KENAI PENINSULA BOROUGH

ORDINANCE 2006-01 (MARTIN) SUBSTITUTE

AN ORDINANCE REPEALING KPB CHAPTER 21.26 AND ENACTING KPB CHAPTER 21.29, MATERIAL SITE PERMITS

WHEREAS, Goal 6.5, Objective 1 of the 2005 Kenai Peninsula Borough Comprehensive Plan is to ensure that land use regulations adopted by the borough are necessary to control uses that affect public health and safety and address adverse impacts on the rights of adjacent property owners; and

WHEREAS, Goal 6.5, Objective 1, Implementation Action A, is to continue to periodically review and update existing regulations to reflect changing conditions and policies in the borough; and

WHEREAS, Goal 6.6 of the 2005 comprehensive plan is to reduce land use conflicts outside of the cities; and

WHEREAS, Goal 6.6, Objective 1, Implementation Action D, is to improve the land use regulations currently in existence including those related to material sites to minimize the impacts of erosion and flooding of neighboring properties and to minimize conflicts with surrounding land uses; and

WHEREAS, Goal 7.1, Objectives 1 and 2, of the 2005 comprehensive plan are to work with other agencies to protect public health and environment, to avoid duplications of other agencies' regulations, and to provide input to federal and state agencies on local conditions and opinions; and

WHEREAS, Goal 1 of the Mining and Minerals Processing section of the 1990 Kenai Peninsula Borough Coastal Management Program is to provide opportunities to explore, extract and process minerals, sand and gravel resources, while protecting environmental quality and other resource users; and

WHEREAS, a review of the material site ordinance was undertaken in 1998 after a citizen task force comprised of citizens and industry made recommendations; and

WHEREAS, the mayor sponsored Ordinance 98-33 after considering the task force recommendations and supplementing the same; and

WHEREAS, assembly members sponsored a substitute Ordinance 98-33 which was ultimately adopted in 1999; and

WHEREAS, the planning department has been administering Ordinance 98-33, codified as KPB 21.26 as amended, for six years; and

WHEREAS, KPB 21.25.040 requires a permit for the commencement of certain land uses within the rural district of the Kenai Peninsula Borough; and

WHEREAS, the planning department has recognized that certain provisions of the material site ordinance could be better clarified for the operators, public, and staff; and

WHEREAS, the planning department receives comments expressing concerns about dust, noise, and aesthetics which are minimally addressed by the current code; and

WHEREAS, there are parcels registered as nonconforming prior existing uses which have not been operated as material sites for a number of years; and

WHEREAS, certain additional conditions placed on material site permits would facilitate a reduction in the negative secondary impacts of material sites, e.g. dust, noise, and unsightliness; and

WHEREAS, an assembly subcommittee was formed in 2005 to review the material site code;

NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH:

SECTION 1. KPB 21.26 Material Site Permits is hereby repealed and KPB 21.29, Material Site Permits, is adopted as follows:

CHAPTER 21.29. MATERIAL SITE PERMITS

21.29.010. Application procedure.

A. In order to obtain a material site permit, an applicant shall first complete and submit to the borough planning department a permit application, along with the appropriate fee as established by resolution of the planning commission and approved by the borough assembly. The planning director may determine that certain contiguous parcels are eligible for a single permit. The application shall include the following items:

1. Legal description of the parcel, KPB tax parcel ID number, and identification of whether the permit is for the entire parcel, or a specific location within a parcel;

2. Expected life span of the material site;

3. A buffer plan consistent with KPB 21.29.030;

4. Reclamation plan consistent with KPB 21.29.050;

5. The depth of excavation;

6. Type of material to be extracted and type of equipment to be used;

7. Alternate backup warning system pursuant to 30 CFR, � 56.14132(b)(1)(iii)-(b)(3), for applicants with intent to haul material between the hours of 10:00 p.m. and 6:00 a.m.

8. Any voluntary permit conditions the applicant proposes. Failure to include a proposed voluntary permit condition in the application does not preclude the applicant from proposing or agreeing to voluntary permit conditions at a later time;

9. A site plan and field verification prepared by a professional surveyor licensed and registered in the State of Alaska, including the following information:

a. location of excavation, and, if the site is to be developed in phases, the life span and expected reclamation date for each phase;

b. points of ingress and egress. Driveway permits must be acquired from either the state or borough as appropriate prior to the issuance of the material site permit.

c. anticipated haul routes;

d. location and depth of test holes, and depth of groundwater, if encountered;

e. location of wells of adjacent property owners within 300 feet of the proposed parcel boundary;

f. location of any water body on the parcel, including the location of any riparian wetland as determined by the U.S. Army Corps of Engineers;

g. location of any processing equipment on parcel, if applicable;

h. north arrow;

i. the scale to which the site plan is drawn;

j. preparer's name, date and seal;

k. field verification shall include staking the boundary of the parcel. The planning director may grant an exemption in writing to the staking requirements if the parcel boundaries are obvious.

l. proposed buffers consistent with KPB 21.29.030(A)(1).

m. surface water protection measures for adjacent properties, including the use of diversion channels, interception ditches, on-site collection ditches, sediment ponds and traps, and silt fence; provide designs for substantial structures; indicate which structures will remain as permanent features at the conclusion of operations, if any.

10. The planning director may determine that certain contiguous parcels are eligible for a single permit.

11. The planning director shall provide vicinity, aerial, land use, and ownership maps for each application and may include additional information to aid the planning commission's decision-making process.

B. Following are the types of material site permits:

1. Counter Permits. A counter permit may be issued by the planning director without the notice requirements or planning commission approval of KPB 21.25.050 when the intent to extract material is primarily for commercial purposes other than a commercial material-site operation, provided that a four-foot vertical separation from the seasonal high water table is maintained. Material taken off-site must be deposited on a parcel under the same ownership as the parcel subject to the Counter Permit. Conditioning or processing of material under a counter permit is only allowed if the conditioning or processing takes place 300 feet from the boundaries of the subject parcel. The planning director may require the applicant to provide site plans or similar information to support the commercial purpose. A Counter Permit is valid for a period of 12 months, with a possible 12-month extension.

2. Conditional Land Use Permits. A conditional land use permit (CLUP) will be required where a site does not qualify for a counter permit. CLUPs are subject to the public hearing and notice requirements of KPB 21.25.050 and 21.25.060, and are approved by the planning commission.

C. Following are exemptions from the material site permit requirements:

1. Personal Use Exemption. A property owner may request a letter from the planning director recognizing a personal use site where no sale of the material takes place and there is no commercial use for the material. No on-site processing or conditioning of the material is allowed for off-site use. Extracted material may be disposed of off-site if there is no sale or bartering of the material. The extraction must be completed within 365 days of the date of the letter or the date extraction began, or the borough became aware of the extraction, whichever date is earlier. A personal use letter is appropriate for purposes other than commercial gravel extraction, such as when preparing an individual's own residential building site, installation of septic system, or driveway construction. The planning director may require the applicant to provide site plans or similar information to support the personal use application. The planning director may grant a one-year extension to the personal use letter upon finding that applicant still qualifies for a personal use and has valid reasons for not completing the extraction.

2. Dewatered Bar Exemption. Gravel mining taking place on dewatered bars within the confines of the Snow River and the streams within the Seward-Bear Creek Flood Service area (excluding that portion of the service area within Seward city limits), is exempt from the provisions of this chapter. Operators subject to this exemption shall register with the borough by providing the information required by KPB 21.29.010(A)(1)-(2) only. There shall be no fee for registration. All gravel mining operations exempt from the provisions of this chapter must re-register within five years from the date of initial registration.

21.29.020. Standards for sand, gravel or material sites.

A. These material site regulations are intended to protect against aquifer disturbance, road damage, physical damage to adjacent properties, dust, noise, and visual impacts. Only the conditions set forth in KPB 21.29.030 may be imposed to meet these standards.

21.29.030. Permit conditions.

A. The following mandatory conditions apply to counter permits and CLUPs issued for sand, gravel or material sites:

1. Buffer Zone. A buffer zone shall be maintained around the excavation perimeter.

a. The buffer zone shall provide and retain a basic buffer of:

i. 50 feet of natural or improved vegetation, plus a 2:1 slope thereafter to the excavation floor, or

ii. A minimum six-foot earthen berm with at least a 2:1 slope, plus a 2:1 slope thereafter to the excavation floor, or

iii. A minimum six-foot fence, plus a 2:1 slope thereafter to the excavation floor.

b. The planning commission or planning director shall designate one or a combination of the above as it deems appropriate. The vegetation and fence shall be of sufficient height and density to provide visual and noise screening of the proposed use as deemed appropriate by the planning commission or planning director.

c. At its discretion, the planning commission may waive buffer requirements where the topography of the property or the placement of natural barriers makes screening not feasible or not necessary. Buffer requirements shall be made in consideration of and in accordance with existing uses of adjacent property at the time of approval of the CLUP. There is no requirement to buffer the material site from uses which commence after the approval of the CLUP.

2. Processing. Any equipment which conditions or processes material must be operated at least 300 feet from the parcel boundaries.

3. Reclamation.

a. Reclamation shall be consistent with the reclamation plan approved by the planning commission or planning director as appropriate in accord with KPB 21.29.050.

b. As a condition of issuing the permit, the applicant shall submit a reclamation plan and post a bond to cover the anticipated reclamation costs in an amount to be determined by the planning director. This bonding requirement shall not apply to sand, gravel or material sites for which an exemption from state bond requirements for small operations is applicable pursuant to AS 27.19.050.

4. Water Source Separation.

a. All permits shall be issued with a condition which prohibits any material extraction within 300 horizontal feet of any water source existing prior to original permit issuance.

b. All counter permits shall be issued with a condition which requires that a four-foot vertical separation from the seasonal high water table is maintained.

c. There shall be no dewatering either by pumping, ditching or some other form of draining unless an exemption is granted by the planning commission. The exemption for dewatering may be granted if the operator provides a statement under seal and supporting data from a duly licensed and qualified impartial civil engineer, that the dewatering will not lower any of the surrounding property's water systems and the contractor posts a bond for liability for potential accrued damages.

d. All CLUPS shall be issued with a condition which requires that a two-foot vertical separation from the seasonal high water table is maintained.

5. Excavation in the Water Table. Excavation in the water table will require the approval of the planning commission based on the following information:

a. certification by a qualified independent civil engineer or professional hydrogeologist that the excavation plan will not negatively impact the quantity of an aquifer serving existing water sources.

b. the installation of water monitoring tubes or well casings equal in amount to the number of property boundaries of the subject parcel or as recommended by a qualified independent civil engineer or professional hydrogeologist. Location of tubes or wells may be discussed with planning department staff prior to installation to ensure adequate coverage.

c. groundwater elevation, flow direction, and flow rate for the subject parcel, measured in three-month intervals by a qualified independent civil engineer or professional hydrogeologist, for at least one year prior to application.

d. operations shall not breach an aquifer-confining layer.

6. Fuel Storage. Fuel storage for containers larger than 50 gallons shall be contained in impermeable berms and basins capable of retaining 110 percent of storage capacity to minimize the potential for uncontained spills or leaks. Fuel storage containers 50 gallons or smaller shall not be placed directly on the ground, but shall be stored on a stable impermeable surface.

7. Roads. Operations shall be conducted in a manner so as not to damage borough roads as required by KPB 14.40.175 and will be subject to the remedies set forth in KPB 14.40 for violation of this condition.

8. Waterbodies.

a. An undisturbed buffer shall be left and no earth material extraction activities shall take place within 100 linear feet from a lake, river, stream, or other water body, including riparian wetlands and mapped floodplains as defined in KPB 21.06. This regulation shall not apply to man-made waterbodies being constructed during the course of the materials extraction activities.

b. Each permit shall contain a condition, based on findings made following a planning department staff site visit, addressing surface water diversion.

c. In order to prevent erosion, an additional setback from lakes, rivers, anadromous streams, and riparian wetlands may be required, based on findings made following a planning department staff site visit.

9. Subdivision. Any further subdivision or return to acreage of a parcel subject to a conditional land use or counter permit requires the permittee to amend their permit. The planning director may issue a written exemption from the amendment requirement if it is determined that the subdivision is not inconsistent with the use of the parcel as a material site and all original permit conditions can be met.

10. Dust control. Dust suppression is required on haul roads within the boundaries of the material site by application of water or calcium chloride.

11. Hours of Operation.

a. Operations shall not be conducted between 10 p.m. and 6 a.m.

b. Processing and conditioning equipment shall not be operated between 7 p.m. and 6 a.m.

c. Hauling may be conducted between the hours of 10:00 p.m. and 6:00 a.m., provided the permittee does not use an automatic reverse-activated signal alarm. The permittee's alternate back-up warning system pursuant to 30 CFR, � 56.14132, (b)(1)(iii)-(b)(3) shall be included in the permit application.

12. Other permits. Permittee is responsible for complying with all other federal, state and local laws applicable to the material site operation, and abiding by related permits. These laws and permits include, but are not limited to, the borough's flood plain and habitat protection regulations, those state laws applicable to material sites individually, reclamation, storm water pollution and other applicable Environmental Protection Agency (EPA) regulations, clean water act and any other U.S. Army Corp of Engineer permits, any EPA air quality regulations, EPA and ADEC water quality regulations, EPA hazardous material regulations, U.S. Dept. of Labor Mine Safety and Health Administration (MSHA) regulations, and Federal Bureau of Alcohol, Tobacco and Firearm regulations regarding using and storing explosives. Any violation of these regulations or permits reported to or observed by borough personnel will be forwarded to the appropriate agency for enforcement.

13. Voluntary permit conditions. Conditions may be included in the permit upon agreement of the permittee and approval of the planning commission for CLUPs or the planning director for counter permits. Such conditions must be consistent with the standards set forth in KPB 21.29.020(A). Planning commission approval of such conditions shall be contingent upon a finding that the conditions will be in the best interest of the borough and the surrounding property owners. Voluntary permit conditions permanently apply to the subject parcel and operation, regardless of a change in ownership. A change in voluntary permit conditions may be proposed at permit renewal or amendment.

21.29.040. Prior existing uses.

A. Material sites are not held to the standards and conditions of a CLUP if a prior existing use (PEU) determination was granted for the parcel in accordance with KPB 21.29.040(B). To qualify as a PEU, a parcel's use as a material site must have commenced or have been operated after May 21, 1986, and prior to May 21, 1996, provided that the subject use continues in the same location. In no event shall a prior existing use be expanded beyond the smaller of the lot, block, or tract lines as they existed on May 21, 1996. If a parcel is further subdivided after May 21, 1996, the pre-existing use may not be expanded to any lot, tract, or parcel where extraction had not occurred before or on February 16, 1999. If a parcel is subdivided where extraction has already occurred, the prior existing use is considered abandoned, and a CLUP must be obtained for each parcel intended for further material site operations. The parcel owner may overcome this presumption of abandonment by showing that the subdivision is not inconsistent with material site operation. If a parcel subject to a prior existing use is conveyed, the prior existing use survives the conveyance.

B. Owners of sites must have applied to be registered as a prior existing use prior to January 1, 2001. Any prior existing use that has not operated as a material site between May 21, 1996, and May 21, 2011, is considered abandoned and must thereafter comply with the permit requirements of this chapter. The planning director shall determine whether a prior existing use has been abandoned. After giving notice to the parcel owner that a PEU is considered abandoned, a parcel owner may protest the termination of the PEU by filing written notice with the planning director on a form provided by the planning department. When a protest by a parcel owner is filed, notice and an opportunity to make written comments regarding prior existing use status shall be issued to owners of property within a one-half mile radius of the parcel boundaries of the site. The owner of the parcel subject to the prior existing use may submit written information, and the planning director may gather and consider any information relevant to whether a material site has operated. The planning director may conduct a hearing if he believes it would assist the decision-making process. The planning director shall issue a written determination which shall be distributed to all persons making written comments. The planning director's decision regarding termination of the prior existing use status may be appealed to the planning commission within 15 days of the date of the notice of decision.

21.29.050. Reclamation plan.

A. All material site permit applications require a reclamation plan.

B. The applicant shall revegetate with a non-invasive plant species and reclaim all disturbed land upon exhausting the material on-site, or within a pre-determined time period for long-term activities, so as to leave the land in a stable condition. Reclamation must occur for all exhausted areas of the site exceeding five acres before a five-year renewal permit is issued, unless otherwise required by the planning commission. If the material site is one acre or less in size, reclamation must be performed as specified by the planning commission or planning director in the conditional use or counter permit.

C. The following measures must be considered in preparing and implementing the reclamation plan, although not all will be applicable to every reclamation plan.

1. Topsoil that is not promptly redistributed to an area being reclaimed will be separated and stockpiled for future use. This material will be protected from erosion and contamination by acidic or toxic materials and preserved in a condition suitable for later use.

2. The area will be backfilled, graded and recontoured using strippings, overburden, and topsoil to a condition that allows for the reestablishment of renewable resources on the site within a reasonable period of time. It will be stabilized to a condition that will allow sufficient moisture for revegetation.

3. Sufficient quantities of stockpiled or imported topsoil will be spread over the reclaimed area to a depth of four inches to promote natural plant growth that can reasonably be expected to revegetate the area within five years. The applicant may use the existing natural organic blanket representative of the project area if the soil is found to have an organic content of 5% or more and meets the specification of Class B topsoil requirements as set by Alaska Test Method (ATM) T-6. The material shall be reasonably free from roots, clods, sticks, and branches greater than 3 inches in diameter. Areas having slopes greater than 2:1 require special consideration and design for stabilization by a licensed engineer.

4. Exploration trenches or pits will be backfilled. Brush piles and unwanted vegetation shall be removed from the site, buried or burned. Topsoil and other organics will be spread on the backfilled surface to inhibit erosion and promote natural revegetation.

5. Any roads, airstrips, or other facilities constructed to provide access to the mining operation shall be reclaimed (unless otherwise authorized) and included in the reclamation plan.

6. Peat and topsoil mine operations shall ensure a minimum of two inches of suitable growing medium is left or replaced on the site upon completion of the reclamation activity (unless otherwise authorized).

7. Ponding may be used as a reclamation method as approved by the planning commission.

D. The plan shall describe the total acreage to be reclaimed each year, a list of equipment (type and quantity) to be used in reclamation, and a time schedule of reclamation measures.

21.29.060. Permit revocation and renewal.

A. Permits may be revoked pursuant to KPB 21.25.080.

B. Material site permittees must submit a request in writing for permit renewal every five years after the permit is issued. Failure to submit a request for renewal subjects the permittee to permit revocation proceedings. Renewal may be denied if reclamation required by this chapter and the original permit has not been performed or the permittee is otherwise in noncompliance with the original permit conditions. A renewal certificate shall be granted by the planning director where no modification to operations or conditions are proposed. A renewal application shall be processed pursuant to KPB 21.29.010-030 with public notice given as provided by KPB 21.25.060 when operators:

1. request modification of their permit conditions based on changes in operations set forth in the renewal application,

2. are currently out of compliance with their permit, or

3. have had permit violations within the last two years.

C. There shall be no fee for permit renewal applications approved by the planning director. The fee for a renewal processed under KPB 21.29.060(B)(1), (2), and (3) will be the same as an original permit application.

D. Renewals of permits shall be subject to the law in place at the time of renewal application.

21.29.070. Voluntary permit termination.

At any time, a permittee may request termination of their CLUP by applying on a form provided by the planning department. A review of permit conditions and site inspection(s) will be conducted by the planning department to ensure code compliance and verify site reclamation prior to termination. The planning director shall issue the termination document.

21.29.080. Permit amendments.

If a permittee revises or intends to revise operations (at a time other than permit renewal) so that they are no longer consistent with the original application, a permit amendment is required. The planning director shall determine whether the revision to operations requires an amendment. Permit amendments shall be processed in the same manner as original permits.

21.29.090. Recordation.

All permits, amended permits, prior existing uses, and terminations shall be recorded. Failure to record a material site document does not affect the validity of the documents.

21.29.100. Violations.

A. Violations of this chapter shall be governed by KPB 21.24.

B. In additional to the remedies provided in KPB 21.24, the planning director may require bonding in a form and amount adequate to protect the borough's interests for an owner or operator who has been cited for three violations of KPB 21.24, 21.25, and 21.29 within a three-year period. The violations need not be committed at the same material site. Failure to provide requested bonding may result in permit revocation proceedings.

SECTION 2. That KPB 21.24.030(C) is hereby amended as follows:

C. Fine Schedule. The following fines are the scheduled fines for violations. The scheduled fine for an offense may not be judicially reduced.

SECTION 3. That KPB 21.24.070 is hereby amended as follows:

21.24.070. Civil fine.

The Borough code compliance officer may assess a [$100.00] $300.00 civil fine for each violation of this chapter. Notice of a fine shall be served personally or by certified mail on the property owner, lessee, operator, or occupant of the parcel upon which the violation occurs. The fine may be appealed to the Planning Commission pursuant to the terms of KPB 21.20. Each day a violation occurs is a separate violation. Citations for fines may be included in an enforcement order. Appeals from the planning commission's determination shall not be taken to the board of adjustment, but shall proceed to the superior court pursuant to the Alaska Rules of Appellate Procedure, Part 6.

SECTION 4. KPB 21.25.030, Definitions, is amended to add the following definitions in alphabetical order:

Abandon means to cease or discontinue a use without intent to resume, but excluding short-term interruptions to use or activity during periods of remodeling, maintaining, or otherwise improving or rearranging a facility or during normal periods of vacation or seasonal closure. An "intent to resume" can be shown through continuous operation of a portion of the facility, maintenance of utilities, or outside proof of continuance, e.g., bills of lading or delivery records. Abandonment also means the cessation of use, regardless of voluntariness, for a specified period of time.

Commercial means any provision of services, sale of goods, or use operated for production of income whether or not income is derived, including sales, barter, rental, or trade of goods and services.

Conditioning or processing material means a value-added process including batch plants, asphalt plants, screening, washing, and crushing by use of machinery.

Groundwater means, in the broadest sense, all subsurface water, more commonly that part of the subsurface water in the saturated zone.

On-site use means material used entirely within the boundaries of the parcel from which it was extracted.

Surface Water means water on the earth's surface exposed to the atmosphere such as rivers, lakes, and creeks.

Topsoil means material suitable for vegetative growth.

Waterbody means any lake, pond, stream, riparian wetland, or groundwater into which stormwater runoff is directed.

SECTION 5. That this ordinance shall take effect immediately upon its enactment.

ENACTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS * DAY OF * 2006.