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Thursday, July 9, 2020 — Sheltbn-Mason County - Page A-27
Lawsuit: Legality of site, long—term effects among Concerns
~ continued from page A-1
meaning it exceeded a county
stipulation that a parcel that
has a two-year lapse in non-
conforming use requires re—
application for mining use.
A gravel borrow is an open-
pit mine used to extract grav-
e1. '
Under the diminishing as-
set doctrine, the operation
can legally exist only within
the parcels that total 1.87,
acres that the gravel borrow ,
historically operated. There
is limited evidence to suggest
that the surrounding 24- and
49.14-acre parcels now desig—
nated as forestlands were ever
used for mining.
A few months prior to Win-
dom signing a SM-6 form that
approved the 66.5-acre surface
mine, Mason County Plan-
ner Michael MacSems sent a
memorandum explaining that
Grump Ventures, the business
entity behind the proposed
mine-operating company,
could legally mine on the 1.87-
acre lot, which would limit the
operation to the existing grav-
el borrow.
“I can find no evidence that
the mining operation was ever
established on those parcels,”
MacSems wrote in the March
15, 2017, memo. “My recom-
mendation is that you do
not sign until the acreage is
changed to 1.87 acres.”
In the lawsuit, homeowners
allege that Grump Ventures’
application for mining approv-
al was pending until Neather-
lin returned from a trip to Ire-
land with Jack Johnson, own-
er of Peninsula Topsoil, “who
was shepherding Grump’s ap-
plication” as part of the local
appliCation approval process.
“The legality is just one fac-
et, yes it’s a legal issue but the
' homeowners’ main concerns
are if this mine takes opera-
tion it will have a huge impact
on an area zoned for residen-
tial use only for the last 25 to
30 years,” plantiffs’ attorney
David Bricklin said. “A lot of
folks built homes there on that
basis, but a gravel mine would
be terrible, a lot of noise, truck
traffic, and safety issues with
the ground and surface wa-
ters.” ,
In January, the county re-
scinded the SM-6 form, citing
the expiration of the noncon-
Celebrate
The Scott Gravel Pit has. not been excavated since April 2019 when the
county issued a
stop-work order. Journal photo by Isabel/a Breda
forming use after two years of
inactivity.
Grump Ventures appealed
that decision and the county
is moving through the hear-
ing-examiner appeal process.
Grump Ventures had a week
to respond and a hearing is
scheduled for July 16.
“It’s kind of important that
they are suing for damages
and there’s no‘mine,” Neath-
erlin said. “I have to live with
it and I have to deal with it. I
try to work real well with ev-
erybody, I thought I had done
well. You can’t blame anybody
for not wanting to have some-
thing like that next to them.”
Joe Smillie, communica—
tions manager for the Depart-
ment of Natural Resources
said Grump Ventures has not
contacted DNR “since they
initially applied for a surface
mining reclamation permit a
few years ago.”
The SM-6 form is required
by DNR in order to grant a
surface mining permit.
After county or munici-
pal approval of surface min-
ing through the SM—6 form, a
State Environmental Policy
Act Review (SEPA) must be
conducted.
After a 30-day written com-
ment period on the SEPA, on
July 23, 2018, Grump Ven-
tures owner Russell Scott, who
lives across the road from the
proposed surface mine, sub-
mitted a written request to
, $62 in Mason County*
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withdraw his applications, ac-
cording to. a letter from Mason
County Planner MacSems to
' the Hood Canal Gravel Mining
Opposition Association. -
In a July 26, 2018, story
in the Kitsap Sun, Scott said
“it was never our intention to
have this project disrupt the
community this way.” Scott
added, “Commissioner Randy
Neatherlin spoke with me and
explained the community’s
concern, This really enlight-
ened me. Right now, I am just
taking a step back to reassess.
I just didn’t envision any of
this.”
Reached by telephone,
Scott declined to comment to
the Journal on the ongoing
litigation.
Less than a year later, h0w-
ever, Grump Ventures per-
mitted Peninsula Topsoil &
Landscape Supplies to begin
excavating materials the week
oprril 1, 2019.
On April 8, 2019, Kell
Rowen, Mason County plan-
ning manager and a code en—
forcement officer, went to the
property and provided Penin-
sula Topsoil with a stop-work
order.
“I followed up on the fol-
lowing Wednesday to let them
know that we’d reviewed the
code and- because they did not
have a mining permit (from
the state) they needed a grad-
ing permit from the county,”
Rowen said. “(The grading
l
\
x
x
i
permit) is required when you
grade over 200 cubic yards and
they definitely had excavated
over 200 cubic yards.' As far
as I know they have not done
anything active on the site
since that day in April.”
According to legal docu-
ments, Brad Carey, a North
Shore resident, made a pub-
lic records request of Windom
“for all records and writing
used/relied upon for Defen-
dants signing off on the... ‘SM
6,’ ” on April 9, 2019, related
to the gravel mine, “for which
the Defendant intentionally
and in bad faith denied said
records.”
On Feb. 5, county commis-
sioners approved a $30,000
settlement to release all
claims in the Brad Carey v.
Mason County Public Records
Act Lawsuit.
Carey is a member of the
501(c)(3) nonprofit Hood Canal
Gravel Mine Opposition As-
sociation, a coalition of North
Mason residents working to
mitigate the potential prob-
lems with the proposed mine.
One of the lawsuit plain-
tiffs, McCullough, said he has
worked as an environmental
engineer for nearly 60 years
and has completed more than
65 river, stream and estuary
restoration projects, including
the Salt Creek Estuary, Union
River Estuary and Kliegel
Creek restorations.
During the SEPA comment
‘ E L Fig R;
QSELRSTORHGE
..__l____v__.__._____.11
~ the
period, McCullough wrote a
letter stating that in 2003 he
and the Hood Canal Salmon
Enhancement Group worked
“to restore MacElhany Creek
on the south end of the exist-
ing gravel pit and another
small stream on the north end
of the existing gravel pit
both streams had been, and
still are, heavily impacted by
gravel substrate,” as a byprod-
uct of the existing gravel mine.
According to the SEPA, the
Scott Gravel Pit’s “proposed
mining limits are outside of
Stimson Creek Water-
shed” and would have provid-
ed a 100—foot minimum buffer
from the unmapped stream
in the northeast corner of the
property.
“I have no problem with
gravel pits, I’ve been a con-
sultant,” McCullough said.
“But, they need to be properly
sited and the land use transfer
needs to go through the cor-
rect and proper process, which
they didn’t do for a 7 million
cubic yard excavation (site)
with asphalt, rock crushing
and the whole works.” .
McCullough said the ap-
proval process for surface
mines, even in areas that are
properly sited, can take up to
10 years. Smillie said the DNR
permit approval process varies
by location. '
The site is across the street
from the Port -of Allyn boat
launch on Northeast North
Shore Road. North Shore Road
is about 200 feet from Hood
Canal at that point.
Summons were electroni-
cally issued to defendants
Grump Ventures, Mason
County, Neatherlin, Russell
Scott and Windom on June 30.
County Prosecutor Tim
Whitehead said he was on va-
cation the week that the sum-
mons were sent, but he will
discuss the suit for the com-
missioners July 20.
Bricklin is one of the three
attorneys from Bricklin &
Newman who are represent-
ing the homeowners. The firm
specializes in land-use law,
environmental law, property
disputes and property damage.
The county will draw from
the risk pool it pays into annu-
ally for legal representation.
US. District Court Judge
Michelle L. Peterson will de-
'cide the case.
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