Ban on regulating gravel pits is upheld

Efforts to resurrect Flathead County's ability to regulate or put conditions on new gravel pits fell one vote short on Thursday, leaving local homeowners and elected officials scrambling for help.

Following a three-hour public hearing and discussion, a 2-2 vote by the Board of Adjustment left intact a recent decision by Zoning Administrator Forrest Sanderson that prohibits the county from requiring conditional use permits for any gravel mines located in nonresidential zoning districts.

The decision reversed 11 years of past practice in the valley and, according to opponents, runs counter to the position taken by every other major county in Montana.

"The law says you can't ban mining in nonresidential zones, but it doesn't say you can't condition it. That's the interpretation every other county has followed," said Jack Tuholske, a Missoula attorney representing Sunrise Terrace Neighbors Inc., a local homeowners group that appealed Sanderson's decision to the Board of Adjustment.

The group is concerned about the potential impacts from a new gravel pit that JTL Group wants to develop on 33 acres on the east shore of the Flathead River, immediately south of Montana 35. The area, which is zoned SAG-5 suburban agricultural, is separated from the Sunrise Terrace subdivision by an older pit, which is also owned by JTL.

Through the conditional use process, the county has previously imposed conditions on hours of operation, dust and noise abatement methods, whether asphalt or cement plants would be allowed, and other issues that might negatively affect neighboring residents.

Without that protection, homeowners say they're now at the mercy of the industry.

Sanderson told the Board of Adjustment that this issue boils down to two questions: Is the SAG-5 zone a residential or agricultural district; and if it's agricultural, does the county have a legal right to regulate mining there?

Based on voluminous evidence, including the zoning regulations and the initial resolution that created the Lower Side Zoning District, Sanderson demonstrated that previous commissioners and planning boards clearly viewed SAG-5 as an agricultural district.

"I didn't just take a trip and call it agricultural because it sounded good," he said. "This is an opinion that transcends six different county commissioners. Their intent is that it's an agricultural zone. That fact is hard to debate."

Chief Deputy County Attorney Jonathan Smith told the board that, if the SAG-5 zone is a nonresidential district, then the county has no authority to regulate gravel mining there.

"We believe the law clearly prohibits Flathead County from interfering with the complete use [of a mineral resource], except in a residential zone," he said.

Smith and Sanderson based their opinion largely on several Montana Supreme Court cases, together with Montana Code Annotated 76-2-209, which says local jurisdictions "may not prevent the complete use, development or recovery of any mineral, forest or agricultural resource" except in specific instances - such as when the area is "zoned residential."

However, board member Mark Hash noted that the statute offers no definition of what "zoned residential" means. Does it mean areas with an R-1, R-2, R-3 zoning designation - as Smith and Sanderson maintain? Or could it also include areas that provide for and are typically used for residential-type development - such as the SAG-5 district?

"To me, it boils down to interpreting the statutes, and whether you're going to take a narrow or broad view," said Hash, a Kalispell attorney. "If I look at this very narrowly, I can see [Sanderson's] interpretation. But when I look at the definition of SAG-5 and at the uses allowed in that district, they pertain to residential activities. Given that there's no case law on this question, I have to fall back on the plain meaning of the language."

Consequently, Hash supported overturning Sanderson's zoning decision and allowing the county to require conditional use permits for new gravel pits.

During the public hearing, no one spoke in favor of deregulation.

"The county is supposed to protect the health, safety and welfare of its citizens," Dale Luhman said. "This current zoning interpretation is an abdication of the county's duty to protect the rights of all citizens and not just the rights of industry."

Rick Doran, chairman of the Northwest Montana Association of Realtors' Government Affairs Committee, encouraged the board to seek additional legal review before voting on this issue.

The other three Board of Adjustment members contributed little to Thursday's debate, although they were clearly uncomfortable with the implications of this zoning decision.

"What we're doing now is giving [the gravel industry] carte blanche, and hoping they'll be good neighbors," said board president Dennis Rea - shortly before he voted in support of Sanderson's ruling, creating the 2-2 split that freed the industry from any local control.

Board member David Van Dort sided with Hash, but Scott Hollinger joined Rea in opposition, saying it was up to the Legislature to fix this problem.

A fifth board member, Gina Klempel, recused herself because her family has a gravel pit that would be affected by this decision.

In a previous interview, Sanderson said this zoning decision applies not only to the new JTL pit, but to any gravel pit in the county, including those that previously went through the conditional use process.

Barring a lawsuit, Thursday's decision is final.

However, the Sunrise Terrace group has already indicated it will pursue this in District Court. The Flathead County commissioners have also said they're looking for some way to continue placing conditions on gravel pits.

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com