West Valley Resident Sues County Over Gravel Pit Permit

Suit is latest in long legal battle over construction company seeking to modify 2010 agreement to allow concrete and asphalt batch plant

By Micah Drew
A Schellinger Construction gravel pit off of Farm to Market Road northwest of Kalispell on May 27, 2020. Hunter D’Antuono | Flathead Beacon

A West Valley resident on Aug. 17 filed a lawsuit in district court against Flathead County and the Flathead County Board of Adjustment, the latest entry in a 15-year legal battle over a conditional-use permit for a gravel pit in West Valley.

Charlene Iannucci sued after appealing a decision by the Flathead County Planning and Zoning Office to accept an application to amend the existing conditional-use permit for the gravel pit. The Board of Adjustment denied her appeal in a 2-2 vote at their July meeting.

Rob Koelzer of Schellinger Construction Co., on behalf of Section 16 Family Limited Partnership, submitted an application to amend the original operating permit that was granted in 2005.

The initial permit was granted to Tutvedt Family Partnership, the predecessor in title, to operate a gravel pit on 320 acres of land at 3427 Farm to Market Road in West Valley. Three other gravel pits operate within three miles of the subject property.

The proposed operation was described as consisting of the “extraction and processing of gravel, limited retail gravel sales, a crushing machine and an asphalt batch plant.”

The initial controversy stemmed from zoning definitions and regulations that were in place in 2005. At the time, “gravel extraction” was not defined in county zoning regulations, but the term “extractive industries” was, and it was determined that the intent of the West Valley Neighborhood plan and the Flathead County Zoning Regulations was to allow such industries in the zoning district.

The permit was granted with 28 conditions, the last one stating, “Asphalt and concrete batch plant operations are prohibited.”

In July 2005, West Valley residents filed suit against the Board of Adjustment, kicking off more than five years of litigation in the Flathead District Court and Montana Supreme Court that ended in 2010 the gravel pit was allowed to proceed. It has operated since then with the conditions in place.

A decade later, the construction company applied to amend the condition prohibiting asphalt and concrete bath plants.

In a March 16 letter sent to the board, Koelzer requested the removal of the prohibition in part because of a 2010 update to county zoning regulations that defined gravel extraction.

The property is currently zoned as “WV West Valley,” which is defined as “a district to promote orderly growth and development in the West Valley area consistent with the community vision statements.” As the regulations read, in areas not zoned as “residential,” gravel extraction and asphalt and concrete plant uses may be conditioned.

The West Valley Land Use Advisory Committee voted against amending the permit, passing along a negative recommendation to the Flathead County Board of Adjustment.

The amendment request was set for consideration during the May 5 Board of Adjustment hearing but was pushed back to June due to public comments in opposition, and then delayed again to July.

On May 20, Ianucci appealed the decision to accept the amendment application by the planning and zoning office. The appeal to the Board of Adjustment claimed that that it was “erroneous” to interpret the prohibition on asphalt batching as subject to modification and that the application was incomplete as it had “virtually no information pertaining to the proposed batch plant.”

The appeal failed on a 2-2 vote by the board at its July meeting, after which

Ianucci filed her suit in district court.

The suit claims that the board should have to seek guidance on the project from the district court, an argument that goes back to the district court’s final judgment in 2010 that stated the court “shall retain jurisdiction of this case for the purpose of enabling any of the parties to this stipulation to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this stipulation, to modify or terminate any of their provisions.”

While the current appeal may stay the board proceedings, the item is on the Board of Adjustment agenda for its Sept. 1 meeting at the Flathead County Fairgrounds at 6 p.m.

The staff report filed with the application shows that the asphalt plant would be portable and able to produce 400 tons of asphalt per hour. The report also states that Montana Department of Environmental Quality (DEQ) requirements would be followed, the plant would be used only intermittently and the applicant has no immediate plans for a portable concrete batch plant.

The staff also notes that there is potential for the proposed batch plants to adversely impact the immediate neighborhood, “particularly odors and air quality.”

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