Laura Lundquist

(Missoula Current) Some Lolo area landowners have to wait another month before they learn whether a nearby gravel pit can expand in spite of their residential zoning.

On Thursday afternoon, about 40 people sat through more than two hours of a Missoula County Planning and Zoning Commission meeting to hear whether the commission would grant a zoning variance after it heard about the questionable history of the Hendricksen gravel pit south of Lolo. But after some uncertainties were raised during the meeting, the commission decided to wait until May 2 to make a final decision.

This is the second meeting where the Commission is considering granting a variance in an area zoned residential to allow an industrial use - a gravel pit - to grow by another 60 acres. Since the first commission meeting on Feb. 28, many neighbors have come together to form the Carlton Protection Trust and hire the Ferguson and Coppes law firm to investigate and oppose the gravel pit expansion.

“We are here on behalf of the neighborhood as a whole to ask you to deny this variance request to protect their homes and way of life here in Missoula County,” said attorney Graham Coppes.

The gravel pit, owned since 2020 by Western Materials, currently covers 80 acres about 5 miles south of Lolo along Old Highway 93. But that’s not the way things started back in 1976 when Lolo neighbors created and passed their citizens’ residential zoning initiative, according to Carlton Protection Trust attorney Taylor Heggen.

The ZD40 zoning resolution stipulated only low-density residential development, parks and playgrounds are allowed. Any nonconforming uses were limited to when the zoning was passed and no expansion is allowed. Any variances or changes must first be approved by the county commission. But that’s not what happened with the Hendricksen pit.

Using a series of aerial photos taken at various intervals starting in 1955, Heggen showed that no industrial gravel pit appeared to exist on the property until after Stan Hendricksen, the previous owner, got his first open-cut mining permit for a 3.5-acre pit from the Montana Department of Environmental Quality in 1993, long after the ZD40 initiative passed. There was no pre-existing grandfathered use for industrial mining.

The county and the DEQ requires mining permit applicants to attest that their desired gravel pit isn’t planned for an area zoned residential. Heggen had a copy of Hendricksen’s zoning compliance form from the county.

“This was again we would argue a nonconforming use. At the time, it should have been issued or gone under review for a variance request at this point. Instead, he represented that he was in compliance, that this area was not zoned, and therefore he was issued this zoning compliance form which he then used to obtain the 1993 mining permit,” Heggen said.

The gravel pit was in violation of the ZD40 zoning from the start. Then, it continued to grow over the years, again in violation of the zoning because the county never considered a variance before now. Hendricksen dealt directly with DEQ, requesting amended permits from the state to mine more ground and never interacting with the county.

Hendricksen’s original DEQ permit expired in 2000, but he kept mining and expanding until 2008, when the county realized Hendricksen had no valid permit. To get a new DEQ permit to allow him to expand to 72 acres, Hendricksen needed to show he was in compliance with the zoning. The Missoula County deputy attorney, Mike Sehestedt, wrote a memorandum in 2008, acknowledging that the damage had already been done, and to be fair to Hendricksen, he recommended granting another compliance permit.

“The most important part of this letter, from our perspective, is the end of it where the deputy county attorney recommends that the zoning compliance permit be granted but with the provision that the permit will lapse at the end of the permit period. I believe the permit period at the time was set to lapse in 2020,” Heggen said.

The catch with DEQ mining permits is companies can apply for amendments that can allow for change of ownership - Western Materials took over Hendricksen’s permit in 2020 - and repeatedly extend the expiration date such that mines could operate forever if they contained enough material. The amended permit for the Hendricksen pit now has an expiration date of 2045.

County planner Jennie Dixon said when the county issues zoning compliance forms, they never expire. So once Hendricksen got his compliance form in 1993, there wouldn’t have been any further county review. But in 1999, Hendricksen’s operator, JTL, needed a second compliance form so they could conform to a new law, so the county attorney agreed since Hendricksen already had a compliance form. Had Hendricksen’s permit not expired in 2000, the county wouldn’t have done any further review.

“When the county zoning office became aware in 2008 that a permit had been sitting at DEQ for six and a half years, there was a lot of angst. It took us about a year and a half to come to some conclusion, which was the result of Mike Sehestedt’s letter from the county attorney’s office,” Dixon said. “Twice, the planning department was encouraged by the county attorney’s office, with their knowledge of law, that it was zoning compliant.”

Coppes said the county’s issuance of zoning compliance was a cascade of errors. The first mistake or misrepresentation in 1993 that the mine was in compliance has been perpetuated, allowing the gravel pit to grow where it shouldn’t have been allowed to start.

“Not only is the nonconforming use going to continue, but it’s proposed to double in size,” Coppes said. “That’s the problem. At these sites, you can continue to apply for a variance request that is connected to a mining site that could continue for decades into the future. It can be continued and continued. Every time we actually allow this to grow a little more and continue for longer, it becomes harder to stop it in the future.”

The commission has to consider whether not granting a variance would cause undue hardship to the landowner. However, Western Materials doesn’t yet own the land it wants to mine so it’s not the landowner. So it was difficult for Western Materials, which still has 20 years of material to mine in the existing pit, to say they were suffering hardship. Dixon said hardship was the weakest claim and there was a stronger case to be made for public benefit.

Commissioner Josh Slotnick assumed most of the neighbors now living near the gravel pit moved in after it already existed and questioned why they were complaining now. Four neighbors stood to say that they either lived in the area before the gravel pit existed or moved in while the pit was still small, expecting it wouldn’t grow any bigger because of the zoning.

“I moved in in 2007,” said resident Louis Arches. “My thought was the gravel pit isn’t going to get any larger than the 15 acres it’s permitted for. I found out recently it was built on lies. But I didn’t move in here and say I moved next to a gravel pit and now I don’t like it. That gravel pit has been expanding ever since I moved here, and my understanding was it wasn’t supposed to be expanding at all.”

The neighbors and Western Materials must wait another month to see if the pit will be allowed to expand again.

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