August 23, 2004
Bob Hanvey, Sue Lingle, Dan Lowe, Myrna Schlittler, and
Bob Hanvey called the meeting to order at
CALL TO THE PUBLIC
APPROVAL OF AGENDA
Sue Lingle motioned to approve the agenda as presented.
The gravel pit is located at the corner of Sanitorium and
years. Upon Mr. Trierweiler’s death, it became part of an estate and is now being operated by Northern Materials.
A representative from Northern Materials will present his view of the operation. Raymond Feul, the attorney representing
Northern Materials, explained his appearance today follows a lengthy meeting held with the township attorney on a
proposed stipulated order that would not relieve the court of the litigation, but is an effort to try and remove the temporary
restraining order and prevent a permanent injunction. In discussions with township representatives and its counsel,
although the defendant’s counsel believes that there’s a non-conforming use, it appeared that one of the major concerns
of the constituency and the board was the issue of a plan of reclamation down the road. Mr. Feul said that Glen Caverly
is present today. He has been working with Desine, Inc. to try and assure the board that is their intent, although from a
legal standpoint, he doesn’t feel there’s a requirement that the property be reclaimed. In the spirit of trying to move
forward and resolve this matter amicably to everyone’s best interest, and to eventually try to resolve the litigation,
Mr. Caverly agreed to attend this meeting, even though this matter is scheduled for a vote. Mr. Caverly has some
preliminary design drawings to show that they are acting along those lines, and that is, in fact, the intent of Northern
Materials after they finish the excavation, which they feel they’re entitled to under the non-conforming use. Mr. Caverly
presented the board with a very preliminary hand sketch. Mr. Feul said they recognize it would be subject to approval,
but that can be worked out. Due to the price that was offered to the Trierweiler estate, it doesn’t make economic sense
to simply mine the site and walk away. They can’t get enough revenue to cover the cost of operation without having a
plan in mind. They own the adjoining 10-acre parcel of property to the west, and the long-range plan is to reclaim the
site in conjunction with the 10-acre parcel, once the subject
property is mined.
Mr. Hanvey said in the discussion held the previous Thursday, a variety of legal issues were brought up that could be
interpreted in a variety of ways. It was decided that it would be to everybody’s advantage to work out an agreement that
would be acceptable to all parties without the filing of lawsuits that would delay the process. Mr. Feul said it would be
to resolve the lawsuit that the township has already filed. The first step is to remove the temporary restraining order and
prohibit a permanent injunction because of the potential economic loss to both the owner and the people who are
operating the pit. As a municipal entity, the township doesn’t have to post a bond to ensure revenues are paid if the
township loses the lawsuit. In the event a counter claim for a taking is alleged, the township would have to buy the
property for $1.4 million. Mr. Hanvey asked Mr. Feul to again explain his use of the word “bond.” Mr. Feul explained
that the township has shut down an operation that is costing thousands of dollars per day, yet the township didn’t have
to post a bond, but you’re requiring the operator to post a bond. Right now, what we are trying to do is remove the
temporary restraining order, mitigate the damages to the people who own the property and who are operating the property,
and then try to resolve those other issues and address the concerns that the township and the constituency has brought
to their attention, which is some type of plan for reclamation of the site, even though from a legal standpoint, there is no
obligation to reclaim. Mr. Hanvey asked the defendant’s counsel to explain the position about the inability of the operator
or the estate posting a bond to assure reclamation. Mr. Caverly asked for clarification on the bond. Does the bond for
reclamation mean for stabilizing the soils? Dale Schaller, attorney representing the Trierweiler estate, said a performance
bond, a guarantee. Mr. Caverly said there is no design that’s been accepted by the township, which means they can’t
get a bond. Mr. Schaller said the township’s request for a bond is premature. The gravel pit is still operating under its
non-conforming use status. The intention of Northern Materials is to bring a plan to the township for approval. At that
time, the township can certainly require a bond.
At this time, pursuant to
township doesn’t have that authority. Mr. Hanvey said it is his understanding that a bond at this point can’t be done
because the estate is not in a position to post it and the operators do not own the property. Mr. Feul said that is true.
Mr. Schaller said the estate is barely or less than solvent. Mr. Hanvey asked Mr. Kehoe if that makes the township’s
request from the last board meeting something that’s not
reasonable at this point. Mr.
Kehoe said yes.
Mr. Hanvey said the resulting Stipulated Consent Order does not involve a bond because it’s not something that’s legally
obtainable at this point. The board members were provided with a copy of the Stipulated Consent Order, and Bob Hanvey
read the relevant items from the Order:
IT IS HEREBY ORDERED as follows:
That the Ex
Parte Temporary Restraining Order issued by the Court on
and of no force or effect
and held for naught;
2. That the Defendants may continue excavation and mining operations and activities related thereto on the
following described property
Beginning at the Northwest corner of Section 10, Town 2 North, Range 4 East, Marion Township, Livingston
County, Michigan; thence N 89°29’00” E 580.72 feet along the North line of said Section and the center line
of Sanitorium Road; thence S°00 31’00”, E133.04 feet; thence S°43 28’53” E 308.73 feet; thence S 43°28’53”
E 308.73 feet; thence S 89°37’05” E 541.89 feet; thence S 03°29’44” E 357.18 feet along the East line of the
West ½ of the Northwest ¼ of said Section and the center line of County Farm Road; thence S 89°29’00”
W 1316.33 feet; thence N 03°17’54” W 725.01 feet along the West line of said Section to the place of
beginning. Being a part of the West ½ of the Northwest ¼ of Section 10, Town 2 North, Range 4 East,
Marion Township, Livingston County, Michigan containing 16.24 acres of land, more or less, being subject
to the rights of the public over the Northerly 33.00 feet thereof, as is occupied by Sanitorium Road, also
being subject to the rights of the public over the Easterly 33.00 feet thereof, as is occupied by County Farm
also being subject to easements and restrictions of record, if any
(hereafter “Subject Property”).
to the following terms and conditions:
(1) Defendants shall maintain the following hours of operations: Monday through Friday,
Defendants shall maintain dust control on the driveway that provides
ingress and egress between
County Farm Road
and the Subject Property.
(3) Defendants will provide Plaintiff a survey and place stakes on the Subject Property which delineates the
line of demarcation between the Subject Property and the ten (10) acre parcel of land to the immediate west
of the Subject Property, within fourteen (14) days from date of entry of this Order or as shortly thereafter as
required by a Registered Land Surveyor. Mr. Hanvey confirmed that this means visible stakes that the
neighbors can see.
(4) Defendants agree not to remove any trees from the top of the hill on the Subject Property or any
perimeter trees on the Subject Property until any Defendant submits a site plan to the Township, or until
further agreement of the parties, or until further order of the Court, unless dead or fallen by other causes.
Mr. Hanvey said the only problem he has with this item is that there’s no mention that the plan has to be
approved. Mr. Feul said one of the concerns is how long it can take to get plan approval—it can take a long
time. Jack Lowe, chairman of the Planning Commission, said that it’s the township’s desire to have the plan
be reviewed as quickly as possible for resolution. Mr. Feul reiterated that the defendant is here today to try
and get the TRO removed so that operations can continue. The primary lawsuit is still in effect, to which
counter claims will be filed, that they want to get rid of. This is the first step in moving toward dismissing the
lawsuit. This doesn’t dismiss the lawsuit—it only puts the operation back in business and mitigates the
damages. Sue Lingle said she thought the Planning Commission would be willing to hold a special meeting
against the 2000 ordinance or against some other criteria? If it is against the 2000 ordinance, wouldn’t it
require several variances from the ZBA? Jack Lowe said that hasn’t been clarified. Bob Hanvey said that
once there’s a legal action filed, the negotiations involved in a settlement can depart from the ordinance.
Mr. Hanvey asked which board would be conducting the negotiations. Mr. Kehoe said it would ultimately be
the township board, with the preliminary site plan submitted to the Planning Commission. Mr. Hanvey asked
whether the strict enforcement of the ordinance may be modified.
Mr. Kehoe said yes.
The temporary berms currently on
Defendant submits a site plan to the Township, or until further agreement of the parties, or until further order
of the Court.
(6) Defendants will cause a topographical survey to be prepared on the Subject Property within forty-five (45)
days from the date of this Order or as shortly thereafter as
required by a Registered Land Surveyor.
(7) The parties agree that in the event Plaintiff believes that Defendants shall fail to perform any of its
obligations hereunder, Plaintiff must first give written notice of the alleged violation to Defendants’ counsel
by hand delivery and/or facsimile, and the Defendants shall have seventy-two (72) hours after written notice
is sent in which to cure or otherwise resolve any alleged violation by compromise, before Plaintiff takes any
further action. Mr. Hanvey asked to speak with Mr. Kehoe. Defendants’ attorneys excused themselves from
the meeting. Mr. Hanvey said his concern with this item is the words “shall fail.” Mr. Kehoe said it’s really a
matter of semantics; however, he would have worded it “have failed.” Mr. Hanvey said there’s a big difference,
and what’s better for the township? Mr. Kehoe said he would rather it say “have failed.” Jack Lowe believes
that “shall fail” would mean down the road as it relates to the site plan, topos, etc., rather than the day-to-day
operation, and he believes “shall fail” is better. Mr. Hanvey said in terms of the enforcement issue, one of
the things the township was faced with from the residents was that part of the concern was what the residents
thought the company was going to do based on previous encounters with this company. That’s where the
“shall” part concerns him. Sue Lingle expressed concern about the 72-hour provision. Mr. Hanvey asked if
any board member would like the language changed from “shall fail” to “have failed.” The response was no.
Defendants’ attorneys returned to
3. This order shall remain in full force and effect unless modified by mutual agreement or until further agreement
of the parties or until further order of the Court.
Mike Kehoe confirmed that the dust control would be done on more than just the driveway. Dan Lowe said he had heard
concerns about the property to the south being covered with dust. Mr. Caverly confirmed that the term “driveway” includes
areas on the site. Sue Lingle motioned to authorize the township attorney, Mike Kehoe, to execute the Stipulated
Consent Order as presented and reviewed by the township board. Dave Hamann seconded. Roll call vote: Dan Lowe,
Myrna Schlittler, Bob Hanvey, Sue
Lingle, Dave Hamann—all yes. Motion
Bob Hanvey said a bid was received from Pearson for the parking lot paving. The bid from Allied is higher than anticipated.
The township is displeased with the work that was done by Allied, both in the fact that they didn’t do what the township
thought they would do, and what they did do didn’t meet the contract in terms of depth of the material on the repairs.
There is documentation from OHM that it was approximately ½ of the material stated in the contract. Mr. Hanvey said
Allied has approached the township regarding payment, and Mr. Hanvey said the township is suggesting that Allied refund
the money already paid. Dan Lowe said the township paid approximately half. Mr. Kehoe asked whether the township
has provided formal notice to Allied that the work hasn’t been done according to the contract. Mr. Hanvey said the
engineer has provided them with a letter. The township will have Phil Westmoreland from OHM provide Mr. Kehoe with
copies of all correspondence on this issue. Mr. Kehoe said the township should provide Allied with formal written notice
and give them the opportunity to do the job correctly. If not, the township will hire someone else and consider that they’re
entitled to no more money under the
contract because they didn’t fulfill the contract.
Dave Hamann motioned to accept bid from Tom Rogers for parking lot paving for $19,380, and the board will decide on the
Norton Road manhole repairs at a later date. Sue Lingle seconded. Roll call vote: Dave Hamann, Bob Hanvey,
Sue Lingle, Myrna Schlittler, Dan Lowe—all yes.
Motion carried 5-0.
CALL TO PUBLIC
Sue Lingle motioned to adjourn the meeting at