November 2008

November 2008

Gravel pits: A contentious issue in Montezuma County

By Gail Binkly

Gravel pits and asphalt plants may not be the most contentious issue facing Montezuma County, but they have to be high on the list.

THIS HOME FACES LAND THAT WILL BE USED FOR GRAVEL-MINING AND ASPHALT PRODUCTION.Increasingly unpopular with neighbors and people who move to the county for its scenic open spaces, gravel and asphalt operations also supply a much-needed resource for maintenance and improvements on county roads as well as highways.

The result is controversy and conflict.

In just the last few weeks:

• The Montezuma County planning commission recommended approval of a new gravel and asphalt operation near Mancos, despite neighbors’ objections that the area is becoming a de facto industrial zone.

• The county received a favorable ruling from the 22nd Judicial District Court regarding its shutdown of a highly controversial asphalt operation at what is known as the Noland gravel pit, also near Mancos.

• The would-be operators of a gravel pit in the Lewis area that had been shut down because of a Colorado Court of Appeals decision indicated their intention to apply for a new high-impact permit from the county.

A third operation

At its meeting Oct. 23, a grueling session that lasted till 1 a.m., the planning commission considered and eventually recommended approval for high-impact permits and special-use permits for both an aggregate-mining/processing operation and an asphalt plant, each to be run by Four Corners Materials on 94 acres owned by the Simmons family on the north side of Highway 160, west of Road 39.

The tract in question is zoned Ag/Residential 10-34, and under new language added to the land-use code in July, gravel mines and asphalt plants may be allowed on large-tract ag properties.

The town of Mancos expressed concern about the operation in a letter to the county. Planning-commission chair Bob Riggert read the town’s statements, which focused on “the cumulative effect of multiple pits in one place at one time” and asked for a berm to screen the operation from view.

If approved by the county commissioners, the pit on the Simmons property would be the third in a small area west of Mancos. The Simmons pit is at 39238 Highway 160. The existing Noland pit is at 38253 Highway 160, and a new pit by McStone Aggregates is at 38751 Highway 160. All lie on the north side of the highway and west of Road 39.

Three homes would be sandwiched between the McStone and Simmons pits.

In regard to the asphalt plant, the town voiced worries about air quality and odor, and recommended denial of the permit.

The county planning commission heard public comments separately on both the pit and the plant, though per the land-use code it was not conducting a formal public hearing.

Comments about the gravel mine centered on the cumulative effect of all the pits.

Betsy Harrison of Road J.5 noted the three gravel pits lie in a one-mile district “that is within the viewshed of Mesa Verde” and asked why government agencies such as the Colorado Department of Transportation consider each application individually rather than taking into account the total impact. Heavy truck traffic concentrated in that area, she said, would make the stretch of highway “very dangerous.”

Peggy Cloy, who with her husband owns a bed and breakfast on CR 39, said the noise, dust and odors would harm their business. “We have guests who come from all over. They come because of the quiet, the birds, and so on,” she said.

But Peter Kearl, resource manager for Four Corners Materials, said his company needs high-quality aggregate, and the Mancos River area is one of the few local places to get it. “We’re in the aggregate business,” he said. “We use it to make concrete and asphalt.” He said an eight-mile strip in the Mancos area offers “probably the premier gravel deposit in the county.”

Four Corners Materials has operated in Cortez for more than 30 years, Kearl said, but doesn’t have its own gravel pit in this county and has to buy material from competitors.

Members of the planning commission expressed some concerns.

“This is actually converting an area that is in a pretty scenic region to an industrial site,” commented board member Jon Callender. “The only question I have is the intensity in this area at this time.”

Callender noted that Four Corners Materials has a good reputation, “but, sadly, you’re the caboose” (coming in after the Noland and McStone pits).

Planning commissioners Guy Drew and Tim Hunter also voiced concerns about the concentration of gravel mines in the Mancos Valley. Drew Gordanier, however, commented that there are multiple pits in the Dolores River Valley “and to me that’s a very scenic drive.”

The board finally voted to recommend approval of the new gravel mine, adding to their motion concerns about the cumulative impacts, hours of operation, lighting, noise, traffic, and water rights. The vote was 5-1, with Guy Drew dissenting.

‘A horrible experience’

The asphalt-plant proposal drew more comments. Lee Cloy of Road 39 said Four Corners Materials already has asphalt plants in Cortez, Durango, and Aztec, N.M., and asked why the company needs another. He pointed out that emissions from asphalt production include toxic chemicals such as benzene, adding, “The odors don’t cut it. It’s the things you can’t smell and can’t see [that are dangerous],” a comment that drew applause.

FELICITY BROENNAN IS ONE OF A GROUP OF MANCOS VALLEY RESIDENTS CONCERNED ABOUT THE PROLIFERATION OF GRAVEL PITS IN THE AREA.Felicity Broennan of Road G begged the planning board “to consider the cumulative effects of all these things coming into our valley.”

State regulations cover gravel and asphalt operations, but “the oversight process is not very successful,” Broennan said. “We know that pits can and do operate outside those regulations and we have suffered as a consequence of that.”

In the summer of 2007, Mancos Valley residents complained about noxious odors coming from an asphalt plant being operated by Kirkland Construction at the Noland pit. Eventually the county commissioners ordered the plant shut down unless it obtained a high-impact permit, which it did not do.

Ralph Wegner, asphalt-division manager for Four Corners Materials, agreed there had been a problem with that plant. “Residents in that area had a horrible experience,” he said. “Although [Kirkland] said they were operating in compliance with the [state] permit, there were days they obviously couldn’t have been.”

But Four Corners Materials has a good record, he said. There has been only one complaint, three years ago, about odor from the Cortez plant on County Road L, and the company immediately fixed the problem, he said.

Four Corners will be making warm-mix asphalt, which produces fewer volatile organic compounds and less odor than hot-mix, Wegner said. As for the town of Mancos’s concerns, he said, “they have been desperate to get us into Mancos to finish their streets for the winter.”

Wegner said part of the problem with the Noland pit was that Kirkland was making a type of foamed asphalt that had been specified in a contract it had with the federal government to do work at Mesa Verde.

Planning commissioner Dennis Atwater asked whether Four Corners would make foamed asphalt if a contract specified it. “We would probably bid on the work, yes,” Kearl admitted, but added that the Noland plant wasn’t being run properly.

Broennan warned the board that it would be setting a precedent by approving the asphalt operation. Noland’s asphalt plant was shut down by the county and McStone’s was denied because they did not have commercial zoning. “If you approve this, Noland can come back and ask for asphalt, then McStone, and that would lead to three,” she said.

However, Planning Director Susan Carver said, when McStone’s was denied, the new language had not been added to the land-use code allowing asphalt plants on ag lands.

In the end, the planning commissioners voted 6-0 to recommend approval of the asphalt plant, but with stipulations that included baseline testing and ongoing monitoring of air quality, and public disclosure of the air-quality testing.

The matter will now go before the county commissioners. Both the pit and the asphalt plant are slated for a public hearing on the afternoon of Monday, Nov. 17.

‘Adverse impact’

The commissioners have been criticized for not being stricter about regulating gravel and asphalt operations.

However, in the case of the Noland asphalt plant, the commission took flak for shutting such an operation down.

Noland, Inc., sued the commissioners for allegedly exceeding their jurisdiction by forcing Noland to seek a high-impact permit to make asphalt. Noland maintained that its operations should have been “grandfathered” because the site had been operated off and on as a gravel pit since the 1930s and had been used for asphalt production in 1997 by Corn Construction.

But on Sept. 30, District Judge Sharon Hansen ruled in favor of the county, noting that “asphalt production was not an existing use at the time of the adoption of the [Montezuma County Land Use Code in 1998],” and that the asphalt operations at the pit in 2007 “resulted in a ‘degree of adverse impact’ that had increased materially since adoption of the MCLUC.”

Hansen noted that the land-use code lists threshold standards that can’t be exceeded without the operator obtaining a high-impact permit. Among those are standards for odors; dust, smoke and particulates; and traffic. She wrote that a number of persons had complained to the commissioners about such factors as “the long hours of continued beeps, motors and nasty smells”; “fumes that induced tearing and coughing”; and “operative decibel levels sufficient to hear the plant more than one mile away.”

Hansen found that the county had the right to demand that Noland seek a high-impact permit for the asphalt operation. She remanded the matter to the county, however, for further findings on whether such a permit would have to be reapplied for annually and whether each lessee and sub-lessee at the site would have to get a permit.

‘Embroiled in litigation’

Generally the commissioners, both now and in the past, have been sympathetic to the need for gravel and asphalt.

On May 5 of this year, following a contentious public hearing, they approved a high-impact permit for McStone Aggregates to operate the Mud Creek pit at 38751 Highway 160.

However, the commissioners denied McStone’s request for an asphalt plant, saying it would have to first obtain commercial zoning.

Last month, Casey McClellan and Daren and Kathy Stone, owners of McStone Aggregates, and their attorney, Jon Kelly, came before the county commissioners with a question regarding another pit that was approved by the county but rejected at the appellate-court level.

In 2005, the Stones had applied for and obtained a high-impact permit for a sandstone-gravel mine on their 230- acre parcel in Lewis, zoned A/R 35+ (Agricultural/Residential over 35 acres). A neighbor, Chuck McAfee, had objected, and eventually filed a lawsuit against the Stones and the county over the pit.

The case made its way to the Colorado Court of Appeals, which in May of this year found that the county had erred in granting the permit. The court said the county land-use code restricted high-intensity uses on agricultural land to “agribusiness,” and that the gravel mine did not constitute an agribusiness and thus did not conform to the code.

The Stones have appealed that decision to the state supreme court, but so far the court has not agreed to hear the case.

However, in July the commissioners amended the code. Kelly asked whether the Stones could now commence gravel-mining under the newly adopted language.

“My thought is, do we need to go any farther?” he asked. “The zone has been changed to allow a use these folks already hold a high-impact permit for. Let the supreme court do whatever it will do. The Court of Appeals decision has been effectively rendered moot.”

But Commission Chair Gerald Koppenhafer disagreed. “I think if you were going to do something with this, you would need to start this process again,” he said.

Commission attorney Bob Slough concurred. “Otherwise you’re going to be embroiled in litigation,” he said.

“The truth of the matter is, it will probably end up in litigation anyway,” Kelly responded.

“True,” Slough said, “but what you’re litigating will be different.”

Kelly said the amendments to the code had not created a “higher bar” regarding requirements for gravel pits, but the board and Slough disputed that, saying there is now a requirement that operators obtain a special-use permit as well as a high-impact permit and that the standards are higher. Koppenhafer reiterated that they need to “start with a clean slate” and reapply.

McClellan told the Free Press they would definitely apply for a new permit and that he was optimistic about obtaining it. “The fact that the land-use code got clarified really solves a lot,” he said.

Sandstone gravel is lower-quality than river gravel but is used in road base. McClellan said, contrary to public perception, sandstone suitable for making gravel is not available all over.

“Someone said sandstone is everywhere,” he said. “Well, it’s prevalent in the county, but there’s no guarantee it’s good enough for road base. It has to be of a certain quality.”

McStone also operates a sandstone gravel pit in the south part of the county, off Road 21. When it was first proposed, it too stirred controversy.