Mining law unearths anger

But all that money and effort are in jeopardy, thanks to a stroke of Gov. Rick Snyder?€™s pen last week. State lawmakers approved changes to Michigan?€™s Zoning Enabling Act to limit local government control over aggregate mining, changes that local officials fear could open wide swaths of land to sand and gravel extraction.

?€œIt really ticks me off,?€ long-time Kasson Supervisor Fred Lanham Jr. said. ?€œWe basically wasted $200,000, the township did. Kasson Township doesn?€™t have a lot of money to fight these things in court, so we?€™re very upset about it.?€

Backers of the new law said it doesn?€™t gut township zoning, and instead restores rules that regulated aggregate mining in Michigan for decades.

?€œThe standard put in place ... I think strikes a very good balance between private property rights, local zoning interests and the public?€™s need for valuable resources,?€ said Michael Newman, president of the Michigan Aggregates Association, which lobbied for the law.   

Locals suspect otherwise. At the very least, they said more litigation and court rulings will be needed to clearly define how far local governments can regulate aggregate operations.

?€œThis opens up the entire township to gravel mining,?€ Leelanau County planning director Trudy Galla said.

Sand and gravel mining in Kasson spurred legal dust-ups for more than 20 years. Since the late 1980s, a series of rezoning requests to allow for more mineral extraction touched off several zoning referendums and legal disputes.

?€œIf the board approved something, there was a referendum then a lawsuit,?€ township Clerk Kathlyn Feys said.

The township tried to get a handle on those issues when it reworked its master development plan in 1995. It created a gravel mining district in the central portion of the township that spans around 5½ square miles ?€" about 15 percent of the township. The district is home to 14 different sand and gravel sites, and officials said it would provide sufficient aggregate resources for 50 to 100 years.

Feys said that decision ?€œsettled things down?€ for the next few years. But in 2004, the owner of agricultural property that bordered the gravel district wanted her land rezoned. Township officials said no amid concerns it would spur proposals for more gravel mining outside the district.

The woman, Edith Kyser, sued Kasson; 13th Circuit Judge Thomas Power in 2006 sided against the township. He ruled there would be no ?€œvery serious consequences?€ by rezoning the property for aggregate mining, a standard established in a 1982 lawsuit from Ada Township near Grand Rapids.

The state Court of Appeals upheld Powers?€™ decision, and the township appealed the case to the state Supreme Court. The top court a year ago reversed those rulings, and deemed that the ?€œvery serious consequences?€ standard required the courts to act as a ?€œsuper-zoning commission?€ and improperly usurped locals?€™ authority to zone and plan.

The Supreme Court ruling created fallout far beyond tiny Kasson. Officials in Portgage Township in the western Upper Peninsula ordered a working sand and gravel pit in a rural-residential zoning district to close shortly after the Kasson Township ruling.

Last month a state House Republican from the western U.P., Rep. Matt Huuki, introduced a bill to restore the ?€œvery serious consequences?€ standard to aggregate mining. It breezed through the House and Senate and Snyder signed it July 20.

In determining the ?€œvery serious consequences?€ standard, local governments are allowed to consider several factors, including impact on surrounding property values, existing land uses in the vicinity, pedestrian and traffic safety and other factors. Local governments can continue to enforce ?€œreasonable regulation?€ of operating hours, blasting hours, noise levels and dust control.

?€œThis was not an attempt to take away local control,?€ Newman said.

But geological studies that show up to half of Kasson contains sand and gravel deposits. Local officials worry those areas could be opened to more mining operations with little regard to other township land uses ?€" from residential and agricultural to recreational.

Township resident Edward Cherry said he?€™s watched gravel operations expand there since the late 1950s.

?€œI?€™ve grown up with them,?€ Cherry said, acknowledging that such operations generate valuable resources and create much-needed jobs. But they?€™re also dusty, noisy businesses that Cherry doesn?€™t want sprawling across the township.

?€œThis is a touchy subject,?€ Cherry said. ?€œI don?€™t want to see them spread all around.?€

But township officials aren?€™t sure they?€™ll be able to stem a potential proliferation of pits across their community.

?€œIf somebody sitting outside that gravel district wants to get rezoned for gravel, I don?€™t know how we could stop them,?€ Lanham said.

Gerald Fisher, an attorney in Oakland County and a long-time municipal lawyer in Michigan, successfully argued Kasson?€™s case before the Supreme Court. He said there?€™s little doubt the new law will be challenged.

?€œIn my opinion, the statute as enacted is unconstitutional,?€ Fisher said. He contends it improperly trumps the Supreme Court?€™s 2010 ruling in the Kasson Township/Kyser case and that lawmakers overstepped their authority.

?€œIt will be challenged; if I have to, I?€™ll challenge it myself for free,?€ Fisher said. ?€œThis is just bogus ... it?€™s just not right.?€

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