it is for 40A.  Under 2.05 states that ultimately drainage discharges to the Fox River.  Under section 3.02 it states that final reclamation will require 1-3 years.  The mine was closed in 2008 and she feels the reclamation should of taken place.  Under 3.03 it states that there is suppose to be 25,000 cu yds of topsoil and 250,000 to 500,000 cu yds of overburden for reclamation.  She stated that under section 3.04, she did not notice the slopes were seeded. 

7.      Concerns from the Town of Rushford’s mining ordinance:

a.      Under F-2, it reads “No operations or activities, including berm construction, shall be conducted within 200 feet of any right of way line or within 200 feet of any exterior boundary of the site where a residence is located within 500 feet of the exterior boundary of the tract.” 

b.      Under F-8:  The Town shall require berms along the edges of said mining area of sufficient height, width, and mass to screen the site from adjacent land uses. Said berms shall be seeded with a fast growing grass to control erosion. Along the front of the berm, visible to the public, a row of evergreen type trees (4’-5’ height. B&B) shall be planted every 25 feet, to create a visual buffer from existing residential homes or planned residential neighborhoods, as identified in the Town of Rushford Comprehensive Plan

c.       She is concerned that inspections, yearly reports and aerial views are not reported to the town as stated in our ordinances. 

8.      Concerns under the state statues are:

a.      Chapter NR 135 concerning filing of financial assurance with the regulatory authorities.  The bonding was not filed last time Mrs. Newman and supervisor Patrick Kafer looked.  Under item 2 or 3, it reads that that the amount of bond shall equal the cost of hiring a contractor to complete final reclamation according to plan.  This shall be reviewed periodically by the regulating authority. 


She feels that a bond would have to be produced to reclam the whole 40A or whatever is under construction.  She feels the mine has been non working since 2008 and nothing has been reclamed nor is it a wildlife sanctuary.  The banks are not seeded and she does not know if they are at the right slope or not.  She feels if this CUP is issued, that the town should be able to have it reclamed as in the documents.  It also states that the owner/operator is responsible financially for any contaminated wells.  She feels her well might be one that is contaminated and she would like to feel that she is not left holding the bag because her well is bad.  These are her concerns and she wished everyone would have had these documents to study.  She has no problem with Mr Wilke mining if it is done in accordance.  Mines should be left looking better than they did originally and she thinks there is no reason this can’t happen if the town enforces their ordinances. 

Comments by the committee:  Tom Egan asked Mr Wilke if there is any difference from the CUP from 2005 to the one issued now.  Mr Wilke said he changed the dates & the name change.  Peggy Hendricks showed the past insurance and bonds that have been filed with the town.  The last ones had expired in 2010.  Mr Wilke stated that these have all been kept up and he will file the most recent ones with the town.

Fred Kasten stated that on the first page of the CUP, it will have to be changed to 40A from 80A and include the parcel number along with correct description.  Everything else is pretty much the same.  He explained for the reclamation, the owner/operator has to submit to East Central Regional Planning Commission, who is the designated Reclamation Authority (RA) for Winnebago County, to operate under NR 135, which are basically the reclamation standards.  These are renewed each year.  There are aerial photos taken each year and any new area opened up is addressed in the reclamation permit though ECRPC.  In the first part of each year, Scott Konkle from ECRPC and Fred Kasten go out and visually inspect the operation.  ECRPC will address any concerns. 

Concerning the storm water retention pond, that is taken care of in the reclamation plan.  Water used to wash sand from the previous activities was going into the retention pond.  He will not be washing sand anymore.  There is nothing in there unless we get a few inches of rain in a short time.  It will collect any runoff from the pit. 

If anyone has any concerns about their well when the pit is being operated, they may notify the operator and someone can take a water sample and have it tested.  If there are harmful sediments, the pit will be immediately closed and any corrections that have to be made will be done by decision on the Town Board.  The cost of water testing and if a new well has to be installed on a homeowners property is the pits owner/operator responsibility under the old CUP. 

Addressing the setback concerns, the Town Board has the right to issue a special permit to any operator to mine out sand, gravel, etc within the 200+ setback and then replace with part of the reclamation plan.  There will be no blasting.

The insurance and bonding that he is required to have is renewed every year and is suppose to be filed in the clerk’s office.  The permits have been renewed; it was just that the Town did not receive them. 

Ellen Newman stated that insurance and bonding are two different things.  As quoted in NR 135,   “The amount of financial assurance shall equal as closely as possible the cost to the regulatory authority of hiring a contractor to complete either final reclamation or progressive reclamation according to the approved reclamation plan. The amount of financial assurance shall be reviewed periodically by the regulatory authority to assure it equals outstanding reclamation costs.  Any financial assurance filed with the regulatory authority shall be in an amount equal to the estimated cost to the regulatory authority for reclaiming all sites the operator has under project permits.”


She thinks this should be reviewed, for if the pit was abandoned, it would be hoped that there would be enough money for the Town to reclam the land.  She thinks a contractor should go out and estimate what it would cost to reclam.  The Operation and reclamation plan goes into great detail on how it is to be reclamed. 


Fred Kasten said Scott Konkle should of attended the meeting.  He has stated to Fred that the pit is not closed.  It is still considered an operating pit.  The Conditional use permit was taken away, but that does not make it a non operational pit.  Ellen feels the pit is closed and the plan gives 3 years for reclamation, which it has been, since the CUP expired in 2008.


Scott Konkle says it is an operating pit with a lot of material that can be mined out.  The pit has a life expectancy of 25 years and final reclamation will require 1-3 years.  ECPRC is in charge of reclamation, not the town.  The owner/operator has paid for his permit to be renewed each year.  It is up to Scott Konkle from ECPRC to enforce anything he feels should be done for reclamation. 


Ellen asked if that meant our ordinances are not meant to be enforced. 


Our Town ordinance states:  “The Town shall require berms along the edges of said mining area of sufficient height, width, and mass to screen the site from adjacent land uses. Said berms shall be seeded with a fast growing grass to control erosion. Along the front of the berm, visible to the public, a row of evergreen type trees (4’-5’ height. B&B) shall be planted every 25 feet, to create a visual buffer from existing residential homes or planned residential neighborhoods, as identified in the Town of Rushford Comprehensive Plan”.


Fred stated there are weeds and grass.  It is not clipped or manicured, but it does control erosion.  There is a temporary berm there.  It is only part of the reclamation plan while he is working the pit.  According to the reclamation plan, there is no berm there.  That is to be 3:1 slope right off the road, but a temporary berm was put in for a visual buffer.  


Dean Kaderabek stated for clarification, he thinks this is a timeline issue.  He has a copy of the bond for $25,000 for the trucks.  The Town contracts with ECPRC.  They are the ones who figure out how much it is going to cost to do what is in the plan.  Ellen feels $25,000 is much too low and Dean stated that is not all of it.  The state and ECPRC holds the bond.  ECPRC makes sure the bond is renewed each year.  Tom Egan requested that copies be filed in the clerk’s office yearly. 


Mr Wilke explained that you open up 1 A, and you pay into the state.  When you are done reclaming that acre, the state pays back the money.  It is about $1600/A.  The township does not have a say, per say on how much the bond is.  Dean figures he has about 6A open.


He also pointed out that the regulatory authority is ECPRC (the county), the state and the Town. 

Dean did state that the Town needs to do a better job on going though the list of mines and staying on top of things. 


Mr Wilke stated that the CUP renews itself.  Tom Jackson said it did not if a limit was put on it.  Under the CUP, section 9, it states that the permit should be renewed if they are in compliance.  He was told by Engel & Associates that he did not have to come in every 3 years to renew.


Tom Jackson said he thought under GROUNDWATER, section 4, it was changed to ¼ mi radius for water testing.  But under review, the old permit had the same radius.  The only changes that were made from the old CUP to this new CUP, is the name, dates and the last page with signatures. 


Jan Clausen said she does not understand the ground water concern.  He is just taking out sand, gravel and clay.  He is not blasting or washing sand.  There should not be an issue.  He is using an end loader and loading into a truck. 


Dean said there is a 60 year old pit, where they had dug down to the water table and now there are troubles.  Mr Wilke said they do not dig down.  They are digging into a hill. 


Concerns by neighbor, Mark Schmeling


Mr Schmeling also has concerns of water quality and storm water runoff.  He is concerned that the runoff would come down a drainage ditch that runs through the culvert in his driveway.  He feels his culvert will not be large enough for the runoff and he has washout concerns.  Mr Wilke replied that nothing has ever escaped from the retention ponds, even during heavy rains.  At the time, he built the retention pond much larger then what the County had suggested. 


The water table level is another concern.  The operation plan lists the current water table which is pretty close to the elevation of the bottom of his driveway.  The driveway goes up a hill to reach the house and well.  The depth of the well is 130’.  He feels a drop in the water table would affect his well.  Mr Wilke said he has not and does not have plans on digging on that end. 


Mr Schmeling is concerned with the water quality.  If the water table drops, it will affect the water quality since the water table will come into contact with different soil types that leach into the water as it changes elevation.  He had his water tested last year and he requests that a water test be done at the pit owner’s expense of neighboring wells on a yearly basis.


Dean Kaderabek stated that he feels the home owner can have their water tested at their expense and if there is a change in the water, that is the time to contact the pit owner. 


Dean asked the members of the Town of Board if ECPRC has reported any problems at this site.  Tom Egan said that he has talked to Scott Konkle and they have gone out to inspect.  He has not seen any problems at all with the pit.  He did recommend putting the berm up which Mr Wilke did.  Dean asked Mr Wilke if it would be a problem revising #3 of the CUP since there is no water that ever leaves the pond.  Mr Wilke said it could never run down to the ditch and that would not be a problem. 


Dean asked why he went so close with the berm to the road right away instead of the 200’ as mentioned in the ordinances.  Mr Wilke stated this land has historical use of periodic quarrying and it was grandfathered in since it has been a pit previously. 


Tom Egan stated that the berm did not have to be put up, but Mr Wilke did, for the town people requested it.  Scott Konkle did measure off where the berm should go.


Tom Egan said who ever made the motion should include that the name transfer will have to be filed in the clerk’s office before the Conditional use permit would be issued.


Peggy Hendricks mentioned that in the file, there was water testing offered to all the neighbors.  2 declined and the results of the others are in the town file.


Motion was made by Dean Kaderabek to recommend approval of the Conditional use permit to the Town Board for Dennis Wilke, parcel # 022  0021 with the following conditions as submitted by the applicant with the following revisions:

1.       On page 3, item #3 – Concerning stormwater retention ponds/berms.  Strike the following:  except during exceptional precipitation events, when it would be prudent to allow for the release of some quantities of water under controlled conditions in order to preserve the integrity of the structures.  No water will leave the pit.

2.      On page 3, item #4 – Concerning Groundwater Quality.  It will be a 50/50 proposition between the owner and the surrounding land owners for water testing within a ½ mile instead of ¼ mile radius.

Added will be the following conditions:

1.       In addition to Page 4, items 6 & 7:  All East Central Wisconsin Regional planning commission inspections & reports, yearly reclamation permit & photo, certificate of liability insurance & license & permit bonds shall be submitted and filed with the town clerk along with transfer of real estate ownership.             

2.      Page 5, last paragraph from section 8 to read:  Operator will pay Winnebago County to install and maintain flashing signs…………

Motion was 2nd by Larry Hildebrand.  Tom Egan asked clarification of page 3, item #4.  The cost of water testing will be paid ½ by the land owner and ½ by the pit owner.

Motion carried with 1 nay.  This will be presented to the town board on October 5, 2011.

Justin Berens is having a CSM done on parcels 022 055901, 022 0561, 022 0558 & 022 0559.  They would like to purchase some property from the Freund estate (022 055901) and move a house to the property.  It will be Lot 3 on the CSM and will remain Agricultural and will not have to be rezoned.  Lot 1 across the street, which belongs to Leslie Flanagan, will be rezoned from A-1 to A-3.  This is just making it legal.  Rudy Freund sold ½ A to Flanagan over 60 yrs ago.  It is not a legal parcel of land.  After rezoning, it will be 1.06 A. 

The paper work will not be done for the October meeting.  They would like to be able to have a building permit issued for Lot 3.  They would like to put a basement in right way, for the concrete has to sit.  A house will be moved on the basement in 3 weeks.  It will go where the CSM shows the larger shed on Lot 3.  The mother, who is 92 yrs old and in poor health, lives in the house.  Once she passes, the house will be razed or burned, so there will be 2 homes on the lot for a short time.  The town will request a written agreement that this will be done.  Fred said this is a hardship case.

Dean Kaderabek suggested that the building permit should have a notation that the home there will be demolished in a certain timeline. 

Dean Kaderabek had a draft of the Slow-No-Wake ordinance & a bouy location map.  He will put the GPS coordinates in and have it ready for the next meeting.  Wording was discussed on what to use for owner ship of bouys, responsibility and placement.  It was also mentioned that if you own property on the river, you own to the middle.  If a person owns on both side, they own the river.  It was decided to read “The Town Board shall appoint person/persons to be responsible of placement”.  The posting requirements of the ordinance were also discussed.  The bouys have to be in for this to take effect. 

Dean Kaderabek presented the Town of Rushford Parcels with multiple zoning districts report.  This will be on the agenda for next month.

Motion by Kaderabek, 2nd by Clausen to adjourn at 9:25.  Motion carried.