Laura Lundquist

(Missoula Current) With recent state legislation having cut environmental regulations, the only tool communities have to stop gravel pit proposals is zoning. But if Missoula County grants a zoning variance, that tool could also be rendered useless for a Lolo neighborhood.

The Missoula Board of County Commissioners last week convened the Missoula County Planning and Zoning Commission for a hearing on whether to approve an application from Western Materials, Inc., to almost double the size of its gravel pit along Old Highway 93 midway between Lolo and Florence.

In October, Western Materials president John Kappes applied for a variance to expand the existing 80-acre gravel operation into the adjacent Leibenguth property – three 20-acre and two 5-acre lots to the west – for a total of 150 acres. Kappes was the former president of the Mountain Water Company, which owned Missoula’s water until the city sued and gained control of the water resources in 2020.

The hearing on the variance was initially scheduled for Dec. 7, but by then, the neighbors had started protesting the expansion. So Western Materials requested a delay to address some of the concerns. The commission hearing lasted almost two hours on Thursday, and it was continued until April 4 to give the commissioners a chance to visit the site before taking a final vote.

Kappes told the commissioners that the gravel, sand and pit run being produced in the gravel pit could be used on any kind of construction project, and with all the growth in Missoula and the Bitterroot Valley, more aggregate would be needed.

However, gravel pits aren’t rare. There are already 25 permitted gravel pits in the Bitterroot Valley between Hamilton and Florence at the Ravalli County line with another two proposed, according to the Department of Environmental Quality database. Then another 21 gravel pits are permitted around Missoula between the Ravalli County line and Frenchtown with another two proposed.

The current Western Materials gravel pit would last for another 20 years, so the need to expand isn’t imminent. But the Leibenguth family is preparing to subdivide and develop the property west of the pit.

“When (the Leibenguth family) came to us and were discussing how this would be developed for houses and saying that it’s probably time to do a development, we thought it may be an important time to present this to the community and show that this is an option,” Kappes said. “We have a point in time when we can either build more houses on a gravel resource or take an opportunity to further that gravel resource into the future.”

Kappes said that to address neighbors’ concerns, Western Materials and its engineering firm, WGM Group, have scaled back the original proposal such that excavation would affect only an additional 30 acres, which would give the pit an additional 35 years. Still, the permit granted by DEQ in May 2021 allowed the addition of a double-walled fuel storage tank, an asphalt plant, a concrete batch plant and a wash plant on the southern and southwestern portion of the property. The permit expires in 2045 but can be extended indefinitely.

Montana Fish, Wildlife & Parks has expressed significant concern about the effect of the pit expansion on wildlife habitat and migration corridors. Land just south of Lolo has been considered for conservation easements to allow for a possible wildlife crossing structure across Highway 93.

The county commission wouldn’t need to weigh in except for the fact the gravel pit is in a region that is zoned “residential.” In 1976, area residents initiated a zoning proposal to designate an area between basically Trader Brothers south to Sun Valley Road on both sides of Highway 93 as low-density residential with no resource extraction. The Zoning District #40 resolution passed with 60% of the citizens in favor.

The gravel pit reportedly existed in 1976 – although some commenters dispute that – so it was grandfathered in to ZD#40. But the zoning resolution required that “(a)ny existing non-conforming uses shall be limited to their present size and not allowed to expand in any form or nature.” The neighbors assert that the gravel pit started at 15 acres but has expanded to its current size without the county granting a variance before.

Since October, many of the residents have sent comments and petitions to the county, asking the commission to uphold their residential zoning. Of the 58 households signing the petitions opposing the pit expansion, 34 are in Zoning District #40.

“ZD40 zoning was put in place to protect homeowners, yet here we are striving to protect ourselves, our neighborhood, our health, and our environment due to errors,” one commenter wrote.

After approving some subdivisions in last week’s commission meeting, the commissioners had touted the importance of zoning for maintaining the character of a neighborhood. After residents tried to oppose subdividing a parcel into smaller lots, the commissioners said they couldn’t reject applications just because they don’t like them. Commissioner Josh Slotnick said zoning was the primary mechanism that could regulate density.

“I empathize and sympathize. But the answer to prevent (high density) from happening is to zone it. Density and zoning are linked, and right now, this area is unzoned,” Slotnick said.

However, during the variance hearing that followed, Dan Monroe, who lives on King Road near the gravel pit, pointed out that the DH#40 residents already have zoning in place, but the commission might not stop the gravel pit expansion, which seemed inconsistent. Missoula County planner Jennie Dixon has recommended approval of the variance.

“You approved that subdivision because they didn’t have zoning. But in our community, we do have a legal agreement that says there can be no further significant industrial growth. In my opinion you’d be doing an end-run of our legal agreement by ignoring the legal document we have,” Monroe said.

In fact, there are a lot of people around the state who wish they had the zoning that the ZD#40 neighbors have. Since the 2021 Legislature passed House Bill 599, a nod to industry that stripped a number of environmental protections from DEQ’s requirements for gravel pits and cut the amount of time DEQ had to evaluate applications, more gravel pits have popped up across the state. Some are in appropriate places, like the back 40 acres of a dryland wheat farm, but some have been proposed quite close to what were once quiet neighborhoods.

Residents near Arlee, Elbow Lake, Libby, Ennis, and Gallatin Gateway are suddenly finding themselves next to open pit mines that are allowed to operate 24/7, and they have no recourse because DEQ won’t reject an application and their neighborhoods aren’t zoned to prohibit industrial activity. Some would like to enact zoning now, but the 2021 Legislature also passed House Bill 527, which prohibits zoning regulations from regulating mineral extraction, which includes gravel pits.

Rep. Steve Gunderson, R-Libby, who sponsored HB 599 in 2021, has argued that DEQ misinterpreted his bill, cutting regulations further than intended. But he has refused to modify the law, saying instead that “Preemptive zoning is the fix to take care of that.”

By law, Missoula County can grant a variance to a citizen zoning district as long as it’s not “contrary to the public interest where literal enforcement of the zoning regulations would result in unnecessary hardship.” However, Worden Thane attorney Elizabeth Erickson wrote a letter to the Missoula County planner on Feb. 21 saying expanding the gravel pit would be contrary to the public interest and that of the Lolo Ranch LLC. Among other objections, Lolo Ranch started in July the process of getting an “organic” certification for its produce and particles from the asphalt and concrete plant exhaust could jeopardize that.

“Denial of the variance request would not create undue hardship for the applicant,” Erickson wrote, pointing to the fact that the current pit is good for 20 years.

The Missoula Board of County Commissioners have yet to announce when they’ll visit the site.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.

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Gallery Credit: KC

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