Judge sends BOA mine appeal back to Houston County
Wednesday, February 15, 2017 11:05 AM
The ongoing dispute between Houston County and landowners with adjoining land to the Erickson Sand Mine, just outside of Rushford but in Houston County, took a step forward and a step backward in Houston County Court last week after a ruling from Judge Carmaine Sturino.
The matter came before the court after a group of landowners appealed a decision by the Houston County Board of Adjustment (BOA), which affirmed the decision of former zoning administrator Bob Scanlan to issue a conditional use permit (CUP) to the Erickson Sand Mine in 2014.
The five landowners say the sand mine is in violation of multiple county ordinances that the former zoning administrator refused to enforce.
Houston County zoning ordinances require that a property owner receive a CUP to operate a sand mine.
When a CUP is in place, there are conditions that must be met by the mine operator to make sure the mine is operated in a safe manner, and that its operation won’t cause issues for adjacent property owners and for the county.
“A couple of the conditions placed on this mine were that they maintain screening,” said Bruce Nelson, attorney for the five landowners with property adjacent to the mine, “meaning trees and natural vegetation along the property line between the adjacent property owners and the mine itself.”
One of the complaints brought forth by the plaintiffs was that the trees and vegetation had been cut down by the mine and were not replaced as is required by the conditional use permit.
The other issue argued before the judge was related to an access road to the mine.
“It’s (the access road) used by the mine operators to get to and from the adjacent highway,” Nelson said.
“The terms of the ordinance state that such an access road and mining activity cannot occur within 50 feet of the adjacent property line. This roadway was clearly within that 50-foot setback.”
Nelson added that the setback law used to be 30-foot, and the road was in violation of that too, noting that the road comes within 5-to-10 feet of the property line at one point.
Both alleged violations led the five plaintiffs to file a request with the former zoning administrator to enforce the county’s ordinance.
“The zoning administrator at the time refused to take action on that,” Nelson said, “which was another one of the issues addressed to the court last fall. The judge had to determine whether the road violated the setback rule, and whether the screening had been improperly removed.”
Judge Sturino’s decision said the road did violate the setback provision, which is a violation of its conditional use permit. The judge did not find that the screening removal was in violation of the CUP.
The outcome of the court decision would appear that the mine is in violation of one of the conditions of its CUP. That court has sent the matter back to Houston County officials.
“It’s remanded to the Houston County Board of Commissioners for action,” Nelson said. “If there is a violation of a conditional use permit, the commissioners have a range of options available to them – from requiring that it be brought into compliance all the way up to revoking the CUP and requiring the mine to reapply for a new permit.”
Parties in the case have 60 days to file an appeal with the Minnesota Court of Appeals. There are actually three parties in the case that are contemplating what their next steps will be.
“My clients are the plaintiffs,” Nelson said, “and they include Bryan Van Gorp, Susan Van Gorp, Cory Baker, Jackie Baker and Rosemary Iverson. They brought the action against Houston County, seeking enforcement.”
He added however that “There’s also a party that was added, which are the mine’s property owners, Tracie and Michelle Erickson. There’s also Bonanza Grain/ Kruckow Rock Products, which is the mine’s operator. They intervened and are parties to the proceedings as well.”
Nelson says if any of the parties in the case file an appeal, that raises a question about whether or not Houston County could proceed with its action on the CUP or if any action would be stayed pending an appeal.
If there is no appeal by any of the three parties, then it goes back to the Houston County Board of Commissioners to act on the violation of the conditional use permit.
Houston County’s district attorney, Samuel Jandt, said, “We are currently reviewing the court’s order. My office, in conjunction with Houston County Zoning Administrator Aaron Lacher, plans to meet and discuss the county’s options. As this matter could be the subject of further litigation, it would be inappropriate to comment further at this time.”