Helga Township farmer in court to 'protect livelihood'
A Helga Township farmer was in court Friday asking that a temporary restraining order prohibiting him from removing rocks and soil from his land be quashed.
Helga Township prevailed in obtaining the TRO last month when it alleged Doug Crosby was excavating for profit, which allegedly violated a township zoning ordinance. The township requested a permit for the activities and sued when it couldn't get Crosby to stop commercial trucks hauling "truckload after truckload after truckload of fill" from the property or get the permit, according to township attorney Robert Alsop.
Alsop told Judge Robert Tiffany the constant hauling was a nuisance to neighbors and a safety hazard for drivers.
The township, through its zoning ordinances, has the ability and the authority to regulate these restrictions on Crosby's land use, Alsop posited.
Crosby maintained the land is zoned for agricultural use, and he was preparing his property for grazing, as per a USDA contract he entered into.
His attorney Zenas Baer argued the excavation was incidental to farming, which is a permitted use under a state land use code. As such, he maintained no permit was necessary.
"Mr. Crosby is exercising his constitutional right to farm," Baer said. Improving his land for agricultural purposes is allowed, he said.
"Rocks that interfere with that improvement can be removed," he said. Baer complained that the TRO was obtained after a "one sided recitation of the facts" and that Helga Township "made a conscious effort not to describe the contours of this dispute."
Crosby said deeper excavation was necessary because rocks keep popping up to the topsoil.
Baer maintained the excavation was an "accessory" use of the land that would not cause "irreparable harm" to the township.
"They're trying to get the upper hand on citizens of the township" by insisting the activity be permitted.
"Your position is that your client needs no permit?" Tiffany queried from the bench. "Doesn't taking hundreds, thousands of acres of soil strain the reasonable interpretation of farming?"
Baer argued the township was using "bootstrap logic" to bolster its case.
Tillage equipment is necessary to prepare the land for custom grazing paddocks. To do that, some excavation and truck activity must occur, he said. Further, the ordinance actually prohibits the issuance of an interim use permit, which the township zoning requires.
"The township is reaching for a remote provision to try to stop this," Baer said.
"If Crosby gets an interim use permit would he be prohibited?" the judge asked.
"I can't predict what would happen but he needs to start with a permit," Alsop suggested.
"There's a lot of jousting here," the dubious judge said. "Maybe you can both achieve what you both want to achieve."
The permit was the way to start. Baer nixed that suggestion, saying Crosby was not optimistic he would be granted one.
"He doesn't have confidence this application would be taken seriously."
The zoning ordinances have been an infraction on Crosby's "private property rights," Baer said, because his desire to hold a rodeo and other horse events was previously vetoed by the township.
Baer again said the excavation was being carried out as part of the agricultural function, not a separate independent activity.
"The public interest is to preserve private property rights over regulation," Baer implored the judge.
Alsop maintained Helga Township would be irreparably harmed if it could not prevent direct violations of its own ordinances or enforce its own zoning codes.
Further, he said Crosby had produced no contracts that he claimed existed with the USDA, which necessitated the rock removal.
Tiffany took the matter under advisement. But he seemed troubled that Crosby could remove the rocks and pile them, but was unable to legally move them from he property.