Two months ago an amazing thing happened in McHenry County. A farmer who was having a pond dug offered to pay the excavator in kind--he could keep the gravel he was removing. But once gravel-sorting equipment appeared on the property, a neighbor called the county zoning office to complain.
Here's the amazing part: in response to the call, county zoning-enforcement officer Steve Vaughn sent out an inspector, who verified the complaint and got the operation suspended until county officials could determine whether a gravel pit was being operated in violation of the county zoning ordinance.
"Flash: County Officials Enforce County Ordinance" may not be your idea of a stirring headline, but in this northwest-suburban bastion of Republicanism and gravel mining--where vulnerable groundwater and valuable minerals alike lie close to the surface--what happened is news indeed. And it might not have happened at all if it weren't for one formerly apathetic home owner.
In some ways, sand and gravel mining is to northeastern Illinois what coal mining is to far southern Illinois: an economic mainstay, sometimes an environmental headache, and always a fertile source of local dispute. The gravel is here because during the last glacier's final retreat, some 12,000 to 15,000 years ago, the icy mass lingered like some hesitant guest backing out the door in the eastern townships of McHenry and Kane counties, shedding boulders, rocks, gravel, and sand, sometimes to a depth of 400 feet.
The glacier brought it here, and now we're removing it. Since concrete is mostly sand and gravel, and since most roads and buildings are mostly concrete, those glacial leavings are a valuable resource. In 1978, the last time a study was done, McHenry County was the state's number-one producer of the stuff. George Dirkes, of the Illinois Association of Aggregate Producers, conservatively estimates that in McHenry County alone his industry spends $37 million a year. He has no county-based sales figures, but outside observers estimate $100 million annually, a figure that would make gravel production an industry comparable to agriculture--which had $89 million in sales in 1988--in McHenry. About 10 square miles of the county's total 606 square miles has been mined for gravel; the largest pits are bigger than a square mile apiece.
Like many industries, aggregate mining is not always fun to be around. The everyday problems include dust, the noise of machines, and bits of gravel strewn on the roads (which regularly get thrown up and crack windshields). Environmentalists, taking a longer view, want mined land returned to some kind of usable form--a proposition that in principle the industry does not dispute--and do not want mining to pollute the groundwater. McHenry County drinks groundwater and not Lake Michigan water, and the water table is so close to the surface that the Illinois Geological Survey ranks McHenry second only to Winnebago County (Rockford) in its potential for groundwater contamination.
It's always tempting to dump garbage in old gravel pits--which is illegal, and in these circumstances potentially disastrous. One McHenry operator is said to have displayed a blatantly illegal sign for would-be dumpers: "Black dirt--no charge. Construction debris--$30/semi. Wet or questionable material--see pit operator." On the other hand, according to county environmental health inspector Michael Eisele, only 17 of 320 solid-waste complaints in McHenry last year involved gravel-pit dumping (one case did require the removal of 79 semi loads of scrap metal, though).
Thanks to the profligacy of the glacier, McHenry County gravel can be mined cheaply and sold profitably. Industry spokesman Dirkes is fond of pointing out that you can have this finished industrial product delivered to your door for less than half a cent per pound. At the same time, although the industry guards its profitability figures closely, gravel has made enough fortunes that it has become a local synonym for shinier materials. Describing one now-retired McHenry magnate, local activist Tony Peeters told me, "Everything he touched turned to gravel."
Peeters's home on Lily Lake Road, on the eastern edge of McHenry County, is within a stone's throw of two gravel pits--not that he paid them much attention when he and his family moved there in 1975. "I liked the area. The gently rolling hills and moraines were as close a substitute to mountains as I could find within driving distance of my work in the city." In some ways Peeters is a typical suburbanite: he and his wife, Cheri, bought land on which to build; he drives daily to a Chicago job. On the other hand, they constructed the home themselves, and his job is not in a Loop office: he designs and repairs machinery in a near-west-side chemical plant.
Peeters also fails to fit the stereotype of the suburbanite complainer--the bane of close-in farmers as well as gravel miners. Steven Warnke, of Meyer Material Company, told Crain's Chicago Business last fall that people often move into a gravel area and expect it to be pristine: "Population growth in the last five or 10 years has given us neighbors all of a sudden, and most of those neighbors aren't familiar with the nature of our business." Peeters, on the other hand, was a neighbor for more than a decade before the industry's excesses drove him into activism. John Gorby, who teaches at John Marshall Law School, met Peeters in the 70s through the Chicago Mountaineering Club. "I think he could have been fairly described as apolitical, reluctant to get involved. We spent a good deal of time together on climbs and on long drives to Colorado, and he never displayed much interest in politics"--or in gravel, except as a construction material.
"When we first moved here," recalls Peeters, "I'd go down to the pits and talk. They even gave me free sand, and at the FRAMS pit I helped put up a fence or something." After 16 years the details are fuzzy, but "we had no objection to them," says Peeters. "There was a little truck traffic, but it wasn't terrible."
When a new pit, known as Rocky Road, opened across the road in about 1977, one neighbor approached Peeters about making a complaint. "I said, 'He owns the land. Don't ask me to help.' I got along with those guys fine, bought gravel from them a couple of times. They're nice guys. Everybody makes it sound like they're so bad. They're not bad, just greedy."
While the Peeters family went on cultivating their garden and tending their livestock, gravel was becoming a political issue in McHenry County. In 1979, after several public hearings and much press coverage, the county board enacted a zoning ordinance that put new restrictions on "earth extraction industries." In addition to requiring a conditional-use permit, for the first time the law required pit operators to file reclamation plans--primarily to flatten and revegetate the often steep and barren slopes of a mined-out pit--and post bonds to guarantee that those plans be executed. (These regulations did not apply to the half dozen or so largest pits in the county, which fall under the jurisdiction of the Illinois Department of Mines and Minerals, nor did they apply to pits within incorporated areas.) The law gave existing pits a year to file their permits and plans.
The office of McHenry County State's Attorney Thomas Baker now maintains that this 1979 ordinance was null and void when passed--that it was superseded by the state environmental law enacted in 1970. But there is no indication that Baker's predecessor, or the industry, thought that or said that at the time. In fact everyone seemed satisfied with the ordinance, from the gravel industry to the McHenry County Defenders (the local environmental group). So when Peeters began hearing in 1987 that his neighbors along Lily Lake Road were selling their homes to the Rocky Road pit, which wanted to expand its operation, he had reason to think that county officials were on top of the situation.
But the company's high-pressure tactics offended some people. According to Peeters, some people sold because they were told, falsely, that others had already done so. "We used to trade chores with these neighbors," says Cheri Peeters, "and around this time I asked them if they could do ours while we were gone. She got this funny look--'We might not be here.'" And they weren't: "All five adjacent property owners moved on the same weekend."
Tony Peeters was upset enough to make inquiries: "I discovered that the operators had talked to county officials about running a conveyor belt under Lily Lake Road into property they didn't [yet] own, including ours. I couldn't believe the nerve of those people." He swore he would stay. He told himself: "I'm going to be the last house left on this road. I'll never sell to them, I'll give it to the [McHenry County] conservancy district first."
He didn't have to be the last. Some of the remaining neighbors--six families--banded together to form the Lily Lake Road Defenders (LLRD). Once he learned word processing on a computer, Peeters even began sending out letters to everyone he could think of. Cheri laughs at the change in him: "Tony has always been this real quiet guy who'd just as soon get on the tractor and cut hay. He hates crowds and standing up in front of people. He became a leader without asking to be. He didn't write a letter in 18 years--I would write letters to his mom and he would sign them!"
Peeters's mountaineering friend Gorby volunteered to see the group through the county hearing on the Rocky Road expansion. The neighbors took time off from work to attend it, only to find that it had been postponed without notice. "Jack said, 'Don't be so naive. They'll try to burn you out. Get these people organized and stop acting hysterical.'"
Meanwhile Peeters was trying to call county zoning-enforcement officer Glenn Peterson to find out whether Rocky Road and other nearby pits had the required county permits. When he eventually did reach Peterson, in February 1988, Peeters was told that the pits did not need permits. Then he found himself on the receiving end of what he saw as not-too-subtle hints that further complaints might lead to county action against abandoned cars and other zoning violations on the property of the complainers themselves.
Peeters took the hint and made sure his property was cleaned up, but he decided to file charges of intimidation against Peterson. When he told a neighbor about it, the man was aghast. "My neighbor said, 'Tony, you don't know who Glenn Peterson is. He's Al Jourdan's best friend. You don't mess with him.' That was the first inkling I had that I was into trouble here." Jourdan is McHenry County auditor, chairman of the county Republican Party, and chairman of the state Republican Party. Peeters, undaunted, prepared to file the charges against Peterson, but he dropped the idea when Peterson left county employment in January 1989.
Eventually, the spectacle of some 100 opponents at the expansion hearing--including representatives of the local Soil and Water Conservation District and the state Department of Conservation (Moraine Hills State Park borders the rear of the pit)--persuaded the company to withdraw its request. But the curiosity of the Lily Lake Road neighbors had been whetted. If it was so difficult to reach the county zoning officer, and so difficult to talk with him once he was reached, were their questions perhaps touching a raw nerve? Were the gravel pits in McHenry County operating legally?
This became more than an academic question when the operators of the FRAMS pit, at the south end of Lily Lake Road, abandoned it in November 1988 without reclaiming the land. Today the FRAMS site remains a barren landscape--an earthen text from which Peeters can preach, because directly across the road from it is a handsomely revegetated, lake-dotted area that during the 1970s was the Chain o' Lakes gravel operation.
Once again Gorby advised the group on strategy. "I suggested that they not ask about permits all over the county. The [notoriously understaffed] zoning department could reasonably claim that it was unduly burdensome to look through all their files. Narrow it down and make a Freedom of Information Act request for the three Lily Lake Road pits as a test. If they're OK, we could assume the whole county was. If not . . . "
There were no permits. No bonds. No reclamation plans. In effect, no regulation. In May 1989, Tony Peeters and other LLRD members sued McHenry County at their own expense to compel it to enforce its zoning ordinance on the gravel industry.
No McHenry County judge would hear the suit--often a problem with gravel cases in McHenry--and it is now awaiting decision by Judge John Radosevich of Lake County. The legal issues in the case have been narrowed down to the highly technical question of "preemption." When the state passes a law that might supersede local laws--for example, the state Environmental Protection Act of 1970--and then passes a second law explicitly not preempting them, as it did in 1981, do the local laws return to effect as before or do they have to be formally reenacted? At stake is whether McHenry County had a valid gravel-pit zoning ordinance between 1979 and 1989, when a new ordinance was enacted, and thus whether pits from that time can be held liable for the reclamation of land mined during those years.
Gorby finds it "very, very unusual" that the county is arguing that its own ordinance was invalid; he notes that this puts the county in a no-win position. If it wins the case, it loses the opportunity to go after the companies for reclamation. "I can't see how the county benefits in any way from winning this lawsuit." Peeters has an additional worry: if the county loses, will officials angry at him pursue endless and expensive appeals?
Not all county officials are mad at Peeters. Donna Schaefer represents his district on the county board and also chairs its Planning and Development Committee: "Tony Peeters is the person who single-handedly brought this whole issue to the forefront. He tried to work within the system--he couldn't get satisfaction or even get people to really listen. I think a lot of people have since jumped on his bandwagon, but he himself has not played politics with it. McHenry County owes a lot to him because he brought the issue out." Since the spring of 1989, it has come out in so many ways it's been hard to keep up:
In the spring of 1989, the county board passed a new zoning ordinance that was substantially identical to the 1979 law, thus removing all question as to future county regulation of gravel pits.
The county planning department conducted a first-ever inventory of gravel pits in the county, coming up with a total figure of 208, most of them relatively small--two acres or less.
The McHenry County Defenders and the McHenry County Conservation Voters once more began taking an active interest in the subject of gravel, promoting their own policy proposals.
The Northwest Herald published a five-part muckraking series on the gravel business in January 1990, concluding with an editorial decrying county government's defeatist attitude and calling for major reforms. "McHenry County may very well have the best gravel regulations in the world on the books right now. But if no one bothers to enforce them, they have no value and the residents . . . are left with scarred lands, crumbled roads and bridges, and broken windshields."
In February 1990, at Schaefer's suggestion, the county board appointed a "gravel task force" and charged it with reviewing the inventory of pits and dealing with "the problems related to the gravel mining industry, if any." The group--which included Peeters, assistant state's attorney David Akemann as chairman, and George Dirkes as industry representative--did not whitewash the issue as many environmentalists had predicted. In fact, its February 1991 report vindicated both environmentalists and industry, on two different points. Only 31 of the 208 county pits were found to be active, confirming Dirkes's suspicion, but more than two-thirds of the 31 were operating illegally, confirming the environmentalists' belief. "For all intent and purpose," the task force concluded in its report, "there was no enforcement at either the county or state level from at least 1981 until 1990. . . . The Task Force spent the great majority of its time on a volunteer basis doing the work that should have been done by the County Building and Zoning Department. . . . Any action would be an improvement."
Meanwhile, the county board hired an outsider, Steve Vaughn from North Texas, as the new zoning-enforcement officer. By all accounts he has made the office much more responsive and visible than it was before.
In the 1990 primary election, the McHenry County Conservation Voters endorsed eight candidates for county board nominations who ran on environmental issues, including gravel. As Dale Berry, MCCV stalwart and Chicago attorney, put it: "Relative to the gravel industry, this county has been like a banana republic. The only difference is that in the banana republics, the companies built their own roads!" MCCV campaign literature claimed that some gravel land was grossly underassessed for property-tax purposes--"more than 1700% below the fair market value." (Industry spokesman Dirkes estimates that the gravel industry pays $1.5 million in local taxes of all kinds, but he declines to break out the real estate taxes.) Five of the eight MCCV candidates made it to the county board; Tony Peeters was one who didn't. Chuckles Schaefer, "He's the only person I know who got up at candidates' night and said he didn't really want to run. It was for the cause."
In August 1990, attorney general and gubernatorial candidate Neil Hartigan courted environmentalist votes by filing suit against five McHenry gravel-pit operators alleged not to have the required state permits. He sued a sixth in January, and according to Matthew Dunn, chief of the environmental control division under new attorney general Roland Burris, the office may well file against still more operators in the next few months.
The McHenry County state's attorney--though still defending the county against Peeters's 1989 suit--joined forces with the attorney general, and on its own filed a class-action suit on November 19 against a number of gravel-pit operators. As many as 15 of the 24 active pits in unincorporated McHenry County were accused of lacking the required state or county permits. The suit's aim--more drastic than anything Peeters has ever avowed--is to close down the violators.
It's unusual--and possibly cumbersome--for a prosecutor to use a class-action suit. But the case is now in the process of being settled out of court; if it is, the gravel-pit operators will agree to apply for permits from the county board and will provide plans for operation, reclamation, and monitoring groundwater. Key to the proposed settlement is the pit owners' acknowledgment that the county can regulate them even though they may have been in business before the first county regulations were in force.
"It's very gratifying to see that one outraged individual can bring--or start to bring--a multimillion-dollar industry into compliance with the law," says McHenry County Defenders executive director Gerald Paulson. Almost as gratifying is that Peeters's "adversaries" on the now-disbanded county gravel task force don't say anything bad about him or about the group's final report. Says industry rep Dirkes, "I think the industry has shown its willingness to cooperate with McHenry County to resolve some of its problems. Our people look forward to the new [enforcement] system, with annual inspections. We are anxious to prove that we are in compliance."
And yet all this thunder and lightning has been devoted simply to the cause of getting county government to do its job. What might constitute a good job remains to be decided. "Judge Radosevich asked a very nice question during oral arguments, I thought," says Gorby. "What if we won the case, and the county was required to enforce some kind of reclamation on the FRAMS pit, and the county said, 'Just throw one shovelful of dirt on and consider it done'?
"The answer is, sure, if county political authorities want to assume responsibility for saying that that's enough reclamation, OK. As of now, no one is taking that responsibility."
In other words, the hard environmental questions about gravel mining remain. What are adequate reclamation standards? How much gravel can be prudently removed from a given parcel? What parts of the county, if any, should be placed off limits to mining in the county's comprehensive plan? What land uses should be planned for abandoned pits?
"The biggest problem in McHenry County," says Peeters, "is the demand for land. If mining is done correctly, the land can have a future use. [That future use] can't always be a lake or a campground. How many parks do we need?
"If mining isn't done right, the land becomes a tax burden. Here, along Route 120, they've destroyed the commercial potential of this road [by mining up to the road's edge rather than leaving a setback]. This could have been a strip mall, or homesites."
Art accompanying story in printed newspaper (not available in this archive): photos/Lloyd DeGrane.