County hit with fifth gravel-pit lawsuit
For the fifth time this year, Flathead County has been sued in a dispute related to gravel pits.
The Montana Contractors' Association filed the latest lawsuit last week. Local contractors Schellinger Construction Co., JTL Group, Helena Sand and Gravel and LHC Inc. joined the action as plaintiffs.
The lawsuit seeks to overturn a recent zoning text amendment that dramatically increased the number of areas where new gravel mines can be prohibited.
The amendment, approved on a 2-1 vote in August, redefined all agricultural and suburban agricultural zoning districts in the county as "residential," specifically for the purposes of regulating new gravel pits.
Previously, new pits could only be prohibited in the traditional residential zoning districts.
"Our lawsuit is intended to minimize the possibility that Flathead County could set a precedent that other Montana counties would seek to emulate," said Cary Hegreberg, executive director of the contractors' association, in a cover letter to the county commissioners.
This entire dispute started late last year, after Forrest Sanderson, then the county zoning administrator, determined the county couldn't legally impose any conditions on gravel pits in nonresidential zoning districts.
The ruling - which came in response to a request from JTL Group - was supported by the County Attorney's Office and the Board of Adjustment.
Given that the decision reversed a decade-long practice of county oversight, concerned residents here appealed the issue to district court. They also worked to craft a statutory "fix" during the last legislative session.
After the public outcry over Sanderson's decision, JTL Group General Manager Alrick Hale said he wished the company had never requested the ruling in the first place.
"We don't agree with it," Hale said in January. "We think Flathead County has the right to impose reasonable conditions on gravel operations."
To correct a problem it helped create, JTL - together with the contractors' association - actively supported efforts to change state law.
Essentially, they wanted to go back to the way things were, with local governments able to prohibit new pits in residential zoning districts, and able to impose reasonable conditions on - but not prohibit - pits in all nonresidential zoning districts.
The statutory fix that was ultimately approved seemed to achieve that goal.
However, it also left it up to the local governments to define which zoning districts qualified as "residential."
The commissioners used that loophole in the recent text amendment, redefining agricultural and suburban agricultural districts as residential.
"The contractors' association exhausted significant resources during the 2005 Legislature to negotiate in good faith, developing statutory language that balanced the interests of citizens with the property rights of mine owners/operators," Hegreberg wrote. "In our estimation, your decision to allow reactionary and arbitrary residential zoning to preclude gravel extraction [in agricultural areas] was an end-run around this carefully crafted compromise."
Hegreberg said the association would temporarily refrain from officially serving the lawsuit, to give the commissioners time to consider other alternatives.
(Until a lawsuit is served, the court doesn't recognize it and no action is required.)
When the commissioners approved the text amendment, they acknowledged that it wasn't a perfect fix. Consequently, they agreed to form a committee of public and industry representatives to look for ways to improve the gravel pit regulations.
That committee hasn't been formed yet, although several people have volunteered to serve on it.
"We will closely monitor progress being made by the [committee] you appoint, and will allow a reasonable opportunity for a satisfactory solution," Hegreberg wrote. "However, we will officially serve the lawsuit against the county if it appears our members' interests are in jeopardy."
Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com.