Agenda - Planning Commission - 04/03/2008

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r~ ( ) ,.._.~ / . { March 10, 20081 Volume 21 No.5 Conditional Use Permit-Citizens group argues conditional use permit for gravel .operations allows unlawful use in violation of zoning regulations Applicant intervenes, arguing conditions in permit violate state law by essentially prohibiting its operations. Citation: Flathead Citizens for Quality Growth, Inc. v. Flathead County Bd. of Adjustment, 2008 MT 1,2008 WL 44598 (Mont. 2008) Tutvedt Family Partnership (TFP) applied to the county board of adjustment (Board) for a conditional use permit (CUP) to operate a gravel pit on a 320-acre parcel of land it owned in the District. The District was not strictly defined as residential or agricultural. While the District was becoming increasingly residential, it was in- tended for a variety of uses, including agricultural and silvicultural. A neighborhood plan (the Plan) stated that "industrial uses should not be permitted [in the District] except those accessory to normal farm operations." Under the zoning regulations, "gravei extraction" was permitted as a conditional use, but not defined. Also under the zon- ing regulations, "extractive industries" were not permitted, and were defined as "commercial or industrial operations involving the removal and process of sand, rock, soil, gravel, or any mineral." The zoning regulations listed criteria required for consideration of a CUP. These criteria included site suitability, availability of public services and facilities, and immediate neighborhood impact. A report (Report) that analyzed the project on these criteria was adopted by the Board. Important to the ultimate resolution of the case was the fact that the Report concluded that TFP's operation would increase traffic on substandard roads. Also important was the Report's failure to make any findings with respect to water quality impacts of the pro- posed operations. The Report said only that review of water quality impacts was under the jurisdiction of the State Department of Envi- ronmental Quality (DEQ). The Board issued the CUP with 28 conditions. Condition No. 28 prohibited asphalt and concrete batch plan operations. . The Flathead Citizens for Quality Growth, Inc. (Citizens) filed suit against the Board. Citizens alleged that the Board's decision (1) failed to properly determine the District was a residential zone; (2) violated the zoning regulations of the District by permitting an unlawful use un- der the regulations since the gravel crushing operation was not acces- sory to normal farm operations; and (3) was arbitrary and capricious because it failed to address the adverse impacts of TFP's operations. TFP also intervened in the matter and challenged the Board's de- cision. TFP argued that the prohibition against asphalt. and concrete batching was in violation of a state law that said in all zones other 5 129