City and Borough of Juneau, 155 South Seward Street, Juneau, Alaska 99801

USE2006-00054

A Conditional Use permit for extracting approximately 200,000 cubic yards of material from Lemon Creek over  a five year period.

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CLICK HERE to view the staff report, datedJune 21, 2007.  This is the latest staff report which contains additional attachments. 

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STAFF REPORT

  

DATE:              May 16, 2007

TO:                   Planning Commission

FROM:             Teri Camery, Planner
                        
Community Development Department

FILE  NO.:      USE2006-00054 - Conditional Use

PROPOSAL:    Conditional Use Permit for extracting approximately 200,000 cu yards of material from Lemon Creek over a five year period

 

GENERAL INFORMATION

Applicant:                               Jan Van Dort

Property Owner:                   Ralph Horecny

Property Address:                vacant Lemon Creek streambed—no address

Legal Description:                 Mendota Park Parcel 2

Parcel Code Number:           5-B12-0-131-004-1

Site Size:                                9.55 acres

Zoning:                                   Rural Reserve and Industrial

Utilities:                                  CBJ Water and Sewer available, none on-site

Access:                                  Anka Street  

Existing Land Use:                vacant Lemon Creek streambed

Surrounding Land Use:         North       -       Davis Avenue residential

South       -       Anka Street industrial

East         -       Lemon Creek/CBJ Gravel Pit

West        -       Lemon Creek



LIST OF ATTACHMENTS

Attachment 1         Vicinity Map

Attachment 2         Original 9/14/06 application

Attachment 3         12/28/06 modified application

Attachment 4         Alaska Coastal Management Program (ACMP) 5/11/07 final review packet

Attachment 5         DNR Habitat Division Draft Fish Habitat Permit 12/28/06

Attachment 6         CBJ Engineering Comment letter to CDD 1/19/07

Attachment 7         Applicant letter to CBJ Engineering 1/23/07

Attachment 8         CBJ Engineering Comment letter to CDD 1/30/07       

Attachment 9         Gravel Extraction Impact Assessment, HydraCon Engineering, March 2007

Attachment 10       CBJ Engineering Final Comments 5/11/07

Attachment 11       Email Comment from Department of Transportation 1/22/07

Attachment 12       US Fish and Wildlife Service Comments to the Corps of Engineers 2/7/07

Attachment 13       National Marine Fisheries Service Comments to the Corps of Engineers 2/8/07

Attachment 14       DNR-Habitat 12/12/06 ACMP Review Comments

Attachment 15       CBJ Lands 11/30/07 Comment to Corps of Engineers and applicant response

Attachment 16       Wetland Review Board 1/18/07 Meeting Minutes

Attachment 17       CBJ Lemon Creek Watershed Assessment 2004 relevant mining sections

Attachment 18       Lemon Creek Baseline Aquatic Habitat Characterization 2004

Attachment 19       Lam Comment to Corps of Engineers 11/28/06

Attachment 20       Email message from CBJ Engineering regarding bond amount 5/15/07

PROJECT DESCRIPTION

The applicant requests a Conditional Use permit to mine up to 200,000 cubic yards of sand and gravel from a privately-owned section of the Lemon Creek streambed over a period of five years.

The mining area includes the section of Lemon Creek east of the Glacier Highway bridge, located south of the Davis Ave ROW and extending from below the bend in Davis Ave in a northeasterly direction to the Lemon Ck Correctional Facility. The southeast and northwest boundaries of the property are the ordinary high water line on the south and north banks of Lemon Ck.

The site has legal access through a sixty foot easement to Davis Avenue on the north side and to Anka Street on the south side. The access to Anka Street is developed as a short side road known as Ralph’s Way. This access will serve as the only ingress and egress point for truck traffic (Attachment 1 and Attachment 2). The material will trucked down Anka Street, to Glacier Highway, and then to a large parcel at the end of Concrete Way in the JRM Industrial Subdivision (owned by Mr. Horecny, leased to Secon Inc.). Materials will stockpiled and delivered as necessary.

The parcel area includes a small section that is zoned Rural Reserve, while the rest is zoned Industrial. Mining will begin at the upstream end of the parcel, with access from the upland area at Ralph’s Way at the end of Anka Street.

Material will be removed with hydraulic excavators and dump trucks operating within the stream. The maximum depth of excavation will be 10 feet. In accordance with recommendations from the DNR-Habitat division, mining would begin on May 15th each year and end on March 15th. CBJ Engineering requires that the applicant stay 10 feet from all property lines, which will be mapped before the start of each mining season. This is described in greater detail under the Project Design section. The applicant proposes operating hours of 7 am to 6 pm, Monday - Saturday (Attachment 2).

The mining plan consists of a temporary ramp which will be installed leading from the intersection of Anka Street and Ralph’s Way to the streambed mine site. Five 48” high, up to 40’ long culverts will be temporarily installed for the creek passage during mining operations. The culverts will be pulled from the river every year by March 15 and reinstalled after May 15. Fill will be placed on the culverts to create a roadbed, and rip-rap will be placed on the access ramp sides to prevent erosion. A total of approximately 327 cubic yards of fill materials would cover .04 acres on the access ramp. An excavator and dump trucks will use the ramp and temporary crossing to access the opposite side of the creek. Originally a single berm was proposed to divert creek waters. The modified plans call for a series of 8 small berms (10’ wide, 3’ high, and 1,575’ in length) that would prevent the waters from entering the area where gravel extraction is occurring. The berms would be composed of approximately 1750 cubic yards of fill material excavated from the creek bed and would cover approximately .36 acres. The modified plans call for the placement of up to 100 yards of woody debris hard points to be added to provide fish habitat in the excavated area once the gravel extraction has been completed (Attachment 4).

Mining would begin by removing material from exposed bars and the ground below them which do not contain fish eggs, which would create new low areas within the channel. Water would be rerouted through the mined areas at the end of the activity, thereby creating new dry areas for mining the next season.

Areas being actively mined would be separated from spawning beds by margins so that the spawning beds are not impacted by ground disturbing activities and sediment. The culverts will be removed when the site is not being mined so that fish passage is assured (Attachment 5).

Staff notes that the project has changed over a period of months. Full project materials are available within the original and modified versions in Attachments 2,  3, & 4. The earlier versions contain some materials that were not repeated in the later versions, and the second and third versions address only the requirements of the Alaska Coastal Management Program and not CBJ Code requirements. Therefore all three project descriptions have been included for your reference. Additional project details, particularly regarding the mining sequencing and progression along the creek, are included in the DNR-Habitat Draft Title 41 Fish Habitat Permit in Attachment 5, pages 2 and 3. This attachment also includes details regarding final construction of habitat features.

 

BACKGROUND

Lemon Creek was mined extensively in the project area by the property owner, Mr. Ralph Horecny, throughout the 1980s. Gravel has continued to accumulate since this time from eroding banks upstream. The area has been specifically identified as a deposition zone in the 2004 Lemon Creek Watershed Geomorphic Assessment and Sediment Management Alternatives Analysis, which was prepared for the CBJ Engineering Department by Inter-Fluve, Inc. The analysis recommends mining in this zone, with appropriate habitat mitigation, as one of three measures to reduce flood potential. The other two measures are removal of the Juneau Redi-Mix bridge, which has been completed, and stabilization of exposed and eroding banks in the upper reaches (Attachment 17).

Sections of the Lemon Creek analysis that are most relevant to this project have been included in Attachment 17. A copy of the full report is available at the CBJ website on-line at:

http://www.juneau.lib.ak.us/engineering/lemoncreek.php

 

ANALYSIS

Project Site - The project site is a privately-owned streambed with a small adjoining upland access area at the end of Anka Street. The 9.55 acre parcel is the remaining fraction of the original USMS 609, a patented placer mining claim. The streambank on the southern boundary paralleling Anka Street is quite steep, while the northern banks in this area are slightly more gradual. The project area is identified in the Lemon Creek Watershed Analysis as a deposition zone where gravel accumulates, as opposed to other stretches of the creek that contribute to the material load through erosion. The site is bordered on the south and east by industrial uses, and to the north and west by residential use within the D-10 zone.  

Project Design - A full Project Description is included at the beginning of this staff report; additional details may be found in Attachments 4 and Attachment 5. This Project Design section will focus on the analysis and conclusions of the CBJ Engineering Dept and their final recommended conditions.

CBJ Engineering (hereafter Engineering) has evaluated the project for conformance with the CBJ Land Use Code Sand and Gravel Section, 49.65.200. This code section has been written to apply to upland sand and gravel mining, not streambed mining, so most sections do not apply. Thus Engineering has focused its review on three primary concerns, including flooding, bank protection, and downcutting (Attachment 6). Engineering notes that if mined correctly, there is a benefit to surrounding properties by reducing flood potential. However if appropriate mitigation measures are not used, there is potential to undermine existing slopes. Engineering requested that the applicant hire a licensed Alaskan engineer “to evaluate existing banks, excavations, river hydraulics, to recommend, design, and implement mitigation measures necessary to protect adjacent properties.”  The applicant has provided a report from Hydracon Engineering addressing these issues (Attachment 9). Engineering’s initial comment letters and the response letter from the applicant are included in Attachments 6-8, while the final letter with recommendations is included as Attachment 10.

Engineering has accepted the applicant’s hydrology report, and believes that it adequately addresses concerns to surrounding property owners. The report indicates that there will not be any increased risk of flooding, and that downcutting can be managed. The applicant’s report includes three recommendations, which Engineering supports and which staff recommends as project conditions. These include the following:

1.  The operator shall stockpile about 50 cubic yards of broken rap, equivalent to Class I rip-rap, near the project area to address emergencies if the flow becomes redirected towards the bank. If the rock is not used it may be sold when the project ends.

2.  The total volume shall be limited to 200,000 cubic yards.

3.  Prior to issuance of the first year’s grading permit and approval of the first year mining plan, the operator shall submit a bond of $30,000, sufficient to repair any serious bank damage.

To further address bank protection and downcutting, Engineering recommends the following conditions, which staff recommends as project conditions. As noted in Attachment 11, these include the following:

  1.  By April 15th, one month before the commencement of each mining season, the applicant shall submit a mining plan. Such plan shall include:

  2.  Prior to the commencement of mining, the applicant shall be required to stake property lines and a line offset 10’ from property lines.

  3.  Prior to the commencement of mining the applicant shall make a video of the entire area and submit the video to the Engineering Department.

  4.  The top of excavation slopes shall be prohibited within 10’ of any banks or the property lines.

  5.  The applicant shall directly hire, or pay permit inspection fees to provide for periodic inspection of the mining area by an appropriately licensed engineer and/or hydrologist.

  6.  Periodic inspections shall be made as determined by the engineer and/or hydrologist, sufficient to monitor the operation. Such periodic inspections shall include visits during or after high water events.

  7.  Inspection reports shall be submitted to the Engineering Department for each 10,000 cubic yards of material removed from the stream, and those reports shall include the following information:

  8.  An inspection report shall be submitted at the end of the mining season which includes all items in above numbers 3 and 7. The report shall be submitted to the Engineering Department within one month of the end of the mining season. (Attachment 10)

The applicant has agreed to these conditions, and these conditions have also been included in the project description in the Alaska Coastal Management Program review (Attachment 4).  

Engineering identified additional project conditions in an earlier memo (Attachment 8), which reinforces many of the conditions listed above. Staff again recommends these measures as final project conditions, including:

  1. The applicant/operator shall confine all excavations to within existing rip-rap banks. Prior to proceeding with annual excavations, the applicant must find and stake adjacent rip-rap banks.
  2. The applicant/operator shall protect the structural integrity of existing streambanks and rip-rap banks. A no-disturbance zone of at least 10 feet horizontal distance from adjacent rip-rap and banks is recommended. (This condition is necessary because rip-rap boundaries may or may not correlate with property boundaries, as noted in the earlier requirement to mine 10 feet from property boundaries.)
  3. The applicant shall protect all vegetated slopes and maintain a similar non-disturbance zone identified above, unless a site-specific engineering analysis indicates otherwise.
  4. All cut-slopes shall be less than 2 horizontal to 1 vertical unless a site-specific engineering analysis proves that a steeper slope protects adjacent properties.

At this writing CBJ has not received any comment letters from the public. However the U.S. Army Corps of Engineers has received one comment letter from an adjacent property owner along Anka Street (Attachment 19). The property owner has expressed concern about erosion of riverbanks, including the banks on his two lots. He suggests an erosion prevention plan for nearby properties.

This concern has been addressed through all of the conditions listed above. These measures are designed to keep mining activities well away from property lines and also provide for evaluations at the beginning and end of the mining season, with continuous inspections throughout the year so that adjustments can be made in response to changing conditions. This serves as an erosion prevention plan and also as an erosion monitoring plan.  

Traffic - Excavation materials will be transported in 10 and 20 yard trucks which will leave the site at the upsteream northeast corner of the parcel, at the intersection of Ralph’s Way and Anka Street. Material will then be trucked a short distance on Glacier Highway to Concrete Way and then continue south to U.S. Survey 204, where it will be stockpiled on a large parcel owned by the same property owner, Mr. Horecny. (This property is currently being leased by Secon.) Some material will be taken directly to specific job sites as needed.

The applicant’s original proposal was to utilize a flagger to cross Glacier Highway from a private easement as a second route (Attachment 2); however DOT has rejected this option (Attachment 11). Staff recommends a condition that allows routing only at the Anka St/Glacier Hwy intersection.

Though the project will add significant truck traffic along Anka Street and Glacier Highway, the traffic load will be indistinguishable from traffic from existing gravel mining operations by CBJ and Secon near Lemon Creek. Traffic will not move through any residential areas and will be primarily in industrial areas of Anka Street and Concrete Way, in addition to Glacier Highway, which DOT has classified as a Collector road. DOT has no concerns about traffic from the development (Attachment 11).

Noise - The project will generate a substantial volume of noise from hydraulic excavators and dump trucks operating within the streambed. The noise is likely to echo and possibly be amplified due to the topographic features of  the Lemon Creek valley. All homes and businesses whose main dwellings and offices face the creek along the adjoining properties will be affected. The Rivers Edge condominium development is likely to be the most affected, as these residences have been designed to face the river and enjoy its amenities.

The applicant proposes operating hours of 7 am to 6 pm, Monday through Saturday (Attachment 2).

CBJ Code 42.20.095, Disturbing the Peace, states:

        (b)    Construction of buildings and projects. It is unlawful to operate any pile driver, power shovel, pneumatic hammer, derrick, power hoist, or similar heavy construction equipment, before 7:00 a.m. or after 10:00 p.m., Monday through Friday, or before 9:00 a.m. or after 10:00 p.m., Saturday and Sunday, unless a permit shall first be obtained from the City and Borough building official. Such permit shall be issued by the building official only upon a determination that such operation during hours not otherwise permitted under this section is necessary and will not result in unreasonable disturbance to surrounding residents.

 

In accordance with this section, staff recommends a condition stating that Saturday operating hours shall be reduced to 9 a.m.- 6 p.m.

CBJ has not received any public comments on the proposal at this writing. If further comments indicate that the noise level from the project is unacceptable, the Planning Commission may wish to further restrict hours, particularly for Saturday operations.

Public Health or Safety - The adjacent Rivers Edge Condominium development includes a trail along the edge of the Lemon Creek. Though the streambed is privately-owned, many people living in this development and in the surrounding residential areas utilize this section of Lemon Creek as a recreational area for walking dogs, throwing Frisbees, etc., particularly during times of low water flow. Thus the mining proposal, with excavated areas up to ten feet deep, has the potential to be a significant public safety hazard without appropriate warning measures.

CBJ Engineering recommends, and staff supports as project conditions, that excavated areas must be clearly marked with warning signs. Excavated slopes must be graded to a gentle slope of 4 horizontal to 1 vertical before signs are removed. These measures shall be integrated into the annual grading permit.

Property Value or Neighborhood Harmony - The subject parcel is zoned partially Rural Reserve and primarily Industrial. The parcel is bordered by residential areas to the north and west and by industrial zoning and associated industrial developments to the south and east. CBJ has a gravel pit within one quarter mile of the mining site, while Secon has mining operations farther up the Lemon Creek Haul Road. Anka Street already receives heavy industrial and truck traffic from these existing operations, therefore traffic from the proposal is expected to blend in with the flow and not be distinctly noticeable.

The residential areas to the north, particularly those developments which face the creek such as Rivers Edge condos, will experience the most notable neighborhood harmony impacts from the mining proposal, as a consequence of being adjacent to an industrial area. As described earlier, the primary impacts will be from the noise of heavy equipment operating within the stream. A mining operation in effect for 10 months of the year, 6 days a week, for 5 years will significantly change the daily experience of residential owners on or near the creek, and will impact those who use the creek for recreational purposes, although the creek is privately owned.

This issue is challenging to address. The subject property is part of a patented placer mining claim within Rural Reserve and Industrial. Residential areas that border industrial areas are frequently subject to greater levels of noise and disturbance than other areas. It is also difficult to assess how much the heavy equipment operation within the streambed will stand out from other noisy uses in the industrial area across from the stream along Anka Street, and from uses farther upstream in Lemon Creek valley that may echo.

Staff has proposed a condition that reduces the Saturday hours of operation to 9 a.m., in conformance with CBJ Title 42 Disturbance of the Peace regulations. At this writing CBJ has not received any comments from the public regarding noise or any other concerns. In the absence of such comments, staff will not be recommending any further measures to address Neighborhood Harmony.

The mining development may increase property values by lowering the creekbed and reducing the flood hazard and bank erosion in the area, with the proper mitigation measures supported by CBJ Engineering. As noted in the Background Section, the Lemon Creek Watershed Analysis recommends mining in this zone, with appropriate habitat mitigation, as one of three measures to reduce flood potential. The other two measures are removal of the Juneau Redi-Mix bridge, which was completed, and stabilization of exposed and eroding banks in upper reaches (Attachment 17).

Juneau Comprehensive Plan 1995 Update - Upper Lemon Creek, including the subject parcel, is categorized as RD, Resource Development in Subarea 5. This designation is consistent with the mining proposal. The Guidelines and Considerations for Subarea 5 note that “substantial private and publicly owned sand, gravel and rock resources remain and will continue to be mined for several more years.”

The guidelines note that several waterbodies in this subarea, including Lemon Creek, are listed by the state Department of Environmental Conservation as impaired waterbodies. Therefore the direction is to “carefully review all future development which could affect the water quality of these streams.” This review is undertaken throughout the staff report and continues in the upcoming Habitat section.

The proposed development supports Policy 3.10, which states:

It is the policy of the CBJ to conserve and protect from conflicting land uses known gravel deposits and those identified in the future.

Coastal Development and Habitat Regulations – CBJ Code 49.70.900 through 49.70.1097

(The former Juneau Coastal Management Program section)

(Staff notes that the Juneau Coastal Management Program (JCMP) does not currently have any local policies that are accepted through the state Alaska Coastal Management Program, due to Senate Bill 102. This bill was passed two years ago but was not fully implemented until approximately two weeks ago. The original JCMP policies have been adopted into the city Land Use Code, Title 49, and are thus still locally enforceable and a mandatory part of local permit reviews. However the policies in this section may no longer be officially categorized under the JCMP. Consistency review comments through the Alaska Coastal Management Program must utilize the statewide habitat standards.)

Habitat regulations under review in this proposal include the following:

49.70.905 Coastal Development (4). Dredging and filling shall be prevented in highly productive tideflats and wetlands, subtidal areas important to shellfish, and water important for migration, spawning and rearing of salmon and other sportfish species, unless there is a significant public need for the project and there is no feasible and prudent alternative to meet the public need.

49.70.950(d) Habitat. Rivers, streams and lakes shall be managed so as to protect natural vegetation, water quality, important fish or wildlife habitat, and natural waterflow.

(Streambed activities are automatically exempt from the 50 foot habitat setback regulation.)

The project satisfies a significant public need by lowering the base level of the creek in this section and thereby reducing the flood hazard. The Lemon Creek Watershed Analysis lists streambed mining as one of three recommendations to reduce the flood hazard on Lemon Creek, and notes this area as a deposition zone, which makes it a key area for mining (Attachment 17). Thus the requirements of the first regulation have been met. The remaining review will focus on the Habitat Standard for rivers, streams, and lakes in 49.70.950(d).

Lemon Creek is classified by the state Department of Environmental Conservation as an impaired water body due to turbidity, sediment, and habitat modification. DNR-Habitat reports that Dolly Varden char may be found in Lemon Creek year-round, while chum fry and coho smolts migrate downstream from March through May. Adult chum and coho salmon migrate into Lemon Creek to spawn from mid-July through early November, while coho salmon spawn in clear water tributaries in upper Lemon Creek. The best chum spawning habitat in Lemon Creek occurs in the reach of the stream proposed for mining. The creek fills with spawning salmon through the summer months (Attachment 5).

DNR-Habitat states that “the project design allows gravel to be extracted as needed to meet demand, while minimizing impacts to chum salmon eggs, alevin and fry. The plan provides for the majority of work to be accomplished during the winter months when the ground is frozen and water levels are low. Areas being actively mined will be separated from spawning beds by margins so the spawning beds are not impacted by ground disturbing activities and sediment.” (Attachment 5 page 2).

The project has been approved by DNR-Habitat through both a Draft Title 41 Habitat permit (Attachment 5) and in comments to the Alaska Coastal Management Program (Attachment 14).

The U.S. Fish and Wildlife Service (USFWS) has submitted a comment letter to the U.S. Army Corps of Engineers which states that the project is “a significant improvement to the original proposal.” (Attachment 12) However USFWS lists a series of concerns regarding the lack of detail in the mining plan regarding topography, detailed plan views, and monitoring throughout the five year period to actively manage the project and adjust to changes. USFWS states “the proposed project plan continues to lack a written mining and reclamation plan, a basic suite of Best Management Practices, order of operations, schedule, or sediment and turbidity controls.” The conditions recommended by CBJ Engineering and by staff in this report address some of these issues by requiring a detailed mining plan before each mining season and an evaluation after of each season.

USFWS’ primary disagreement with DNR-Habitat is regarding the months of operation. DNR-Habitat accepts mining from May 15 to March 15 each year, while USFWS recommends mining only during the low-flow period of December 1 through March 15th, to completely avoid impacts to incubating salmon eggs within the stream gravel. USFWS notes that waterflows in the creek from June through September are 27 to 46 times larger than flows in January, according to 19 water-years of flow monitoring from the U.S. Geological Survey.  “We anticipate that equipment entry into the creek and discharge of berm materials and excavation of gravel can occur with lesser environmental risk from fuel/fluid spills, berm failures, and turbidity release with the requirement of this [December 1-March 15] timing window,” states USFWS. This restricted timing window would eliminate mining operations during salmon spawning periods.

The National Marine Fisheries Service (NMFS) comments to the Corps echoed the comments of USFWS regarding the need for more detailed plans. NMFS has requested an Essential Fish Habitat Assessment due to the potential impact on juvenile and adult salmon. The applicant, through the Corps of Engineers, has agreed to conduct the assessment and has asked for a 30 day extension from the previous deadline to complete the assessment. The applicant will now complete the assessment sometime prior to June 27, 2007. NMFS will not submit their final comments and recommendations on the project until the EFH Assessment has been completed. 

CDD has determined that the EFH Assessment is not necessary for completion of our review,, however if the final project description changes significantly as a result of the EFH Assessment, a modified Conditional Use permit may be required.

The Wetland Review Board (WRB) reviewed the project in its advisory role at the January 18, 2007 regular meeting. After lengthy discussion, the Board passed the following motion:

The Board recommends to the Planning Commission the approval of USE2006-00054, as addressed in the state DNR-OHMP Draft Fish Habitat Permit, FH06-1-0128.

In short, the Board approved the proposal with the measures outlined by DNR-Habitat. The Board emphasized that the Lemon Creek system would remain severely impaired until the erosion in upper Lemon Creek in Hidden Valley was effectively addressed. The Board also emphasized that they were approving gravel mining in this salmon stream only because the stream has been so significantly altered by resource extraction activities and channelization in the past and is no longer functioning as a natural system. A similar proposal would not be entertained on other salmon streams. Board meeting minutes are included in Attachment 18. Staff notes that comments from the USFWS and NMFS were not yet complete and available for reference at the Board’s review meeting.

The recommendations of DNR-Habitat and the WRB indicate that the standards of 49.70.950(d) Habitat have been met, while comments from USFWS and NMFS, as well as the outstanding EFH Assessment, indicate significant concerns with the project, particularly regarding the timing window.  

 

FINDINGS

CBJ §49.15.330 (e)(1), Review of Director's Determinations, states that the Planning Commission shall review the Director's report to consider:

1.     Whether the application is complete; and,

2.     Whether the proposed use is appropriate according to the Table of Permissible Uses;

3.     Whether the development as proposed will comply with the other requirements of this chapter.

The Commission shall adopt the Director's determination on the three items above unless it finds, by a preponderance of the evidence, that the Director's determination was in error, and states its reasoning for each finding with particularity.

CBJ §49.15.330 (f), Commission Determinations, states that even if the Commission adopts the Director's determination, it may nonetheless deny or condition the permit if it concludes, based upon its own independent review of the information submitted at the public hearing, that the development will more probably than not:

1.     Materially endanger the public health or safety;

2.     Substantially decrease the value of or be out of harmony with property in the neighboring area; or,

3.     Not be in general conformity with the comprehensive plan, thoroughfare plan, or other officially adopted plans.

 

Per CBJ §49.15.300 (e)(1)(A thru C), Review of Director's Determinations, the Director makes the following findings on the proposed development:

1.     Is the application for the requested conditional use permit complete?

Yes.  We find the application contains the information necessary to conduct full review of the proposed operations.  The application submittal by the applicant, including the appropriate fees, substantially conforms to the requirements of CBJ Chapter 49.15.

2.     Is the proposed use appropriate according to the Table of Permissible Uses?

Yes.  The requested permit is appropriate according to the Table of Permissible Uses.  The permit is listed at CBJ §49.25.300, Section 14.500 for the Industrial and Rural Reserve zoning districts.

3.     Will the proposed development comply with the other requirements of this chapter?

Yes.  The proposed development complies with the other requirements of this chapter. Public notice of this project was provided in the May 11 and May 21 issues of the Juneau Empire's "Your Municipality" section, and a Notice of Public Hearing was mailed to all property owners within 500 feet of the subject parcel.  Moreover, a Public Notice Sign was posted on the subject parcel, visible from the public Right of Way.

4.     Will the proposed development materially endanger the public health or safety?

No.    With acceptance of the suggested conditions requiring warning signs and a 4:1 slope along excavated areas, potential threats to public safety will be adequately addressed.

5.     Will the proposed development substantially decrease the value of or be out of harmony with property in the neighboring area?

No.  Heavy equipment operating in the stream will generate substantial noise for properties facing the creek. However hours of operation shall be reduced on Saturdays in compliance with Title 42 regulations regarding Disturbing the Peace. Traffic flow will blend in with existing industrial traffic on main roads and will not go through residential areas. The mining development will benefit surrounding properties by reducing the flood hazard, while extensive project conditions are in place to prevent damage to banks of the properties adjacent to the creek.

6.     Will the proposed development be in general conformity with the land use plan, thoroughfare plan, or other officially adopted plans?

Yes. The proposed development supports the designations and policies of the Juneau Comprehensive Plan, 1995 Update, specifically the policies regarding sand and gravel resources.

 

RECOMMENDATION

Staff recommends that the Planning Commission adopt the Director's analysis and findings and grant the requested Conditional Use permit USE2006-00054.  The permit would allow the extraction of 200,000 cubic yards of gravel from Lemon Creek over a period of five years, subject to the following conditions:

1.  The operator shall stockpile about 50 cubic yards of broken rap, equivalent to Class I rip-rap, near the project area to address emergencies if the flow becomes redirected towards the bank. If the rock is not used it may be sold when the project ends.

2.  Prior to issuance of the first year’s grading permit and approval of the first year mining plan, the operator shall submit a bond of $30,000, sufficient to repair any serious bank damage.

3.  By April 15th, one month before the commencement of each mining season, the applicant shall submit a mining plan. Such plan shall include:

a.  Estimation of material to be removed

b.  Map of area to be worked (showing property lines)

c.  Map showing proposed culverts, access roads, bank stabilizations, stream relocations and other proposed features

d.  Such mining plan shall be processed by the Engineering Department as an annual grading permit

4. Prior to the commencement of mining, the applicant shall be required to stake property lines and a line offset 10’ from property lines.

5.  Prior to the commencement of mining the applicant shall make a video of the entire area and submit the video to the Engineering Department.

6.   The top of excavation slopes shall be prohibited within 10’ of any banks or the property lines.

7.  The applicant shall directly hire, or pay permit inspection fees to provide for periodic inspection of the mining area by an appropriately licensed engineer and/or hydrologist.

8.  Periodic inspections shall be made as determined by the engineer and/or hydrologist, sufficient to monitor the operation. Such periodic inspections shall include visits during or after high water events.

9.  Inspection reports shall be submitted to the Engineering Department for each 10,000 cubic yards of material removed from the stream, and those reports shall include the following information:

a.  Volume of material removed

b.  Map of area worked

c.  Verification of compliance with mining plan

d.  Report of bank destabilizations

e.  Opinion whether bank/property line setbacks are adequately protecting adjacent properties

f.  Bank protection/stabilization measures if merited

10.  An inspection report shall be submitted at the end of the mining season which includes all items in above numbers 3 and 7. The report shall be submitted to the Engineering Department within one month of the end of the mining season. (Attachment 10)

11.  The applicant/operator shall confine all excavations to within existing rip-rap banks. Prior to proceeding with annual excavations, the applicant must find and stake adjacent rip-rap banks.

12.   The applicant/operator shall protect the structural integrity of existing streambanks and rip-rap banks. A no-disturbance zone of at least 10 feet horizontal distance from adjacent rip-rap and banks is recommended. (This condition is necessary because rip-rap boundaries may or may not correlate with property boundaries, as noted in the earlier requirement to mine 10 feet from property boundaries.)

13.   The applicant shall protect all vegetated slopes and maintain a similar non-disturbance zone identified above, unless a site-specific engineering analysis indicates otherwise.

14.   All cut-slopes shall be less than 2 horizontal to 1 vertical unless a site-specific engineering analysis proves that a steeper slope protects adjacent properties.

15.   Truck traffic from the development shall be routed only through the Anka Street/Glacier Highway intersection.

16.   Operating hours shall be 7 a.m. to 6 p.m. on weekdays and 9 a.m. to 6 p.m. on Saturdays. Operations shall not be allowed on Sundays.

17.   Excavated areas within the creek bed must be clearly marked with warning signs. Excavated slopes must be graded to a gentle slope of 4 horizontal to 1 vertical before signs are removed. These measures shall be integrated into the annual grading permit.

18.   No in-water work shall be allowed between March 15 and May 15.

 

 
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IMAGE-City and Borough of Juneau