Are gravel pit owners getting the shaft?
Gray's ordinance revisions may ban new pits
By Elizabeth Prata

Gray--Over two years ago, the seventeen gravel pit owners in Gray got together with Gray's Ordinance Review Committee (ORC) to work toward streamlining the permitting process and the ordinance itself. They convened throughout the year, at meeting after meeting, with the ORC calling in officials from the Department of Environmental Protection, experts in the permitting process, and local authorities, to add input to the ordinance revision.

When finished, the draft revision was sent to the Gray Council where it languished, pending completion of other business, for another year. When the Council got ready to review the revisions and act on its adoption, the ordinance contained new language that the pit owners never dreamed: no new pits.

Third generation pit owner Terry Wilkinson said at Tuesday's Council meeting, "We requested that the pit ordinance be reviewed and we were granted that. We met 12 to 15 times. We worked well together. It was my thought and hope that the attempt to streamline it would have been dealt with before this."

"I received the draft last week and I am disturbed that in the infinite wisdom of a few people on the Comprehensive Plan committee and Council can look into a crystal ball and say to those of us who do earthwork that our product will dry up."

Wilkinson continued, saying, "You don't buy a lot of material in Gray because out of the 17 pits here none will do business with the Town, we refuse to even turn in a bid, because you've made the process such a nightmare. And now this. We asked to simplify the ordinance, not to cut our throats."

Pit Owner Scott Dugas echoed Wilkinson's sentiments. The language also includes limiting expansion to within the current footprint of a pit. "You are stopping me from expanding, but my next door neighbor will get more money selling to me than to another house owner." Don Grover stated that he would "sue in a big way," if the revision goes through. He cited years of difficult history with the town, a bureaucratic and enforcement mess in 1985, a subsequent moratorium in pit expansions, and now the no new pits language. "We have a good operation and we are good neighbors," he said.

Resident Steve Bunker asked, "Have you had trouble with pit owners? Are they bad guys? Sure I would rather have pine trees all over town, but you can't build a house or a road with pine trees. We need their product."

Owner after owner trooped to the microphone, some charging that the proposed ordinance revision is the first step in a Big Brother attitude, asking if pizza shops would be the next target. Others said the prohibition on new pits would be a taking, and they would expect compensation, a question asked by citizen John Welch, "Would they be entitled to compensation?" and Town Manager Mitchell A. Berkowitz's answer was "No."

ORC member Wade Trudel said, "When we gave you the draft, it was an ordinance that balanced the needs of the owners and protected the town. Where did your expertise come from? Do not enact this ordinance, enact the original draft we presented to you."

The Council was asked several times as to why the prohibition on new gravel pits was included. Chair Pam Wilkinson explained that the Council follows the Comprehensive plan guidelines, and the Plan includes a suggestion that there be no new pits.

Councilor Matt Sturgis was vehement that the draft's new language was offensive and unnecessary." This is a viable industry in Gray run by responsible owners here for generations. They pay a lot of excise tax and property tax, as well as employ dozens of people. Consider the alternative land use options, a 60-lot subdivision, for example. Gravel pits are not expendable. We need to support their right to do business. The intent is regulation, not elimination."

Sturgis was also offended at the Council's "eleventh-hour rewrites." He offered an amendment to the draft that excised the growth limitation and no new pits language. Gary Foster seconded it.

Councilor Lynn Olson said, "I expected to hear what we have been hearing from the pit owners tonight. What do non-pit owners who commented during the Comprehensive Plan process have to say? If we don't hear from them, then I am with you, Matt."

Although at least six non-pit owners spoke against the draft, Olson advocated for waiting for even more comment from non-pit owners. Sturgis replied that the language should be excised as the Council goes forward.

Olson replied, "This is attention getting. So let's leave it in."

The vote on the amendment to move forward with the language stricken died due to a tie, Sturgis and Foster voting for it and Wilkinson and Olson voting against. Councilor Richard Barter was absent again.

The main motion to adopt the draft revision also failed, 0-4. No Councilor voted for it.

The Council will continue their deliberations at their next meeting on Monday, July 26 at 6 p.m. in Stimson Hall.

Regulatory Takings:
Excerpt from "The Complete Idiot's Guide to Civil Liberties," Chapter on 'Property Rights.'

In a regulatory taking, the government passes a regulation that has a negative impact on your ability to live on or use the land.

Let's say you open a coal mine, and the government passes a regulation severely limiting your ability to mine coal. They passed the regulation in order to protect your neighbors, whose houses were in danger of sinking into the ground because of your coal-mining operations.

Such were the facts in a leading U.S. Supreme Court case, Pennsylvania Coal Company v. Mahon, decided back in 1922. The Supreme Court held that if the government passes a regulation that seriously disrupts a person's ability to use his or her property, the government has to compensate the individual. Such a regulation is said to "take" from the individual property rights (one or more of the sticks we like to talk about) without compensation. The Fifth Amendment to the U.S. Constitution forbids such takings where there is no compensation.


The key question surrounding a regulatory taking is whether a law "goes too far." The expression "goes too far" implies that the government does have a certain amount of power to regulate land use, water use, and just about everything else under the sun. But there are times when a law is said to be overreaching.

When does a law go too far? When a judge says it does. If a regulation or law wipes out the entire value of a piece of property, there is generally no question - an unconstitutional regulatory taking has occurred. But what if only a part of the value of the property has been taken away? Does that mean that the government should be forced to pay as much as it has damaged? Hard to say. Regulatory takings cases are not easy to decide, and there is no absolute rule of thumb in order to predict how they will come out.

Today, courts look for the economic impact of the regulation, the extent to which the regulation has interfered with the expectations of investors (you bought the coal mine because you wanted to mine coal and now find you can't), and the character of the government action.