By: Benjamin J. Gohs, News Editor
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Citizens voiced their concerns that the wood pellet manufacturer—embroiled in an ongoing noise dispute with the city and some of its citizens—has been apparently operating numerous days each week since it was officially shut down back in late-January.
“How can they run with no permit or nothing? I can’t understand it,” said Boyne City resident Don Nessen. “Can someone explain this to me?”
Boyne City Planning Director Scott McPherson said Kirtland continues to operate at “their own peril.”
“The company has been issued a citation and that is going through the court to be adjudicated,” he said. “For every day that they do run there is the potential that the judge could fine them for that day. So, by running, they run the risk of getting fined for running.”
Members of the public asked if it was legal or appropriate for them to call the police to complain about the noise.
“People are free to do that if they wish,” said Boyne City Manager Michael Cain. “The police will probably take no action.”
Cain said the city’s current position on the matter was articulated by the city’s attorney during the Boyne City Commission’s Tuesday Feb. 12 regular meeting.
The Boyne City Planning Commission finalized its September 2012 determination that Kirtland Products was out of compliance with a vote of 7-0 to revoke the wood pellet manufacturer’s conditional operating permit on Jan. 21.
“Kirtland has an absolute right to appeal to circuit court the decision of the planning commission, and they did so,” said Boyne City Commission civil counsel Jim Murray of Plunkett Cooney Law Firm. “So, what that means is, under the court rules, certain deadlines are imposed; they are not my deadlines, they are not Kirtland’s, they are straight from the court rules.”
Kirtland filed its appeal on Feb. 1.
The city has until approximately March 12 to certify the record, which means documentation concerning all the meetings and notices, surveys, pictures and consultants and any other information regarding this issue will be delivered to Charlevoix County’s 33rd Circuit Court.
“After the court receives that, we’ll be getting a notice saying that this certified record is there and the appellate, Kirtland, will have 28 days to file an appeal briefing,” Murray said.
The city’s attorney said once all that is taken care of it will be approximately April 9.
“After that the city will have 21 days, so about April 30, to file a responsive brief,” he said. “If either party wants oral argument, the court will schedule oral argument and then the court must enter a written opinion on the decision on the appeal.”
Murray added, “So, that appeal process will take, according to those dates, to mid-May.”
On Jan. 28, McPherson issued Kirtland a civil municipal infraction for its continued operation in the face of the loss of its operating permit.
“Scott McPherson … sent Kirtland a letter saying that the zoning permit is no longer valid. Kirtland continued to operate so, sometime this week, Kirtland was issued a municipal civil infraction—a municipal civil infraction is a civil matter that goes before the district court,” he said.
“And, in that municipal civil infraction, he asked for a formal hearing and that process requires me to file a motion for an enforcement order asking the court to order Kirtland to discontinue.”
Murray said he had hoped to file that motion by late last week.
“We are at the discretion of the court and I can’t tell you if the court is going to order that (Kirtland to stop operating),” Murray said. “It’s somewhat out of your hands. It’s in the hands of the two Charlevoix judges.”
Cain said the city’s only option is to work through the legal process at this point.
Citizen comments during the city commission meeting included concerns about Kirtland’s ability to operate and the need for jobs in Boyne City as well as concerns that the company was making noise late into the night.
City officials were asked if they had received the Michigan Department of Environmental Quality’s (MDEQ) report on Kirtland’s emissions tests.
“Last I communicated with Kurt Childs (an environmental analyst with MDEQ) they were going through the appeal process where they (Kirtland) submit back to them and the DEQ reviews that information and makes a determination,” McPherson said. “They haven’t gotten back to me whether that’s been made or not.”