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Planning commission denies gravel pit code change

by ANNISA KEITH
Staff Writer | May 20, 2022 1:00 AM

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SANDPOINT — The Bonner County Planning Commission recommended denial of a code change request applying only to already existing gravel pits in the county.

A packed audience consisting mainly of members of local land use groups and gravel industry workers watched the commission recommend denial of the requested change to the county’s land use code. The proposed change would allow for gravel pits to extract resources within parcel boundaries while adhering to agreements with the Idaho Department of Lands without first needing to obtain additional permits from the county.

Title 12 of Bonner County Code addresses land use regulations in the county. The 200-plus page document functions as the final word on what can and cannot be built in the county.

The three-hour-long meeting saw passionate testimony for and against the application, with commissioners deliberating and asking questions for nearly an hour.

The meeting boiled down to definitions of terms and philosophical questions about what was considered proper use for mines that extract resources.

Although Idaho courts have yet to rule on the diminishing asset doctrine. The doctrine specifically applies to sand, gravel, and rock mining industries. The doctrine asserts that extracting a resource is a right of the property owner and is considered legal use — even if it doesn’t match the land use in the surrounding area. As long as the mining activity remains within the parcel boundaries, the mine is permitted to grow within those boundaries without needing to obtain additional permits.

Some states have ruled in favor of the doctrine, others have not.

Mines have to agree to a reclamation plan before they can begin operation. A reclamation plan is a document between the mine owner and the Idaho Department of Lands detailing what the land was like before mining, and what the land’s intended use will be after mining is completed. Other factors such as timeframe, size, scale, and impacts to surrounding natural resources are also considered in these documents.

The application submitted by members of the Linscott and Peak families, owners of local gravel pits, said that denying the application would deprive them of their right to develop the resources on their land — even going so far as to say that it would violate the Idaho Constitution’s clause on eminent domain.

Testimony in favor and against the proposal was split.

The four who spoke in favor of the code change, including local gravel pit owners, said that the materials generated from their industry enriched the county with resources and generated revenue.

“We produce roughly 500,000 tons of material a year out of these eight sources. That is 33,000 truckloads, you couldn’t walk over that pile in a week. I am trying to tell you the demand that is required on these natural resources in Bonner County. We have to have the ability to expand these sources, or, we haul them to Coeur d’Alene. But folks are going to have to pay the bill, that’s the alternative I think we’re faced with here,” said Brian Wood, owner of Wood’s Crushing and Hauling. “We’re trying to make an easier pathway to keep these sources in operation.”

The four people who spoke against the change contended that the code change is not necessary. Others chose to call out the Linscott gravel pit specifically, saying that they had broken laws in their previous mining operations.

“The elephant in the room is that [Linscott Sand and Gravel] are today’s applicants and are paying a planner and an attorney and we can’t just dismiss this. I want to repeat that there are pits that have been, and are, currently operating lawfully. Where is the necessity if there are pits that haven’t been out of compliance? To continue to try to adapt code to make an egregiously expanded pit legal is vexatious planning at best,” Reg Crawford said. “While there may need to be some clarification of the code, there is no necessity for this application as written grandfathering back so far. … To refer to this application as merely housekeeping is insulting to the pits in compliance, and this commission.”

After the closing of public comment, project representatives, planning commission members, Deputy Prosecutor Bill Wilson, and Planning Director Milton Ollerton discussed what the change was specifically about, and what legal questions were up to the commission to decide.

“What we really need is to find a happy medium,” Commissioner Josh Pilch said. “There’s no scenario that is going to be perfect for everybody. We need to do the right thing for the community. And we need to draw a line in the sand somewhere, so let’s draw a line in the sand. We need to vote on this thing and move forward.”

Wilson asked the commission to elaborate on what the definition of ‘expansion’ meant to them in their recommendation to the board of commissioners.

“We’re fighting against uncertainty. The doctrine of diminishing assets hasn’t even been addressed in the state of Idaho. So we’re being asked now, essentially whether or not we want to recognize it, or if we don’t,” Wilson said. “This requires us also to get down to brass tacks as to what you consider expansion to mean. The reason that there’s many different persuasive authorities, Washington state being one of them, as recognizing that doctrine. Other states have gone the other way for other reasons that the planning department has brought up.”

Wilson said the issue is rooted in an almost philosophical notion of what it means to expand.

“If a prior nonconforming gravel pit took a thousand yards of material out of the ground in 2007, and they did the same thing the next year, and the next year after the law changed, is that considered expansion? Reasonable minds can disagree on that.”

Commissioners deliberated on many topics in their half-hour deliberation. Commissioner Dave Frankenbach asked if expanding a gravel pit to include an asphalt plant was considered grandfathered use. Other commissioners speculated on what the county’s role could be when it comes to working with IDL on reclamation plans.

Ultimately, the commission came to a split decision recommending denial of the code change. Pilch was the only member voting against the denial. Commissioners Brian Bailey and Wayne Benner recused themselves from voting on the matter, citing a conflict of interest.

The file will go before the Board of County Commissioners for a final decision; however, a meeting date has yet to be determined.

To read Bonner County Code, go to codelibrary.amlegal.com/codes/bonnercountyid. Specifically, Title 12 can be found by going to the left-hand column and selecting ‘Title 12 Land Use Regulations.'

The county publishes all upcoming meetings on their website and physically in the lobby of the administrative building located at 1500 U.S. 2. For those who wish to provide comment to county officials about AM0004-22, or to read documents on the matter, to go BonnerCountyID.gov.

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