Gravel firm regrets action that led to zoning decision

It seems no one is happy with a recent zoning decision that eliminated Flathead County's ability to regulate most new gravel pits.

The homeowners affected by the ruling are suing to overturn it. The county commissioners were hoping the Board of Adjustment would reverse it. The interim planning director is trying to change zoning definitions to get around it. And a local representative is proposing legislation to fix it.

Even the company that benefited from the ruling now says it wishes none of this had ever happened.

"We really wish we'd never requested the ruling in the first place," said Alrick Hale, general manager of JTL Group Inc. in Kalispell. "We don't agree with it. We think Flathead County has the right to impose reasonable conditions on gravel operations."

In a recent letter and subsequent interview, Hale said the only reason this situation arose was because of a conversation last fall between a JTL consultant and Forrest Sanderson, who was then the county's zoning administrator.

At the time, JTL had already invested several months in obtaining a permit for a new gravel pit on 33 acres along the east bank of the Flathead River, immediately south of Montana 35.

The area is part of a 115-acre parcel which includes two other gravel pits that the company acquired from McElroy & Wilken in 2003. Mining-related activities had taken place there for decades, since well before the Opencut Mining Act was approved in 1972, but nothing done post-legislation had triggered the need for a permit.

Following the acquisition, JTL applied for a permit for this "pre-law" site. The permit, which hasn't yet been approved, will address the anticipated extraction and processing activities as well as future reclamation plans.

Before granting a permit, the state requires gravel operators to demonstrate compliance with local zoning regulations. Consequently, JTL started having conversations with Sanderson about the county's conditional use process. It also met with homeowners in the adjacent Sunrise Terrace subdivision to discuss whatever issues they had with the proposal.

"They had some legitimate concerns," Hale said. "Most dealt with noise and dust abatement and hours of operation. We tried to address that in our plan.

"There was nothing about their requests that we had a real problem with. We'd gone through the conditional use process before [with other gravel pits], and that was our intention with the pre-law area."

The conditional use request was scheduled to go before the Flathead County Board of Adjustment on Nov. 3.

Prior to that hearing, though, Sanderson had a conversation with Mike Fraser with Thomas Dean & Hoskins, a Kalispell engineering firm that was providing technical assistance to JTL. The upshot, Hale said, was that Fraser requested a formal zoning opinion on the county's ability to impose conditions on gravel pits in nonresidential areas.

In a recent e-mail message to Hale, Fraser addressed how the request came about.

"It appears that the [zoning administrator] had researched the statutes," he wrote. "Based on his research, he felt the county had no authority to impose conditions. He couldn't issue that opinion unless requested, so he suggested that JTL ask for an opinion - knowing beforehand what the answer would be."

Fraser's request for a ruling was received by the planning office on Friday, Oct. 8. The following Thursday, Sanderson issued his opinion. After consulting with the Flathead County Attorney's Office, he concluded that the zoning regulations conflict with state law and that, with respect to gravel pits and extractive industries, the conditional use requirement is illegal.

The opinion relied heavily on Montana Code Annotated 76-2-209. It was later upheld on appeal to the Board of Adjustment on a 2-2 vote.

In a December interview, Sanderson said he'd long been aware that the county regulations were a "fiction," but that nobody had challenged them until now.

In fact, he informed Fraser on July 7 that JTL could not operate an asphalt or concrete plant on the pre-law site without first obtaining a conditional use permit - a carefully worded response to a broad procedural question. That answer didn't change until Fraser specifically asked if the county could legally regulate gravel pits.

Last week, Sanderson said his October ruling was prompted more by a phone call from a JTL attorney than by any conversation he'd had with Fraser.

"After the [July 7] letter went out, I got a call from their attorney, Dan Johns," he recalled. "Dan asked if I was aware of 76-2-209. I said yes. He asked what I was going to do about it. I said send me a letter."

Johns confirmed that he'd questioned Sanderson regarding the statute. He said the conversation was intended as a "heads up," to let the county know that its interpretation might not be right. He also said he was unaware of any discussions that took place between Sanderson and Fraser.

"I called Forrest and told him he'd better read the statute," Johns said. "The next thing I knew, he'd authored his opinion."

Hale acknowledged that JTL "could have and probably should have" rescinded its request for the zoning opinion. He also regretted that the company did nothing at the Dec. 16 Board of Adjustment zoning appeal hearing that might have led to a different outcome.

"We sat there and didn't say anything," Hale said. "We probably should have - but we thought they'd overturn it. We were very surprised by the decision. It didn't go the way I thought it would go."

What can be done to remedy the situation at this point, though, is unclear. Barring a court decision or legislative action, the zoning decision itself can't simply be reversed, even if all the parties wish it could.

The county is considering a text amendment that would allow it to regulate pits in suburban agricultural zoning districts. However, given that some areas have neighborhood plans that are specifically intended to protect agricultural and natural resource uses, interim Planning Director Johna Morrison said she's uncertain if this approach will work in places such as the West Valley or Labrant-Lindsey Lane areas.

Changing the suburban agricultural text also wouldn't protect all the other zoning districts that previously listed gravel pits as conditional uses.

Rep. Tim Dowell, D-Kalispell, who reportedly was introducing legislation to address some of these issues, did not return phone calls or e-mail messages regarding the status of his bill.

For its part, Hale said JTL plans to honor the various noise, dust and operating conditions that were worked out with the Sunrise Terrace homeowners. They were included in the company's state permit application.

"We don't want people thinking JTL doesn't have a conscience," he said. "We're part of the community, and we don't want to be thought of as a bad operator."

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