Council Minutes

Minutes/Committee of the Whole
Wednesday, December 14, 2005 – 5:00 p.m.
The City Council met as the Committee of the Whole on Wednesday, December 14, 2005 at 5:00 p.m. in the Council Chambers in City Hall with Mayor Brown presiding. Present at roll call were: Council Members Brooks, Glassheim, Gershman, Christensen, Kerian, Kreun. Present - 6; absent: Hamerlik - 1.

Mayor Brown announced that when addressing the committee to please complete a speaker card and give it to the staff at the control panel and when called upon to come forward to use the microphone for the record, and advised that the meeting is being televised live and taped for later broadcast.


2.1 Matter of Turtle River Township’s denial of application for a conditional use permit to construct and operate a landfill. (City Council may convene in executive session pursuant to North Dakota Century Code Sections 44-04-19.1 and 44-04-19.2 for attorney consultation.)
Todd Feland, Director of Public Works, stated that he wanted to give the Council an update on the landfill project to show what has been done from the mid-90’s to present. He explained that in the mid-90’s the state of ND labeled Grand Forks as a regional landfill and we have operated as such since then serving not only Grand Forks City and County, but the also communities and private haulers in the entire northeast corner of North Dakota and the northwest corner of Minnesota which serves 110,000 people. He stated that the FAA has expressed concerns with our landfill location due to problems with birds interfering with air traffic at the Grand Forsk International Airport and that they have sent correspondence stating that they would not approve our continuing operation beyond November 1, 2007. Further the FAA has stated that no more municipal solid waste should be accepted at the existing landfill beyond November 1, 2008, as that coincides with the opening of a new E-W runway which will be used extensively by UND aviation students. He continued that the past several years the City has been working on a closure plan for the existing landfill as it is nearly filled to capacity and that we are currently operating on an extension from the ND Dept of Health.

Feland stated a landfill alternative study was conducted in the mid-90’s and it was concluded that the city should begin the process to site a new landfill. He continued that the site selection process started in 1995 with a potential 200 sites which were narrowed to 4 finalists which were further evaluated and scored. He explained the factors used to evaluate the finalists and the scoring method. He stated that of the four finalists the parcel in Turtle River Township was determined to be the best location for a new landfill, and that all the other finalists were located in Levant Township, which is the next township over from Turtle River Township.

Feland stated that a list of the four finalists was sent to the ND Dept of Health as part of the preapplication stage of the site selection process. The Dept of Health concurred with our selection and approved our preapplication. He continued that the City then corresponded with the ND Geological Survey, ND State Water Commission, and the Stated Wildlife Commission, who also concurred that they would not be opposed to development of a landfill on the sites. He stated that as part of this pre-application process it was concurred that the Turtle River Township site was the best site for the landfill.

Feland continued that during this time the City was also working on a public information plan to educate not only the citizens of the City, but also those in the area that had been selected as a potential site as to the plans to construct a landfill. He stated that in January, 1996 the first Landfill Latest was mailed and that there were seven mailings over the next two years to residents in the area. In addition, he explained that there were a number of public meetings held throughout the region between February 1996 and December 1998 and that those meetings were held in Larimore, Manvel, Northwood, and Niagara. Feland added that the process concluded with a public presentation at the Manvel Community Center in December 1998.

Feland stated that on December 11, 1998 the City purchased the parcel of land in Turtle River Township for the planned development of the landfill site and that on December 28, 1998 Turtle River Township amended its Land Development Code to include specific provisions in regards to landfill zoning in their township.

Feland stated that on March 14, 2000 the City of Grand Forks submitted a conditional use permit to the Turtle River Township, which was subsequently denied on May 31, 2000 pending the submission of an Environmental Impact Study (EIS). In July 2000, the City contracted with Water & Earth Technologies to provide an EIS and requested that they also look at alternative landfill cost methods, complete a study of alternative disposal options, and to provide landfill siting recommendations from the ND State Health Dept. and FAA. In May 2004 the final EIS was presented and provided the following: the preferred site is outside both the 100 and 500 year flood plain, outside the bounds of both the 1950 and 1997 floods, that sufficient berming around the parcel could protect from an overland flood event similar to the 1950 event, that the site has a geological safety factor above the requirement, there is no effect on fame and fish, there is a 0.1% loss of crop land from the development, the site is at least 5 miles from the nearest town, there is no effect on traffic or recreation, there is no visual effect, there is no impact on noise, no effect on property values or population in the area, and that host fees could be paid to the township for the landfill being placed in the township. Feland continued that there were two third party reviews of the study completed by Shipley Group Inc. and Burns & McDonell Waste Consultants, Inc. and both concurred with the study results. Feland stated that the City also continued to explore other alternatives and gave the Council information on the various options that were researched, but concluded that all that were researched would still require a solid waste landfill for residuals and some were so costly that they were prohibitive.

Feland explained that on May 17, 2004 the City Council approved the final EIS and gave authority to proceed to Grand Forks County and the Turtle River Township Board for appropriate and necessary zoning approvals, permits, and/or variances from the Turtle River Township Board of Supervisors/Zoning Commission and the Grand Forks County Commission. He continued that Grand Forks County deferred to the Township so public hearings were then held in Turtle River Township in December 2004 and again in February 2005.

Feland reviewed with the Council the items that were offered in the Conditional Use Permit brief that was submitted at the public hearings. He continued that on November 17, 2005 the Turtle River Township Board voted unanimously to deny the Conditional Use Permit to operate a landfill on the Turtle River Parcel.

Feland stated that at this point the project is at a standstill, as until the zoning is resolved they can not proceed with the application to the ND Department of Health for the landfill permit. He continued that many of the objections that have been given to the project by opponents of the landfill are items that would be addressed and resolved in the permitting process but we can not proceed until the zoning is resolved.

Feland reviewed with the Council the current landfill operation. He stated that in 2000 the City began to bale its garbage which has provided better compaction and allowed us to prolong the closure of the existing landfill until 2007-08. He explained that has also reduced the amount of blowing debris and the number of birds, which has been a key element in the continued granting of exemptions from the FAA. Feland reviewed that the City of Grand Forks has been placed in a leadership position for municipal solid waste. He informed them that in 2004 the landfill took in 93,000 tons of solid waste, of which only 33,000 tons came from the City of Grand Forks and the rest was from the region with the majority from other regional cities such as Manvel, Northwood, Larimore, etc.

Feland displayed an aerial photo that showed the current landfill and reviewed the areas shown with the Council. He stated that even after the opening of a new landfill the inert materials will continue to come to this landfill as they do not encourage bird activity.

Feland stated that they are going to continue to work on increasing the recycling/diversion efforts within the City and noted that we are already the best in ND for our current efforts. He noted for the Council that annually we take in about 4,000 tons of yard waste is composted, 29 tons of used tires were collected and recycled, and 3,900 tons of brush/branches that are chipped and used in the cover material mix.

Feland stated that he wanted to inform the Council as to why we are in need of a new landfill and shared with them various excerpts from a letter dated November 3, 2000 from Frances Schwindt of the Environmental Health Section of the ND Dept. of Health to the Mayor and City Council. He continued that with the best case scenario of extensions, the City of Grand Forks is looking at less than two years to fully complete the process for zoning and permitting and asked the Council to formalize how they would like him to proceed in regards to when we run out of space in the existing landfill, whether that be an interim plan to negotiate an arrangement with Fargo or possibly Gwinner to haul out garbage to and also to seek a long-term solution for our solid waste needs.

Mayor Brown stated that he realizes this is an emotional issue but we need to also keep in mind the regional solid waste needs and look for a solution that will meet those needs. He stated that he did not have any speaker cards and asked how the group wanted to proceed. Howard stated that Attorney Fisher was present and that he had some information to share with the group in executive session and explained to the group the process to adjourn into executive session and that the topic that can be discussed is limited to the item listed on the agenda, which is the matter of Turtle River Township denial of application for a conditional use permit to construct and operate a landfill.

Motion by Gershman, Second by Kerian to convene in executive session pursuant to North Dakota Century Code Section 44-04-19.1 and 44-04-19.2 for attorney consultation. Aye: All. Opposed – None. Motion Carried.

Mayor Brown asked that the room be cleared so that the executive session could begin. Todd Leake stood and called for a point of order and stated that some around him had put in cards to speak and that there were some others who were not aware that cards were necessary in order to speak. Council members agreed to delay the adjournment to executive session to allow those audience members an opportunity to speak and requested that the speaker cards be delivered to the Mayor so that he could call those individuals forward.

David Thompson, representing the Grand Forks County Citizens Coalition stated that he took issue with Atty. Fisher representing the City in this matter as Council Member Christensen is a member of the same law firm. Christensen responded that Fisher took over this case upon the death of Jay Fiedler, who was also a member of the same firm, and that this issue had been brought up in the past when Mr. Fiedler was handling the case and that the Council had agreed to waive any potential conflict to allow him to participate in any discussions and that they could do so with Mr. Fisher if necessary and stated that for the record he has not discussed this case with Mr. Fisher at any time to this point. Thompson inquired whether an Attorney General’s Opinion on this had been sought at the time Mr. Fiedler began his work with the City on this case. Swanson stated that there was not.

Kerian moved, Glassheim seconded, to waive any conflict with Christensen participating in this matter. Aye: All. Opposed: None. Christensen asked that the record reflect that he did not vote on the issue.

Gershman moved, Brooks seconded, to recuse Christensen from voting on this issue. Aye: All. Opposed: None. Motion Carried.

Mayor called for a revote on the earlier motion. Aye: All. Motion carried.

Jason Schaefer, 36 Parkview Circle, stated that he was proud of the City, City Council, Mayor and staff for their handling of this matter. He explained to the group how he became involved in this issue and after he reviewed the information became concerned that all the alternatives were not fully explored. He continued that he feels the township does have the legal and moral ground to deny this request, especially since the experts do not agree that this is the best location for the landfill. He stated that he feels if the City does decide to take this to court that a good explanation needs to be given both to the taxpayers and to the City of Manvel. He added that information provided at the fact finding meeting supported that siting in Turtle River Township would be a mistake and that he understands that the Council Members may not all be familiar with all of the information that has been presented in this case and that he agrees with Turtle River Township that this is not a safe location for a landfill. Christensen stated that he appreciated the presentation and comments and inquired what alternative solution Schaefer would recommend. Schaefer responded that he would say to abandon the currently selected site and bring in local experts to look for alternative sites that would be selected not on the basis of cost, but would also include safety and that he agrees there is no easy solution. He continued that he feels that the Turtle River site seemed like an easy solution and that is why we are here today. Gershman stated that it seems that the response of “not in my backyard” will be heard no matter which location is selected and the state says we need to do this and asked for suggestions. Schaefer responded that some areas may look at it as economic development and may not be opposed to siting. Gershman responded that in regards to the comments on experts disagreeing and that is common in any scientific discussion and will usually not get all to agree.

Glassheim inquired as to safety concerns. Schaefer stated that due to water concerns and potential for fractures in clay liners coupled with the instability of that site, based on information he reviewed from Dr. Beaver. He added that he is very confident in the background of their scientists.

David Thompson, 416 South 6th Street, stated that he is speaking as a private citizen and that he has been representing the Grand Forks County Citizen’s Coalition which he has done pro bono because he believes in their position. He continued that Dr. Lee’s scientific evidence that was presented is sound and compelling along with all the other evidence presented at the hearing. He commented that in regards to the statements made by Mr. Johnson of the Airport Authority and that there is a study that shows that the City sewage lagoons are a bigger bird draw and danger to planes that the landfill and that if the need to move the landfill is so that a new runway can be opened to serve UND that then UND should be paying for the relocation. He continued that if the reason to move the landfill is because we need to serve the region then based on scientific fact this is just a bad site. He urged the Council to read the testimony and review the CD-rom from Gwen Lunski, a graduate student who reviewed the selection process that took place from the mid-90’s forward. He stated that she found that this site was not in the original top 50 and that the site selection process had been skewed from the beginning and that state agencies originally did not want it. Thompson stated that in regards to Gershman’s comments that there will be opposition no matter where you try to go he does not agree and feels that if selection process is sound and did not have the subsurface fracture problems that this site does there would not be this type of opposition. He stated this is not an emotional issue but was a very technical presentation, that the commission reviewed the information presented and did not feel that all their safety and health issues were satisfactorily addressed and that he sees a tough road in litigation. He suggested that perhaps the City should look at annexing contiguous land to the City and not stuff a landfill down the throats of others that do not want it.

Christensen stated that there are only a couple of days left to file an appeal and that assuming validity to what you’re saying then we have to file so that we can continue to explore our options or we will loose forever our chance to file and that perhaps maybe an extension could be worked out as to when we file. Thompson stated that jurisdictionally the City may have to file if they want to pursue this site and that he sees that once we file the process will take over and that no other options will be looked at and the wrong turn that was taken in the 90’s will never be addressed. Christensen responded that he will listen to the advice of the City’s counsel and if based on that advice need to file then maybe we will and then can go back and look at further discussions with the Township and exploring any other alternatives.

Al Boucher, Attorney for Turtle River Township Board of supervisors and Zoning Board, stated that he had not planned to speak at this time, but would comment that all the City officials that he has dealt with have been very professional and that he has always asked the board to be neutral in their review of information on this item and that he wants to pass on that all experts involved have never seen a landfill hearing like the ones that were held and the opportunities that were given by the Board to the parties to present information and that while he has his own opinion on the legal merit of an appeal he can not share that this evening and that he has no authority to commit to any extension without going through the process for meeting notice to get the wishes of the Board, and that his question is if there is a desire for an extension then it should have been requested sooner. Swanson responded that he believes that it is a jurisdictional timeline and that neither Council nor the Board could change that timeline. He continued that he would say even if you are thinking that an intervening party could change this timeline, then he would recommend that we file and then ask for an indefinite time to respond and this will ensure that the appeal right is preserved.

Boucher stated that in regards to Burns & McDonnell and that you were given a landfill that was 60’ high and Jay Fiedler said was totally safe and would not harm the environment that it would not harm the environment in any way and no environmental assessment was needed. He continued that when WET did the environmental assessment they said that would not be safe and would crack the liner and drain leachate into the ground water. He added that all the measurements were done in the dry cycle, prior to 1997 and that they are not valid now in a wet cycle and commented that the state required buffers can not be met at this site. He further stated that he had not provided this information to the Board at the time they made their decision and that he had no knowledge of their decision prior to the vote night.

Brooks thanked the gentleman for pointing out that the announcement for cards had not been made clearly and commented that he was very insulted by those that stood up and said we had made our decision already and that he is here to listen to what everyone has to say.

Kreun inquired of Thompson how many landfills Ms. Lunski had worked on. Thompson responded that he was only aware of her work on this one. Kreun inquired of Schaefer more information on the water concerns. Schaefer stated that he would have to refer to Dr. Beaver’s testimony and that he understands that the fractures could lead leaking leachate to the drainage ditch and then into the ground water. Kreun inquired if having no liner is a problem. Schaefer stated that he would see it as a big problem. Kreun inquired why then our current landfill with no liner and various test wells has had none of the problems that are feared in the new site. Schaefer responded that maybe the test wells miss the fractures and they may not be reliable. Kreun inquired why they were necessary if they don’t work. Kyle Braaten, stated that in 1994 a study was done by the State Department of Health that showed that there are higher pollution levels around the existing landfill and that the fractures that exist in this formation are throughout this region and will lead to the Red River. Kreun inquired whether we have had high levels found in the river. Braaten responded that they had not and inquired how old the landfill is. Feland responded that the landfill is about 40 years old and the science could be debated all night and won’t come to any resolution.

Brooks stated that he is in favor of letting all who want to speak tonight speak and that he appreciated the City being given a chance to speak to the Township Board and that he feels it is right we do the same and listen with. It was discussed that there was a time for open comment, but the hearings had not allowed any open audience comment.

Kevin Paschke, 3193 18th St NE, Manvel, thanked the Council for giving them an opportunity to speak and commented that he is disappointed that they did not get an opportunity to see the Lunski testimony and encouraged them to review it. He stated that he has talked with the author of the book that was used as a model in our siting process and that the author stated the book is antiquated and should no longer be relied on. He continued that he was with some of the experts that the coalition has worked with when they did some of their tests and when they taped the fractures showing leakage. He added that he feels like once a lawsuit is filed people will polarize against the City and there will be no chance to try to work together on a different solution as they had wanted to all along.

Todd Leake, RR 1 Box 35, Emerado, commented that he wants the Council to make sure they understand that the decision they make will forever change the site selected and make sure that they consider the effect this decision has on the area and they are a representative board and not a legal body and look at what the people they represent want. He stated that he understands that past Council’s may have placed artificial boundaries on the site availability and that they shouldn’t have, and encouraged the Council to look again at Griggs, Nelson, Steele and Walsh counties for potential landfill sites and to keep this in mind since the landfill may grow beyond the size being discussed now and begin to accept garbage from other states as well. He continued that if the City does pursue legal action in this matter it will set a precedent for how the City can be expected to relate to other City’s in the County and region. He added that the citizens in this region do not want the City to befoul their community.

Kyle Braaten, 701 Truesdale, Manvel, clarified that they were allowed to speak in Manvel on four days of hearings. He explained the concerns with fractures and their ability to convey leakage out of the confines of the landfill space and into the surrounding ground water and suggested ways such as trenches that may monitor this better than wells. He stated that Burns and McDonnell included only consolidation in their calculation but did not consider many other factors not considered that should have. He continued to discuss some of the other scientific factors that the Council should consider as flaws in this site selection.

Brooks commented that he does not believe that we can vote tonight. Braaten commented that in an executive session for attorney consultation that the body could take action as no official vote is needed. Swanson responded that he was not in a position to provide comment on this matter at this time.

Feland stated that all of the issues that were brought up tonight are issues that will be further researched and addressed as we move through the permitting process and that only the State Department of Health has the final decision on whether a site is safe and able to support a landfill. He continued that we can propose a site and a design, but the State will then review all the factors and determine whether it is workable and if not they will tell us what type of design will work on that site or that the site can not be used for a landfill.

Gershman stated that if everything stated is to be debated it will not resolve anything and was glad to hear the information presented tonight but that the Council should now proceed to executive session for further discussion.

Mayor Brown announced that the motion and second to adjourn to executive session had already been made and was delayed to allow those present an opportunity to speak and that as all had spoken that wished to, the group would now proceed to executive session. No members of the public indicates that they wished to address the City Council.



Convened in Executive Session at 6:55 p.m. pursuant to North Dakota Century Code Sections 44-04-19.1 and 44-04-19.2 for attorney consultation regarding the Turtle River Township’s denial of the application for a Conditional Use Permit (CUP) to construct and operate a landfill.

(Executive Session)

The City of Grand Forks convened in executive session. In attendance were Mayor Brown, presiding, Council Members Brooks, Glassheim, Gershman, Christensen, Kerian, and Kreun. Also present were: Todd Feland, Director of Public Works, Rick Duquette, Administrative Coordinator, Howard Swanson, City Attorney, Candi Stjern, Acting City Auditor, Sherie Lundmark, Administrative Specialist Senior, and Ronald Fischer, Counsel for the City of Grand Forks. Mayor Brown announced that the City Council was meeting in executive session.

Committee of the Whole Meeting reconvened following the executive session at 7:40 p.m.

Motion by Gershman, Second by Kreun to convene as City Council at 7:40 p.m. on Wednesday, December 14, 2005 for the purpose of taking action. Aye: All. Opposed: None. Motion carried.

Roll Call: Present: Brooks, Glassheim, Gershman, Christensen, Kerian, Kreun – 6; absent: Hamerlik – 1.

Motion by Brooks, Second by Glassheim, to waive any conflict of interest in regards to Christensen being in the same firm as Atty. Fisher, who will be representing the City of Grand Forks in landfill matters for the City. Aye: All. Opposed: None. Motion Carried.

Motion by Kreun , second by Christensen, to authorize legal counsel to file an appeal and to assert any other legal issues applicable. Aye: All. Opposed: None. Motion Carried.

Adjournment

Motion to adjourn meeting at 7:44 p.m. by Gershman, second by Christensen. Aye: All. Motion carried.

Respectfully Submitted,



John M. Schmisek
City Auditor