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Town of Milton gravel pit permit faces court challenge

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Neil Johnson
August 15, 2013

TOWN OF MILTON—The town of Milton is diving into a lawsuit to defend its permit for a gravel pit that apparently lost its developer and shows no immediate signs of moving forward, officials said.

A lawsuit filed May 10 by residents who oppose the gravel pit planned east of North Klug Road is headed for an Aug. 27 hearing in Rock County Court.

The hearing comes after the town turned down residents' proposals that the town's lawyers say would have stalled or halted the pit from being developed.

Attorneys in the suit confirmed they'd be moving forward with a court fight over the town board's controversial April 8 approval of a conditional-use permit for landowner Scott Traynor and the now-defunct Elkhorn gravel pit developer BR Amon & Sons.

The residents, named in the lawsuit as Russ Caley, et al, said in a press release that the town of Milton “ignored its own comprehensive plan” and “illegally approved a conditional-use permit” in a “misuse of power.”

The group is asking Judge Daniel Dillon to revoke the conditional-use permit and to reinstate to the land in question a wetland conservation zoning designation the town threw out last year, paving the way to approve the pit.

The wetland zoning had forced the town in March 2012 to deny an initial permit request for the pit. Reinstating wetland zoning, the residents argue, would prevent the land from ever being developed as a gravel pit.

The residents' lawsuit also argues the town board failed to prove the gravel pit wouild meet the town's zoning criteria, which by town rules includes consideration of impact on the environment, private property and residents.

The town in court papers argues it did nothing improper in considering and issuing a conditional-use permit for the gravel pit.

The town late last month shot down a set of proposals by the residents' lawyer, Madison attorney Matthew Fleming, that the two sides resolve the issue out of court.

Meg Vergeront, a Madison attorney chosen by the town's insurers to represent the town, deferred comment to the town's attorney, Dave Moore.

Moore told The Gazette the town had no appetite to dissolve the permit, which, he said, is what the residents' proposal would have required.

“The town did not find it (the residents' proposal) to be satisfactory. It would have meant the town permitting the CUP (conditional use permit) being withdrawn or revoked. The town is not interested in doing that at this point in time. What the town is prepared to do is respond to and get a final resolution on the pending lawsuit,” Moore said.

Fleming, the residents' attorney, said he'd proposed several “concepts,” including one he indicated would have set a deadline for the conditional-use permit to become invalid.

He said none of the proposals would have required the town to give up anything.

“I wasn't asking the town just to give up and roll over for us,” Fleming said. 

He said the two sides had agreed to delay a formal petition to move ahead with the suit. But then talks fell apart.

“We ought to be able to find a way to come to a resolution without litigation, to avoid neighbors and the town spending money,” Fleming said. “The message I got back from the town's attorney is that the town wasn't interested in doing anything (but going forward with the lawsuit).”

Amon & Sons, the developer originally signed onto the conditional-use permit, went into financial receivership in April and began selling off its equipment. Since then, officials said, no one has officially proposed to rekindle a deal to develop a gravel pit along Klug Road.

Residents filed the suit shortly before it was clear Amon & Sons had become insolvent, Fleming said.

Anyone with plans to develop a pit using the existing permit still would need regulatory and zoning approval from Rock County and the state Department of Natural Resources.

Colin Byrnes, who heads code enforcement and planning for Rock County, said this week the county's planning and zoning office has gotten no permit requests for the gravel pit since the town of Milton approved it in April.

Even though nobody is pursuing further approval for the proposed pit, landowner Scott Traynor continues to hold the conditional-use permit. The permit is written so the plans for a pit could be rekindled by any developer, town officials have said.

Fleming said he believes the lack of county and state approval and  the pending lawsuit could squelch interest by others in developing the pit.

“It seems unlikely anyone is gong to come in and step into this hornet's nest,” Fleming said.



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