La PORTE – Work on a controversial construction site in Center Township can continue unabated, following a court ruling last week that overturned a county stop-work order.
In a ruling issued Sept. 12, La Porte Circuit Court Judge Thomas Alevizos denied the Board of Commissioners' request for a preliminary injunction against Michigan City's D&M Excavating regarding work on a property at CR-400W, just off Schultz Road. The decision comes seven months after the county issued a "Red Tag" order for the property, which neighbors call an illegal sand mining operation.
The commissioners issued the order following complaints that work has continued at the residentially zoned property, even though a pond construction permit for the site expired more than two years ago. Local residents also argued that vehicles and heavy machinery operating on the premises present a noise and dust nuisance.
In his ruling, however, Alevizos' found that D&M and its president, Ryan Miller, have the right to move and transport loose soil on their property without county approval.
Miller and his attorney, Andrew Voeltz, maintain that work on the 4-acre pond the county issued a permit for has been complete since July 2017. They also argued that crews could move dirt on the property anywhere above the basin's waterline.
In regards to the commissioners' complaints about disruptions to nearby residents, Alevizos ruled the board lacks legal standing to seek relief for the matter.
With Alevizos's ruling unlikely to be overturned on appeal, La Porte County attorney Shaw Friedman has advised residents living near the worksite to hire private counsel and file suit against D&M and Miller.
"The neighbors know that between the building commissioner [Annemarie Polan] and the unanimous decision of the BZA supporting her 'Red Tag' decision, La Porte County has done everything it could to try to bring them some relief so they could have the 'peaceful enjoyment' of their properties that they are entitled to under residential zoning law," Friedman said.
"We will readily cooperate with the neighbors' private counsel to get them any evidence and testimony needed to support their request for injunctive relief."
For now, Miller and his company are happy with the decision.
"I'm obviously pleased with the court's ruling. However, I am not surprised," Miller said Tuesday. "The truth of the matter is we have violated no laws or ordinances. We have all the required permits for the work that is taking place. It's sad that we have had to defend our rights due to the thousands of frivolous complaints by a few disgruntled neighbors.
"I'm hopeful the county commissioners and their attorney will now stop harassing me and move on to legitimate issues in our community."
The ruling is the latest twist in the ongoing battle between D&M and homeowners, which began more than four years ago.
In July 2015, the La Porte County Plan Commission granted a permit to the excavating company to build a home and 4-acre pond on the land. The pond permit was intended to only last for one year, but the plan commission later granted Miller another year to finish the work.
Nearby landowners have maintained that the site is nothing more than an illegal sand mining operation. They cite a $1.6 million contract La Porte awarded to D&M to provide sand for the New Porte Landing project around the time construction began.
The neighbors, who formed a Facebook page dedicated to the issue, have complained about noise and dust as heavy machinery continues operates on the property, years after work was to have finished.
Scott Keller, an attorney hired by residents, claimed Miller bought the property and filed for a pond permit to take advantage of a loophole that allows his company to mine sand from a residential property.
The company president denied using the property to extract sand, but said D&M can use materials from construction "anywhere they can find a home for it."
Earlier this year, the commissioners instructed Friedman to investigate complaints about the work. The attorney recommended the county "red tag" the site, as the pond permit had expired, requiring the developers to seek a variance to continue work.
After the commissioners voted 2-1 in favor of issuing the stop-work order, D&M appealed the decision, which the county BZA upheld in March.
Despite Judge Alevizos' recent ruling, Randy Veatch, one of the residents opposed to the project, said he and other neighbors would continue to fight to stop construction.
Veatch said he's been in contact with the state departments of Transportation and Environmental Management about possible permitting and code violations.
He said is apprehensive about following Friedman's advice and hiring an attorney to file suit, though, which will be difficult for him and other neighbors to afford, he said.
"If [the county] can't beat this thing, what would make our attorney be able to beat it?" he said.
Instead, he would like county officials to shut down the operation on the grounds that D&M is operating a for-profit worksite in a residential area.
Veatch also bristled at Miller's complaints that he and other homeowners are just looking to cause trouble.
"We have been painted as instigators here," Veatch said. "We are nothing but residents who want to live in a residential area, not an industrial one."