36 years ago — Hayes Township denied a special land use permit, that would have allowed for expanded mining in Bay Shore.
H & D, the company requesting the permit, sued the township, and a group of 20 residents intervened in the lawsuit.
After lengthy negotiation, the three parties – that’s the township, company, and intervenors – came to an agreement that allowed mining but only under certain conditions.
This brings us to the present: where mining in Bay Shore is set to resume, residents are calling on the township to put a stop to it, and the township is appraising its own authority.
Township officials held a special meeting April 6 to discuss the resumption of mining.
Hayes Township attorney Todd Millar explained the township's legal position due to the 1988 consent judgment, which was later amended in 1989, 1991, and 2004.
“[The consent judgement] was a decision reached amongst the litigants and put into judgment by the court, which is an overarching power," Millar said. "[The court is] the 800-pound gorilla in the room.”
Millar said the consent agreement essentially removes any authority from the township to enforce its local zoning laws.
“It is very difficult — if not impossible — for Hayes Township to go to court and get Rieth-Riley to do something different without being able to show Rieth-Riley has violated the agreement,” he said.
Rieth-Riley is the construction company that now owns the gravel pit in question. The company plans to begin mining soon, and trucks will be in-and-out of the site daily for the next couple months.
Keegan Brennan is an attorney with Rieth-Riley, who presented at the meeting. He said he recognizes the community is against mining but still hopes to have a "neighborly relationship."
"In order to do that, I think we need to establish shared facts because I've read some things that are concerning and are not true," Brennan said.
Brennan said the company is following the consent agreement, no abandonment took place, and there is no time limit for how long mining could go on.
“There is no 30-year time limit," Brennan said. "That is the first shared fact we have to get. I don't know where that came from. That's not the truth.”
But residents disagreed with that claim.
Luanne Kozma is a resident who spoke up at the meeting. Citing a schedule in the agreement, she said indefinite mining was never part of the deal.
“They've had their 30 years; they didn't finish their phases," Kozma said. "That is all, and you owe it to all of us. Do you really think any of us believe the township back then would have agreed to ongoing litigation for years on end? No, they put a 30-year time limit.”
Original intervenors said they never would have settled if they knew the consent agreement didn’t explicitly put a time limit on mining, which they believed was part of the agreement.
Jim Rudolph said people moved into Bay Shore with the impression mining would end, only to now learn the opposite.
“The mining would be completed in 2011, the restoration will be done by 2016, very clearly on the graph," Rudolph said. "30 years was said over and over... It was almost like a bait and switch.”
Brennan and Millar both said the schedule in the consent agreement is “advisory only” and can be changed depending on market demands.
Some residents called on the township to take the question to the Charlevoix Circuit Court and have a judge rule on the time limit.
As of now, there’s no plan to stop the mining, and the long-term future of the gravel pit is still up in the air.
Jim Pemberton, a local project manager with Rieth-Riley said it could take 36 more years of on-and-off mining before the company decides to sell the property.
As far as any environmental, health, and safety concerns, Pemberton said Rieth-Riley has a spotless track record, but if issues come up, residents can call him.
The Hayes Township Planning Commission chair Roy Griffitts concluded the meeting with a reminder.
“This is the consent agreement we have to operate under, and that ties our hands, for now," Griffitts said. "If the situation changes, we would respond to that.”
Residents are still hoping to find a way to block the mine, searching for the answers in legal documents. Right now, the ball is in their court, but their options are limited.
This is part two of WCMU's continuing coverage on mining in Bay Shore. Listen to the first part here.
