Frac sand ban could 'make new law'
Friday, April 18, 2014 10:10 AM
The decision on whether or not to ban frac sand mining in Houston County has been put off until at least next fall.
County commissioners held a conference call with land use attorney Jay Squires on Tuesday, April 8. First, the board held an hour-long closed session to discuss a possible lawsuit over a contentious sand mining application, then opened the meeting while they discussed how to proceed on the larger issue of either writing a new industrial mining ordinance or initiating a ban.
A study group charged with drafting a sample industrial mining ordinance has already begun to meet. Commissioners have also approved a concurrent effort to look into legal language needed for a ban.
Squires said that both are connected. "I think, from a practical standpoint, it's always good to evaluate all of your options," he told the board.
Commissioner Justin Zmyewski suggested that Commissioners Steve Schuldt and Dana Kjome take care of laying the groundwork for a ban, which would include working with Squires. Both agreed, and the board agreed to the idea by consensus.
The "regulations" group charged with drafting an ordinance to control the industry was instructed - by consensus - to come up with a finished draft by Oct. 1.
Squires said that the findings of the ordinance committee will be what a potential ban would be based on. "If you conclude that you just can't pass (acceptable) regulations... Then that would lead you to the discussion of a ban," he stated. "That would be the appropriate time.
"Do we think these regulations will address our concerns? If not, then we can talk about the concept of a prohibition."
Based upon the findings of the ordinance-writing group, banning would actually be fairly straightforward, Squires added. Once the decision to do so is made, prohibition language would only take two to three weeks to draft.
Zmyewski also asked that a written opinion, which Squires was asked to develop on banning industrial sand mining, be made public. The motion to do so passed.
The Herald acquired that document.
"Given my review of the law, I believe, as a general rule, that a zoning ordinance that prohibits a certain use must be proved to be necessary to protect the health, safety, morals, or welfare of a community..." Squires wrote.
"Though I am unaware of a Minnesota case dealing with the validity of a ban of a use in a zoning ordinance, Minnesota caselaw does discuss the validity of quantitative limits on land use...
"Based on my review of the law, and in short, if Houston County adopts an ordinance banning silica sand mining, and it is challenged, the County would be making new law. In attempting to defend the ordinance, we do know based on existing case law that courts would likely apply a fairly high bar to the ordinance."
Prior to the conference call, five residents urged commissioners to ban frac sand mining. There were no calls to allow the activity during the "public comment" session. The county's moratorium on new frac sand mining permits expires next March.
After the closed session, commissioners also clarified their stance on the Erickson sand mine near Rushford. That mine once produced sand for construction purposes, but attempted to change over to a frac sand facility and was stopped by the county's moratorium.
The facility's owner and prospector Minnesota Sands then unsuccessfully sued the county in an attempt to overcome the interim ordinance (moratorium). The owner is currently applying to mine sand for other uses, utilizing other operators, but the property has been embroiled in an Environmental Impact Statement, which the Minnesota Environmental Quality Board ordered for a series of mines proposed by Minnesota Sands.
Schuldt made the motion, which directed staff to work with Erickson to process his conditional use permit application. The board also directed that an additional 60 days be applied to the permitting process.
"The board concludes that processing of this (non-frac sand) renewal request is not prohibited by the express language of the moratorium, thereby (not requiring) any pending EAW (environmental assessment worksheet) or EIS process." Schuldt stated. "The board directs staff to inform (and) provide notice of the board's determination to the affected property owners and the EQB."