Court denies appeal in gravel pit case

Earlier this week, the Cheyenne County District Court denied the appeal by Pine Bluffs Gravel and Excavation of a Cheyenne County board of adjustment decision that said the company’s work was in violation of county zoning code.

Pine Bluffs Gravel and Excavation and Cheyenne County have been at odds for many months now, over the company’s work on agriculturally zoned land seven miles west of Sidney, where the company operates a gravel mine.

The case of Pine Bluffs Gravel and Excavation vs. Cheyenne County Board of Adjustment was heard on Nov. 7, 2013, but the court only came to a decision in the matter Feb. 4.

A decision has not been made in the county’s civil suit against Pine Bluffs, in which Cheyenne County attorney Paul Schaub is seeking an injunction to end the company’s work at the gravel mine and batch plant on County Rd. 99. This case was heard in mid-January.

According to court documents, beginning in June, 2012 Pine Bluffs Gravel began excavating, crushing and delivering rock under a contract for work on roads leading to property owned by the Air Force in Cheyenne County. Soon after work began, Cheyenne County served the firm with a notice that the work done at the site was in violation of county zoning regulations and that to continue it needed a conditional use permit.

Representatives from both parties met to discuss the matter. After the meeting, the county determined that the company’s use of the land for the Air Force projects was permitted without the need of a conditional use permit because it was temporary and for public road improvements. The work on these Air Force projects was completed in November 2012.

The company submitted a conditional use permit for the property in January of last year with the proposed use of mining, washing, and storing dirt, sand, gravel and rock, as well as working a sand and gravel pit and sales of gravel and concrete. The permit was denied by the county commissioners.

Then, in March 2013 Pine Bluffs began washing and screening gravel for use in the Interstate 80 project between Kimball and Sidney. The company has a two year contract with the state to provide 250,000 tons of gravel for work on the highway through the 2014 construction season.

Shortly after these operations began, the Cheyenne County zoning administrator served the company with a cease and desist letter informing it that work at the pit was no longer considered a permitted use. Pine Bluffs appealed the zoning administrator’s decision to the Cheyenne County Board of Adjustments, which held a public hearing in the matter at the end of May 2013. The board affirmed the actions of the zoning administrator.

The board found that although gravel excavation for use in a public road improvement project is temporarily allowed in agriculture zones, the Interstate 80 project was not a public road improvement project as defined in the permitted use section of the zoning regulations. The second finding was that the excavation company’s work exceeded the six month limit allowed for temporary projects. Finally, the board found that zoning regulations only allow borrow pits for work on one county road project and not for multiple projects.

At the hearing on the appeal to the board of adjustments the gravel firm presented evidence that there were other pits in the county which were used for multiple projects over the course of more than one year.

Although Pine Bluffs argued that it was treated differently than other pit operators, the court found that there was minimal evidence of this. In addition, the court found no proof that any other pits directly compare to the Pine Bluffs operation in terms of the type and scope of work done there.

Pine Bluff’s main argument was that the board of adjustment’s finding is based on improper interpretation of zoning regulations. The board of adjustments conceded that under permitted use laws more than one project could be completed from a pit, but stood behind the other two findings.

“It is clear that the permitted use is not unlimited,” the court’s finding stated.

Any gravel mining in agricultural areas for public road work lasting more than six months should be governed by conditional use permits, the court’s decision said.

The court denied the gravel firm’s appeal of the Cheyenne County Board of Adjustment’s decision

“There is insufficient evidence in the record to find that the board’s decision was illegal,” the district court’s ruling read.

During public discussions regarding the gravel operation last year, those living near the pit claimed that the huge amounts of dust emitted from the operations were not only an inconvenience, but a health concern. Residents also voiced issue with heavy traffic and noise from the site.

Pine Bluffs argued that it did more than most companies to mitigate dust issues and that the pit was a benefit to the county. The gravel firm finds significance in the fact that the board of adjustment’s initial decision was split, with two of the five members dissenting, according to Don Miller, a local attorney representing Pine Bluffs.

“We’re considering all of our options including the possibility of an appeal to the Nebraska court of appeals,” Miller said. “We respect the court’s opinion but disagree with the conclusion.”