Gravel Pits and Deja Vu

Gravel pit proposals continue to be a hot topic here in McLean County, Illinois.  I’m working for the opponents to a proposed gravel pit.  Having been raised on a farm I’m fully aware and respectful of property rights.  If my father’s land had been sitting on millions of dollars of gravel, I’d have assumed he would have the right to mine it.  In this instance however, the gravel pit would be directly across the street from an Elementary School; and a high-density subdivision.  It’s a rural setting, and the farm owner, now, wants to mine his gravel. The problem as you can tell, is that the farm owner waited until a school and sub-division were developed.  In most instances, gravel pits are in rural settings, not near developments.

We had months and months of extensive and expensive hearings before the Zoning Board of Appeals, culminating in a “non-recommendation” to the County Board.  Through legal maneuvering by the proponents of the gravel pit, they got this back before Zoning as a “county” issue, and the ZBA just recently reversed their decision, after only 3 hearings.  The county ordinance, if approved by the County Board on Tuesday, in effect opens the door for the land owner to now have his gravel pit across the street from the school.

It’s confusing, it’s frustrating, and it’s legal:

Here are two opposing viewpoints published today in The Pantagraph

By Kathy Michael and Randy Klante

In recommending a revision of the county’s gravel pit ordinance to the County Board, the McLean County Zoning Board of Appeals made four errors fatal to a good ordinance.

First, it uncritically advanced a property owner’s ability to mine as much of his gravel as possible, even next to school or residential property.

It reduced the required separation distance between school or residential property and gravel pit operations to as little as 500 feet with noise abatement measures, possibly closer with a variance.

It used a method inconsistent with Environmental Protection Agency requirements for calculating “safe” distances for noise by using recorded noise levels at gravel pits that were averaged over a 24-hour period (including time when the pits were not operating).

All the evidence it received suggesting compatibility of residences and gravel pits showed operations where the pit was in operation before the residential development took place, and none was near a school.

It likened the dust and noise from nearly year-round all-day gravel pit operations to the seasonal dust and noise from farming operations.

Second, it ignored scientific evidence suggesting that much greater separation was required to protect school and residential property.

Scholarly studies conclude that introduction of a gravel pit lowers existing nearby residential property values in direct proportion to their proximity.

A noise expert with 20 years of EPA enforcement experience stated that a separation of a half mile from school and residential property is needed.

Third, it ignored the difficulty of enforcing gravel pit compliance with county requirements.

It took McLean County 10 years to completely remedy the last gravel pit violation. McLean County’s enforcement process has not improved in any way since the prior violation.

It takes the Illinois EPA two years to remedy air pollution violations caused by dust. The EPA does not enforce its noise regulations, leaving that up to private citizens at their own expense.

Fourth, it ignored the conflict the proposed ordinance will cause.

All new gravel pits require a public hearing before the Zoning Board of Appeals.

Nearby homeowners and parents of children attending a school near a proposed gravel pit know that enforcement of applicable ordinances and regulations is nonexistent. They will conclude that their only chance of protecting their health, tranquility and property is to prevent the establishment of a gravel pit by opposing it before the Zoning Board of Appeals.

The closer the ordinance permits a pit to be established to school or residential property, the more applications there will be for special use permits, the greater the intensity of the opposition to it and the longer the hearings before the Zoning Board of Appeals will be.

The owners of property with gravel on it can see residential development coming well in advance. If they wait to mine the gravel until schools and residences are immediately upon them, their extraction of gravel will impose health, financial and other burdens on persons living on nearby property who had no reason to suspect they were going to be living by a gravel pit.

Residents and schoolchildren rely on McLean County to protect them from the noise, dust and unsightliness of gravel pits; the gravel pit ordinance is the means by which the county would do so.

The ordinance going before the County Board gives students and residents as much protection as a windbreaker against a blizzard. The ordinance needs to go back to the staff for a significant strengthening.

Kathy Michael is a consultant to Snyder Corp. Randy Klante is president of the Southwest Bloomington Residents’ Association.

Strike a balance that protects property rights

By Bob Lenz

The McLean County Zoning Board of Appeals conducted three public hearings and made recommendations to the County Board for text amendments to the ordinance pertaining to gravel pits and other mining operations.

The recommendations are reasonable. Mineral deposits are a valuable resource protected by the County Code. The gravel is usually mined wet and sorted for size. No blasting is used.

According to the director of building and zoning, the Land Use Committee of the County Board took a field trip to the large gravel pit which has been operating on Stringtown Road since 1996 and found no significant noise or dust problems. He testified his office had received no complaints from state regulatory agencies or the McLean County Health Department about any gravel pit operation.

Objectors were seeking a change in separation requirements between gravel pits and residence districts or school lots from 1,000 feet to 1½ miles! The old ordinance, in effect since 1996, required only a 500-foot separation.

The county staff proposed a compromise of 1,000 feet from the excavation area and 2,000 feet from the crushing areas where most noise is created.

Following 10 hours of testimony and two hours of careful discussion, the ZBA recommended to the County Board a separation distance of 1,000 feet between excavation and a residence district that can be reduced to 500 feet with a noise control plan; likewise the separation distance of 2,000 feet between the processing area and the residence district can be reduced to 1,500 feet with an adequate noise control plan.

Property owners who have land with mineral deposits and gravel pit operators can live with the new proposal, even though the changes are not needed. The ZBA proposal authorizes the director of building and zoning to require a gravel pit operator to provide additional dust and noise control as needed.

Extensive testimony of gravel operations in Central Illinois was done to identify the distances from homes and schools necessary to protect the health, safety and welfare of children and adults.

Developers who want to locate residential subdivisions in the county should recognize an existing county ordinance which states:

“Properties within the Ag. District are located in an area where land is used for commercial agricultural production. Owners, residents, and other users of property in the Ag. District or neighboring property may be subjected to inconvenience, discomfort, and the possibility of injury to property and health arising from normal and accepted agricultural practices and operations, including but not limited to noise, odors, dust, the operation of machinery of any kind, including aircraft, the storage and disposal of manure, the application of fertilizers, soil amendments, herbicides, and pesticides…”

The farmer who owns land that has substantial mineral deposits has as much right to access the minerals as he does to grow crops.

Developers who want to impose unreasonable separation requirements from their new subdivision are essentially asking the county government to deprive rural landowners of their property rights.

To protect the property rights of land owners in McLean County, the County Board should limit setbacks to the least restrictive distance necessary to protect the health, safety and welfare of the public. Setbacks should be based on measurements and science.

Finally, the zoning ordinance needs to be amended to provide for an “overlay district” to show the likely location of gravel deposits in order to preserve the resources for future use and to inform the public about potential mining activity nearby.

Robert J. Lenz of Bloomington is an attorney for Stark Excavating and other clients who own land with mineral deposits.