By Scott Sullivan
The Saugatuck Township Planning Commission Monday voted 5-2 to approve a sand mine proposal near Old Allegan Road and 133rd Avenue over objections by project neighbors, one of whom claimed, “My concern is we’re going to die. And you’re responsible.”
So said Daniel DeFranco after departing a session in which commission vice chair Bill Rowe conceded, “I wouldn’t want to live next to it (the sand mine). I’m unhappy this is the situation.
“But this (approving the proposal or facing legal retaliation from the developer and State of Michigan) is the opinion of our lawyer and zoning administrator.
“If we don’t approve this and place our own conditions on it, the state could allow it anyway and our ability to place conditions on it will be out of our hands,” Rowe said.
He, chair Maggie Conklin and commission trustees Ed Welk, Andy Prietz and Chris Lozano voted to approve Top Grade Aggregate’s Special Approval Use to extract 400,000 cubic yards of sand from a 3.5-acre pond on an A2-zoned 36-acre parcel at 6400 133rd Ave. pending eight conditions, most as recommended by township attorney Nick Curcio:
- The applicant must first obtain all required federal, state, county and local permits and approvals needed to conduct the mining operation.
- Trucks travelling to and from the site must take 133rd Avenue to 60th Street Mondays through Fridays between 8 a.m. and 5 p.m. The applicant must keep roads clear of sand spillage.
- The applicant must construct a fence or post warning notices in the vicinity of the pond.
- By Jan. 1, 2021, excavation shall have ceased and the site shall have been seeded and graded in accordance with the S.E.S.C. & Grading plan dated Dec. 4, 2017.
- The mining operation shall comply with all other applicable township ordinances.
- The mining operation shall be developed in accordance with the site plan submitted in conjunction with the application.
- The mining operation shall be conducted in accordance with all representations made by the applicant in the special use application dated Sept. 19, 2017, except as expressly modified by these conditions.”
- A bond shall be obtained for $5,000 per acre of approximately 10 disturbed acres.
- The applicant shall have a $2-million liability policy with the township as additional insured to cover any area water wells that are contaminated.
Planners Rebecca Israels and Doug Lane were opposed.
“I believe if it does go to court, we can still put conditions on it,” said Israels. “I’m not sure the applicant has met his burden of proof that the proposal meets our special use standards.”
Those are the Special Approval Use shall:
- Be harmonious with the character of adjacent property and the surrounding area.
- Not change the essential character of the surrounding area.
- Not be hazardous to adjacent property or involve uses detrimental to the health, safety or welfare of persons on the property.
- Not place demands on public services and facilities in excess of capacity.
“They (the applicant) knew the zoning when they bought it. We can deny it,” Lane agreed.
The commission Dec. 18, 2017, denied a Top Grade request to remove 125,000 cubic yards and create a 3.5-acre pond on the A2-zoned parcel because, per Township Ordinance 40-693, it was not harmonious with a nearby residential neighborhood and would change the essential character of the surrounding area.
Top Grade, working for landowner RJ Prospects, then proposed digging a deeper hole on the lot’s southwest corner at a spot already excavated by Ravines Real Estate, the land’s former owner.
The firm’s Sept. 20 Special Approval Use request was discussed at length during an Oct. 23 public hearing during which neighbors voiced concerns about truck traffic, noise, pollution, effect on groundwater and nearby home values such operations might engender.
The commission voted 7-0 in December against granting such a use. At their Feb. 5 meeting members rescinded that decision based on Curcio advising them that Michigan Zoning Enabling Act 110 of 2006, Section 125.3205, might invalidate that denial.
Section 205, Part 3 of the state act reads: “An ordinance shall not prevent the extraction, by mining, of valuable natural resources from any property unless very serious consequences would result from the extraction of those natural resources. Natural resources shall be considered valuable for the purposes of this section if a person, by extracting the natural resources, can receive revenue and reasonably expect to operate at a profit. ”
Part 5 adds: “In determining under this section whether very serious consequences would result from the extraction, by mining, of natural resources, the standards set forth in Silva v. Ada Township, 416 Mich 153 (1982), shall be applied and all of the following factors (seven total) may be considered, if applicable …”
“Our township ordinance is more restrictive,” said zoning administrator Steve Kushion. “Since state law could overturn it, we might overhaul that ordinance.”
Top Grade and JR came back with a changed request, now to remove 400,000 cubic yards — more than three times as much as was asked for and turned down earlier — from a 3.5-acre pond.
At an April 30 public hearing the commission gave the applicant another opportunity to submit evidence to show its proposal meets township standards.
Attorney Randall Schipper of Cunningham Dalman, P.C. — representing neighbors Lawrence and Jane Dickie, Dustin Tyler, DeFranco, Holly Stafford and Jennifer Ellison — challenged that request in a May 30 letter to the commission.
Schipper noted the originals proposal would leave a pond charged with surface storm water, but applicant’s plan “morphed, haphazardly, to mining down to below the water table, creating a ‘groundwater surface interface’ where none existed before.
“You were correct to reject the application at your Dec. 18, 2017, meeting, as far as you went,” the lawyer continued. “A multiyear mining operation to excavate 400,000 cy of sand from Top Grade’s parcel would not be harmonious with the residential uses on the west, south and east sides of the property, especially considering that the proposed sand mine would be in the southwest corner of the property and the truck entrance and exit would be in the southeast corner of it.
“It would change the essential character of the area, given the noise, dust (especially silica dust) and impact on the groundwater. (If the groundwater were contaminated, bringing in public water would be prohibitively expensive unless accompanied with far denser residential development.)”
Schipper noted a hydrological report premised on and approved for Top Grade’s first-proposed pond no longer applies to the current, larger proposal “which would result in much more sand being removed below the water table (and is just small enough to avoid Michigan Department of Environmental Quality involvement).
He further cited a May 7 Allegan County Road Commission letter stating adjacent roads “are not in great addition,” “that an additional 20 trucks per day would accelerate further deterioration of these roads” and that the township would be responsible to pay for fixing them.
Schipper claimed the applicant April 30 stated it anticipates 13 to 17 truckloads a day leaving (so double that when allowing for round trips) and does not want to put up a fence because of maintenance issues, but did not provide evidence to show its proposed mining would not have detrimental effect on the health, safety or welfare of neighbors based on things other than ground water, such as air quality or noise.
“The applicant has the burden of showing it meets the standards for obtaining the SAU (Special Approval Use) conditions” and hasn’t, Schipper said.
Top Grade head Ross Veltema told planners Monday the site was already a sad mine no different than others the firm had developed, including one on 63rd Street in the township.
“The idea,” said Veltema, “is to finish the current unfinished sand mine, make it a beautiful lake and make it harmonious with the existing neighborhood.
“We learned from our studies we need to go deeper to have a pond. It would have a clay liner so there would be no danger to nearby wells or the groundwater.
“We feel we have met your
SAU standards,” the Top Grade official said.
No neighbor spoke in favor of the vote. Conklin ordered Tyler be ejected from the meeting after he “cursed audibly.”
Opponents’ next recourse, should they choose, is appeal the decision to the zoning board of appeals. Should they not be satisfied with that outcome, they could take the matter to circuit court, Schipper said.