Compton Sand & Gravel Co. v. Dryden Tp.
| Decision Date | 06 July 1983 |
| Docket Number | Docket No. 60858 |
| Citation | 336 N.W.2d 810,125 Mich.App. 383 |
| Parties | COMPTON SAND & GRAVEL CO. Plaintiff-Appellant, v. DRYDEN TOWNSHIP and Lapeer County Road Commission, Defendants-Appellees, and Jerry Tuggle and Marlene Tuggle, his wife; Dean Sousanis and Anne Sousanis, his wife; Robert G. Weingartz and Susan Weingartz, his wife; James L. Cox, D.D.S. and Sharon Cox, his wife; and Stanley Denek, Intervening Defendants- Appellees. 125 Mich.App. 383, 336 N.W.2d 810 |
| Court | Court of Appeal of Michigan — District of US |
[125 MICHAPP 386] Googasian, Hopkins & Forhan by Stephen J. Hopkins, Bloomfield Hills, for plaintiff-appellant.
Morrice, Lengemann & Rickard, P.C. by Ronald W. Rickard, Imlay City, for Dryden Tp.
William R. VanderKloot, P.C. by William R. VanderKloot, Bloomfield Hills, for intervening defendants-appellees.
Before CYNAR, P.J., and KAUFMAN and MacKENZIE, JJ.
Plaintiff appeals from the circuit court's affirmance of the Township of Dryden's denial of an application for a gravel mining permit. We affirm.
Plaintiff corporation applied for a permit to mine gravel in Dryden Township, located in Lapeer County, Michigan, on 65 acres of land leased by plaintiff from George and Josephine Kovacs. Although the initial application requested a permit[125 MICHAPP 387] for 65 acres, plaintiff proposed to lease the land from Mr. and Mrs. Kovacs, who owned an additional 255 acres adjoining the site at issue.
The land is zoned for agricultural and residential use, but the zoning expressly permits applications for gravel mining. Plaintiff filed an application for gravel mining with the defendant township on June 27, 1978, pursuant to the applicable township zoning ordinance in effect on that date and the subsequent amendment thereof. The intervening defendants were joined as parties by stipulated order. They object to plaintiff's application.
The intervening defendants are private residential landowners residing in the defendant township or in Almont Township, which lies to the immediate east of Dryden Township. All of their residences are contiguous to Hough Road, which both sides have treated as the "haul route" over which gravel would be transported from plaintiff's proposed gravel pit for about four miles through Dryden and Almont Townships to M-53 (Van Dyke) which is the most accessible state trunk line highway. Hough Road is a 22-foot wide gravel road.
The circuit court granted the intervening defendants' motion to join Lapeer County Road Commission (defendant road commission) as an additional party because of defendant road commission's authority to grant or deny "a haul route permit" for the transportation of gravel from the proposed gravel pit using Hough Road (a county road).
Both before and after July 27, 1978, the date of plaintiff's application, voluminous correspondence was transmitted between plaintiff and the defendant township and a number of public hearings took place concerning the proposed gravel pit. Reports and statements prepared by plaintiff and [125 MICHAPP 388] its experts were received by the township, including a Draft Environmental Impact Statement.
While the proceedings on plaintiff's application were still pending before the defendant township, plaintiff commenced a civil action on July 12, 1979, in the circuit court complaining that the defendant township was not processing and deciding its application in a timely manner. Following a hearing on July 30, 1979, the circuit court ordered the defendant township to grant or reject plaintiff's permit application within 90 days, with the decision to be supported by written reasons. The defendant township, complying with the circuit court ordered to make a ruling, denied the permit at an October 14, 1979, meeting, listing among its reasons a lack of information from plaintiff.
Following additional proceedings in the circuit court, plaintiff supplied additional information in further proceedings before the defendant township's board and planning commission. Additional presentations of documents, studies and materials were made to the defendant township by all parties. After further consideration, the defendant township again denied plaintiff's application on May 13, 1980. Further proceedings were terminated before the defendant township's board but continued in the circuit court.
On September 22, 1980, the circuit court granted plaintiff's motion to remand the matter to the township board for further presentation of evidence by plaintiff. On January 13, 1981, following further hearings, the defendant township again denied the application and stated its reasons for the denial.
After the January 13, 1981, denial of plaintiff's application by the defendant township, plaintiff filed a second amended complaint on February 18, [125 MICHAPP 389] 1981, seeking in Count I a writ of superintending control and in Count II an injunction against enforcement of certain allegedly unconstitutional provisions of the defendant township's gravel mining ordinance. The circuit court observed that the record did not reveal that constitutional objections were asserted in the proceedings before the defendant township.
The minutes of the extensive proceedings before the defendant township's planning commission and board from the year 1977 through January 13, 1981, were transmitted to the circuit court by stipulation of the parties. In addition, the record below also consisted of various reports, technical studies and critiques by experts for all parties and transcripts of the August 13, 1979, meeting of the defendant township's planning commission and the defendant township's board meetings on January 12 and 13, 1981.
Although no objections were raised about permitting the circuit court to consider any of the defendant township's evidence, objections were raised in the circuit court by all parties as to the accuracy of various items of evidence presented at the township's board meetings. Objections were also raised as to the conclusions and inferences drawn from the record below by the defendant township in its deliberations. The circuit court noted all the objections, and they were carefully considered by the circuit court. The circuit court also indicated that it had noted and considered, without objection by any party, the conducting and filing with the circuit court by all parties of extensive discovery which was referenced in pleadings, trial briefs and argument.
The circuit court issued a judgment affirming the defendant township's denial of plaintiff's application[125 MICHAPP 390] for a gravel mining permit and dismissing with prejudice plaintiff's claims for superintending control and an injunction, having adjudged the same to be without merit. The circuit court issued detailed findings in support of its judgment, including:
1. The administrative hearings provided to plaintiff an opportunity to be heard, to present evidence, to challenge the evidence of the other parties and to conclude the proceeding with reasonable dispatch, thereby according due process to plaintiff.
2. The defendant township gave some legally insufficient reasons for denying approval, namely:
(a) nonapproval by the township attorney; and
(b) plaintiff's site was not the "best".
3. Other reasons advanced by the defendant township for denial of the application were supported by competent and material evidence upon the record, including by way of example and not by way of limitation:
(a) difficulties in policing presented on the record below by a police representative;
(b) reduction in property values as presented on the record below by Township Supervisor Fielhauer, based on his experience as the defendant township's tax assessor;
(c) noise levels exceeding accepted standards as suggested also by plaintiff's proofs; and
(d) failure of plaintiff to supply additional requested information.
4. Plaintiff's permit application failed to comply with certain mandatory physical requirements of the defendant township's ordinance, namely:
(a) eight-foot-high fencing;
(b) dust-free haul route;
[125 MICHAPP 391] (c) evergreen planting of a specified height on berms;
(d) limitation on proximity of mining to streets, residences and property lines; and
(e) limitation on hours of operation.
5. The defendant township's planner, Brandon Rogers, was a qualified expert in community planning. His observations and critiques were properly considered by the township board as competent and material evidence which, together with the other evidence in the record, could constitute a basis for the township's decision in this case.
6. The defendant township in considering plaintiff's application properly considered the effects of haul route traffic upon its roadways and upon protection of the interests of its citizens and the general public and in exercising its powers to regulate traffic.
7. The defendant township's failure to formally designate a "haul route" was of no consequence because all parties acquiesed to the de facto designation of Hough Road as a haul route and no other route was considered by the parties.
8. There are other operating gravel pits within the defendant township, and no proofs were presented to show that the defendant township unconstitutionally prevents gravel pits.
9. The defendant township's decision to deny plaintiff's application was within the range of the proofs and supported by competent and material evidence upon the whole record.
10. Had the circuit court been sitting in the place and stead of the township board and considered afresh the record, it would have reached the same conclusion as reached by the township board in denying plaintiff's application.
Plaintiff maintains that the denial of plaintiff's [125 MICHAPP 392] application for a permit to mine is contrary to the law and that the reasons cited by the circuit court in affirming the denial of plaintiff's application are not...
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