County board splits on granting six-month
This article has been revised to reflect the following correction on July 9, 2013:
An earlier version of this article had Drue Fergison's name spelled incorrectly.
Tuesday, July 09, 2013 5:15 AM
Residents filled the Commissioners Room in Caledonia on July 2, as the Houston County board took up a controversial conditional use permit (CUP) application.
At issue was a six-month CUP for Bonanza Grain Inc. to expand a commercial (non-frac) sand mine near Caledonia.
Mine timeline reviewed
Earlier this year, county staff investigated complaints that nearby homes had been damaged by a blast at the facility on April 4.
After review of aerial photographs, zoning administrator Bob Scanlan told the county's Planning Commission that the quarry had already gone past the permitted area of their existing CUP.
At that point, the CUP was not terminated as the county's land use ordinance might suggest. Instead, the company applied for a new CUP with a larger footprint.
The July 2 meeting brought the Planning Commission's recommendation on the matter to the county board for a vote.
That document asked for a single blast to be performed within a six-month timeframe with additional seismographs (a total of four) in place to determine if homes are being damaged. The event is to mimic as closely as possible the April blast.
After the data is collected and homes re-examined, the situation would be up for review. A new CUP would be required at that point.
Much public comment heard
During the public comment portion of the county board meeting, Drue Fergison of Money Creek Township expressed concern over the way land use ordinances are being addressed by Houston County Planning and Zoning.
"It's very clear that Planning and Zoning is in violation of the crystal clear language of its own ordinances," she said. "If Planning and Zoning cannot manage to enforce its own ordinances now, how will it manage to do so if frac sand mining is allowed? Why are there ordinances at all if they're not being enforced?"
Michael Fields of Winnebago Township spoke next, echoing Ferguson's concerns. "It's not very surprising that Bonanza Grain violated its conditional use permit," he said. "It would be more surprising if it didn't.
"Over the years, the county attorney, Environmental Services, the Planning Commission and the Board of Adjustment have created a selective and often dismissive attitude towards the Houston County Zoning Ordinance."
La Crescent resident Gretchen Cook said, "I'm here to ask you as a water-drinker to please guard our water... that's part of your job. Please do your job and enforce the laws."
Elizabeth Oness of Houston Township said, "Our ordinances exist to protect public health and safety. Everyone in this room is a taxpayer, and because the commissioners and zoning department and county attorneys are all funded by our taxes, it's their job to uphold the ordinances that are in place to protect all of us.
"If someone is driving 60 miles an hour past a grade school, we don't say 'Oh gee, it's OK - let's just raise the speed limit.'"
Kelley Stanage of Houston said that recent reports indicate, "The Planning Commission, Zoning Administration, (and) Environmental Services Department have developed a practice of not enforcing ordinances. This practice is at the recommendation even of the county attorney. They also appear to have no plans to enforce the ordinance in the future.
"How did it come to the point where we don't enforce our ordinances? You need to take a very close look first at the Planning Commission. The chair has been on the Planning Commission for 39 years. When I tell that to people in other counties, they laugh. I think it's really important that you folks get a handle on how we've been operating."
Alan Meyer of Caledonia said he'd been in the construction business for 35 to 40 years.
"We use a lot of sand, a lot of rock. The dairy farmers in our area use a tremendous amount of sand. The Planning Commission made a recommendation to hold this for six months. I think if they hadn't done that you might have had one, two, three hundred people here- farmers... I'd hate to see you not go along with their recommendation for the six-month period."
Fellow Caledonia resident Bruce Kuehmichel said the six-month permit would actually allow the company another year of operation at the site even if the CUP is revoked, since it contains language that lets Bonanza Grain haul out the sand from the next blast, even if it takes another six months to do so.
Crux of the matter discussed
Scanlan defended his position, telling commissioners that CUP holders need to be given due process if a violation comes to the county's attention.
"When you deprive someone of their due process, that's not a good road to go down," he said. "That's part of the 14th Amendment to the Constitution.
"It gives the applicant the right to sufficient notice, the right to an impartial arbiter, a right to give testimony, a right to admit public evidence at any hearing."
Chairman Justin Zmyewski asked if permit boundaries are required to be surveyed and marked, and Scanlan said that has not been required in the past. A typical CUP just contains a legal description, he explained.
Environmental Services director Rick Frank said that under the proposed new mining ordinance, all new applications will need a survey.
After asking Scanlan about another mine that clearly went beyond its boundary and received a variance with some reclamation required, Zmyewski said, "The way things are written right now, it's more a matter of 'We screwed up, (so) we'll just get a permit that says we're OK?' There's no repercussions?"
Commissioner Dana Kjome asked how much farther the new CUP would allow the mine to expand, and Scanlan said it would add 400 to 500 feet to the west and south.
The closest that the mine can come to the Brent Schroeder home is 1,000 feet, he added. That is one of two homes whose owners reported damages from blasting.
Kjome said he didn't like the Planning Commission recommendation, since it may subject homes to damage.
"If we do damage their house, is the county going to pay for that?" he asked. "What if we wreck someone's well? I was the only one who voted against it, because of that.
"When I ask questions, people get aggravated, but I'm going to keep on asking questions. The company may have to compromise, not our board of zoning. Rules are rules and I want to be fair to everybody.
"If I go out on the highway and go 70 mph, I expect to get pulled over. I don't expect the officer to say, 'We're going to work with you on this.'"
Members discussed the conditions that the Planning Commission recommended. A motion was eventually made to take the Planning Commission's recommendation with two changes.
First, the county will require six instead of four seismographs at the next blast. Secondly, the company will be asked to provide a survey of the new boundary at their cost.
The proposal passed by a 3 to 2 vote with Zmyewski and Kjome casting "no" ballots.
Other zoning matters approved
Two other zoning matters were also approved, this time by unanimous votes.
The first was for Mark Schulte of Mayville Township, who applied for a CUP to build a 68 ft. by 112 ft. manure storage basin.
The second was a rezone application for Randy Steele of Caledonia Township, who wishes to build a storage building on lot one, block 1 of the Green Acres Third Addition just outside of Caledonia.
Since the lot is currently zoned Residential, moving the parcel to a Highway Business district is necessary before the structure can be built.