Company behind proposed mine makes legal threat against Washtenaw County township

Nelita Collins

WASHTENAW COUNTY, MI – A Michigan sand and gravel mine operator has issued a stern warning to officials in rural Washtenaw County after suffering a setback in its pursuit of permits for a new mine on 400 acres of farmland.

In a March 30 letter, an attorney for Michigan Materials & Aggregate Co., also known as Stoneco, threatened legal action against Sharon Township, an area of less than 2,000 people near Manchester.

The six-page missive urges township board members to break with the township planning commission and reject that body’s recommendation it find “no need” for the extracted materials, commonly used in road construction.

Read more: ‘No need’ for proposed sand and gravel mine in rural Washtenaw County, township officials say

The letter, penned by attorney Kenneth Vermeulen, states the township’s approval process for the proposed mine, and the way the commission applied those rules, violates Michigan law.

“The Planning Commission erroneously, and in bad faith, found that Stoneco had failed to meet its burden of demonstrating ‘need,’” the letter reads.

If the body’s interpretation and application of local rules are allowed to stand, “Stoneco will be left with no option but to challenge the entire Sharon Township Mining Ordinance, and have it struck down as a violation of the Michigan Zoning Enabling Act,” the letter states.

Township officials are taking a cautious approach in the wake of the letter, which also includes a point-by-point rebuttal of a township engineering consultant’s criticisms of a Stoneco-commissioned study assessing the demand for the new mineral extraction operation.

The township board hasn’t yet acted on the planning commission’s recommendation and is reviewing the additional material Stoneco provided, Township Supervisor Peter Psarouthakis said.

“That threat of legal action has come from day one from the (Stoneco) attorney, so it’s nothing new,” Psarouthakis said.

“We have a constitutional directive to protect the health and welfare of our township and follow the rules, and that’s what we intend to do in Sharon Township,” he said, adding the township is by no means “anti-gravel pit,” pointing to existing mining operations.

At issue is the two-part approval process required by township ordinances.

First, a company must demonstrate the need for the mineral extraction by the operator, or in the market it serves. The operation is then reviewed to weigh whether any “very serious consequences,” like reduced property values, environmental harm or threats to public health, would result.

When it received the letter, the township board was set to act on the first phase, after roughly a year of review and deliberations by township planners — meetings that drew hundreds of residents and sparked organized resistance to the proposal.

The firm has clearly demonstrated the proposed mine on Pleasant Lake Road, west of M-52, would fill an 1.5-million-ton void annually, left by the closure of both its Zeeb Road and Burmeister locations in Washtenaw County within several years’ time, Vermeulen, the attorney, said.

But township rules require the company answer extensive questions about existing mining operations in the area and detail how they are failing to meet local need for sand and gravel, a key component in road and infrastructure projects.

“It was obvious they were asking us to show need in the market, as opposed to simply need by the applicant,” Vermeulen said, pointing to state law saying companies must prove one or the other.

In an extensive listing of its findings, the township planning commission criticized Stoneco’s demonstration of need on both fronts, and one of its members in March compared the experience of evaluating the mine to “a cat-and-mouse game.”

Gerald Fisher, an attorney advising the township, and who has long track record of representing municipalities on similar issues, said the local ordinances follow state law.

The next step in the process involves evaluating whether “serious consequences” could result from the mine, and the determination of need creates a “sliding scale” for how much possible negative outcomes must be tolerated, depending on the severity of the need for the materials, Fisher said, citing existing case law.

“Those decisions haven’t even been made yet. You shouldn’t be talking about lawsuits until final decisions are made,” he said.

Psarouthakis said he believes the aggregate mining industry is using the township’s application process to push objectives in Lansing, including legislation that would transfer oversight of sand and gravel mining from localities to the state.

Read more: Analysis: How state law took regulation of mining and drilling away from local municipalities

Psarouthakis pointed to Vermeulen’s position as general counsel for the Michigan Aggregates Association, an industry group that lobbies state lawmakers.

Vermeulen makes no secret of the position. He acknowledges he had been a principal draftsman of the state law he is now claiming the township isn’t following while working on behalf of the association and its members.

The industry has long advocated for state-level authority over gravel mining because of the “not-in-my-backyard complex” that can impede objective consideration of local permits, Vermeulen said.

“If townships would apply the statute objectively and not with an apparent end in mind I think there would be less push for change at the state level,” he added.

As for the Stoneco mine in Sharon Township, Psarouthakis said the township board intends to act on the application, but hasn’t yet put it on a meeting agenda. If the local government was sued, it would have to carefully evaluate the best path forward, he said

“It seems likely that we would defend our ordinance, as we feel our ordinance is correct,” Psarouthakis said.

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https://www.mlive.com/news/ann-arbor/2022/04/company-behind-proposed-mine-makes-legal-threat-against-washtenaw-county-township.html

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