Upper Planners to Reconsider Mining Buffers

SEAVILLE — An appeals court has sent a case involving a local mining company back to the Upper Township Planning Board.
In July 2007, the board approved a sand and gravel mining facility site plan for an expansion of operations to Action Supply, of 1413 Old Stagecoach Road. Based on public input to this application, the approval as well as the board’s recommendation to township committee to renew Action’s mining permit hinged on a 200-foot buffer around the mining pit as well as a 12-foot earthen berm with a six-foot stockade fence and tree plantings separating the facility from adjacent residential homes.
Action appealed the planning board’s decision arguing that the board lacked the authority to place conditions on the site plan approval. The company also noted that a previous decision by the township zoning board required only a 100-foot buffer with no earthen berm.
Last spring, Superior Court Judge Valerie Armstrong decided that the planning board did have the authority to grant variances on applications as well as place conditions on those variances. The judge also found that the conditions were reasonable.
“The planning board heard testimony from neighbors who stated that the mine, even in its current scope of operation, produces noise, dust, truck traffic and other annoyances,” Armstrong wrote. “Naturally, the expansion of excavation onto Lot 110 will aggravate the already-existing problems…The conditions at issue in this case – the required berm, fence and trees – are ‘reasonably calculated’ to mitigate the planning board’s and the public’s concerns.”
Following Armstrong’s decision, Action asked the Appellate Division to reconsider.
On April 2, appeals judges reversed Armstrong’s decision regarding the buffer and berm conditions and remanded the matter back to the planning board for more discussion on how noise and dust would be reduced through the larger buffer and higher berm.
“The record is bereft of any evidence that a 12-foot berm, or any berm of any height, would resolve or mitigate the noise and dust complaints of the neighboring residential property owners,” the judges wrote. “Rather, the planning board merely assumed that a 12-foot berm would resolve the noise and dust issues.”
“The absence of any evidence that a 12-foot berm would ameliorate the noise and dust emanating from plaintiffs’ mining site renders this condition arbitrary and unreasonable,” the judges continued. “Therefore, we remand this issue to the planning board for development of an adequate record concerning the appropriate height of the earthen berm.”
Contact Hart at (609) 886-8600 Ext 35 or at: jhart@cmcherald.com