By: David Weinstein
A sand-mining firm on Deans Rhode Hall Road is suing South Brunswick, claiming the township is unfairly trying to avoid issuing a permit.
Dallenbach Sand Company, Inc., filed the litigation in state Superior Court in Middlesex County in March. The township was served with notice of the suit in late April.
Dallenbach’s complaint claims that requirements put on a special permit issued them in January infringe on permission granted them by the township at an unspecified earlier date. The complaint alleges that the township is arbitrarily raising the bar for its permit because it wants to eradicate mining from within the township’s borders.
The township, however, says it needs documentation from the mining company that it is only conducting operations allowed by the state and under its permit. The township says it currently does not know if the company has permission to be doing what it is presently doing.
In December, the township clerk refused to renew the company’s mining permit for July 1999 through June 2000 because the company had not filed the proper documents stating where it had mined the previous year.
The suit claims that actions taken by the township against Dallenbach to get documentation about their operation “was in all regards arbitrary, capricious an unreasonable and otherwise wrongful.”
It further claims that Dallenbach’s interests have been adversely affected.
The suit seeks relief from South Brunswick for failure to grant an “unconditional mining license … and the granting of the license for the years 1999/2000 and 2000/2001.”
In addition, Dallenbach is seeking “such other relief as this court may deem just; attorney’s fees and costs of suit.”
Assistant Township Attorney Don Sears said Wednesday the township will file a counter claim against Dallenbach that will ask the court to shut down the mining company’s sand-washing operation.
Jack Whitman, president of Dallenbach, and Joan Dorian, his assistant, did not return several calls Wednesday seeking comment on the lawsuit.
Dallenbach Mining Co., Inc., mines, dredges, processes, screens and conveys sand and gravel on 275 acres on Deans Rhode Hall Road. It is the only mining company in South Brunswick and has been in operation in excess of 50 years.
The company’s suit claims that Dallenbach has “repeatedly attempted to comply with the demands for documentation from the township, necessitated in part because the township’s records are incomplete.”
In addition, the suit claims that when the township issued the special permit for mining it contained “conditions that are not required nor provided for pursuant to the Code of the Township of South Brunswick or any other applicable law.”
The township also has “failed to provide a certified writing by the Township Engineer that there are any violations of law, regulation or ordinance applicable to the mining operations,” which, the suit says, is necessary for the issuance of the special permit the township issued.
Moreover, the suit claims that the “conditions of the Special Mining License include prohibitions and demands for information for which the township has no documentation (including documentation South Brunswick Township has misplaced or destroyed), for which no certification of the Township Engineer was provided as required by the Township’s Code and for which no inquiry or documentation request was ever made to Dallenbach.”
Also, the suit claims “upon information and belief, the township has a desire to eliminate ‘mining’” in South Brunswick Township and their actions are a coverted effort intended to result in the shutting down of the Dallenbach’s operations.”
Fourteen conditions from the township were tacked onto the special permit issued in December, according to the suit. They include: the processing of sand … brought to the site from any other location is specifically prohibited without prior approval of NJ DEP and the Township of South Brunswick; the providing of the original plan of the project as approved by the township; and, the providing of evidence of any other requirement imposed by the township for continuance of operation.
Of main concern to the township are documents Dallenbach says gives the mining company permission to haul materials to its site from out of town for sand-washing.
Those materials are then resold, Assistant Township Attorney Don Sears said.
As of yet, Mr. Sears said Wednesday, the township has not receive those documents, though Dallenbach continues to bring in sandwashing materials from Monroe.
Mr. Sears said the township had received some of the documents needed to issue the permit, but not those documents in which the township is most interested. They have received documents that detail in-town sand-washing, but not its out of town practices.
“They haven’t proved they’re allowed to be doing what they’re doing. We wanted to see those documents to see that South Brunswick had approved this,” he said.
Township ordinance requires a municipality to issue the permit, before a township can deny the renewal of a regular permit. The special permit will expire June 30.
A condition of the special permit tacked on by the township in December was that Dallenbach would be required to cease all operations if all documents were not made available.
This requirement is what Dallenbach is contending, the lawsuit says.
“Dallenbach has every right to file a lawsuit. It’s unfortunate, though, because they say they have the documents,” Assistant Township Attorney Don Sears said Wednesday.
The township claims it doesn’t know what rights the mining company has in this matter, Mr. Sears said.
“This is why we need the documents Dallenbach says they have. We don’t have them on record,” he said.
Mr. Sears said Wednesday the township will file a counter claim against Dallenbach asking the court to disallow the mining company from hauling materials from out of town to be sandwashed.
He said the counterclaim will be filed this week.
“If they can’t prove they have received permission, they are in violation of our mining ordinance. They’d have to stop the import of sand.”
The ordinance addressing mining permit renewals calls for special permits to be issued when violations of the specific permit occur, so the company in question can remedy violations. Or, in this case, remedy a procedural gaff.
The township requires maps be haned over relating to Dallenbach’s original permit, issued in the 1960s, which detail where the company is allowed to mine. The township also required a report explaining where the company has mined over the previous year.
After Dallenbach files the necessary paperwork, an engineering firm would then go to the site to make sure the maps are accurate. At that point, if the engineers find the maps to be accurate, the regular permit would be issued.
