AP NEWS

Red tag and red flags

February 25, 2019

CENTER TWP. — The La Porte County Board of Commissioners has issued a stop work order at a controversial construction site just north of La Porte, but the Michigan City-based firm doing the work plans to appeal what it calls the board’s “overreaching” of its authority.

D&M Excavating Inc. has filed a “Petition for Clarification and/or Appeal to Challenge the ‘Red Tag’ and Stop Work Determination,” and the La Porte County Plan Commission will conduct a public hearing at 6 p.m. Tuesday to hear the appeal.

The site on CR-400W, just north of CR-400N/Schultz Road in Center Township, has been surrounded by controversy since D&M and its vice president, Ryan Miller, were awarded a permit in July 2015 to build a home and four-acre pond on the site, which is zoned residential (R-1).

Neighboring homeowners immediately began complaining about large trucks coming into and out of the site, calling it an illegal sand mining operation because D&M was awarded a $1.6 million contract to provide sand for the New Porte Landing project on the former Allis Chalmers site on Pine Lake Avenue.

They formed a loose collaboration and set up a Facebook page – La Porte Citizens Against Unauthorized Sand Mining – and have continued to monitor work at the site, which, according to the permit, was to end after 12 months, but was later extended to 24 months.

At its reorganizational meeting Jan. 2, the commissioners authorized their attorney, Shaw Friedman, to discuss the matter with the county Highway Department, Building Commissioner and Sheriff’s Department, and make a recommendation to address ongoing complaints.

Friedman’s recommendation was to “red tag” the site, because the work permit had “clearly expired” in July 2017 and there was “absolutely no justification” for the work being allowed to continue until D&M applied for and received a new permit, he wrote in a memo to the board.

He wrote that the building commissioner should inform D&M and Miller “that there is to be no further work on the site connected with either ‘excavation,’ ‘filling’ or other work on the ‘pond’” until a new permit was granted.

The commissioners then voted 2-1 at their Feb. 6 meeting to order the site be red-tagged.

Andrew Voeltz, attorney for D&M, issued a statement from the firm calling the decision “troubling” and an “overreach of authority.”

“On February 6, 2019, the La Porte County Board of Commissioners directed the county’s Building Commissioner issue a ‘red tag’ on the property owned by D & M Excavating Inc. near County Road 400 West and Schultz Road. The ‘red tag’ states that the pond is being constructed in violation of the Ordinance of the La Porte County Plan Commission.

“This is not true. The pond basin is complete, and if we had been contacted by the county commissioners prior to the meeting on February 6, 2019, we would have invited them out to see the completed pond basin. Since the pond basin is complete, why is there a ‘red tag’? What has, in fact, been ‘red tagged’?”

The statement went on to say the decision would be appealed.

“We fully intend to pursue all available appeals of this troubling action by the La Porte County Board of Commissioners. This violation of property rights is an overreach of the authority of the commissioners. Property rights are extremely important, and every property owner in this county should be deeply concerned that the commissioners made this decision to restrict what a property owner does on their own property without proper due process of law.”

But Friedman, in his memo to the commissioners, said the Building Commissioner had specifically asked in December 2018 when grading around the pond would be complete.

But, he wrote, “Mr. Miller’s attorney, in a Dec. 14, 2018, response, would give no timetable and even went so far as to say his client faced ‘time/equipment/manpower restraints’ on this project and further stated his client would ‘assign priority to this project only as it is available’.”

He also said there has been no work done or permits issued for construction of the home that was “promised” on the site.

“Instead, there have been no permit applications filed with the county for a building permit, no septic permits granted, nor any plans submitted nor footings laid nor any apparent site preparation for a residence.”

When the building commissioner asked about the status for applications for permits on the residence, “she was refused an answer and told by the attorney that Mr. Miller would not ‘answer the question.’”

In summary, Friedman wrote, “Any grading, site preparation, excavation and/or fill of the ‘pond’ at this site should be halted immediately and red-tagged as the relevant permit ... has now long expired and should be considered null and void.”

It isn’t the first time the project was red-tagged.

In August 2016, after officials said the 12-month permit had expired, the commissioners issued a stop-work order, but D&M claimed the permit had been for 24 months.

At a Plan Commission meeting on the matter, Miller said he is not using the property to mine sand, but is committed to building a pond to fulfill his dream of owning a home with a pond.

“We’re going to remove the materials from the site,” Miller told the commission. He said he was removing the sand to dig the pond, but as vice president of the excavating company, it also worked out in his benefit.

“D&M can use that material anywhere they can find a home for it. In return, they dig the pond for me for free and I slowly buy up the parcels of land from D & M,” Miller said.

Scott Keller, an attorney hired by neighboring landowners, said a contract to supply sand was awarded to Miller and, less then a month later, he bought the property and the claim of building a pond was to take advantage of a loophole allowing the work to qualify as residential use.

The group argued against the excavation, citing flooding, a commercial business in a residential zone, potential water pollution, illegal truck traffic and other concerns.

But the Plan Commission approved the request to continue work until 2017, saying they could only address the issue of the pond.

Neighbors want to make sure that doesn’t happen again. On the Facebook page, they posted a copy of the D&M petition to be heard Tuesday, and urged residents to attend.

“So it appears this situation is not over. This paperwork was filed with the county. As it was understood from the last Commissioners meeting, a Red Tag would have to be addressed by the Zoning Board. This does not seem to be the case? This meeting will happen, and we need our whole neighborhood to come and stand up and say no to the dump truck traffic in our neighboorhood. This meeting will take place: February 26, 2019, at 6 p.m. at the County Building. Please be there!”