With emergency gravel zoning set to end in May, many wondering what to expect of permit process

While the group charged with coming up with a long-term plan to the contentious issue surrounding gravel pits is shopping its plan to planning boards around the Gallatin Valley, County Attorney Marty Lambert is looking into a pressing question about emergency interim zoning.

Emergency interim zoning ends in May and industry officials, government workers and concerned residents are wondering what will happen with new grave applications and to the handful of pits that went through the permitting process under the emergency rule, Lambert said.

"It's a pretty simple question, but the answer might not be so simple," he said.

Since interim zoning was voted in last year, four pits have gone through the conditional use permitting process, according to county records.

The permits require pit operators to mitigate their impacts on their surrounding, namely those involving noise, traffic and water issues that the state is unable to control.

But with interim zoning ending in May, the planning department has asked Lambert to answer the question, planner Tom Rogers said. Without a zoning ordinance in place, it is unknown if the permits can be enforced.

Lambert said the issue is similar to a recent commission decision on billboard regulations in the North Gallatin Canyon District Zoning, voted in place earlier this month.

"The Montana Supreme Court has addressed non-conforming uses in several cases, but what they have not addressed is an amortization provision," he said. "All kinds of courts around the country has dealt with that issue and Montana has not. Now we're moving on to an area of the law that asks what happens when interim zoning expires? What, if, anything, can the county do? There may not be a concrete answer in Montana case law."

After more than a year of early morning meetings, the Gravel Pit Task Force hatched a recommendation calling for overlaying the entire county with a single-issue zoning district to govern gravel pits. The proposed regulation would require pits to mitigate plans much like the current interim zoning rules in place.

The task force recommendation goes before the county commission Dec. 8 and commissioners have said they are not interested in imposing a countywide ordinance. But commissioners have said they are willing to let other zoning districts in the county to use the document to govern pits.

"I don't think it's legal," Commissioner Steve White said regarding single-issue zoning.

White said the two mining operations along East Cameron Bridge Road that were the impetus for zoning last year will likely fall under a zoning ordinance. The pits fall under the Belgrade planning jurisdiction and the City-County Planning Board is currently writing regulations.

But residents are concerned that the newly permitted pits along with other mining operations seeking to expand will fall through the cracks because most are not located in a current or proposed pit, said Carol Lee Rourke, Gallatin Opencut Mining Action Group leader.

"We'll be back where we started," she said.

The answer to non-conforming uses may lie outside the state's boundaries, Lambert said.

"In many of these cutting edge land use issues, and we seem to confront them all the time, do not have clear cut direction from the Montana Supreme Court or the district courts," he said. "And whenever that's the case, lawyer's looks to the highest courts of other states or federal courts. There's nothing specifically from the Montana courts to deal with it."

The issue goes before the commission Dec. 8 and Lambert said he will have a formal opinion at that time.