May 26 • 03:26 PM

Asphalt plant court battle over?

Court of appeals sides with township again in ten-year legal wrangling

May 05, 2010
IMLAY TWP. — It's possible that a nearly 10 year-long court battle over a proposed asphalt plant could finally be over.

Last Thursday, the Court of Appeals denied the appeal of Earl Anspaugh and Trinity of Michigan L.L.C. and affirmed a lower court's ruling that Imlay Township's zoning ordinance was not exclusionary. Specifically, the justices disagreed with Anspaugh and Trinity's claim that the only plots zoned for heavy industrial use in the township are not reasonably accessible. Land along Graham Rd. is designated for heavy industrial or I-2 use.

"We're happy," said Imlay Supervisor Steve Hoeksema of the ruling.

"We really don't want to discourage business from coming to Imlay Township but they must be established in the proper areas. Industry doesn't belong in the middle of a residential area."

Trinity, owned by developer and road construction magnate John Carlo, sought to build an asphalt plant on Anspaugh's property at Summers and Newark roads in the southwest corner of the township, but was denied rezoning by the township board in 2000. That corner of the township was and still is zoned agriculture/residential.

Justices Richard Bandstra, Stephen Borello and Douglas Shapiro concede in their written ruling that the plaintiffs might have proved the route to Graham Road is "not as convenient" as Anspaugh's property but they did not "establish that the Graham Road Corridor is inaccessible or unsuitable for I-2 development or that the site was selected as a subterfuge for excluding I-2 zoning." They cited a report created by surveyor Ray Davis that noted the route passed other industrial approaches and plant entrances. Currently, Champion Bus and the Scotts Company operate on Graham Road.

The justices also found no merit in Anspaugh and Trinity's claim that Graham Road was not suitable for asphalt trucks, saying "that pertains only to plaintiffs' private interest in operating a particular type of industry, not to the public's need for general industrial uses."

• • •

Trinity filed their lawsuit in 2001 when the township denied a second request to rezone Graham Road property from I-1 to I-2, claiming the township ordinances sought to exclude heavy industrial land use.

Subsequently, Imlay Twp. adopted a new master plan and zoning ordinance in 2004, which Holowka ruled, nullified any claims of exclusionary zoning.

A round of rulings and appeals in the case worked their way through the court of appeals and even the Michigan Supreme Court.

In 2006, the Court of Appeals sided with Anspaugh and Trinity, saying that because there was no direct route of travel to Graham Road, Imlay's zoning ordinance did not accommodate the commercial uses of a heavy industrial business.

The township successfully appealed to the Supreme Court which remanded the case back to Holowka, solely on the issue of routes of access. Holowka again ruled in the township's favor and the plaintiffs made their most recent appeal to the Court of Appeals.

• • •

Robert Davis, who represented Anspaugh and Trinity, did not return a phone message by press time. It's unknown at this time if they will appeal to the Michigan Supreme Court.

Imlay Township attorney Michael Gildner doesn't believe they will. An outside law firm handled the asphalt law suit, but Gildner has followed the proceedings.

"Percentage wise, I think the deck is stacked against them," Gildner said of Anspaugh and Trinity.

"They can ask the Supreme Court to hear their case but they are not guaranteed anything."

Gildner said he found the appeals court ruling to be narrow and direct.

"I think it's important that the people in the township know that the township officials took up their fight and ultimately won," Gildner added.

Maria Brown joined the Tri-City Times staff in 2003, the same year she earned a bachelor's degree in English from Calvin College. Born and raised in Imlay City, she now resides north of Capac where she enjoys working on the farm, gardening and reading.
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