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November 17 2020

Senate Bill Allowing Virtually Unrestricted Sand and Gravel Mining Across the State One Step Closer To Becoming Law

By: Curtis L. Underwood

During the last week of September, and over the strong opposition of MTA and others, SB 431, a bill to eliminate oversight from local governments over mining operations in their communities, was referred favorably out of the Committee on Transportation and Infrastructure to the Senate as a whole. If passed, the current version of SB 431 referred out of Committee would make significant modifications to the Zoning Enabling Act (the “Act”) with regard to mining and other resource extractions. SB 431 would, among other changes, create a streamlined way for gravel companies to bypass the current requirements for zoning approval under a more relaxed standard and would distance municipalities from the process.

Currently, under the Act, a party challenging a zoning decision prohibiting the extraction of natural resources must demonstrate that: 1) there are valuable natural resources located on the property, 2) that there is a need for the natural resources by the person or in the market served by the person, and 3) that very serious consequences would not result from the extraction. The Act then provides factors to help determine whether extraction would result in very serious consequences.

The changes suggested in SB 431 primarily deal with: 1) the definition of “very serious consequences,” and 2) the procedure and burden related to extraction applications. First, under SB 431, as currently drafted, “very serious consequences” result from an extraction only when the extraction substantially exceeds the ordinary impacts of customary mining operations and poses an actual and unnecessary risk to public health, safety, or welfare that cannot be avoided or ameliorated through reasonable controls or conditions. This is a high bar to meet for a municipality which believes an extraction operation would be detrimental to its local community. Under SB 431, a mining operation would not result in “very serious consequences” even when that operation poses an actual and unnecessary risk so long as the operation does not substantially exceed ordinary impacts of mining.

Moreover, under SB 431, a local government would be required to find that very serious consequences would not result from an operation if the applicant submits a plan to the local government which includes the information required in the proposed statute. These requirements include descriptions of the operation and safety procedures. Despite the long list of requirements for these plans, this new procedure would limit the local government’s ability to make an informed decision related to the consequences of the operation. In the alternative to the submission of such a plan, an applicant may also seek to demonstrate that very serious consequences would not result from the proposed operation by meeting a set of factors under the more relaxed standard discussed above.

Importantly, SB 431 sets strict timelines for municipalities to process and review an application to extract resources. Under SB 431, an application is deemed administratively complete 60 days after it is submitted if the municipality does not review the application and notify the applicant of any deficiencies within that timeframe. Similarly, a municipality has only 210 days after a completed application is received to make a final decision or the application will be deemed approved.

Finally, if a party seeks review of a municipality’s decision with regard to a gravel or mining operation application in court, SB 431 dictates that the court will review the matter de novo. This means that all of the evidence and arguments made in proceedings before the municipality will need to be brought again from the beginning in court and the court does not need to give any deference to the municipality’s decision below. This increases the legal, administrative, and financial burden on a municipality to resist an extraction detrimental to the community.

Many municipalities have already voiced opposition to SB 431. In June of 2020, several township supervisors and MTA testified against the Bill in Committee to no avail. As the SB 431 is debated in the full Senate, local governments should consider contacting their state senators and asking them to vote no on this bill and to defend local control on gravel and sand mining issues.

Our attorneys are following the progress of this legislation and will provide updates on any new developments as they occur.