I believe that this text amendment should have been paid for by the individual who first brought this forth to the Township. Instead, because the Board voted as it did, now the taxpayers are paying for it. I'm sure some taxpayers are against this idea, but because of the Board's action, they are paying for it anyway.
For the Township to take on a text amendment that was first brought up by an individual, to me compromises the appearance of neutrality and objectivity. How does the public hope to have any of its objections taken seriously enough to actually stop the adoption of this language, which is supposedly always an option? The appearance is that Township officials may have already made up their minds even before the public can testify. Are we just going through the motions?
What is the purpose of this amendment? Is it in accordance with the original intent of the Mining Ordinance to excavate the gravel, reclaim the land, and return it to ag use as quickly as possible? Or is it simply a way certain officials see a use subject to a legal settlement agreement being able to in effect expand beyond its property to which it is restricted? Is this a way for the use to circumvent the agreement? Note that this use was actually storing its product in the gravel pit earlier and, following a complaint, was directed by the Board to remove it as it was in violation of the Ordinance. Neither the gravel pit owner nor the people associated with the settlement agreement live in the Township to my knowledge. Therefore, would they ever have to live with the negative effects of this storage as residential neighbors will have to?
Is this a backdoor approach to allowing contractors' yards in Eureka? What is the connection between gravel pits and construction equipment and construction materials anyway? We do not allow contractors' yards, but now one can get one, albeit on an interim basis, in a gravel pit? This is really a commercial/industrial use that otherwise is not allowed.How is that not contradictory to the Comprehensive Plan?
Even the C/I "work group" currently meeting recognizes that a Comprehensive Plan update would be required to start to allow such uses. Their discussions have also included the requirement that there would be no outside storage in any C/I area. How do you reconcile that with this proposed language?
Going through the proposed language, I would point out the following issues.
Section 2 adding No. 3 to Ordinance 3, Chapter 2, Section 1 (D) references "property for which an interim use permit has been issued" as the only properties eligible to apply for a storage IUP. When raised before, the attorney replied that the older mining uses are now considered non-conforming uses. That is correct, but they were issued CUPs. Presumably the CUP would govern the NCU. HOWEVER, none of these "grandfathered" uses outlined in the legal descriptions in the Ordinance has ever applied for an IUP to my knowledge. In fact, Ordinance 6, Chapter 13, Section 1, states that they can continue "...without first obtaining an interim use permit for a mineral extracting facility...," so how does the language stating that an IUP has been obtained include these "grandfathered" uses?
Under A, I would insert the words "for storage" so that it reads "...shall first have applied for and obtained an interim use permit for storage..." This would distinguish it from the IUP that a use has have in order to have a gravel pit in the first place. I could see future bodies finding this a little confusing in application.
Chapter 10, B, 2. I question whether this use is in conformance with the Comprehensive Plan. We allow mineral extraction. We do not allow commercial storage. There is no connection between storage of construction materials and equipment and gravel mining, so this is contorted, in my opinion. The same lack of connection applies to gravel mining and storage of "ag" products. They are two totally different uses. The Ordinances are supposed to "flow from" the Comprehensive Plan, not the other way around. Ord. 6, Chapter 7, Section 1, L, states that "Any vehicles, equipment or materials NOT ASSOCIATED with the mineral extraction facility....may not be kept or stored at the facility." Are we to understand that "associated with the mineral extraction facility" and "associated with mineral extraction" are two different things and that by including the proposed storage by however a convoluted reasoning MAKES these materials and equipment "associated" with the facility? Or does this have to be changed also? Again, I ask why would we do this?
Chapter 10, B, 4, regarding the negative effects on existing land uses nearby. I believe the words "and reasonably" are perhaps meant to be "unreasonably."
Chapter 1, C, material to be stored. If an applicant comes in with a list of ag products, construction materials, and construction equipment, none of which is hazardous as described under this portion of the proposed language, how can the Board "reserve the right and authority to deny permission to store any material or equipment described on the application?" If an applicant meets the requirements of what is to be stored and the Board denies some part of that material, how is that not "arbitrary and capricious?" Section F, 1, again references the Township's ability to modify the list. Repeating, how is that not "arbitrary and capricious" if the applicant's list includes items allowed for storage?
D, Application, again states that the property must have an IUP in the first place. "Grandfathered" mines do not have IUPs, so again are we limiting this use to only the two newest mines at present as they are the ones with the IUPs?
E, Permitting Procedure, 2, talks about the Comprehensive Plan again. Since we do not allow C/I uses in the Comprehensive Plan, wouldn't the amendment to the Comp Plan also mentioned here have to take place before this Ordinance could go into effect? Let me stress once more that there is no natural connection between gravel extraction and the storage of ag products, construction materials, and construction equipment. How did construction materials and construction equipment come to be included in this language? Is this another small minority wanting a use that the Comp Plan does not afford them? And why is the Township taxpayer paying for this then?
F, 2, applies to conditions limiting height, size, and location of a structure. If this structure is to be used for interim storage of the allowed items under this proposed language, should it not be specified that this structure can otherwise be used only for purposes directly related to gravel mining?
F, 3, speaks to modifying the size and location of the proposed outdoor storage area. Since this proposed additional use has been said publicly to not be visible from the road, perhaps that requirement for outdoor storage should find a place in this ordinance.
F, 6, mentions signage and lighting of signs. Is this as good idea to allow for this 9-month activity?
F, 7, speaks to protecting adjacent or nearby property by fencing, etc. Again, I would suggest that the "no visibility from the road" be included. At a use that required berms and limited stack height, a passer-by can still see the product sticking out even above the berms and the trees planted there. Should residential neighbors have to look at another C/I use in addition to the mining itself?
F, 8, requires "regular and periodic" inspections of the structure and the outdoor storage area to confirm all conditions are being met. Shouldn't there be a number of inspections and a frequency given? These are presumably outside of complaints. These would incur inspection costs for which the IUP holder should be responsible.
It is of note that Ordinance 6, the Mining Ordinance, currently requires the Board to ensure that all conditions are being met by the newer gravel pits each year at their February reviews. When I was on the Board, I noted this and followed up on it. One of the newer pits was NOT following its conditions. I brought this to the Board's attention. The owner of that pit was then even on the Board himself. What followed was month after month after month of my endeavoring to see that these conditions, to which the gravel operator had agreed, were being met. When it came to having the Township engineer verify these as provided for in his Development Agreement, he resisted that as well. Eventually this was properly addressed.
However, in the years since, I have never once heard the Board reference this part of Ordinance 6 at the February reviews. These reviews are no longer just a question of how much did you excavate, how much do you owe the Township, and are there any complaints, as they were in the past. Have the Boards been aware of this and ignored it, or are they unfamiliar with this? Either way, not good. My opinion.
G mentions "...the right and authority to grant 'acceptations' to the hours..." I believe this should be "exceptions."
H refers to the length of the IUP for storage. It has been mentioned publicly that such a use would provide a source of income during the months that mining is idle. If that is the intent, I suggest that 9 months is too long. The gravel pits are active more than 3 months in the year.
There is no requirement that a mine be actively mining gravel to be allowed this non-gravel-related storage. If an older pit is an NCU governed by a CUP, which "runs with the land" and does not "go away," what is there to prevent an older mine from just becoming a storage facility with no mining occurring? The current proposal is for temporary storage. Are we on the proverbial slippery slope with pit uses? (Some testifying at the public hearing suggested so.) The CUP would include the reclamation plan when the gravel is exhausted. If this never occurs, does not this use just continue? (The IUP expires either when the gravel is gone or after a certain number of years have passed.) Should there be amending of the CUPs? What happens to the building for storage after the primary use of mining disappears? No accessory use without a primary use is allowed under Ordinance. Therefore, should not ag use or an accessory structure to a residence be outlined for this building's after-pit use?
For those of you not in attendance at the C/I Open House, this very ordinance proposal was brought up in general reference to the Township's enforcing ordinances. People objected to changing the ordinances to accommodate those who have violated them!
In closing this blog post, I would have to say I strongly disagree with this text amendment proposal. I see the ordinance language as highly flawed. I disagree with the concept. I believe we have Comprehensive Plan issues here. Why are you and I paying for this?
The Planning Commission by a 4-1 vote recommended denial of this amendment. I believe that those four Commissioners felt strongly about this, based on their discussion. Will the Board be listening to its Planning Commission, or are they beside the point?
Following is a comment I received.
Eureka Concerned Citizen has left a new comment on your post "MY TWO CENTS' WORTH":
Thank you for the well thought and thoroughly done article. This is a must read for ALL Eureka Township officials. But I have my doubts it will be read because many are showing their minds have already been made up.
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