City, county throwing stones over gravel pit

A city planning commission meeting Monday night was marked by frustration, confusion and lengthy discussion in an attempt to understand and work toward solving issues with a tract of land currently occupied by a sand and gravel pit.

Representatives of the Kielian Family Trust owns the ground in question. The gravel pit is located east of Sidney one half mile south of the intersection of Roads 20 and 117. Representatives with Kielian Family Trust met with the planning commission to appeal the violation of a conditional use permit and the order to cease and desist storage of concrete and asphalt at the gravel pit.

This pit is actually located in Cheyenne County and is not within the city limits, but is inside the city's two mile zone of influence. This complicates matters because all decisions in this matter would seemingly benefit from input from both city and county officials.

State law says that for first class cities, which includes any city of more than 5,000 people, the zoning jurisdiction extends an additional two miles beyond city limits.

"The idea is for the city to have influence and control over those zones so you don't have operations that may impede upon the future growth of the community or create a situation that would cause issues within the community," said city manager Gary Person.

Tom Sonntag filled in for city attorney J. Leef at this meeting.

"Miss Leef did notify the Kielian interest that they were in violation of their conditional use permit by storing asphalt and concrete on the property," Sonntag said.

The Kielian Family Trust was issued a conditional use permit to remove sand and gravel from this pit last November, but have been using the area for other, non-permitted purposes as well. A conditional use permit is needed when a business or individual wants to perform activities on ground that isn't zoned for those activities, but doesn't want to re-zone that ground. In this case, this particular plot of Kielian ground is zoned for agriculture, so the trust needs a conditional use permit to perform the commercial work of removing and selling gravel and sand. Usually, conditional use permits are issued for temporary work.

Brad Rowan, the city's zoning official showed those present at the meeting pictures that demonstrate violations of the conditional use permit. He presented 11 photos to the commission. These photos exhibited a stockpile of excess concrete removed from somewhere else and stored on the site, as well as many separate piles of asphalt grindings. He estimated there were around seven or eight piles of asphalt and one pile of concrete.

Thomas Kielian, trustee of the Kielian Family Trust spoke on behalf of the family business.

"I believe that the permit covers the asphalt," Kielian said. "Because it's part of the process of redoing the roads. The law requires a certain amount be put back in, blended back into the new mix."

The concrete piled near the site isn't in the gravel pit, he claimed. This concrete belongs to Paulsen, Inc. and is leftover from the Sidney Airport project. It is being stored there for future use. Kielian claimed that he is keeping some of the concrete to put in the creek running through his property to keep the corners from washing out.

"I believe that if a person is paying taxes on their property, they should be allowed to store some concrete riff-raff if they live along a stream to put in for emergency for keeping the stream from washing out," Kielian said. "I don't think the concrete should be an issue here, or the asphalt for that matter."

Kielian said he'd like to apply for any permit he needs to store the materials currently in violation in the future.

"I would like permission to have some millings stored out there as we put them on our driveway out there to stop erosion," Kielian said. "I'd like to have a little in case we have a pot hole or what have you."

The main issue that has caused the neighbors to ask for the cease and desist for activity not permitted in the conditional use permit is the large amount of traffic on nearby roads when the asphalt plant is in operation on the property, Kielian added.

He claimed that the person at fault is the county road superintendent. The best solution to this problem is a paved road leading to the pit, Kielian added.

"I feel that we're kind of being singled out here because of the road the county is not taking proper care of," Kielian said.

The Kielian Family Trust doesn't make a large amount of money from the property, Kielian added. Local construction companies and hot mix plants reap more benefits from this gravel pit than the Kielian family, he said.

Werner Construction plans to use the millings stored at this location for the two upcoming crossover projects at Sunol and Lodgepole. About 7,000 tons of asphalt millings at the Kielian site are earmarked for these projects. The Sunol crossover will be constructed in October and the one in Lodgepole will be completed in late spring.

The State of Nebraska generally hauls off extra millings after a state project is completed, Kielian said.

Some members of the planning commission weren't satisfied with these explanations.

"When we approved this a year ago, we had considerable discussion about the traffic," Dave McCarville said. "I don't recall ever talking about bringing loaded trucks into the pit. I'm just really confused about how we went from pulling the sand and gravel out of there to bringing stuff in there. Because as I recall, the conversation was over and over about the traffic coming out of the pit."

There were around 200 trucks per day going up and down that road when the asphalt pit was operational.

"Earlier this year, there was certainly an extraordinarily high amount of traffic," said Terry Wilhem, with Werner Construction.

McCarville expressed concern that the traffic density was much higher than discussed when the permit was issued.

"There was a lot of activity going on at that pit this summer," Wilhem said. "We did our best to maintain the roads and water the roads, because we knew there was a lot of traffic."

Although the neighbors are not happy about dust resulting from activity at the pit, the real legal issue on the table Monday night was storage of materials not approved in the conditional use permit.

"When we get back to the original application that you asked for a year ago, which was for the removal of sand and gravel, there was never any discussion about bringing in asphalt, or concrete or anything like that," McCarville said.

The commission decided that the concrete pile was a separate issue from the asphalt piles. The Kielians touted the benefit of their gravel pit to the community.

"I don't think anybody disagrees with the benefit that it has to everybody but the problem is, is the way that the permit was written and we've got to stick to the way the permit was written," McCarville said.

On previous permits, materials could be stored on the property and hot mix plants were also allowed from time to time, according to Kielian. He wondered if each permit renewal had to allow this activity specifically.

"I think each permit would stand on its own," Sonntag said.

If Kielian cannot run hot mix plants out of the pit, it will drive this business away from Sidney, Kielian claimed.

Hot mix plants will set up in other areas instead of Sidney, Kielian said. Materials for road work will then have to be trucked in, which will cause prices to go up.

"For all the obvious reasons, it does have benefit to the community," Person said. "But you know, it's not that we're here to disagree with the merits of it, it's the permit itself."

Person suggested that issues could be solved in the future with application for further permits.

"We're being challenged by people who are having issues with this, that this is what was allowed. What is occurring is outside the parameters of that," Person said. "So that's what needs to be determined. That's not to say that at some point you don't come back with a modified conditional use permit."

The commission decided to allow the asphalt to be stored on the grounds for an additional nine months to allow Werner Construction to use the asphalt in the crossover projects. At that point, Kielian could apply for another permit for any additional uses.

All present planning commission members voted yes on this issues, excepting McCarville, who voted against it.

Members of the planning commission wondered what those living nearby had to say about the traffic around the pit.

"I think we've had conversations with all the neighbors," Person said. "We've been out there periodically."

The pit's neighbors who were present at the meeting claimed that dust from trucks going up and down the road by the operation overwhelmed their yards for much of the summer.

Most of those present at the meeting agreed that putting in a new road to the pit, public or private would resolve many problems with the neighbors. There are a plethora of issues that must resolved before a new road could ever be built.

"We'd be in favor if they put a road out there," Kielian said. "That'd be great. I don't know the appropriate steps or what has to be done to do that."

Part of the land in which a road could be built is owned by the Union Pacific Railroad. This means the right of way would have to be purchased from them.

"I can tell you from dealing with the railroad on lots of different issues that you're looking at months if not years to try to get that resolved and you've got all kinds of negotiations and appraisals and everything else," Person said.

Another option would be to hard surface the road, to eliminate dust.

"We have had discussions about what would be the most logical way to fix this issue," said Cheyenne County Commissioner Steve Olson. "There's a lot of factors involved."

To hard surface the current road might cost in the ballpark of $300,000, which is too costly for the county at the moment. Those present discussed buying ground for a private road from a local landowner, but the landowner was not interested in selling any ground. Plans for any road would have to result from cooperation between the city and county, Olson said.

All agreed that members of the city and county needed to be thinking about ways to solve issues with dust and traffic related to the pit and related hot mix plants in the future.