Update, 7/25: Nestle files court appeal
EVART, MI -- A two-man zoning appeals board dealt a setback to Nestle Waters North America's plans to build a crucial piece of water system infrastructure the company needs to monetize increased extraction from a Michigan production well.
A split decision by the Osceola Township Zoning Board of Appeals on Tuesday, June 20, keeps in place the township planning commission's unanimous April 18 denial of a permit for Nestle to build a booster station along a water pipeline between the well and a truck loading dock along U.S. 10 in Evart.
Without the pumping station, Nestle can't move extra water the company is seeking permission from the state of Michigan to pump at the wellhead; a controversial request that has generated widespread opposition among the public.
The township pump station permit application is separate from the application pending before the Michigan Department of Environmental Quality to increase extraction on the well northwest of Evart to 400 gallons-per-minute (gpm). The DEQ drinking water office is still reviewing that application.
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The meeting, held in a rural Osceola County township hall, lasted about 40 minutes and included a brief closed session while zoning appeals board members Doug Carmichael and Roland Phelps conferred with township attorney William Fahey.
Phelps voted to uphold and Carmichael voted to overturn the April decision. A two-thirds majority vote was needed to reverse the planning decision. The third man on the board, Seth Hutchinson, recused himself from the appeal review because he also sits on the township planning commission.
Arlene Anderson-Vincent, natural resources manager at Nestle's Ice Mountain bottling plant in Stanwood, left immediately and declined to comment at the meeting. A public relations firm representing Nestle issued a disappointed statement on her behalf.
Nestle's attorney, William Horn, also declined to comment.
Nestle can appeal the decision to Osceola County Circuit Court, which covers both Osceola and Mecosta counties where Nestle's water system is located. The court has two judges, Scott Hill-Kennedy and Kimberly L. Booher, the latter of which is the daughter of Darwin Booher, a Republican state senator who represents Evart in Lansing.
Scott Hill-Kennedy replaced Judge Lawrence Root on the bench in 2005 after Root presided over the original trial in a lawsuit between Nestle and the Michigan Citizens for Water Conservation, a case which eventually resulted in a settlement limiting what Nestle can pump annually from its Mecosta County wells.
Hill-Kennedy is a longtime trustee at the Mecosta County Community Foundation, a local philanthropic organization to which Nestle has donated money.
In a statement, Nestle said it hasn't decided whether to appeal the decision in court. Attorneys say it would probably take at least six months to get before a judge.
Joe Geelhoed of Dan Vos Construction said the company can get about 300-gpm through the existing pipeline, built in 2008 through property owned by Spring Hill Camps, a Christian summer camp north of Evart. Nestle's White Pine Springs well No. 101 is currently permitted by the DEQ to pump at 250-gpm.
The DEQ is not under any deadline to decide whether Nestle can increase its extraction on the well.
In lieu of a booster station, Nestle has suggested it could build another pipeline or fill heavy tanker trucks at the wellhead, which would also require local approvals.
The company could also formally request the township amend its zoning ordinance, which would require public hearings and a decision by the Township Board.
"We are considering multiple options for alternatives," Nestle said.
Prior to the board's vote, Horn argued that Nestle's proposal met all the standards for a special land use permit under the township zoning ordinance. In Horn's written appeal, he argued the planning commission misinterpreted the zoning ordinance and attempted to reclassify the application in ways that would allow them to deny it in a "de facto attempt to prohibit (and thus regulate) a large quantity water withdrawal." Only the state has that power.
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Tim Ladd, Osceola Township supervisor, spoke during public comment at the meeting, saying the planning commission and zoning board had a "tough job deciphering the zoning ordinance and trying to determine if the permit follows our zoning."
"As of tonight, the decision has been made by the planning commission that it doesn't."
Ladd said that if Nestle wants the zoning changed, Spring Hill Camps, as the landowner, needs to make the request, yet it has never bothered to do so.
Several people spoke in support of the township during public comment. A written comment in support of Nestle's plans was read during the meeting.
After the meeting, Thomas Gilpin of the Michigan Sierra Club chapter praised the outcome. "I think they are trying to do the right thing for the community," he said.
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