Hayes Planning Commission Rejects Fisher Application

HARRISON – The first order of New Business on the July 8 Hayes Planning Commission agenda was adoption of New Commission Bylaws. It was noted that no one has been able to find the commission’s bylaws, and it was necessary to reinstitute them. Thus, a preliminary write-up of bylaws was provided by Hayes attorney Kyle O’Meara for approval. Commissioner John Marion questioned why it was not stated in the new bylaws who would run a meeting if the chairman was not present, and O’Meara explained that the Hayes Planning Commission is also covered by the overarching state organization bylaws, but that if there were specific items the commission wished to include, they could be added at a later date via amendment. Additional questions yielded the same assurance that a change to the bylaws could easily be made at any time in the future, if the commissioners so desired. After some further discussion, the new Planning Commission Bylaws were approved, with a lone dissenting vote by Marion. O’Meara continued to guide the planning commissioners throughout the meeting, ensuring they understood their legal options and obligations each step of the way.

The next agenda item is deserving of a bit of historical context:

In early 2019, the Hayes Township Planning Commission brought before the public the application for a special use permit which had been submitted by Fisher Construction Aggregates Inc. for a proposed gravel pit on property owned by Ken Gamble on the north side of Mostetler Road, east of Harrison. This is not the first attempt to develop that site where a proposed gravel pit was defeated in 2012 by the Hayes Zoning Board of Appeals. That special use had been sought by another party, with a side agreement with Fisher that if the application was approved, it would have the opportunity to conduct operations on that site.

The first public hearing for the current application by Fisher was April 10, followed by a second hearing April 23. There was substantial resident turnout, nearly all of whom voice opposition to the proposed use, citing objections to what the roughly 80 multi-unit gravel trucks traversing Mostetler Road near daily would mean for noise, traffic safety, health hazards, loss of property value and quality of life issues (specifically particulate drift into the larger community of Harrison). Also noted were concerns about the longevity of the proposed pit and a lack of certainty that it would not turn into an ongoing, expanding eye-sore like the Fisher pit east of Mid Michigan College.

After those hearings, the Hayes Planning Commission stated conditions which had to be met in order for the application to be considered for approval, as cited in this excerpt from a May 2, 2019 Cleaver article:

…commissioners moved unanimously to: “Direct the Hayes Zoning Administrator and Township Counsel to take all actions necessary to establish an escrow account with the Hayes Township Treasurer to be funded by Fisher Construction Aggregates in the amount of $30,000 to retain the services of geological engineer Andrew Smits of GEI Consultants and traffic engineer Christopher Zull of Progressive AE to reveal the adequacy of the Fisher SEUP application and proposed site plan related to hydrological, environmental, dust impact, gravel pit operation, land reclamation procedures, and traffic and pedestrian safety impacts. The Township should also use the proposed escrow account for fees associated with Township Counsel’s review of Fisher’s SEUP application. Fisher’s SEUP application and proposed site plan require legal and engineering review to determine its compliance with the Township Zoning Ordinance and Michigan Zoning Enabling Act, and to adequately protect the interest of the Township and all its citizens.”

At the July 10, 2019 Planning Commission meeting, it was noted that there would be no representatives of Fisher Construction Aggregates present, and that they had asked to be removed from the agenda – also that whatever was happening was happening between attorneys representing Fisher and the township.

Then, during a Sept. 9, 2019 public hearing and special planning commission meeting was held for the purpose of adoption of the revised/amended 2019 Hayes Township Zoning Ordinance. Quandt attended that hearing and voiced objection to not having been notified of the July planning commission meeting, adding that “The Michigan Zoning and Enabling Act provides clear guidelines and guardrails for a local unit of government when they’re acting in the area of sand and gravel mining, and we believe that clearly the five pages of new site plan requirements and new operating requirements are well beyond anything that the Zoning and Enabling Act contemplates.” Quandt further objected to the timing of the ordinance change public notification which had been sent out one day after he had sent a request the commission for an up or down vote at its October meeting. At the Sept. 9 meeting, the planning commission unanimously approved the resolution recommending revision of the Hayes Township Zoning Ordinance.

Moving forward in time to this year, the advent of the coronavirus epidemic led to the cancellation of the planning commission’s April 8 meeting. After relaxation of some restrictions, coupled with strict adherence to physical distancing and face covering requirements, the July 8 meeting proceeded with “Old Business: Fisher Construction Aggregates Inc. Special Use Permit Application Review” on the agenda.

Again, attorney Quandt was in attendance reiterating objection to the amended zoning ordinance and its unfavorable timing, while making the case that his client had complied with all the requirements set forth by the planning commission. However, that is not the way planning commissioners saw it.

Stan Lewis, planning commission chairman, was the first to address the application review. He said that, based on what he had read, and the information received over a long period of time, he didn’t see that the gravel pit would have a benefit.

“There’s a lot of questionable information in here,” Lewis said. “A lack of cooperation, it seems like, from the applicant as far as coming forth with funds we’ve asked for, information that we’ve requested, studies that we’ve needed and haven’t received, meetings that they’ve canceled – just a multitude of things that have made it difficult, for me in particular, to feel comfortable about what they’re applying for.”

Lewis said the planning commission had asked about concerns about safety, traffic conditions and road studies.

“And we haven’t been given the information I think we should have been provided,” he said.

At that point, Quandt addressed the commissioners, beginning by saying he thought it appalling that bylaws had been adopted which commissioners had not yet had a chance to read. He said that approach was similar to the handling of the Fisher application, which had been submitted in March 2019.

He went on to note the issues brought up at the first public hearing which dealt with traffic, air quality, ground water impacts, and respiration. Quandt said his client had responded with a traffic report from the traffic engineering firm OHM showing no significant impact from this type of operation. He also said air sampling had been done and a report by air quality experts (based on data from a similar operation) had been issued which showed no significant impact. Addressing the ground water concern, he said complete records (including well records) had been provided which showed there was “no possible way excavation … could even get to ground water, let alone result in any deleterious impact.” Addressing restoration, Quandt said that a complete topographic survey had been done, at great expense, providing specific details of how the site would be restored.

Quandt said that none of those items were required under the old ordinance, but were things Fisher offered to the planning commission to help it make an objective, rational, reasoned decision.

“To say that information hasn’t been provided is completely untrue and inaccurate,” he said.

He then acknowledged that there had been disagreement as to whether Fisher is obligated to pay the township’s attorney fees and expert engagement. Again, he said the old ordinance did not address any obligation for the applicant to pay for the township’s independent expert.

“If the township wants to undertake those investigations, we welcome it,” Quandt said. “We want you to have that objective data – but don’t ask us to basically write a check for some unknown amount for whatever your experts decide they may want to do.”

He then brought up the delay in acting on the special use permit application, decrying the action to revise the Hayes Zoning Ordinance, the “statutorily tailored time” of meetings, as well as being notified in August of the upcoming September meeting.

“That’s basically completely gaming the system,” Quandt said. He said the ordinance change was an attempt to prejudice an application that had been pending and was complete, accompanied by more data than was initially required by the original ordinance.

Quandt then noted that, even though there had been disagreement about paying attorney fees, his client had agreed to pay those fees – if a decision was made under the old ordinance. He said that offer was ignored, but would still be available under that same condition. Quandt concluded his comments by saying the process had been completely unfair.

When questioned by Bob Buckley about the safety of the Mostetler bridge over the expressway, Quandt spoke of a timing study which had been done and the safety of that bridge as cited by the Clare County Road Commission.

Quandt said information about that bridge as being hazardous was false and that the commissioners would simply ignore the study was “appalling.”

Buckley then said he had spoken with the CCRC himself, and it is known the bridge is unsafe and the CCRC is awaiting the ability to repair it.

Quandt said that information is in complete opposition to the information his client received from the road commission, and that type of bridge could not be used legally if it could not accommodate the type of traffic stated.

“All other bridges are load-limited,” he said. “Bridges over freeways are not.”

Commissioner Marion then spoke of attending the March 4 road commission meeting where he brough to its attention the concerns of Mostetler Road and the bridges over U.S. 127.

“They informed me at the May 6 meeting, that was held on You Tube because of the coronavirus, that they have applied to MDOT to have that bridge reconditioned because of it not being up to structural standards. They said they do not like that bridge, because of the fact that it’s worn and it’s old.”

Marion then said he had also questioned the CCRC on the ability of Mostetler Road to handle gravel train traffic – which is through a residential area.

“They were suspect of that themselves, and wanted to do further study of it,” Marion said. “I asked for that to be in writing; it’s written into the minutes of the meeting – I never got anything in writing.”

At that point, commissioner Karen Laskowsky read a statement into the record. (See accompanying article)

After her statement, attorney O’Meara advised the commissioners about the three pillars comprised in the draft decision form in their packets which would be used for disapproval of the special use permit application.

The first was the township’s contention the escrow request should have been paid as well as the request for attorney fees. The second was incomplete information, and O’Meara said the current zoning ordinance, under Michigan law, should apply to the zoning decision in front of them. He said that when notified of the new zoning ordinance, the applicant has asked if a new application should be submitted and he told them they could just supplement their application to meet the zoning ordinance and no additional hearing would be required. O’Meara said he nor the commission had received any further application material.

“There are a variety of elements that the new zoning ordinance [and] the old zoning ordinance have that it appears that the applicant has not provided information to be a complete application,” O’Meara said.

He said the third pillar dealt with the merits of the application going through the very serious consequences test, and the appropriateness of a mining extraction operation at the proposed location. O’Meara made clear that the commissioners could approve the gravel pit, or approve the draft decision to deny the application with/without adding comments to the draft decision.

“It’s your decision,” he said. “Whatever you feel is in your best interest, that’s what you should do.”

Hearing no further comments, Lewis moved to approve the draft decision denying Fisher’s Special Use Permit application. The motion was seconded by Buckley, and hearing no further discussion, a unanimous roll-call vote put an end to the current application.

In the final Public Comment, LaVonne Mahar brought up inconsistencies between real estate data and Fisher’s report on how gravel pits insignificantly affect neighboring property values. As she was providing additional information about documentation of Fisher’s production tonnage, attorney Quandt quietly picked up his briefcase and headed to the door.

Resident Valerie Kusiak then spoke, expressing her appreciation for the commissioners’ decision.

“A lot of hard work went into all facets of this,” she said. “I’m so happy that you all listened. And we even took this battle to Lansing, and Lansing has still got Senate Bill 431 out there. So, this is not a dead subject; we’re still fighting against the indiscriminate extraction of non-renewable resources.”