Kathy and Harry Turnbull knew Kasson Township was rich in gravel deposits when they purchased property in 1999 and built their home the next year. But they believed the township ordinance governing gravel extraction would protect their investment.

KATHY TURNBULL and neighbors have taken legal action
to force Kasson Township to uphold its zoning ordinance.
Pictured in the background is a nearby home, located on
a 3-acre parcel added to Elmer’s Crane & Dozer’s gravel
operation next door. Including the property brings the
gravel mine approximately 200 feet closer to the
Turnbull's home, according to their claim.

Now, they're not so sure.

“They aren’t enforcing their ordinance,” Kathy Turnbull said.

The couple, who took legal action against Elmer’s Crane & Dozer last month over activities at the company pit near M-72 and County Road 669, added the township Monday as defendants in a lawsuit seeking an injunction forcing the company to replace an evergreen buffer at the site and to pay damages in excess of $25,000. The amended complaint is a result of May 19 Planning Commission approval of a special land use permit allowing Elmer’s to add a 3-acre parcel to the company’s gravel operation. A commission decision the previous month is the basis of a request for a language interpretation from township resident and Zoning Board of Appeals (ZBA) member Traci Cruz, who lives near the gravel operation.

Cruz has filed a request for an appeals board ruling on a dozen points.

“In April the Planning Commission decided that adding 16 acres (to the site plan) didn’t increase use,” Cruz said.

Among the questions from the appeals board member is what constitutes a “modification,” “alteration,” “expansion” or “change” in a special use permit; whether there was adequate public notice prior to a hearing on the site plan changes; and whether it constitutes a refusal to enforce the zoning ordinance.

In making the request, Cruz cited the Michigan Zoning Enabling Act (MZEA) of 2006, which combined regulations set out in separate acts into one document governing procedures for all zoning rules, including those of counties, villages and townships throughout the state. She also advised that her request “stays” all related decisions until a determination is made, barring a court opinion that imminent peril to life or property would result.

Board members weren’t quite sure how to proceed with Cruz’ request based on discussion at Monday’s monthly meeting.

“I don’t think we can stop just because a citizen of the township says we have to,” said Roger Noonan, the Township Board representative on the Planning Commission and a shareholder in Kasson Sand & Gravel, which is also located in the township. “Go ahead and issue the certificate of site plan.”

Township officials said they would consult with the township legal counsel and the county Planning Department prior to taking action.

Cruz paid a $350 application fee for the appeals board ruling, from which she has disqualified herself.

Cruz is one of three appeals board members who will not be able to participate in the decision. The 5-member board also includes Marilyn Flaska, co-owner of Leelanau Redi-Mix, and Planning Commission chairman Jess Reed, who took action on the site plan amendment questioned.

“The MZEA says he can’t participate either,” said Cruz, who was appointed to the ZBA in April for a 3-year term. She is also the Democratic candidate for the District No. 7 county commissioner’s seat.

The township will have to call upon its alternate, Bob Johnson, who received his appointment at the same meeting as Cruz, and rely upon him, Penny Rosendall and township trustee Tom Triebes for a ruling.

In the meantime, Supervisor Fred Lanham said Monday that all ZBA members should receive instruction in the new zoning act.

County Planning director Trudy Galla said the Michigan State University Extension is hosting 28 educational sessions focusing on the MZEA throughout the state this month. One was held last week in Traverse City. The next class in northern Michigan is scheduled June 25 in Charlevoix.

A message was left with Elmers seeking comment for this story, but was not returned in time for this story.