By Emily Bialkowski
A long-awaited opinion on the county’s ability to ban frac sand mining was delivered April 8.
In a letter addressed to Environmental Services Director Rick Frank, Houston County’s attorney, Jay Squires, wrote: “Based on my review of the law, and in short, if Houston County adopts an ordinance banning silica sand mining, and it is challenged, the county would be making a new law. In attempting to defend the ordinance, we do know based on existing case law that courts would likely apply a fairly high bar to the ordinance.”
The county certainly has the authority to ban this use, but the statute that allows the county to do so “contains no guidance on when a prohibition of a particular use would be proper and justified,” Squires wrote.
He further stated: “When a land use ordinance prohibits a use entirely, it will be scrutinized particularly closely and will be required to show a more substantial relationship to the pubic welfare than an ordinance that merely confines the use to a particular district. Given my review of the law, I believe, as a general rule, that a zoning ordinance that prohibits a certain use altogether must be proved to be necessary to protect the health, safety, morals or welfare of a community.”
With this information, the board agreed to continue the work of the frac sand ordinance study committee and develop regulations for this type of industrial mining. The board asked the committee to prepare a draft by Oct. 1, 2014.
The board also directed Commissioners Dana Kjome and Steve Schuldt to work with Squires on drafting language for a ban so the board has all options available when it makes a final decision.
The topic continues to draw ire from those who don’t want their land rights infringed upon and those who don’t want silica sand mining in the county, the latter of which being the most vocal.
During the public comment portion of the meeting, several individuals spoke of the need for a ban.
Michael Fields, of Winnebago Township, said, “Regulation is meaningless unless enforced,” adding that the county has a poor track record of enforcing the laws already in the books.
Steve Hartwig, of Money Creek Township, agreed with Fields and said, “As much as you want to try to prohibit through regulation, I don’t think that’s going to be feasible.”
Bryan Van Gorp, of Yucatan Township, discussed how land rights work on both sides of the aisle and that with rights come responsibilities.
Sue Van Gorp said allowing frac sand mining is just another step in the “destructive cycle” of fossil fuel reliance.
Donna Buckbee, of Yucatan Township, said she will continue to walk the county and acquire signatures from those who want a ban.
The county’s attorney was called upon for advice on a second topic.
Renewal of a conditional use permit for Tracie and Michelle Erickson, of Yucatan Township, has been held up for months due to ties the Ericksons had with Minnesota Sands, an industrial frac sand mining company.
The Ericksons were included in litigation against the county, in which the plaintiffs argued they should be able to remove frac sand from the site under the property’s existing conditional use permit. On Oct. 22, 2013, Judge Terrence Walters dismissed the case with prejudice.
Since then, the Ericksons have tried to dissolve ties with Minnesota Sands and now wish to renew the permit to remove construction sand, as had been done since the permit’s original issue date of 1992.
With fear of violating a judge’s order or Environmental Quality Board mandate, the county sought Squires’ opinion on how to proceed and discussed the matter in a closed session for close to 45 minutes.
Upon returning into open session, the following motion was read and unanimously adopted:
“Direct the staff to work with Mr. Erickson in processing his renewal request and extend any applicable 60-day rule period an additional 60 days. In addition, the board concludes that processing of this renewal request is not prohibited by the express language of the moratorium thereby any pending Environmental Assessment Worksheet or Environmental Impact Statement process. The board further directs staff to provide notice of the board’s determination to affected property owners and the Environmental Quality Board.”
Prior to adjournment, the board entertained several other items.
• The board decided to proceed with the purchase of a John Deere compact loader for the Highway Department. Concerns were expressed by local implement dealers that the process to compete for the bid was not fair, but the board stood behind the original decision.
• The board agreed to utilize Naomi Fruechte’s experience as a meeting facilitator for the frac sand ordinance study committee.
• The board clarified that residents may attend and observe the frac sand ordinance study committee meeting but may not participate.
• Kjome, who sits on the zoning ordinance study group, said the committee would like to allow a one-year exception to the Planning Commission term limit rule to avoid having “a real green” commission in the next few years. Kjome said the commission wanted to know if the board would entertain such an idea, to which the board said yes. “It gives another year for the members to get more experience – just a one-time transition – and I think it’s a good point,” Kjome said.
• On a final note, Finance Director Carol Lapham presented the monthly budget update, which is on par for this time of year. “It’s clicking along the way it should be,” Lapham said.