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Sand pit mires county, town

Asphalt plant stirs controversy

By Ben Rodgers

In this neighborhood people wake up each morning in the summer months already knowing from where the wind will be blowing.

Located on Baldwin Road, on the west side of Bear Lake, a gravel pit is home to an American Asphalt plant. People who live here are often at the mercy of the wind.

Nichole Hedtke lives here with her three children, 13, 4 and 2 years old.

Two years ago she awoke after leaving her windows open at night to find her home filled with the heavy stench of fuel oil and tar. This was her first of many experiences with the asphalt plant.

“It’s a pretty terrifying feeling when you wake up in the morning and your house smells like that and there’s nothing you can do except get away,” Hedtke said.

It’s not just the smell that bothers Hedtke and her family. It’s the noise and traffic of heavy trucks hauling hot mix that make things difficult for her family.

Her oldest took a nasty tumble on his bike recently due to chunks of asphalt littering the roadway. Hedtke filled a grocery bag with those chunks.

The plant is affecting others nearby in different ways.

“One of the reasons we moved here is for the quiet, but we can’t go out and work in the garden without hearing beeping trucks constantly, the grinding or even an explosion,” said Carol Peterson.

She and her husband John Ashby had to relocate their bedroom in their home to avoid the noise and smell the best they could.

“The fumes are on certain days really bad and they make my throat raw,” Peterson said. “I have to close all the windows.”

Ashby is on a prescription to help with his sinuses and his trouble breathing.

“I do have health symptoms and I’ve had, in the past two years, an increase in bronchial infections,” he said.

But it wasn’t always this way.

The county operated a small hot mix plant on the other side of the pit for decades. It also operated only when the county needed hot mix.

Neighbors say the smell was not nearly as bad as it is now that the operation has shifted to American Asphalt and the plant moved to the other side of the pit.

“If the wind happens to be blowing that direction, even keeping your windows closed doesn’t do anything,” Dave Abrahamson said.

The Abrahamsons have a family farm that runs along the west shore of Bear Lake. They also own and operate Abrahamson Body & Equipment Service, a metal fabricator.

“We were pretty close to shutting down the plant and sending guys home,” Dave said.

The question of how one business can operate that creates conditions that make his nearly unworkable is one he often asks himself.

But the story of how American Asphalt came be here is a long one, riddled with permits, contracts, leases and lawsuits.

David and Sally Thiel have owned the Thiel Pit for more than 30 years and the land use predates any history of zoning codes in Waupaca County. The pit has been in existence for more than 60 years.

Since the late 1960s Waupaca County has leased the pit from the Thiels, while bidding out the crushing work to another company.

Waupaca County has paid the Thiels $57,000 for the lease of the pit from 2010 to 2016, according to receipts.

The Thiels declined to comment on this story until after Aug. 7, which is after the Waupaca County Post’s deadline.

American Asphalt also has a separate lease with the Thiels. American Asphalt serves Waupaca County, among other municipalities.

In that lease it was stated that American Asphalt can build an asphalt plant in the pit and conduct non-metallic mining. That lease is currently extended to Dec. 31, 2019.

American Asphalt currently does the crushing work for the county in the pit.

Waupaca County started bidding out the plant work in 2008.

American Asphalt started its asphalt plant around 2011-12 at the current location in the pit to save the county trucking costs associated with moving materials.

American Asphalt also helped the county with an excess of sand it had accumulated, said Tom Burch, vice president of American Asphalt

As for that location, Burch said it’s an ideal place for a pit.

According to him the plant is located far enough away from nearby residents with a tree line acting as a barrier for the stench.

“We are regulated with various environmental agencies with all of our permits and we met or exceed all requirements,” Burch said.

Legal non-conforming
The definition of legal non-conforming is one of, if not the biggest issue at play.

The Thiel Pit operation, home of the asphalt plant, was defined as legal non-conforming by the Waupaca County Planning and Zoning on Jan. 7, 2016. Because of this designation the operations in the pit are not subject to a non-metallic mining ordinance passed in Waupaca County in 2015.

A legal nonconforming use is “an active and actual use of land and buildings which existed prior to the commencement of the zoning ordinance and which has continued in the same or related use until present,” according to a legal memorandum from Axley Brynelson, LLP, attorneys for American Asphalt, dated June 14, 2016.

Essentially pit operations are considered legal-non-conforming because it was legally established, but does not conform to current zoning laws as it was created before those laws existed in Waupaca County.

The town of Little Wolf filed an appeal, which was denied by the Zoning Board of Adjustment on July 27, 2016.

“The Town of Little Wolf’s allegations that there is a violation of the Reclamation Permit Ordinance do not impact the determination of the Thiel Pit being a legal non-conforming use. Any deficiencies in the reclamation permit requirements should be addressed to the proper enforcement agency and do not impact the determination that the land owners have established a legal non-conforming use,” the county Board of Adjustment wrote in its decision for the appeal.

The proper agency in this case to address the concerns to would be Waupaca County Corporation Counsel.

Moreover, the defense argue the diminished asset rule for the expansion of the mining property as valid non-conforming use.

“Under the diminished asset rule the, the property owner is ‘using’ all of the land which contains the particular asset, i.e., the land itself, and which constitutes an integral part of the operations, notwithstanding the fact that the particular portion may not be under actual excavation,” the defense wrote in a July 27, 2017 joint opposition.

As there is a finite resource of materials, the diminished asset rule allows for expansion beyond established borders as a legal non-conforming use.

Legal non-conforming status and the conditional use permit are the basis a lawsuit regarding the Thiel Pit.

On Monday, Aug. 7, Judge Vicki Clussman affirmed the non-conforming status belongs to the Thiels, siding with the defense.
More on this case and the outcome will be available in the Aug. 17 issue of the Waupaca County Post.

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