MISSOULA — Following six months and five hearings, the Missoula Board of County Commissioners on Tuesday approved the expansion of a gravel pit in an area zoned only for residential development between Lolo and Florence.
But that decision may end up in court.
After more than two hours of discussion Tuesday afternoon, the five-member Missoula County Planning and Zoning Commission unanimously voted to recommend approval of a variance request from Western Materials to mine an additional 60 acres that lies west of the current Hendrickson gravel pit along Old U.S. Highway 93.
After a five-minute break, the county commissioners, all of whom sat on the planning and zoning commission, returned for another half-hour of more questions and discussion.
They unanimously backed their previous vote to approve the variance after conferring with Missoula County Attorney Brian Lowney on what they should consider.
“The question is not whether (the pit is) legal or illegal. It’s simply whether or not to grant the variance today based on the recommendation of the planning and zoning committee,” Lowney said.
But the question of the pit’s legality dominated Tuesday’s discussion and will likely lead to a court challenge of the commission’s decision, according to Graham Coppes, attorney for neighbors of the gravel pit who formed the Carlton Preservation Trust to oppose the variance.
“This was the final decision of the county, and if my clients want to pursue this further, that’s their option,” Coppes told the Current. “I think what we heard from the community is there’s a lot of momentum and resolve to (go to court). There’s ample evidence to support a case against the county.”
Last October, pit operator Western Materials submitted its request for a variance to allow them to expand an industrial use, mining, within Zoning District 40, which was approved by voters in 1976 to be zoned low-density residential.
They want to buy the 60 acres west of the pit from Scott Leibenguth so they can mine it before Leibenguth develops it into 5-acre ranchettes. But neighbors started to oppose variance and showed up in force for the first county meeting in late February, arguing that the pit had burgeoned enough already.
On Tuesday, Louis Arches harkened back to that February meeting when Commissioner Josh Slotnik told a different group of citizens that they could have resisted a development proposal if they’d had zoning.
Arches pointed to the ZD40 zoning that was supposed to protect the neighborhood near the gravel pit and asked why the commissioners weren’t upholding it.
“We’ve had zoning since 1976. The pit didn’t go in until ’93, illegally. Zoning was supposed to be our answer then, but we didn’t get an opportunity.” Arches said. “Many of us have had plans for many years. All this stuff is now up in the air. They’re just looking to make some extra money. But I don’t blame them for that.”
County planner Jenny Dixon said the timing of the zoning was part of the problem. ZD40 was considered Part 1 zoning, which allowed the county to approve variances. Years later, Part 2 zoning went into effect, which set a higher bar for zoning changes, so Western Materials might have had a harder time.
In April, the neighbors banded together as the Carlton Protection Trust and sought the help of attorney Graham Coppes who started delving into county and state records. He found several inconsistencies and oversights as the county did nothing to control the initial growth of the gravel pit until 2008.
That’s when the county finally discovered the problem because former pit owner Stan Hendricksen needed county approval to get a new state mining permit after he let the old one lapse.
That’s when Missoula County deputy attorney Mike Sehestedt wrote a memorandum acknowledging the zoning inconsistency but recommending that Hendrickson be granted a variance anyway since the mining permit would expire in 2020, according to county records.
Sehestedt and the county expected that operations would cease then. But in 2020, Western Materials took over and applied for an amendment to the DEQ permit, listing them as the new operator and extending the expiration date until 2045.
During their comments on Tuesday, several neighbors made reference to the “illegal” pit when they begged the commission to consider their quality of life and their zoning.
Twice during the meeting, Slotnik told the neighbors that their quality of life would be better if the county approved the variance because the county would require Western Materials to meet several conditions that would reduce dust, noise and control traffic.
The neighbors didn’t buy that since the county couldn’t provide enforcement. Dixon said it was up to the citizens to submit complaints if the pit owner violated the conditions and then there would be a number of steps taken before it reached the county attorney.
The neighbors had been told in a previous meeting that the reason the gravel pit grew beyond the original 3 acres is because no one complained and that the county wasn’t able to monitor zoning compliance.
ZD40 resident Gerald Reynolds said the conditions might improve a few specific problems but that wasn’t the point.
“The issue is not about groundwater, the issue is not about expansion. The issue is about legality and honoring zoning,” Reynolds said.
To grant a variance, the commission had three aspects to consider: was the variance in the public interest; would not granting the variance result in undue hardship; and was it in the spirit of the zoning ordinance.
Commissioner Juanita Vero said the variance was in the public interest because of all the conditions it put in place. Slotnik said it might be a hardship for the neighbors but the conditions of the variance would reduce that. Commissioner Dave Strohmaier said not granting the variance would create a hardship for the greater community because they would have to look farther afield for gravel and he didn’t want gravel pits moving into more greenfields.
“If it was a hardship simply to the applicant, I would not be inclined to support this variance. We should not be simply supporting the financial well-being of a single applicant. I don’t think that rises to the level of hardship,” Strohmaier said.
But Coppes pointed out that the commission hadn’t addressed the third aspect required to grant a variance: the spirit of the zoning ordinance. In this case, residents voted to keep the area as low-density residential with no new non-conforming uses.
“If you noticed, they all skipped over that one,” Coppes told the Current. “It’s a conjunctive analysis for the courts, so they have to prove all of them, not just one or the other. So it’s going to be a big problem for them. And the unfortunate part is now we’re going to waste a bunch more time and taxpayer money about something that shouldn’t have happened in the first place.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.
