A contentious Goodview City Council meeting ended happily for La Crosse-based River City Ready Mix concrete company and its supporters. The council voted unanimously to approve a conditional use permit (CUP) to allow the company to construct a concrete ready mix plant in a light manufacturing zone on the south side of Lake Goodview. While citizen concerns over noise, safety, and water pollution dominated the meeting, City Attorney Mark Merchlewitz told council members they had little choice but to approve the request because the intended site for the plant is zoned for such an operation.
Approximately 40 people, mostly Goodview citizens, filled the Goodview Fire Station. Public testimony lasted for close to an hour and a half. Supporters sighed audibly as the debate raged on, and some opponents spoke out of turn, voicing their frustration and disbelief as the council moved towards approval of the CUP with minor restrictions.
"The system is broken," Dean Crissinger said, dejected as he left the meeting. During the meeting he asked the council to consider the potential contamination of Lake Goodview with high-alkaline (high pH) runoff and discharge from the site.
Company officials countered concerns about water pollution by stating that wastewater would be retained in a retaining pond, recycled at the facility, and would not enter the lake. Storm water runoff, company and city officials said, would be cleaned by the treatment area — essentially a drainage where contaminants may settle out of the water — before entering the lake. River City Ready Mix President Craig Reedy said that wastewater from the plant would not enter this treatment area.
Kari Yearous, Goodview homeowner and mother of two, asked council members to protect the park her children play in. "I find it really hard to believe that there would be no significant increase in noise, dust, water pollution for visitors to LaCanne Park," she said.
Noise from trucks and front-end loaders, especially the beeping of back-up alarms, was another major concern. "Every time a truck backs up it is irritating to hear that backup alarm," Garry Gerson said. "We're going to hear that all day long, every day."
Murmurs of laughter came from many audience members as the backup alarm of a truck outside the fire station momentarily disrupted the meeting.
Citizens called for a condition restricting the hours of operation to prevent back-up alarms from waking residents at 4:30 a.m. Others said the new plant threatened property values.
"I don't understand your thinking when you say that the value of these people's homes is not going to go down," said Goodview resident Barbara Beeman of council comments that dismissed complaints that the new facility would lower property values for nearby homes.
Several business owners and residents wrote in and spoke at the meeting in support of the ready mix plant, pointing out that truck noise is a given in an industrial park and that water quality is a concern for the Minnesota Pollution Control Agency (MPCA). In a letter, Eric Lawrence of Lawrence Transportation wrote, "If [the city] misses out on this opportunity I would consider this a failure by our elected officials to spur on economic development."
Attorney: no choice
"I don't know that there is a lawful basis to deny the CUP just because we don't want a cement plant in the area," Merchlewitz told the council, warning of potential lawsuits from the concrete company. He continued, "This particular use is allowed under the ordinance. You can take those items under consideration but you can't use them as a basis for denying the permit, because it's already contemplated that you're going to have a certain amount of traffic and noise, and to a certain extent the supervision of certain things — air quality and water quality — that's not the [purview] of the city. That's under the [purview] of the MPCA [Minnesota Pollution Control Agency]."
Merchlewitz also cautioned the council that going too far with conditions could leave the city open to a lawsuit as well. In an interview with the Winona Post, Merchlewitz said that restricting "hours of operation would be a big taboo," and that noise at any time of day or night is a given in a industrial zone.
While there are more narrow limits for denying a CUP than a variance, the League of Minnesota Cities states: "City may deny a CUP request if the proposed use is not consistent with the city's officially adopted comprehensive plan or if is not compatible with the health, safety, and welfare of the public." In a primer on CUPs, the League of Minnesota Cities, also mentions limits on hours of operation as one of the most common conditions.
City Councils have a narrow authority when deciding on a CUP request. Denial does open the door for a lawsuit on the grounds that the decision was arbitrary and capricious or unreasonable.
A standard for what reasons for denial will stand in court is laid out in Vonco IV Austin, LLC v. Mower County, in which a Minnesota Court of Appeals rules, "Vague 'concerns' or 'doubts' are not sufficient basis upon which to deny a CUP request. […] However, neighbor testimony that is concrete, describes current conditions, and includes information based on scientific reports provides a sufficient factual basis to deny a CUP request."
Requirements and promises
The council approved the facility, with four conditions: that the company install a 12-foot high wall, a wash pit, a dust collector, and use new, less noisy back-up alarms for trucks.
When asked if there would be further clarification of those conditions, City Administrator Dan Matejka said those items would probably be clarified by language in the permit stating: a dust collector will be installed "as detailed by the company" or a wash pit will be installed "as detailed by the company."
The company presented all of these items (and more) as things it intended to do when it first made its proposal. What the company described was a 12-foot high concrete block wall to be constructed on the lakeside of the property before activity begins, a lined holding pond (the wash pit) for wastewater that will not leak into the lake or treatment area and that will be recycled, a dust collector to capture dust, and that directional back-up alarms that contribute less to noise pollution be used on all trucks at the facility.
The company promised to hire six to eight jobs locally, stating that they would operate from 7 a.m. to 5 p.m., and said that "no dust will leave the facility." Matejka and another source reported that when the ready mix company sought a berth at a Winona industrial park, neighboring businesses cited dust as a reason for denying a request to amend private covenants that would restrict use of the park for a ready mix facility. No such restrictive covenants exist at the Goodview site.
Audience members spoke out of turn urging the council to include limits on hours of operation as one of the conditions. In his motion to approve the CUP, council member Charlie Andring asked if limiting the hours of operation to 7 a.m. to 5 p.m. as a permit condition would be agreeable. River City Ready Mix Vice President Luke Knadle responded that, "I would not expect that as a condition, I would have a tough time with that." Reedy mentioned that they have worked projects that began operations at 10 p.m. and ran through the night.
The council dropped any limitation on hours of operation as a condition of the CUP.