Boundary County Planning and Zoning Commission

February 16, 2012

Members present: John Moss, John Cranor, Marciavee Cossette, Dan Studer, Ron Self, Steve Shelman, Matt Cossalman. Members absent: Bruce Behrman. Staff present: Mike Weland.

  1. Studer called the meeting to order at 5:30 p.m., introduced members, reviewed the agenda and called for reading of the November and December minutes. Self moved to waive reading and adopt as presented, Shelman seconded and the motion carried unanimously.

  2. Discussion was held on the findings on application 11-061, which were approved and signed.

  3. Studer read the public hearing procedure and opened public hearing on application 11-063.

    1. Applicant Rick Dinning, Tungsten Holdings, described the location of the proposed pit and said that a special use permit had been granted in September, 2005, and he said that this application was the same. He said that there is a need for a rock pit in that area. He estimated sales of 10,000 yards per year. He stated that, as a condition of approval in 2005, he was required by County Commissioners to create a seven acre parcel for the pit site. He said that a reclamation plan had been filed with the Idaho Department of Lands and that he’s been paying the bond each year. He stated that the lot on which the pit is proposed was not subject to the CCRs of the subdivision he created adjoining the parcel. Moss asked him to describe how the site came to be on seven acres, Dinning said that the plot was initially part of a 300-acre parcel, and that he had the pit site surveyed and commissioners required him to create a deed for recording. Studer asked for clarification on access, Dinning stated that access would be from Farm to Market Road and not through the subdivision. He stated that the pit was approved in 2005 and established before the surrounding land was subdivided in 2006 and that the parcel purchased by the Fergusons’ was purchased in 2007.

    2. Staff report was given.

  4. Studer asked for comment from those in favor of the application, there were none.

  5. Studer asked for comment from those uncommitted on the proposal, there were none.

  6. Studer asked for comment from those opposed to the proposal.

    1. Paul Vogel, Sandpoint, stated that he was an attorney representing the Gardiners. He stated that the minimum parcel size in that zone district was 10-acres, and that the ordinance stated that a conditional use could not be granted on a non-conforming parcel. He stated that there had been a mixup in the covenants, recorded September 26, 2006, that included the parcel on which the gravel pit was proposed. He stated that the important part was that the land was subdivided, a seven acre parcel was created and it’s non-conforming, which is a legal impediment to granting a conditional use. He stated that the comprehensive plan does not meet the requirements of Idaho Code in that it does not have a component on agriculture, something the Gardiners rely on. He said that the public hearing process in adopting the zoning ordinance was inadequate in that there was a lack of public notice referencing substantial changes. He stated that there is a conflict between the comprehensive plan and the ordinance, in that the comp plan seeks to protect existing uses while the ordinance seeks to facilitate new uses. He stated that the site plan was lacking, failing to show setbacks, buffers and other features. He stated that the application was insufficient, not indicating the duration of blasting or the amount of material to be removed. He said that the proposal does pose an adverse impact in that it could de-water wells and adversely impact the Gardiner’s cattle breeding operation. He said they don’t know how loud the crusher will be, and that it’s up to the applicant to prove their will be no adverse impact, that it’s not up to the Gardiner’s to prove that it will. He stated that there were no methods available to mitigate these impacts. He stated that people, including the Gardiners, made decisions to purchase land based on the zone district, which they relied upon, and stated that, as written, the new ordinance allows almost any use in any zone. He questioned the process used to amend the old ordinance in 2010 to allow gravel pits, and said he was concerned that it may have been a conflict of interest for Dan Dinning to have participated, as its only purpose was to allow this gravel pit. Discussion was held on the dewatering issue and a report included in the application. Studer asked for clarification of his September 15 letter in which he stated that if the applicant were to use the rock within the development, it would be okay, apparently with no concern about blasting or crushing, but not if the material was sold commercially. Vogel said he was merely suggesting a condition that would better comply with the comp plan and the zone district. Studer asked about the reference to litigation in his letter, Vogel said that the Gardiners had invested in their farm and would protect that investment. He stated that he couldn’t see how the proposed use can be made to comply with the comprehensive plan.

    2. Jacob Epstein, 473 Maridel Lane, stated that there has been a substantial record regarding this use at this place, and that the burden of indicating how this application will meet his responsibilities not to cause injury to adjacent property regarding issues raised was an unmet requirement. He stated that unless they had a plan submitted by the applicant addressing the concerns, the application was incomplete. He stated that as material is removed, the pit would get closer to the boundary, and could cause irreparable harm. He said that the hydrology issue must be addressed, and unless proof that no harm will be done included in the application, the application was incomplete and it can’t be determined if the operation would be safe. He recommended tabling the application to obtain additional information. He said that the ordinance was clear in that surface mine proposals have to adequately show that the use would not be harmful to surrounding uses, and that a credible analysis was needed to make this determination. Cossalman asked, if he felt assured, would he be in favor, Epstein said he would need to see credible proof.

    3. Ada Gardiner, 6503 Farm to Market Road, said that the documents she submitted were to demonstrate the history of the application. She said she disagreed with the staff analysis, saying that it was her belief that the use was land-intensive as there was no way to tell how much material was to be removed, and that without these specific answers, the commission had to consider it as such. She said that the surrounding property had been divided into residential lots, and residential use had to be considered in reaching a decision. She state that a gravel pit was an industrial use that was incompatible with the area, which she described as quiet. To allow a land-intense use would be different and disruptive in an area that was residential and agricultural. She said she has 220 acres adjoining the Tungsten Holdings land and that they use every bit of the land for grazing, and she stated that she was concerned about disrupting her cattle, saying that stressed cattle don’t do as well as non-stressed animals. She stated that the proposed site was in a fractured rock aquifer, and said that blasting will cause dewatering, though she couldn’t say when or how much. She stressed the findings of the hydrologist’s reports. She said that from the time of the first report to the second, the water table dropped 10-feet, and while she said she wasn’t certain that it was a result of blasting, she said that there are no provisions, such as monitor wells, to determine whether blasting had an effect. She stated that pursuant to the Comprehensive Plan, she had property rights that need to be considered. She stated that CCRs established by the applicant create a property right and are civilly binding, and that those CCRs included both the gravel pit and its access road. She said that peaceful enjoyment and water were equal to property rights, and the issue to consider was whether the use proposed was compatible with existing uses. She said a peaceful rural environment was important to their cattle operation, and that is is a critical selling point, and that a land intense use would significantly damage that use. She stated that other gravel pits in the area were not situated on a fractured rock aquifer. She said that blasting that occurred 100 years ago for the trestle was irrelevant and had no bearing on what was being proposed now. She stated that any financial benefit to Tungsten does not outweigh the harm. She stated that because the parcel was only seven acres in size, the parcel was non-conforming and a conditional use could not be granted. She said the application does not include sufficient information to show it can run without undue adverse effect. She stated that the Ferguson’s well was about 600-feet from the proposed pit, and there was no detail provided on how that well would be protected. She said the noise provisions had not been addressed, and that there was not sufficient land area to contain the noise. She said that she and her husband had a personal stake, which is why they’re so concerned, and said that those concerns have not been addressed sufficient to prove the proposed use is safe. She stated that the commission could not ignore the subdivision and the CCRs, and said that this is a land-intense, industrial use in a residential/agricultural area. She described the area as not being a pit. She said there has been no work done in the pit since 2006, and that the Ferguson’s did not know there was a pit when they purchased their parcel in the subdivision. She said the material she provided showed that the property is being advertised as residential tracts, documented concerns and expert opinion that had to be weighed. Self asked if she could think of any provisions that could be applied to allay her concerns, she said she could not, that the use would impact the Fergusons, and that she didn’t see how provisions could protect surrounding residential use. She stated that their well was vulnerable, as well as the foundation of their home. Moss reiterated her contention that no mitigating measures could be imposed, she said her concerns were much broader and with their agricultural operation, she didn’t say how they could. Cossalman pointed out that the railroad grade was closer to her house than the pit, and asked why there was still water; Ada said that blasting had occurred over 100 years ago and that did not mean new blasting would not drain wells. Studer referred to the July 17, 2006 report, which said that, “should ground water appear after blasting operations, blasting must cease immediately,” and asked if that would allay her concerns; she stated that they would need monitoring wells as well to be able to see what was happening underground. Cossalman asked about the Ponsness pit, Ada stated that it was not in a fractured rock aquifer but a different geological setting.

    4. Pat Gardiner stated that they had invested $40,000 in pipe and risers and $25,000 for a motor to irrigate from their well and that the water level has dropped. To keep pasture going, he said, he has to run 55 gallons per minute in 18 hour shifts. He stated that the land would be worthless if the water was lost, and said there is a high probability that blasting would change the static water level and once that happened it wouldn’t come back and they’d have significant damage. He said that an industrial use does not fit in the place proposed. He said he’s not opposed to gravel pits, just one in this location amid the surrounding uses. He said that when Northern Lights came through to install poles, they had to blast, and the blasting sent his cattle into a frenzy, with them breaking through fences. He said that while IDL had approved the pit, the surrounding subdivision wasn’t in place at the time and he wondered if they’d approve it if application were made today. Shelman asked for clarification on the specific harm blasting would cause his cattle; Gardiner explained that for the breeding operation, it requires subdued, uncrowded surroundings and gentle treatment. He explained that the cattle slough off embryos if they get excited. Cossalman asked about the timing of their breeding programs, Gardiner said the period runs from the end of December into March, then there’s a 50-day rest before the breeding program is resumed. He stated that the first trimester, from March through June, is the most critical period.

    5. Bryan Ferguson, 454 Smuggler’s Lane, said he bought property in the Tungsten subdivision in 2007 on good faith, knowing that there had been CCRs put in place. He read items five and six, and stated that the activities proposed by Tungsten were in direct conflict. He stated that he suffers bronchitis aggravated by dust. He said that the lots developed by Tungsten were for residential use. He said he is concerned about water, saying there was no way to tell whether or not the first blast would dewater, but once the well was dewatered, you can’t get it back. He said he was concerned about the vibration from blasting damaging the pilings of his house. He said the access road will run within 300-feet of their property, and that the access should be considered part of the use. He said he spent around $400,000 to build their home under terms of CCRs established by Tungsten Holdings, and said that if the application were approved, the parcels in the subdivision would not sell.

    6. There being no further public comment, Studer called for rebuttal. Dinning said that regarding concerns over the survey of the gravel pit, much was caused by a scrivener’s error that had been corrected. He stated that this is not a gravel pit, but hard rock that requires blasting. He said the zoning is agriculture/forestry, not residential. He said the IDL reclamation plan does cover ground water, but more to prevent water from puddling and to maintain erosion control. He said that when operating, he did haul gravel through the Ferguson property, but that was to build the access road; he said that access to the gravel pit was off of Farm to Market Road. He said that the gravel pit is not included in the CCRs. Regarding the dropping water level in Gardiner’s well, he said there could be many reasons, nothing points to blasting. As to noise, he referred to the website http://www.wherescherie.com/, which shows several people on the Gardiner farm shooting high powered weapons. He stated that the Fergusons had been informed of the presence of the pit, and pointed out that there were grain bins, considerably dustier than his proposed operation, located closer to their property. Shelman asked him to explain more about hard rock, Dinning said it’s not loose gravel, it has to be blasted. Dan asked for clarification on access, Dinning stated that all access would be off of Farm to Market Road. Dan noted that there were eight letters in the application packet in favor of the proposals which were part of the consideration, and said it was P&Z responsibility to ensure that the plan submitted will mitigate concerns, which were serious. Dinning was asked if he could provide a plan or outline on blasting limitations and to help mitigate the concerns raised.

  7. There being no further public testimony, Studer closed the hearing to public comment and called for discussion. Studer said he felt the application should be tabled until March 1 to allow the applicant to address the concerns raised. Shelman pointed out section 7.9.2 requiring a matter to be tabled until the next regular meeting. Moss stated that he was impressed with the concerns raised by the Gardiners and the Fergusons, saying that dust, the loss of the aquifer and the loss of their investments was genuine. He said that the operation of the quarry was an unknown, and that to render a decision they needed professional opinion and the specific nature of the operation. Cossalman said that a blasting engineer could present information in a way that would allow them to impose conditions, and said that the minimum lot size and legal issues needed to be addressed, as it was a virtual certainty that any decision would be challenged. Cranor said the aquifer was a high-risk concern because the results could be potentially catastrophic. Studer said that the first land use in the county was probably a gravel pit, and said they were important and necessary, and that they were most likely to be situated in the agriculture/forestry zone district. He said this is their first challenge, and that it was the commission’s responsibility to ensure that the concerns were addressed, and that they look at imposing conditions to mitigate the concerns. He said that if they can’t, they had no choice but to deny. Members discussed minimum specific information they’d require. These were;

    1. A specific site plan, showing set backs, buffers, ingress and egress.

    2. A report or recommendation from a blasting engineer on the types of blast, frequency, vibration, and noise level of the blasts, and methods that would be recommended for monitoring.

    3. Dates and hours of blasting, limitations on blasting, notification of surrounding property owners, requirements necessary to conduct blasting.

    4. Maximum truck trips per day and maximum volume to be removed annually.

    5. Dust abatement specifications.

    6. Crushing specifications, including days and hours, maximum duration in days, time of year for crushing operations.

  8. Cossalman made motion to submit that list to the applicant and to the county civil attorney and to require that the applicant provide the information to the administrator at least one week prior to the next regularly scheduled meeting March 15 to allow dissemination to members and affected public, and to table the hearing until the next regular meeting. Self seconded and the motion carried, with five members voting aye and one voting nay.

  9. There being no further business, the meeting adjourned at 9:30 p.m.