The pit next door: Law stops gravel mine opposition

Target 8

GAINES TOWNSHIP, Mich. (WOOD) — Doretta Anema says her neat Gaines Township horse farm is “a very special place.”

She raises Friesian horses and has turned her farm into an outdoor classroom for homeschooled kids.

“I’m heartbroken about all this,” she told Target 8 investigators.

By “all this,” she means the gravel mine moving in next door.

She worries that dust will harm her horses and that noise from bulldozers and rock crushers will make the otherwise placid animals skittish and risky to handle.

“It’s noises that animals flee from, especially if they can’t see” the source, she explained.

“My blood is in this farm,” Anema said. “I have expended so much time and energy and money.”

She said she counted on the area’s agricultural zoning and township master plan when she bought her property 16 years ago and started developing her farm. She wanted a place with rural character.

But the zoning didn’t help when the gravel company wanted to expand across Kalamazoo Avenue at 100th Street onto the leased land next to her farm. She, her students and their parents made their case to Gaines Township officials in a series of hearings.

She was surprised to find that zoning can’t stand up to gravel mining.

The usual zoning rules and arguments that protect neighborhoods and farms from other industrial uses don’t work against gravel mines because of a unique place in state law. There’s a special test for gravel mines that Anema says “gives the property owner no control whatsoever.”

To stop a gravel mine, opponents and local officials have to show that it will cause “very serious consequences.”

According to Grand Rapids attorney Ken Vermeulen, who represents the statewide gravel industry association, that means “not just consequences because every use has consequences; not even serious consequences; but very serious consequences.”

Vermeulen said he wrote the first draft of the law in 2011.

The “very serious consequences” test used to be just a legal precedent that gradually became general policy for nearly 30 years. According to a Michigan Supreme Court opinion, “as the rule evolved, it became progressively more difficult for local government to regulate the extraction of natural resources by zoning ordinance.”

For various reasons, the state Supreme Court overturned the “very serious consequences” test as a precedent, so the gravel industry went to the Legislature and got it written into law.

Vermeulen noted that “you can only mine gravel where it is located,” making it different from other land uses in zoning law. He believes the industry needs the “very serious consequences” test because there is so much opposition to gravel mines. Without it, he said, “if a township knows how to spell dust and noise, they can come up with a reasonable basis to say no to any mining operation.”

When Target 8 investigators talked to him, the gravel association he represents wanted the meeting to happen on a Grand Rapids street where construction was going on to dramatize the point that without gravel and sand, there would be no concrete to build roads and buildings. Vermeulen said keeping gravel easily available reduces construction costs.

“If you have fewer sources of sand and gravel, fewer gravel pits and that material has to be transported further, you’re going to have significant increased costs,” he said.

And Vermeulen said having a gravel pit next door isn’t as bad as people think it is.

“It’s human nature to fear some unknown monster that’s going to come next door,” he said. “This notion that we can’t have gravel pits near residential neighborhoods because it’s going to ruin everyone’s life simply isn’t true. … The parade of horribles that the not-in-my-backyard types are going to roll out simply don’t actually occur.”

He admitted there will be some affects that people won’t like. He said there could be dust and noise but that gravel mine operators can “mitigate that and that’s the point.”

“There will be impacts but we can mitigate these impacts,” he said. “There will be noise but we can build berms. Particularly as they excavate deeper, that noise gets muffled by the mine itself.”

Vermeulen said there could be impacts but “not very serious” ones.

But that doesn’t sooth Gaines Township horse breeder Doretta Anema.

“I understand that we need gravel,” she said. “We all like good roads but that has to be done in a way that doesn’t just trample over all the other uses.”

Local officials are concerned that creating a favored land use is contrary to the purpose of zoning, which is supposed to keep incompatible land uses apart from one another.

“Zoning is really about balance,” the Michigan Municipal League’s Jennifer Rigterink said. “It’s about making sure compatible uses are by each other. … It’s about mitigating nuisances of one property to the other.”

She said giving special treatment to gravel pits “throws that balance out the window.” She disagrees with Vermeulen’s dismissal of gravel mine opposition as based in fear of the unknown.

“I don’t think that’s a fear,” she said. “That’s just what happens with that industry.”

The gravel industry isn’t done trying to write its own future. It has gotten a bill introduced in the state Senate that would tie the hands of local officials even more, according to the Municipal League and the Michigan Townships Association. Those groups oppose Senate Bill 431,which would make the “very serious consequences” test even harder for gravel mine opponents to meet by requiring them to show that a mine “poses an actual and unnecessary risk to public health, safety or welfare.”

It creates standards that, if met, would mean a gravel mine automatically passes the “very serious consequences” test. And it takes away even more authority from local officials by setting state standards the industry wants for operating hours, dust, noise and traffic. For example, gravel mines would be able to start operating at 5 a.m. rather than the 7 a.m. that seems to be typical of some local regulations. It sets a noise level higher than the one local officials often impose, according to Rigterink.

“It does that over an average and so someone could operate at 140 decibels for four hours and meet that standard,” she said.

She says hearing loss can happen at 100 decibels.

“Local officials need to have the ability to weigh all of those concerns and come up with that best option. Senate Bill 431 takes all of the options that they have off the table,” Judy Allen of the Michigan Townships Association said.

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