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Tuesday, February 23, 2021

City of Houghton to hold Feb. 24 Public Hearings on rezoning proposals 314, 315; residents express environmental concerns

By Michele Bourdieu

This map outlines the area between Canal Road and the Portage shoreline being considered under proposed Ordinance 314 for rezoning from R-1 (single-family residential) to B-2 (commercial) by the City of Houghton. The Feb. 24 Houghton City Council meeting will include Public Hearings on proposed rezoning ordinances 314 and 315. Click on map for larger version. (Map courtesy City of Houghton)

HOUGHTON -- Local residents continue to question the City of Houghton's proposed rezoning ordinances 314 and 315, intended to change the zoning of an area along Canal Road adjacent to the Portage Waterway from R-1 (single family residential) to B-2 (commercial). The Houghton City Council will hold a public hearing for each of these rezoning proposals at 5:30 p.m. Wednesday, Feb. 24, via Zoom. A petition, "Stop Houghton City Ordinance 2020-314 and 315," that now has 775 signatures, will be presented to the Houghton City Council at this hearing.*

Proposed Ordinance 314 is intended to change an area that is part of the Torch Lake Superfund, where hazardous industrial waste, including slag from the former Michigan Smelter, was covered with only 6 inches of soil and vegetation. If the area is rezoned to B-2, large hotels, motels, bars, restaurants and other commercial buildings would be permitted along the shoreline of the Portage Waterway (canal). Area residents have expressed concerns that such large-scale construction would disturb the Superfund cover and release harmful, even cancer-causing contaminants into the water and the air.

This aerial view shows the area of the Michigan Smelter site under the Torch Lake Superfund. The light grey, striped area marks the covered slag tailings. This area appears to include the area proposed for rezoning to B-2 under Ordinance 314. (Screenshot from EPA Fact Sheet, August 2012)

Proposed Ordinance 315 would allow construction of a commercial seaplane base on the Portage Waterway. Residents in both Houghton and Hancock have raised concerned about the noise of the planes taking off and landing several times a day. Safety concerns have been raised because of the proximity of this base to the Hancock Beach and Campground, as well as shoreline residences.

This map and overlay shows potential impacts should proposed Ordinance 315 be adopted to allow the Isle Royale Seaplane Service to operate on the Portage Canal as illustrated. The overlay shows the projected float plane activity area, its proximity to established residential areas and existing recreational silent sports on the canal, which includes part of the Keweenaw Water Trail. (Map courtesy Jennifer Norkol)

This map of the proposed location for the Isle Royale Seaplane Service shows the area to be changed from R-1 to B-2 zoning if Ordinance 315 is adopted. (Map courtesy City of Houghton) 

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Proposed rezoning Ordinance 314 raises environmental concerns

Residents expressed concerns about the proposed Ordinance 314 at the Jan. 26 Public Hearing held by the City of Houghton Planning Commission.

During that Public Hearing, Chris Woodry -- a local homebuilder whose property is located in both the City of Houghton and Adams Township because of its location in the Cole's Creek area, very near the proposed 314 rezoning area -- spoke of his concerns about the environmental impacts of excavating a Superfund site for large-scale commercial construction. He noted the Superfund covers such hazardous contaminants as arsenic, mercury and more that could get into the water and the air.

"I don't see any way you can develop an area like that without disturbing the soil greatly," Woodry said. "This is an issue about the environment -- not just in that immediate vicinity but the federally protected trout stream right next door; Hancock Beach, probably one of the most popular swim beaches definitely in the county if not this part of the Upper Peninsula, directly across; children, fishing, campground, private residences, docks."

In addition to environmental impacts, such commercial construction could lower property values for residents nearby, Woodry added.

"Before something would be rezoned, perhaps a real deed restriction would come about -- about what kind of building could end up there," he said.

Later, in a conversation with Keweenaw Now, Woodry said he is not against shoreline development, as long as it is done thoughtfully and tastefully with consideration for the future of the area.

"I build houses, and I know that you can't build a house, let alone a commercial development, without excavation," Woodry said. "There is no way they could build any commercial building there without large-scale excavation. Statements about development not requiring heavy equipment would be entirely false. How else do you build anything? The bigger the building, the bigger the required excavation. Large scale excavation is required for large buildings, and you must remove dirt that simply has nowhere to go back on the site. It's then hauled away -- and that cannot safely, or legally, happen with Superfund sites. The reason it's a Superfund site is that things were done very poorly in the past, and over a century later we're still paying a price for this."

During the Jan. 26 hearing, Evan Dixon, Houghton resident and attorney, told the Planning Commission he was getting many calls about this rezoning issue. He mentioned the petition, which City Clerk Ann Vollrath said the City had not yet received at that time.*

Dixon also spoke about the EPA Superfund's Record of Decision (ROD) for the Torch Lake Superfund, which dealt with the hazardous waste from historic smelters in the area. The Michigan Smelter, which was located right across Canal Road opposite this (314) area proposed for rezoning, he noted, was cited in the ROD as presenting a cancer risk higher than any other local smelter from the mining era -- "unacceptably high and exceptionally high," producing such contaminants as arsenic, beryllium, chromium and more.**

"Rezoning from R-1 to B-2," Dixon said, "frankly just seems like a very broad stroke. It's like performing brain surgery with a machete -- when you have other options."

Other options could be conditional rezoning or planned unit development, he explained. B-2 is so broad that you lose control over what is done there, while planned unit development offers flexibility and allows you to take into consideration community interest -- the fact that the area is beautiful and the natural beauty is what attracts people.

"What brings revenue to the City of Houghton is tourism," Dixon said.

He also told the Planning Commissioners that he would like to add to the record of their hearing, in addition to the Superfund ROD, the City of Houghton's own Zoning Ordinance, in particular Chapter 98-772, which states the following: "Consideration shall be given to the location, size, and character of a use to determine if the use will promote public health, safety, and general welfare, and be in harmony with the intent and appropriate and orderly development of the district in which it is situated, and will not be detrimental to the orderly development of adjacent districts."

Concerning public health, the ROD (Record of Decision of the Superfund) is evidence of the risk to public health and, in addition, the water table in the area is quite high. 

"Those heavy metals would be going into the water," Dixon said.

Carol MacLennan, Michigan Tech professor in Social Sciences, who has done social science research on Torch Lake and who is a Houghton resident with a home on the Portage Waterway, stated during the Jan. 26 Planning Commission Public Hearing that she was in agreement with Evan Dixon concerning the Michigan Smelter. She confirmed it was the only smelter in the area listed as having an unacceptable cancer risk. In addition, no development -- neither residential nor commercial -- has occurred on the slag tailings at either the  Hubbell Smelter or the Quincy Smelter sites, she explained.

"This is not a stamp sand site; it's primarily a slag tailings site," MacLennan confirmed.***

Digging deeply at this rezoning site for any kind of commercial development would release heavy metals and the slag fragments, which are capped right now, into the environment and the Portage Waterway, MacLennan added. She suggested consulting with the EPA or EGLE (Michigan Department of Environment, Great Lakes and Energy), noting EPA has deed restrictions on the delisted Torch Lake Superfund sites.****

"Generally no slag or sand can be removed from any site and all open areas created by the owner must be recovered with soil and capped," MacLennan told Keweenaw Now. "Also it is prudent to determine the responsibility by the owners in permitting for construction on Superfund delisted sites, and which permits might have to take the special nature of the site into consideration. A further question is one of what happens to large amounts of sand/slag removed during construction of a large structure and the responsibility of the owner for disposal or re-grading and covering it."

During the Jan. 26 Planning Commission hearing, Kristine Weidner (Jukuri), representing the owners of the 314 property, noted that covenants (deed restrictions) for the Michigan Smelter Superfund property have been in place since about 1995. Private deed restrictions also exist, Weidner said.***** She stated the Isle Royale Sands are a "precedent" as a  zoning situation because of their mixed uses (both R-1 and Industrial).

However, Carol MacLennan added that the Isle Royale Sands, some of which were remediated by the City of Houghton, not the Superfund, are stamp sand and not slag, thus differing in substance from the 314 Superfund area.

A letter of public comment from Carol MacLennan can be found in the Feb. 24 Houghton City Council Agenda Packet, pp. 62-64.

EGLE's Wally Wagaw, Senior Project Manager, Remediation and Redevelopment Division (RRD)/Superfund Section, told Keweenaw Now that, while EPA is the lead agency for Superfund sites, EGLE’s role is solely to inspect and maintain the vegetated cover (cap) at 13 locations, Michigan Smelter being one of them.

"My role as a project Manager is to ensure the integrity of the vegetated cap is properly maintained and kept intact, thereby preventing the materials beneath the cap from being disturbed and released into the air or into the lake," Wagaw said. "If the cap is damaged or breached as a result of construction related activities, it has to be restored to its original condition as per specifications."

In this case the "specifications" are six inches of loam soil and vegetation on top of that.

Nabil Fayoumi, Remedial Project Manager, EPA Region 5, Superfund and Emergency Management Division, said a deed restriction, or covenant, is required for the Michigan Smelter Superfund site to prevent disturbance of the vegetation cap.

"This issue will need to be resolved before redevelopment plans can move forward," Fayoumi explained. "Again, zoning is a local issue. However, once the new zoning is approved, EPA will work with the property owner and the City to make sure that redevelopment plans don’t interfere with the selected remedy at the site."

While neither EPA nor EGLE would try to influence a local zoning decision directly, a section of NREPA (National Resource Environmental Protection Act) directs local government bodies to consult with EGLE before rezoning an area that could pose risks to the environment:

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994

324.32311 Approval or disapproval of zoning ordinance regulating high risk area, flood risk area, or environmental area.

Sec. 32311.
   An existing zoning ordinance or a zoning ordinance or a modification or amendment to a zoning ordinance that regulates a high-risk area, a flood risk area, or an environmental area shall be submitted to the department for approval or disapproval. The department shall determine if the ordinance, modification, or amendment adequately prevents property damage or prevents damage to an environmental area, a high-risk area, or a flood risk area. If an ordinance, modification, or amendment is disapproved by the department, it shall not have force or effect until modified by the local unit of government and approved by the department.

History: Add. 1995, Act 59, Imd. Eff. May 24, 1995
Popular Name: Act 451
Popular Name: NREPA

© 2020 Legislative Council, State of Michigan

The terms "high risk," "flood risk," and "environmental area," may seem on the surface to apply to the area of the proposed 314 Ordinance because of the hazardous material under the Superfund cover and the high water level of the water table (some of the area was damaged by the 2018 Father's Day Flood). However, EGLE's Water Resources Department cites definitions of these terms that reportedly do not apply to this area proposed for rezoning.

According to EGLE's Ryan McCone, Upper Peninsula District Supervisor, Water Resources Division Resources Unit, "Part 323, Shorelands Protection and Management, of the NREPA only applies regulatory authority over areas of Michigan shoreline that have been designated by the state as high risk erosion areas, environmental areas, or flood risk areas as defined in that statute. For reference, those definitions are available to the public online at Michigan Legislature - Section 324.32301.

"The area in question here is not designated as a high risk erosion area, environmental area, or flood risk area under Part 323. As such, the state has no authority at that site under Part 323."

Friends of the Land of Keweenaw (FOLK), a local environmental organization, submitted a public comment for the Feb. 24 hearing on 314. Their letter can be found in the Feb. 24 City Council Agenda Packet, p. 54. 

FOLK states, in part, the following:

"The proposed zoning Ordinance 314 parcel includes part of the Torch Lake Superfund site. It contains mining waste from the former Michigan Smelter, which operated from the early 1900s to 1948. The entire area is in a 100-year flood plain with buried mine waste containing hazardous chemicals, some carcinogenic.

"This toxic site has the potential to be severely disturbed if large structures are built, as deep pilings are needed for a foundation. Exposure of this Superfund site could mean toxic leakage into the canal located near the Houghton and Hancock beach parks....

"We, the citizens of Houghton County, should not forget the horrendous damage caused by the 2018 Father's Day flood and remember that we could experience another unprecedented storm in the future. It is the responsibility of all of us to protect the health of our community, as much as possible, from serious damage like that again.
 
"Therefore, Friends of the Land of Keweenaw (FOLK) is concerned about the degradation that commercial excavation and development on this contaminated section could have on the canal and citizens of the area that use the surrounding beaches and ultimately, on Lake Superior. The community and watershed could be better served if this high-risk area was developed for 'low impact activity' on the remediated 314 parcel Superfund site."

Rezoning Standards Worksheet

A Rezoning Standards Worksheet for proposed ordinances 314 and 315, compiled by Houghton residents Mary Fraley and Liz Gerson and Hancock waterfront resident Jen Norkol has been submitted to the Houghton City Council and is also available on line in the Agenda Packet for the Feb. 24 Meeting. (See pp. 38-42 of the packet.) The worksheet lists 17 questions, answers and comments on each of the proposed ordinances, 314 and 315.

An example is question #8: Is the proposed location an appropriate location for all uses which would be permitted under the requested district?

Answer re 314: UNCERTAIN: This ordinance allows for a wide range of uses -- some compatible with R-1, others NOT compatible. All permitted uses in addition to R-1 include: multiple-family dwellings; group /nursery schools and child care with dorms; professional/admin offices; banks; personal services; retail services; parking lots; food stores and restaurants; medical offices; motels; taverns/other food, beverage service; hotels. (Liz Gerson commented on this list of uses under B-2 during the Jan. 26 Planning Commission hearing, noting the "jump" from R-1 to B-2 is a big one and the public needs to be made aware of the uses B-2 would allow.)

Answer re 315: NO: Seaplane base is not consistent with the intent of B-2 Community Business District (per Sec. 98-95); is not a permitted principal use (Sec. 98-97) nor an allowed Special Land Use (Sec. 98-98). Seaplane base should be zoned I-1 Industrial district where principal permitted uses include transportation and/or terminal facilities, and maintenance activities for vehicles of any kind (Sec. 98-118).

The Worksheet also includes questions on whether the proposed rezoning is compatible with existing property uses (residential) within a half mile of the site, whether it satisfies a need in the community, whether it is compatible with the Master Plan for that area, whether it will increase noise, whether it will increase traffic congestion and create a safety problem, and more. The answers indicate an expected negative effect of the rezoning.

City of Hancock discussion

During the Feb. 3, 2021, regular meeting of the Hancock City Council, Chris Woodry spoke at length about the environmental and health concerns of residents regarding the proposed rezoning ordinances 314 and 315, summarizing the issue for the Hancock Council. He noted residents of Hancock and nearby townships as well as Houghton residents would be impacted by the rezoning and the public is being ignored in spite of residents' opposition.

This aerial view of the Houghton proposed rezoning areas was projected during the Feb. 3, 2021, meeting of the Hancock City Council. The Hancock Beach (upper right corner) is across from the Seaplane Service site proposed for rezoning Ordinance 315. (Screenshot courtesy City of Hancock)

"The public is pretty unanimously opposed," Woodry told the Hancock Councilors. "We were wondering if Hancock would take an official stance to maybe ask Houghton to consider a study for this, for the benefit of the Hancock residents, the safety of the residents."

Woodry, who is a pilot himself, noted the potential impacts on the kayaking business at Hancock Beach, the campground, the boat launch, plans for a water park -- with a seaplane taking off just a few hundred feet away.

In answer to a question from Hancock Councilor and Mayor Pro-tem Will Lytle on the details of the seaplane operation, Woodry estimated the company would have about 25-35 flights a day, coming and going (in season).

Hancock Mayor Paul LaBine, thanked Woodry for his comments and said he looked forward to discussion and some action by the Council on the issue.

However, Will Lytle told Keweenaw Now that despite the fact that the Hancock Council agreed to such a discussion and action, it did not happen.

"At the Feb 3rd Hancock meeting, we agreed to research the situation and discuss/act if need be," Lytle said in a Feb. 19 email. "I wrote a draft resolution, which we attempted to add to the agenda this Wednesday (Feb.17). Unfortunately, 5 voted to leave it off the agenda. So there was no discussion, and no action. I would guess that this is the end for Hancock taking a stance or making a recommendation."

Mentioning the Michigan Smelter Superfund site, Lytle's Draft Resolution (so far not taken up by the Hancock Council) encourages the Houghton City Council to consider the potential impacts of the rezoning proposal and includes the following statements:

"WHEREAS, a 2017 report from Isle Royale National Park (lists) the take-off noise for the common models of seaplanes servicing the island as 80 decibels from 1000-2000 feet away. The residents of Hancock, beachgoers, swimmers in the water, and watercraft would likely be much closer than 1000 ft if seaplane operations take place at this location. There is concern among our residents that the sightline for pilots and noise generated by flights would pose a safety hazard. Michigan State law creates the authority for regulating aeronautical noise per MCL 259.80b , and allows for the Airport Authority Board  to set standards for requiring noise abatement. Please consider consulting with the Airport Authority Board before permitting seaplane operations in this location."

and

"WHEREAS, the City of Hancock encourages the Houghton City Council to be familiar with the types of uses that are allowed under B-2 (community business) zoning, and ensure that they do not present conflicts with the Environmental Protection Agency, Michigan Department of Environment, Great Lakes, and Energy (EGLE), or Federal Aviation Administration regulations; to consider an amendment to the zoning of this tract of land that places restrictions on development to mitigate the described risk factors such as:
●    Restrict the depth of excavation on mine slag sites that have been identified be the EPA as containing toxins.
●    Set a fee schedule that specifically addresses costs for construction operations on the site that disrupt and disperse toxins and ensure contractors are insured to the appropriate level.
●    Create a noise ordinance for operating aircraft adjacent from public beaches.
●    Require any business that operates on this site file for a permit to ensure that construction and operations meeting community standards.
●    Set limitations on the height of buildings that can be constructed on this site."

Hancock Councilor Whitney Warstler submitted an email on Jan. 13, 2021, to the Houghton City Council and City Manager Eric Waara, stating concerns of Hancock residents expressed in correspondence received by the Hancock City Council.

Warstler mentions emails from residents concerned about noise pollution from the seaplane business and its impact on people recreating in the water.

"I am also concerned about the safety risks this noise will have on our public beach," Warstler writes. "The seaplane will drown out the voices of parents trying to communicate with their children in the water, and most alarming could make calls for help go unheard."

Warstler also notes the planes may violate Hancock's noise ordinance and impact the campground as well.

"The last concern that has been mentioned is the environmental impact building on a Superfund site could have on its surrounding areas," she adds.

Hancock resident John Slivon, in a comment during the Jan. 26 Houghton Planning Commission hearing, summed up an opinion shared by many residents.

"Rezoning will not change the toxic nature of the site," Slivon said, "and so removing that cap is a no-brainer. It should not be done."

Notes:

* Click here for the Petition, Stop Houghton City Ordinance 2020-314 and 315.

** Click here to view the 1992 EPA Record of Decision for the Torch Lake Superfund. Click on the pdf icon to see or download the whole document. The Michigan Smelter is discussed in OU-III.

*** While the actual content of the Michigan Smelter slag is not known definitely, slag has been found by Michigan Tech researchers to contain heavy metals; and digging into this slag site with only 6 inches of Superfund cover could release contaminants into the water and air.

**** See: "EPA Requesting Property Owners to Add Deed Restrictions."

***** Houghton County deed records show a 1995 deed restriction for a property with legal description matching that of the 314 rezoning proposal and owned by JRG that refers to the Torch Lake Superfund. It is listed as 100MS-00677.

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