Borrow pit, mining regulations to be amended

Current Kimball County Zoning regulation section 5.02 states that an asphalt or concrete batch plant and borrow pits used temporarily and exclusively for the completion of a public road improvement project is allowed in A1 and A2 agriculture zoning districts and in section 5.03 borrow pits are listed as a conditional use with the approval of a permit.

However, when the Planning Commission began working on zoning regulations for Kimball County, landowners were told that if their property was used in a certain manner, it would be “grandfathered in” as a conditional use until such a time as it was no longer used in that way.

In 2010 the Planning Commission, with the help of PADD, wrote the zoning regulations after the Kimball Mayor, council president and economic development director approached the Kimball County with a request for zoning for business development, according to Planning and Zoning Administrator, Sheila Newell.

Rick Soper, Chairman of the Kimball County Board of Commissioners at the time, asked the planning commission to come up with regulations at that time, Newell said, and the planning commission invested many hours working on county zoning and adding definitions according to state statute. The zoning regulations were finally adopted that year and the document has been amended a couple of times since.

Kimball County has now begun the process of amending the sections, as well as adding definitions that will restrict the use of borrow pits for commercial use.

Additionally, the Planning and Zoning Commission has been tasked with defining the difference between a borrow pit and a gravel mine and most recently, at the March 21 Kimball County Commissioners meeting, the planning commission was asked to further define the limitations on “grandfathered” borrow pits, or those that are currently operating as non-conforming use.

According to Travis Freeburg, a Kimball County landowner, essentially, the county zoning commission is trying to implement new rules that any new pit in the county has to be permitted unless it is used personally.

Freeburg said that often, for contractors awarded a job requiring gravel, time is of the essence and that the proposed regulations will present a hardship to those contractors – effectively killing jobs.

“Say there is a missile base road project that goes out to bid. Once it is awarded, the contractor must start right away with materials,” Freeburg said. “They want a pit close to the project for economic purposes. Before (these regulations) that was never a problem, it was an economic boost to landowners and new jobs are created.”

Now, Freeburg said, the permitting process could take several months, forcing the contractor to purchase material from an existing gravel pit.

“Kimball County has always been business-friendly and more regulations will hurt economic activity. Competition in the marketplace is key to consumers and that includes road construction, so the public can get the best bang for their taxpayer buck,” he said. “The problem is Sheila Newell (Kimball County Zoning Administrator) has the largest gravel pit in the county. It is a huge conflict of interest in my opinion.”

Commissioner Tim Nolting argued that there are several different issues and misunderstandings regarding the proposed regulations.

He said that in the beginning the concern arose with a contractor mining from a property owner’s borrow pit, complete with heavy equipment.

“To me, a borrow pit is a piece of property where you take what is there and move it from one spot to another,” he said. “He was mining for gravel – that is a mining operation. You excavate, dig, crush, sift, grind – that’s a mining operation.”

Someone noticed the operations at that time, according to Nolting, and contacted Newell, who said that a permit was needed for such activity.

“In this situation the permit was applied for and granted without any further concerns,” Nolting said.

According to Doug Keller, co-owner of Apex Sand and Gravel, the amendments came about after he was awarded two jobs last fall, over a company that works out of Newell’s pit.

The pit Keller said he planned to use, on land owned by Curtis Williamson, had been in use since 1998, a fact to which several people were willing to testify.

“To my knowledge there has been no problem that created a need for this,” Keller said. “We had not even broken ground yet and were given a cease and desist order by Sheila (Newell), before we had even begun mining.”

He added that there is nothing in the regulations that state how often, or how long, a pit must be in use to be deemed “grandfathered”.

“These amendments will require us to get a permit before we can even bid a job, they will require anybody who does asphalt or concrete paving to get a permit prior to beginning, a process that takes about two months,” he said.

Though the permitting process is meant to be completed in around 30 days, and cost just $150, according to Nolting, it allows all adjacent landowners the opportunity to be notified and oppose or agree to any such non-conforming uses that have not previously been grandfathered in.

He added that special meetings can be convened with just ten days notice for permitting purposes in urgent situations by both the Planning and Zoning Commission and the Kimball County Board of Commissioners.

“There seems to be an impression that the changes we are making to it are more restrictive, and it is not. All it is doing is putting a definition to the difference between a borrow pit and a gravel pit. What the definition says is that a borrow pit is for your personal use. If you start selling it, that is a commercial operation, you are going to need a permit,” Nolting said. “Permitted use is very, very, very seldom denied.”

He further said that the measure is not overreaching, nor is it a conflict of interest, and without regulations there would be mayhem.

“There is no way at all it can be a job killer. It just has to comply with, basically, state and some federal regulations and we bring it down to the local level,” he said. “I also do not see any conflict of interest here. Sheila (Newell) has no voting power.”

Keller, who believes there will be a conflict, said, “My two biggest concerns are first, potential selective enforcement of the new amendment and second, the fact that the person doing the enforcing is the largest recipient of gravel royalties in the county. Will Ms. Newell enforce this fairly, even if it is costing her money?”

He added that no other rural county in the area, Banner, Deuel or Morrill Counties, has this kind of policy in place and that he expects it to be a concern when bidding for jobs.

“My family owns a gravel pit, so we could substantially benefit but I don’t think that is fair for other landowners in the county. I don’t think it is right for the general public,” Freeburg added. “Grandfathered pits are chosen by that board, which was hand-picked by Newell. I think it is government overreach with conflict of interest involved.”

“She has no voting power,” Nolting said. “There has been turnover (on the board). A year ago there were two ladies from the City of Kimball on the board – they resigned and there are two new people on that board.”

The board is comprised of cattle ranchers, dairy owners, farmers and businessmen according to Nolting, all of whom just want to do what is right for Kimball County landowners, contractors and citizens.

“We place a lot of trust and confidence in these young gentlemen (the planning commission), they are the future leaders of our county and they have truly dedicated their time, effort and knowledge with an attitude of responsibility and concern for the welfare of our county,” Newell said.

The matter is scheduled to be discussed at the April 17 meeting of the Planning and Zoning Commission as well as the April 18 Kimball County Commissioners meeting.