P&Z Agrees To Settle Three Appeals Over Gravel Mining Operation

By Andrew Gorosko

Following a closed-door session with their lawyer November 16, Planning and Zoning Commission (P&Z) members have agreed to settle three appeals which have been filed against the town by a construction company in connection with a prohibition on its gravel mining at 12 Cold Spring Road in Botsford.

After a 30-minute executive session with attorney Robert Fuller, P&Z members informed Mr Fuller to settle one lawsuit filed against the P&Z and two related legal actions filed against the Zoning Board of Appeals (ZBA) by Nagy Brothers Construction Company of Monroe.

In a unanimous vote, the P&Z then agreed to grant Nagy a mining permit for sand and gravel excavation and storage in a specified area, designated as the “permit area,” at 12 Cold Spring Road, provided that Nagy clearly marks the corners of the permit area. The agreement limits Nagy to storing material only in that area. The permit would expire on July 1, 2001, when Nagy would be eligible to seek a permit renewal.

The “permit area” is approximately two to three acres in size, said Zoning Enforcement Officer Gary Frenette.

The requirement to have Nagy clearly mark the permit area is intended to keep Nagy from doing any mining on nearby property, whose ownership is being contested, Mr Frenette said. It is in dispute whether Nagy owns that property, he said.

In September, Nagy sued the P&Z in seeking to regain permission for gravel mining on Cold Spring Road. The P&Z had denied the firm a new permit after Mr Fuller had informed the agency not to grant a mining permit due to the ongoing dispute between Nagy Brothers and an adjacent property owner over the ownership of about 9 acres of the site.

 

ZBA Suits

Last may, Nagy had sued the Zoning Board of Appeals in seeking to overturn a ZBA decision that prevented the firm from continuing to mine sand and gravel on Cold Spring Road.

In that lawsuit, Nagy stated that it and its immediate predecessor have continually conducted a sand and gravel mining operation at the property since 1955. Mining on the property began before the inception of the zoning regulations and the sand and gravel mining regulations, thus constituting a pre-existing, non-conforming use of the property, the suit adds.

In December 1999, Mr Frenette had issued a cease-and-desist order to the firm ordering it to stop mining operations at the property.

  The firm then appealed that order to the ZBA last January. The ZBA held a hearing on the appeal last April. The ZBA then denied the appeal, stating that Nagy Brothers “did not have a valid mining permit at the time the cease-and-desist order was issued,” according to the court papers.

 In the ZBA lawsuit, the firm alleged the ZBA acted illegally, arbitrarily, and in abuse of its discretion by denying its appeal because the mining operation is a pre-existing, non-conforming use which does not require a mining permit.

In a second count of the ZBA lawsuit, Nagy states the ZBA ignored evidence that the firm had not abandoned or voluntarily discontinued its non-conforming gravel mining use of the property and that the ZBA did not treat the company in the same manner that it had treated similar applicants with similar requests for similar waivers.