P&Z puts gravel pit
decision into commissioner's hands
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September 23, 2011 |
The Boundary County Planning and Zoning
Commission met Thursday evening to consider a
new permit application for a gravel pit near
Porthill that has been a contentious issue since
it was first approved in 2005, and subsequently
shot down by the Idaho Supreme Court.
At the end of an almost five-hour hearing, the
P&Z Commission decided to uphold the initial
findings allowing the pit, but determined that
the case was too complex for them to decide on
their own, so they took advantage of a
little-used clause in the county zoning
ordinance and ceded decision authority to county
commissioners, with a unanimous recommendation
to approve.
Tungsten Holdings first made application to open
the small pit, situated on seven acres about one
and a half miles south of Porthill on Farm to
Market Road, in 2005, when such use was classed
as a special use in Boundary County, requiring a
public hearing before the planning and zoning
commission and a recommendation, followed by a
second public hearing before county
commissioners, who made the final decision.
The first time around, the P&Z commission, by a
vote of three to two with one abstention,
recommended that the propasal not be approved,
due mainly to there were concerns that blasting
had the potential to affect water wells in the
area as well as the potential to disrupt a
world-class Angus cattle farm on adjacent
property.
County Commissioners, however, based on
additional information provided during the
second public hearing, determined that the risks
were slim and the benefits of such a source of
high-quality gravel and rock at the north end of
Boundary County outweighed the potential risks,
overturned the P&Z recommendation and approved
the application, setting conditions to minimize
the potential risks involved.
The owners of the cattle ranch, Pat and Ada
Gardiner, challenged that decision, and with
Sandpoint attorney Paul Vogl, challenged the
decision all the way to the Idaho Supreme Court,
where they prevailed.
But the decision was not on the merits of the
case, but rather on the failure of local zoning
and subdivision ordinances to comply with Idaho
Code.
That ordinance didn't mention gravel pits
specifically, but set a handful of other uses
within the zone district as uses by right,
permitted uses and conditional uses, and allowed
consideration of anything not mentioned ... such
as gravel pits ... as a special use, requiring a
more rigorous hearing process.
The Supreme Court found that because a gravel
pit wasn't "conditionally allowed" within the
zone district, the use couldn't be considered at
all, and that the provision for "special uses"
essentially allowed consideration of anything,
thus violating the state's land use law. Which
the county argued was exactly the point ... it
should be the property owner, not the
government, to determine the highest and best
use of a piece of property, and, through the
public hearing process, which requires
notification of surrounding property owners, to
afford due process and fair hearing of all ideas
and points of view.
The result of the Supreme Court decision was
that the Tungsten gravel pit, having operated
for a year, had to quit operations as the permit
issued was no longer valid.
In the wake of that decision, and in recognition
that minerals, rocks and gravel are essential to
any community and that such resources are only
available on patches of earth where they are
found, the Planning and Zoning Commission made a
recommendation that our current zoning ordinance
be amended to allow consideration of gravel pits
as a conditional use in the Agriculture/Forestry
zone district as a stop-gap measure to make such
resources available while a new ordinance was
being developed. In 2010, commissioners approved
that amendment, and Tungsten Holdings made new
application to re-open their seven-acre pit.
Thursday evening, the planning and zoning
commission heard the same arguments again;
everyone likes and needs rock and gravel for
everything from roads to landscaping, but ...
not from my back yard.
Rick Dinning, owner of Tungsten Holdings, gave a
compelling argument of why the use proposed was
needed, his neighbors, including the Gardiners,
gave compelling testimony as to how such use
would be detrimental to all they've invested and
built, particularly as regards water.
Perhaps the most compelling testimony against
the proposed gravel pit came from Brian
Ferguson, who bought property from Tungsten
Holdings and built his dream retirement home. He
presented a map of the "residential subdivision"
of which his property is part, as well as the
set of rules property owners within the
development agree to abide on purchase, an
agreement that, inexplicably, includes "Lot E,"
the seven acre parcel on which the gravel pit is
located.
"No noise, dust ... etc."
But covenants, conditions and restrictions are
agreements between property owners, not laws
enforceable by a county or municipal government.
While the P&Z commission acknowledged them, they
could not take those conditions into
consideration as they are civil agreements.
And even at that, Ferguson wasn't completely
against the pit, provided the rock acquired went
solely to improving the roads and aesthetics in
the development in which he and his wife now
live.
Tungsten Holdings categorically denies that they
misrepresented the scope of Lot E, and contend
that the materials available from that parcel,
mined and refined, bring to that end of the
county a high-quality and necessary resource,
free of the heightened cost of hauling ... often
the highest cost associated with such a product.
A question was raised as to how they were able
to establish such a business on seven acres,
when the minimum parcel size is ten ... even
while such restriction, initially imposed by
county commissioners, effectively limits how far
the pit can expand.
As a result of the P&Z decision to forward a
recommendation, the case will now be subject to
a second public hearing, affording all parties
another opportunity to provide additional
evidence and testimony before a final decision
is made ... a decision, the P&Z commission
decided, which will please no one, either for or
against.
"I've read this, and I'm already convinced that
no matter what we do, our decision is going to
be challenged," P&Z co-chair Matt Cossalman said
early on.
Later, Vogl concurred, saying that cost of
defending the challenge, either in 2005 or now,
falls not on the applicant, but to the taxpayers
of the county.
"County commissioners could have saved a lot of
grief and expense had they upheld the
recommendation of the planning and zoning
commission in the first place," he said.
While P&Z members unanimously agreed that county
commissioners in 2005 developed detailed and
sound reasons for approving the pit and that
they'd established terms and conditions to
minimize the potential risks, the also agreed
that, due to the high profile nature of the case
and all the legal battles that have gone on, the
matter deserves a second public hearing, giving
those on both sides of the issue the opportunity
submit additional information.
That hearing date will likely be set in about
two weeks. |
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