Commissioners dig deeper into gravel mine issue

Discussion on the Pine Bluffs Gravel and Excavating Inc. application for a conditional use permit for the proposed use of a gravel mine to operate a ready-mix concrete batch plant continued at the Cheyenne County Board of Commissioners meeting, Monday.

Although the purpose of the meeting was to address the status of the pending application, and to see if the two parties were slowly coming to an agreement – it was clear that they were not.

However, the commissioners were warned by Cheyenne County Attorney Paul Schaub that any arguments made during the meeting that day were to be mentally disregarded and that only the discussion that took place at the previous open hearing could be applied to determine their verdict.

“I want to caution the county commissioners that your decision on the application for conditional use permit must be based solely on the evidence presented to you at the hearing,” said Schaub.

This warning did not prevent both sides from presenting their current stance on the issue once more nevertheless.

“I guess where we are at is we have tried to keep people advised as to what’s going on. We sent a letter out on Friday, March 8. We informed Cheyenne County through the Cheyenne County Attorney, and Mr. Reynolds (Bob Reynolds, an Ogallala lawyer representing the Craig Harrison, Brad Sutton and Chad Hrbek families) and hopefully his clients that we would like to get the matter resolved. In the interim we have begun operations for a new contract we have. I outlined that in the letter,” said Don Miller, one of the attorneys representing Pine Bluffs.

Miller continued that he received no response to his March 8 letter and sent another letter on March 13 to Reynolds proposing different ways that the situation could be solved.

“We went through a list of about eight different items that we were willing to do if the neighbors would be willing to withdraw their objections to the conditional use,” said Miller.

Miller said that on March 16 he received a response from Reynolds that was not what he was hoping for.

“His response is not very encouraging,” said Miller. “I guess from our perspective we would like to get the matter resolved but I’m not certain if it’s a mutual agreement on both sides.I also got a certified letter from Mr. Dayton (Ben Dayton) the zoning administrator (for the City of Sidney) indicating that they believe what we are doing now violates the zoning resolution. We are preparing a response to the authority, Mr. Dayton and Cheyenne County on that matter.”

Miller said that the matter at hand for his client not only includes the conditional use application but also a new contract the company has in place.

“From our perspective we have two issues. We have a conditional use application permit pending before Cheyenne County, but at the same timewe have a separate contract that we believe we are authorized to pursue,” he said.

Miller said that in his March 8 letter he explained that the company would begin sand washing procedures for an upcoming contract it is bound to.

“The county has changed the position that they had last summer being that this is no longer a permitted use,” said Miller. “It now requires a conditional use permit. That was not the decision made by Mr. Dayton’s predecessor and Mr. Schaub. They indicated it was a permissible use on agriculture property. The reason for that is it was material we were producing exclusively for and limited to a road improvement project.”

“We did the Air Force contract and we were done in November. We had not done any mining then until March 8 when we started washing the gravel under this new contract,” he continued.

“Last week I asked to sit down with the county attorney about this matter like we did last summer and the county attorney indicated that he is not able to do it because he is too busy to do it,” said Miller. “I’m not sure why Cheyenne County has changed its position on this. Where we are is we have a contract based upon the decision last summer and based upon the zoning resolution that is currently in place - I believe it is a permitted use. What we are doing is we are producing materials for construction of a road improvement project - which is allowed. Temporary use is only limited to six months now. That is not the position they took last summer.”

“As you read the rules it is clear that the temporary six months and road improvement project are contradictory to each other because if you interpret it to just saying temporarily then why does that same section say for the completion of a road improvement project,” he said. “We have different uses. We were crushing gravel last year. We are washing sand this year.”

Miller said that the new contract in place was a multimillion-dollar contract and that if Reynolds and the neighbors adjacent to the business wanted to file a lawsuit that they could “go forward with it because they have every right to do that.”

“If they do that we will defend it,” he said. “It just doesn’t make sense to me why Cheyenne County would want to jump in on a lawsuit that I think is clear by the statutes is authorized.”

“It says in law it is permitted for the completion of ‘a’ public road improvement project,” said Cheyenne County Commissioner Ken McMillen. “‘A.’ That does not mean all public projects; it means a project and that project is done.”

“The project with the Air Force was completed last summer. There is nothing in the zoning regulations that says you are limited for one construction project for one borrow pit,” said Miller. “It doesn’t make any good use of time or money and equipment having to close a borrow pit after completing one project.”

Cheyenne County Commissioner Harold Winkelman said that it states in the regulations that the project must stay within its original intent and purpose granted, and that the new project falls out of line with previous intent.

“I know intents never pan out like they are suppose to,” said Winkelman. “But to me what is going on from what happened since the completed road project with the Air Force is beyond the intent which is over.”

“In this instance when you are driving down a gravel road and you see houses on one side and basically what appears to be an industry on the other side that’s a problem,” said Schaub.

“When they came in here and started this project they were in violation of the zoning laws in that area then,” said Randy Sutton, a resident in close proximity to the business. “They were wrong and continued just because whoever told them just to go ahead and finish the project. They were in violation of that zoning from the first day they started up into and including today.”

“We got a cease and desist letter back on June 22 of 2012 signed by the Cheyenne County Attorney,” said Miller. “When we got that letter we stopped operations. We got on the phone and sat down and met with officials. We explained to them the situation and we were notified that we were okay and we could continue on with our production last summer and fall. Nowhere were we notified during that time that this was a limited, temporary six-month operation and we disagree with that interpretation of how it is read.”

Gene Bichelmeier, who stated he has worked in the construction agriculture business for 40 years, also addressed commissioners about his past personal lease agreements of a similar nature.

“I put together a lease agreement with Mr. Sutton back in the late ‘90s adjacent to HWY 30,” he said. “There was no problem at that time working on his property withany type of lease or agreements except personal ones which we did. The project was at the time in need of an extension of the lease. When the lease agreement was up he said I could no longer come in there and that that material was his. So to satisfy him he wanted $250,000 to extend the lease to the end of the project. We paid the royalties and ended up giving $100,000 in blood money to finish the job.”

“Also, you guys talk about all the dust that was created and that all the ditches are full. I don’t think there is a vacuum cleaner made today that will suck the dirt out of ditches,” said Bichelmeier.

“The zoning was wrong then,” said Sutton. “If you guys in Cheyenne County made a mistake and allowed them to finish their first six-month project that was wrong and shouldn’t have been done, the cease and desist should have stood. That’s what the law says.

“I thought both sides agreed that we would wait until April 15 to do anything and one side decides that the law is in their favor and they are going to do what they want to do anyways. I think it’s time these commissioners make a statement and protect the zoning laws we have in this county.”

“Regarding the meeting that I had with Mr. Miller and his client, the representation made to me at that time was very clear that they were talking about ‘a’ public road improvement project,” said Schaub.

“‘A’ contract. Not another contract. We are in a different situation now where as if you look before the equipment items at that site were sparse, far and few in between compared to the equipment that is there now. It is obvious to anyone that they’re operating an industry and a business at that location in an agricultural district no longer in compliance with regulations. Mr. Miller is saying that he is relying on my representations, the regulations are clear in defining what temporary means. Six months - no longer than six months.”

“I see nothing in the email (sent by Schaub to Miller in discussion over the initial project) that would indicate that that was a blank check to proceed with no reservations whatsoever,” said McMillen. “It says right in the zoning laws, you have them, everyone has them. I think what Paul has suggested and what Mr. Dayton has requested is spelled out quite plainly in our planning and zoning and we have changed nothing.”

Miller said that there is no doubt that Pine Bluffs’ project is a public roads improvement project that should be allowed, and he inquired as to why the gravel pit at Pine Bluffs was being targeted and not the other 13 or 14 gravel pits in the area.

“Why are we being singled out?” he asked.

“Would you be willing to move out there and live by that day in and day out?” asked Winkelman to Doug Keller, project manager for Pine Bluffs.

Keller responded that he also had a gravel pit next to his ranch home.

“We believe we are in compliance,” said Miller. “If Cheyenne County gives another cease and desist we will stop but the next step will be litigation. When we walked out of here last time it was not encouraging.”

Keller said that “time was of the essence.” Seeing as how the company was expected to meet what was required of them in their new contract starting April 1. He said that the plant was needed to stay where it was to get the road service projects done.

A final decision is set to be made by the commissioners April 15.

Also at the meeting the lack of reserve county Keno funds was addressed and a solution was found.

“As to the disposition of the funds that the county has those could be used for community betterment purposes or for the awarding of prizes,” explained Schaub. “If the county wanted to allocate some of the proceeds that it earned for the purpose of awarding prizes it may do so but you need to be careful because the county can’t use its share to pay the operator because that would put them over 14 percent and the county can’t use its proceeds to pay the bond holders because that would be considered an operation expense which would put you over 14 percent but there is nothing wrong with allocating a part you have for the awarding of prizes.”

To finance the $25,000 winning ticket that was received after the gambling game had received 17 big prior hits, the commissioners decided to dip into a reserve account that was set aside for such occasions.

The money will come from a 2 percent Keno reserve account and $25,000 will only account for about half of the account’s current monetary content.