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    draft minutes

                                 MARION TOWNSHIP

                          August 23, 2004 

                                             BOARD OF TRUSTEES

                               SPECIAL MEETING

MEMBERS PRESENT:               Bob Hanvey, Sue Lingle, Dan Lowe, Myrna Schlittler, and Dave Hamann

MEMBERS ABSENT:                 None

OTHERS PRESENT:                  Mike Kehoe , Township Attorney                   



Bob Hanvey called the meeting to order at 10:05 a.m.




Sue Lingle motioned to approve the agenda as presented.  Dave Hamann seconded.  Motion carried 5-0.


The gravel pit is located at the corner of Sanitorium and County Farm . It has been operated by Mr. Trierweiler for several 

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 Marion Township ’s zoning ordinance, the

 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:


1.                   That the Ex Parte Temporary Restraining Order issued by the Court on August 13, 2004 is hereby dissolved 

            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 without interruption:

                  PARCEL 1—16.24 acres

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

Road, also being subject to easements and restrictions of record, if any (hereafter “Subject Property”).

subject to the following terms and conditions:

(1)     Defendants shall maintain the following hours of operations:  Monday through Friday, 7:00 a.m. to 

     5:30 p.m. , Saturday:  8:00 a.m. to 12:00 noon .

(2)     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  

for review.  Dave Hamann asked Jack Lowe if this item came before the Planning Commission, would it be 

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.

(5)     The temporary berms currently on Sanitorium Road and County Farm Road will be left alone until any 

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 the meeting. 

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.

4.                   This Order shall have immediate effect.

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 carried 5-0.


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.




Sue Lingle motioned to adjourn the meeting at 11:05 a.m.   Dave Hamann seconded.  Motion carried 5-0.