June 2008

Land-use planning stumbles into a pitfall

By Gail Binkly

Less than one month after the Montezuma County commissioners approved a controversial gravel pit near Mancos, the Colorado Court of Appeals ruled 3-0 that a previous board had erred in giving the nod to a gravel operation in the Lewis area.

The court’s May 29 decision in the case of McAfee vs. Montezuma County and Stone Crushing now raises questions about whether the commissioners’ OK for mining by McStone Aggregates near Mancos would stand up to legal scrutiny if challenged.

The McAfee verdict was the second major legal blow the county has sustained recently in regards to its landuse policies. Last November, a Court of Appeals panel voted 3-0 in favor of plaintiffs who challenged the county’s approval of an expansion for a commercial warehouse south of Mancos called the Stringer warehouse.

HAYCAMP GRAVEL-CRUSHING OPERATION AS SEEN LOOKING WESTThe appeals-court verdicts overturned previous rulings by District Judge Sharon Hansen, who had found in favor of the county in both cases.

Chuck McAfee, plaintiff in the challenge of a sandstone-gravel mine on property adjoining his, said the decision ratifies his belief that there should be better land-use planning in the county.

“People who want to make some choices about where they can live and what they want to do want some predictability,” he said.

RECLAIMED LAND AT THE HAYCAMP PITMcAfee said he had concerns about having a gravel pit nearby because of noise and dust. “There would be dynamite,” he said. “Also, I have a well and wells out here are pretty darn precious, so I wouldn’t want anything to affect that.”

However, he said his main concern was simply that he did not believe the pit should be allowable under the land-use code.

“My biggest concerns had to do with misinterpretation and misapplication of the code and the process,” he said. “That was a bigger concern to me than the gravel pit.

“Part of that is because agriculture is supposed to be preserved. It was strongly worded throughout the landuse code that a primary goal was to preserve and protect agriculture. Of course, nobody’s farming that patch of rocks [the Stone property], but it’s right in the middle of farmland.

“If that pit could have gone through, then anything anywhere could have gone. You would have a total inability to predict what things may and may not happen. You could not look at a zoning map and tell what might happen, and I think that’s ludicrous.”

Defining agribusiness

McAfee’s 157-acre tract lies east of a 232-acre parcel owned by Daren and Kathy Stone, who are also partners in the McStone Aggregates pit recently approved near Mancos. McAfee’s tract is zoned A-80 (large-scale agricultural) and the Stones’ is zoned A/R 35+ (large-scale agricultural-residential). The surrounding area consists mostly of large farms and ranches.

In 2005, the Stones applied for and received a high-impact permit to mine and crush gravel at their Lewis site, despite neighbors’ objections. The commissioners at the time were Larrie Rule and Gerald Koppenhafer, who are still on the board, and Dewayne Findley, who is not. McAfee challenged the approval, and the district court found that the permit application had been incomplete and the process had to be done over.

The Stones reapplied and got another permit, and McAfee again challenged the county’s approval. When Hansen found in favor of the county, McAfee appealed, arguing that the land-use code does not allow for gravel pits on land zoned agricultural.

The appellate court agreed.

In its ruling, the court noted that the county land-use code says “conditional uses” in the A/R 35 zone are defined as uses with a valid high-impact permit “in accordance with Chapter 2.”

“. . . Allowing indiscriminate commercial and industrial uses on properties zoned A/R 35 by way of the high impact permitting process. . . would render superfluous the definitions of commercial and industrial agribusiness in section 3106.1 of the Land Use code,” the court wrote.

Those definitions include a variety of agribusiness uses, but do not include gravel pits. However, the section also states that those definitions aren’t all inclusive.

Whether to appeal

Rule told the Free Press he does not think the county will appeal the ruling to the Colorado Supreme Court.

But Casey McClellan, the Stones’ partner, said they would appeal. “Personally, I don’t see anything wrong with the land-use code and I think the appellate court made the wrong decision,” he said. “I feel very strongly about that. We will definitely appeal this, there’s no two ways about it, and I am 100 percent sure that this will be overturned.”

McClellan said he believes the implications of the McAfee decision could be far-reaching. “The repercussions could be very widespread,” he said.

Rule agreed, saying that if the landuse code isn’t cleaned up so such questions are resolved, “It will totally make Montezuma County’s economic development stale.”

“We’ll just be in court from now on,” Rule said.

The issue central to both cases is whether a gravel pit requires commercial/ industrial zoning for the land in question.

McClellan said the appellate court did not look at Section 2101.4 of the code, which discusses high-impact development, and lists types of projects that may need a high-impact permit. Among those are “major pipelines and power lines, gravel and mining operations, oil and gas drilling, pumping disposal, gathering and transmission facilities. . .” and more. McClellan contends that implies such uses don’t need a zoning change.

At a crowded public hearing May 5, the county commissioners gave approval to the pit proposed by the Stones and Casey and Yvonne McClellan on 154 acres at 38751 Highway 160, on the north side of the highway, west of Road 39. McStone Aggregates had also proposed an asphalt plant and concrete batch plant at the same location, but those proposals were rejected by the board.

McClellan, a member of the county planning commission (he recused himself when that body voted to send the pit proposal on to the commissioners), said McStone Aggregates bought the property about a year ago with the intent of mining gravel. The gravel is from the Mud Creek drainage, he said, and the area has been mined for approximately 70 years, out of a halfdozen different pits.

The Noland gravel pit at 38253 Highway 160 also lies on the north side of the highway, west of the Hogan store and the proposed Mud Creek gravel pit.

McClellan said he had tried to address neighbors’ concerns and to establish a clean-operating busines. The gravel-crusher is to be located below grade on the pit floor to reduce noise and there will be a berm on the south side of the mining area. Hours of operation will be 7 a.m. to 5 p.m., he said.

The access and hauling roads will be graveled to reduce dust, and water trucks will be kept on site. McStone Aggregates will mine just 10 acres at a time, and will reclaim 5 acres at a time behind its operations, seeding it with rangeland grasses.

The only hazardous air pollutants would be produced by the asphalt plant, McClellan said, and it would have a bag house to trap emissions. He said an additive could be used to reduce the smell.

The Colorado Department of Transportation has granted approval for access off Highway 160, and the agency said no acceleration/deceleration lanes would be required.

McClellan said a zoning change should not be required for the land, which is now classified as unzoned but is used for agricultural purposes. (Under the county’s zoning system, called Landowner-Initiated Zoning, landowners are supposed to voluntarily zone their property. On unzoned tracts, owners must seek permission for a change in land use.)

“We feel that the high-impact-permit process is the appropriate way to go because we consider this a temporary use,” McClellan said. The operation is projected to last 20 years.

What’s temporary?

But Jesse Bopp, an attorney representing neighbor Catherine Neva, told the board that something lasting 20 years should not be classified as temporary. “To my client, 20 years doesn’t seem to be temporary when you’re living on a piece of property 365 days a year,” he said.

Neva and her daughter, Debra Cross, will be 87 and 67, respectively, before the pit shuts down, he said. “Their objective [in buying the land] was to have a peaceful retirement property,” he said. “They’ll get their peace back when they hit 87 and 67.”

Commissioner Steve Chappell expressed some sympathy for that argument. “What’s temporary?” he asked. “I just had a thought: We’re all temporary.”

County Planning Director Susan Carver said the land-use code does not say.

Roger Woody of Road 41.2 said the commissioners were using the permitting process to get around rezoning the land. “I just believe that to ignore the land-use code and to use the highimpact- permit process in lieu of the zoning process is not a healthy way to make decisions regarding land use,” Woody said.

“Land use must be predictable for good business operation and it must be done using zoning codes. There are zoning codes in existence, but from the information I’ve gotten, they have been ignored.”

Felicity Broennan, another neighbor, read a letter from attorney Jeffery Robbins of Goldman, Robbins and Nicholson, a Durango firm that is representing her and several other neighbors, stating that because the property is agricultural, high-impact permits are only to be allowed for “agribusiness activities” under the land-use code.

This was the same argument the same firm used successfully in the McAfee case, but that case had not been decided at the time of the May 5 hearing.

However, McClellan stated that the high-impact permit is an appropriate way to allow temporary uses. “If you were to rezone this property, it could be a zoning disaster for this county,” he said. “If you had to rezone this, you would have to do it for oil wells, gas wells, CO2 wells — and when [the use] was up, you would have industrial zoning [still in place].

“It would be nice if we could keep this all open so everybody could enjoy the view, but we’re here to own a business. Everybody doesn’t have to make our property-tax payment.”

The need for gravel

At the hearing, two people commented on the need for high-quality gravel for roads and landscaping.

“Gravel resources are pretty scarce in this county,” said Peter Kearl of Four Corners Materials, based in Bayfield, Colo. He said river gravel is mainly confined to the Dolores River, the Ute Mountain area and a strip near Mancos, including Mud Creek.

“We have to have a reasonably close aggregate source to remain viable and competitive,” Kearl said.

Former County Administrator Tom Weaver agreed. “Gravel’s where you find it,” he said. “Gravel was specifically left out of the land-use code, and the reason was because you never know where you’re going to find gravel.”

In materials provided to the commissioners, the applicants wrote, “As a Montezuma County resident are you in favor of continuing to gravel County roads? Should the County continue to maintain those County roads? Should chip sealing roads be continued? Have you ever purchased gravel for a private driveway or concrete for a foundation? . . . Every individual in all counties, in all states, uses aggregate material on a daily basis.”

McClellan told the commissioners that, because there are no gravel pits near Telluride, people there pay more than twice as much for aggregate material as in Montezuma County.

But McAfee told the Free Press that the county needs an overall plan guiding where industrial operations will be. “There needs to be some planning and some thought about where we ought to harvest [gravel],” McAfee said.

“The stuff that’s out here is sandstone, and there’s sandstone all over.”

But Rule, who used to be in the concrete business, told the Free Press that sandstone gravel isn’t much good except for road sub-base. “The trouble is, we’re running out of quality gravel,” he said. Even the sand and gravel near Mancos aren’t the best, he said, but they’re better than sandstone.

Rule said, when he was still making concrete, he hauled material from pits near Farmington, N.M., and Bluff, Utah. “It would kill you trying to haul that today,” he said.

McClellan agreed, saying that high fuel prices make it prohibitive to haul aggregate material very far. “A typical truck and pup, or a belly dump, that would hold 25 tons of gravel was $85 an hour last year, and now it’s over $100,” he said. “At some point the cost of transportation is more than the cost of the gravel.”

Rule said the county’s philosophy has always been to try to have gravel pits in strategic locations around the area. “We had a sandstone pit near Hovenweep and nobody said anything about it,” he said. “This other one [near McAfee] is three-quarters of a mile from his house. We thought, ‘It’s not going to hurt anybody out there.’ We OKed it because there’s not much gravel out in that area, and the county needs gravel.”

‘Cloud of death’

Rule and McClellan agreed that some of the opposition to the Mud Creek pit might have been related to problems with the Noland pit — specifically, an asphalt plant at the Noland pit.

Last summer, Mancos-area residents were incensed by smells from the Noland asphalt plant. The commissioners eventually told the Noland operators that they needed a high-impact permit to produce asphalt, a decision the Noland owners are currently challenging in court.

Neighbors reiterated their concerns at the May 5 hearing because McStone Aggregates was also seeking to make asphalt at its site.

Dean Wolcott, who owns land immediately north of the McStone tract, said he grazes cattle there every summer and, “If this [asphalt] plant smells the way the plant smelled last summer, I don’t want my cattle breathing that.” He did not object to the gravel pit.

Jimbo Buickerood said the fumes would likely contain carcinogens including benzene. “Just because it’s not seen, it doesn’t mean that you want to breathe it,” he said. Last summer, he said, his 6-year-old son would go outside, smell the Noland pit, “say ‘yuck!’ and go back in,” Buickerood commented.

Dick Perry of Road 39 said the air quality was so bad on three separate occasions last summer that his eyes watered and he started sneezing when he went outside. “It was what I called the black cloud of death,” he said. “We can’t afford to have this dirty air in our valley.”

Neighbors also raised concerns about traffic, water availability, and impacts to views and property values.

Commission attorney Bob Slough reminded the board that the McAfee case was then pending before the Court of Appeals and that if the board made a decision that day regarding the McStone pit, “you won’t know what the court says in McAfee.”

Rule echoed that, saying, “If we had a decision on [McAfee], it might give us better ground to make a more sound decision.”

However, Koppenhafer, the commission chair, drew a distinction between the gravel operation and the asphalt and concrete plants.

“Gravel’s where the gravel is,” he said. “That’s the only place you can put the gravel pit. But in my mind the asphalt plant and the concrete plant are a different operation because you can put them someplace else, on a commercial property.” He said a decision to approve those plants without commercial/industrial zoning would almost certainly be overthrown in court.

After a brief break, the board then voted 3-0 to approve the permit for the gravel pit, with mitigating measures as McClellan had specified, but to deny the asphalt and concrete plants, which would have to be considered under separate applications. McClellan told the Free Press those projects are currently on hold.

‘It hurts’

Cross, whose mother owns property adjacent to the Mud Springs gravel pit, said she had mixed feelings about the McAfee ruling.

“In a way I’m joyous,” she said, “but we’re just small-town people here and I’m not sure we could afford [to take their case to court].”

McAfee agreed. “It’s my conjecture there would be a lot more lawsuits if people could afford to do it, but it’s a very spendy process.”

Cross said she and her mother are the people most affected by the Mud Springs pit. While she understands the need for gravel, she said, “it’s a different case when you’re directly affected.”

There are three ponds on her mother’s property that are frequented by wildlife, Cross said, but McStone Aggregates wants to put a road right by the ponds.

“It hurts,” she said. “We are very much outdoor-type people and we love the wildlife, and it’s going to affect us tremendously.”

But McClellan insisted there will be very little impact from his gravel pit, with the crusher located 15 to 20 feet below natural grade and a berm providing a noise barrier. And he said Cross and Neva had been told by their broker, before they bought, that there were gravel resources nearby.

Tweak or scrap?

These and other land-use controversies may play a part in the races for two commission seats this summer and fall. Koppenhafer and Rule, who are seeking second terms, both face challengers.

Rule will have an opponent in the Republican primary — Danny Wilkin, a developer who was fined in 2006 for violating county setback rules by build ing a home 50 feet too close to the Dolores River. The Democratic challenger in that race, Fred Blackburn, has called for a mandatory residential building code and more vision in landuse planning.

McClellan himself had considered running against Koppenhafer in the Republican primary, but decided not to, saying he may move out of the Mancos district. Koppenhafer now faces opposition from two independent candidates: Paul Young, a real-estate agent, and Alfred Hughes, who was a plaintiff in the successful lawsuit against the Stringer warehouse expansion.

However, candidates who called for stricter land-use regulation have not fared well in recent elections. Koppenhafer, Rule and Chappell, all advocates for private property rights, were elected handily.

McAfee, who ran for the commission himself in 2002 but lost, said the landuse plan as written has major problems. “Intelligent, thoughtful, fairminded, really supportive people would have a lot of difficulty with it because the thing is not as clean as it should be,” he said. “They make some attempts to clean it up, but they don’t address the big things.”

He said he doesn’t believe in scrapping the plan, however. “Tweaking is too light a word and scrapping is probably too strong,” he said. ‘I think there need to be major revisions.”

More clarity would help rather than hurt business owners, McAfee said.

“I think it’s unfortunate that people like the Stones, I’m sure in good faith, bought property thinking they could do whatever they wanted with it and they can’t, according to the court.”

Rule said the commissioners had a lengthy talk at their June 2 meeting about what to do regarding the landuse code. “We’re going to sit down and look at it and see how we can modify it,” he said. “It’s a work in progress.”

He said he understood why the commissioners in the 1990s, when writing the plan, chose not to implement traditional zoning, because it was highly unpopular. “But it seems like that might have been what should have been done.”

He said it’s unlikely the entire landuse plan would be thrown out, but the board might have a night-time public meeting to take citizen input on what needs to be done. “Put it out there to the people,” he said.

The plan may need to be revised so it states clearly what types of events or operations don’t require a high-impact permit. For instance, several-day events such as motorcycle rallies might be exempted from the process.

And the question of whether gravel pits, pipelines, oil and gas wells, and other similar projects require a change in zoning should also be clarified.

Rule said the McAfee gravel pit probably wouldn’t have been overturned if the county had chosen to zone that property industrial in the first place. “Then we’d have had a leg to stand on.”

Another option, he said, would be to have no zoning, as is the case in neighboring La Plata County.

But, he added, in the end, “You’re just not going to make everybody happy.”