Commissioners decline gravel permit

Yesterday morning members of the Cheyenne County Board of Commissioners came to a conclusion on the application for a conditional use permit from Pine Bluffs Gravel and Excavating Inc. for the proposed use of a gravel mine to operate a ready-mix concrete batch plant.

The commissioners moved to deny Pine Bluffs representatives the permit.

A problem had arisen after the company began operations last summer and residents neighboring the operation site said that the dust, noise and traffic created by the business made their homes quite unlivable.

City of Sidney Planning and Zoning Commission members had previously unanimously recommended to the commissioners that they deny the permit, and there was also a public hearing and many opportunities for both sides of the matter to present their opinion.

An opportunity for both parties to meet and come up with a compromise and mutual understanding was also allowed, but no agreement was brought forth.

“The matter was taken under advisement under somewhat unique circumstances allowing both parties the opportunity to reach some kind of resolution,” said Paul Schaub, the attorney for Cheyenne County. “It appears no resolution was made, which means it’s back on the table.”

Craig Martin, an Omaha attorney working with Sidney attorney Don Miller on behalf of Pine Bluffs, was also in attendance at the meeting. Martin started off the day’s discussion.

“We can appreciate Mr. Schaub’s position on this but we want to make sure of a couple points before the commissioners rule and that is Pine Bluffs applied for a conditional use permit to use the ground in addition to a batch plant, but also to mine aggregate,” said Martin.

“That conditional use permit was simply submitted so that they could sell in the private market aggregate from the mine. It was not submitted for permission to utilize the ground for the I-80 project.

“It appears that the I-80 project is allowed or the Pine Bluffs excavating and mining of aggregate is allowed for the I-80 project,” he continued. “The conditional use permit was simply to allow Pine Bluffs to sell to private individuals for construction projects and what not – not related to public roads projects.”

“Secondly” he said, “the batch plant was a portion of the application. Pine Bluffs has since then sold the batch plant and will not be batching concrete on that ground and would only like to use that ground in addition to the I-80 project for private use - for private mining purposes to sell that aggregate to private individuals.

“We do have another issue pending before the county and before the planning commission however,” he said. “That is based on a cease-and-desist letter sent out in March.

“The cease-and-desist letter indicates that Pine Bluffs use of the property is not allowed under 5.12,” he added, referring to a zoning law.

Martin said that although the letter was not a part of the day’s discussion, his team believes that it does allow for Pine Bluffs to operate at a minimum of six months per year on a public roads project and mining gravel.

“There have been some efforts to settle the matter,” he said. “Mr. Miller did write Mr. Reynolds a letter. Letters were exchanged on Friday and there were conversations between Mr. Miller and Mr. Reynolds.

“The comment from Mr. Reynolds was that there has to be a monetary, some kind of cash, payment. We asked for an amount and no amount has been forthcoming.

“So settlement discussions are still continuing, but I can’t say we are optimistic,” he said. “But we are certainly at the table ready, willing and able to discuss with them a reasonable settlement of this situation.”

Bob Reynolds, the Ogallala lawyer representing the Craig Harrison, Brad Sutton and Chad Hrbek families, was also in attendance at the meeting.

“I appreciate the discussions that took place Friday and the letters that went back and forth being brought to your attention,” he said.

“I noticed when the initial letter was sent to us some days after the hearing, in which the commissioners indicated a desire that the parties get together and work things out, that the two letter are rather revealing.”

Reynolds said that the letters did not offer much compromise.

“The initial letter to us was basically along the lines of ‘We’ll get together and tell you what we intend to do going forward and whatever we do is going to be our decision and we’re going to try and do a better job.

Not withstanding the fact that we haven’t shown any willingness to do that in the past, and as far as the specifics are concerned if we perceive that there is a problem then we’ll take some action.

“But it’s on the basis of what we think is a problem, not what you think is a problem and the action that we take is going to be for us to decide not for you to decide.’”

“There wasn’t anything new in that correspondence,” said Reynolds. “We explained point-by-point why it wasn’t and why it was problematic still.”

Reynolds said that last Friday (one business day before the commissioners’ decision) he received a phone call from Don Miller asking if the two parties would like to get together.

“Of course at that point I had to explain that my clients have spent a lot of money and are likely to spend a lot of money to peruse the damages that they have sustained thus far for some sort of recompense.

“Getting together in the absence of something new beyond the letter that was written to us doesn’t make a lot of sense because of course my clients would be spending more money,” he said.

Reynolds said he explained to Miller that to reach a “global settlement,” both parties would have to sit down and talk about everything that had happened, action to move forward, and compensation for damages thus far.

The attorney said that the global settlement would avoid his team from having to file a lawsuit to recover damages his clients have sustained over the duration of Pine Bluffs’ initial project.

A Tense Debate

“Counsel for Pine Bluffs and us, and apparently the county attorney, can agree to disagree on the application, and that may end up resulting in something down the road.

“But the bottom line is as far as the special use permit that has been put in front of this commission, the planning commission voted unanimously to deny it and the perception and the bottom line is this should never have come to this,” said Reynolds.

“This is something where you have been placed between a rock and a hard place. You should have had the opportunity to decide this when someone was moving into an area that was residential, and you should have had an opportunity to decide this before it began.

“Now instead you find yourself forced with a decision that involves a company that has begun operations and families who have already been damaged.”

Reynolds continued, “And really because you’ve been painted into that corner, it’s as though it gives you no choice - at least in our perception.”

“To say that Pine Bluffs has placed the commission in an odd spot - I don’t agree with that at all,” rebutted Martin. “This is agricultural land and the planning commission has adopted ordinances that provide for specific uses for this agricultural land, including mining gravel for public roads projects.

“Pine Bluffs is utilizing that plan as specifically allowed and authorized by the county. I don’t believe that that places this commission in any awkward spot and is improper.

“Now we are simply seeking an opportunity to better utilize this land and extract additional aggregate from it,” Martin continued. “The use of the land for the I-80 project is not before this commission at this time.”

Reynolds said that the overseers of Pine Bluffs’ operations moved the business into the residents’ space – not the other way around.

“If our folks had moved into a neighborhood where a facility like this was operational, then that’s on them – they made that decision. But they didn’t.

“This moved into where they lived and as you heard at the last hearing, at least one of these families has been forced to move and try and sell their property. And they have been unable to do so.”

Randy Sutton, a concerned citizen, said that it appeared that the Pine Bluffs’ team planned to continue with their projects no matter what problem they were informed of.

“Mr. Keller (Doug Keller, Pine Bluffs’ pit manager) came to tell the people of Cheyenne County that we are going to do road project whenever we want to, wherever we want to and however much we want to,” said Sutton.

“I applaud that big business can walk in here, walk right next to a subdivided area that is subdivided for homes - not agricultural property, move in right next door and make the mockery of this.

“Not four days ago this same organization mudded up the state highway and shut down traffic and had to make the sheriff come out there and make them correct this,” said Sutton. “This is an ongoing problem that is going to go on as long as this situation keeps going.”

Sutton said that he was in a similar situation years back, and that at the time he was being sued for $3 million. He said he won the case and didn’t ask for damage costs to be repaid, which he says was a mistake.

“We took it to court and won but forgot to tell the judge that I needed damages. So I won the case, but lost the war,” he said.

“As far as a big corporation from out of the area,” said Keller, “Pine Bluffs Gravel is owned by a guy who was a Kimball graduate. Him and his wife both graduated from Kimball County and he grew up on a farm there.

“He is now a farmer in Laramie County and Kimball County. To say that this is a big corporation? This is a family-owned business that employs a lot of people in our area.

“This is not an out of the area corporation or something like that - these were people who were raised and grew up here,” he said.

“I’m a material supplier for one project - Interstate 80,” said Keller. “I’m not aware of another place to get sand gravel in Cheyenne County that meets the requirements for the Interstate 80 paving project.

“If you think we should just do it somewhere else, the cost of trucking these materials in is very large and we have worked with the Nebraska Department of Roads over the last four years to develop alternatives so that we could save the taxpayers money and use local aggregates wherever possible for concrete,” he continued.

Although the new debate (and some rhetorical) was heard, the commissioners made their decision with no hesitation.

Commissioner Ken McMillen moved to approve the resolution proposed by Schaub regarding the use in mining, washing and storing dirt, sand, gravel and rock, and working the sand gravel pit in sales of gravel and concrete.

The resolution denied Pine Bluffs the application for the conditional use permit.