P&Z puts gravel pit decision into commissioner's hands
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.