Appeal Of Recommendation To Deny Zone Change For Joe’s Pit Is Denied

Upon their return to regular session, council members heard comments from Kirk Brimhall, who represented Brimhall Sand, Rock & Building Materials-Rimrock Gravel, LLC, and from David Hamblin, who represented a room full of citizens living near the proposed gravel operation.

Brimhall began by showing a map identifying areas of mining operations within the town, especially in the west. He said that the map represents approximately 500 acres, with his firm’s area being approximately 80 acres. “This is something that has been going on for about 50 years,” said Brimhall.

Brimhall read several passages from A History of Taylor and Shumway by Dr. Arvin Palmer, including how the planning and zoning commission was organized. He also read copies of council minutes regarding the adoption of the general plan, as well as a letter from the law firm Lewis and Roca, LLP.

The Lewis and Roca letter included a legal analysis, which stated in part, “In its GP (general plan), the town has clearly indicated a public policy acknowledging the presence of aggregate materials in the western part of town, and identified the industrial classification to permit mineral extraction in that area.”

It went on to note that the state legislature requires governments to identify areas where aggregate materials exist and to provide policies to preserve aggregate extraction use in those areas, and that state law requires zoning ordinances “be consistent with and conform to” the adopted general plan.

In conclusion, the letter stated, “If the mayor and council denies your rezoning request in the western portion of town, in an area that has been identified on a state-agency approved map as a location of aggregate resources, the town would violate the state statutes…”

Brimhall then read a letter from Spencer A. Smith, DeConcini McDonald Yetwin & Lacy, attorneys at law, that reviewed the zoning history, the impact of SB 1598 and Arizona Land Use Law.

The summary stated, “However, in this circumstance, it is clear that the residents of this area are aware that the area contains extensive aggregate resources, that they are co-existing with two large active operations and that they have presented no evidence that the applicants’ operation will diminish land values from their current valuations.” Brimhall said he had talked to the county assessor and found that the existing sand and rock operations did not diminish land values.

The Smith letter further stated, “In the long run, aggregate resources such as this are relatively scarce, they obviously can only be developed in areas where they are found, and they are important to the wellbeing of all residents who use the public roads. To deny the development of this resource would not only violate applicable Arizona use laws, including the mandate of SB 1598, and be inconsistent with past zoning decisions by mayor and council, it would deny residents of northern Arizona an economical aggregate resource that is necessary for continued maintenance and construction of the road infrastructure, and would deny the residents of Taylor the employment opportunities and tax revenues that would result from this operation. Denial would also likely expose the town to expensive litigation that would be detrimental to all the citizens of the town.”

Hamblin, who represents residents who oppose the rezoning for Joe’s Pit and the mining operations on those parcels, cited the fact that this would “be incompatible not only with the current zoning, but with the nature of the neighborhood,” and it would be “unhealthy and dangerous for residents, especially children.”

Hamblin read a letter dated Jan. 25, 2012, containing notes regarding mining activities at Joe’s Pit. It said that town officials have made it clear that they would consider it a violation of the town’s ordinance to consider mining activities and that it would be a violation of the town ordinance.

Hamblin submitted a copy of his notes that presented a different opinion of SB 1598 than that given by Brimhall, and included a statement from Senator Sylvia Allen, a prime sponsor, that stated it was her understanding that, “The bill would not have a retroactive effect that would damage the town’s power to zone or to enforce its zoning.” Hamblin also stated that Senator Allen indicated that “Stuart Kimball, who played a key role in drafting the legislation, agrees with this interpretation. Still further, the State Mining Inspector himself, while in Taylor some years ago to hold a hearing on the proposed reclamation and closure plan for the parcel, said outright that the best government is local government, indicating that here in Taylor is where the question of whether to permit mining to move forward on a particular parcel, within town limits, should be made.”

Hamblin went through 11 concerns, including “damage to or destruction of the safety, security, health, peace, property values and character of a wonderful residential neighborhood; questionable degree of good faith exercised by BSRMB (Brimhall Sand, Rock and Building Materials); the plan provides no details on the reclamation of areas and for all practical purposes, our neighborhood will have been indefinitely shattered; the plan indicates that ‘settling ponds will be scattered on the property as needed,’ and the stagnant water could present a drowning hazard for children and animals; the plan does not clearly indicate where the topsoil would be stockpiled, expressing a concern of wind erosion; a possible 4,700+ truckloads of material per year would devastate their road; the high-frequency noise levels of the operation; the pervasive scent of diesel fuel, engine exhaust and perhaps asphalt product; the fact that Brimhall stated in the planning and zoning meeting of Oct. 19, 2010, that he didn’t want to have construction traffic next to a residential area and church, feeling they should give that same consideration to this; and that mining here would set a terrible precedent.”

“The town could face a minefield of potential, perhaps litigable inconsistencies, if others jump at the chance to change our zoning map into a checkerboard. I don’t want such a legal mess for my town,” said Hamblin.

The town attorney explained that if the council approved the zone change, it would not allow Brimhall’s to start mining, they would still have to go through planning and zoning process, and if it is denied they could make an appeal to the courts.

Solomon explained to the council members that they must vote to deny or approve the request, and if the vote was done by roll call, each council member could make a statement.

Each council member spoke of how difficult this decision was to make.

Councilman Gary Solomon said, “I need gravel myself…I’m not particularly fond of the state mandating all the rules to a council. Having said that, this one is a little unique; it’s a little different because of the timing, the timing of what needs to happen on the Brimhall side and what needs to happen by all the residents that live there.” He then moved motion to deny the appeal of the planning and zoning commission’s recommendation to deny the zone change request from Brimhall Sand, Rock & Building. Vice Mayor Jane Lee seconded his motion.

“This is a hard thing to vote on, because I feel the strong feelings from both sides of this argument, I have sympathy for both sides,” said Mayor Fay Hatch. “The people in that area live in an area where the gravel is not going away; they’re going to be fighting this for a long, long time. Sadly, the decision we make tonight is not going to be the end of it. I’m sure of that.”

The mayor noted that prior to his election to the council, he was asked about this. He said that he didn’t know many of the details, but commented, “We’re in an age when jobs are hard to come by and we need to do everything we can as a council to promote jobs.”

“This is a serious situation. I’ve taken into account the fact there is a battle, in a battle you have opposing forces. We have a valuable asset, on the other side we have human beings, we have a nice quiet neighborhood,” said Councilman Shawn Palme, who noted that he was for “true” economic development, things that truly help the local economy and our finances. He said he appreciated the Brimhalls for the employment they have provided to the community over the last 55 years. He appreciates good roads, but in the end he asked how you would like having mining or some type of farming such as a pig or chicken farm near your neighborhood.

Palmer expressed concern that if the council allows this appeal, that “zoning means nothing.” “Why do we have zoning if zoning means nothing?” he asked.

Palmer voted in favor of denying the request.

“I think everyone knows how I feel. I vote no,” said Mayor Hatch.

“I think that my sensitivity as a woman goes back to families and safety for children and neighborhoods that are established. Citizens need to know they can be protected,” said Vice Mayor Jane Lee as she voted aye.

Councilman Alan Ramage, an educator, said he had done his homework, researched it, talked to everybody that he knew that day to get their thoughts and had toured the area several times. “I hadn’t made a decision when I came today,” he said, noting he has taken many legal classes. “I always hated law because you have to take out feelings. Everything in my heart points to me that I’m taking care of my 4,000 people in the Town of Taylor,” said Ramage. “I vote with the hope that the government and future litigation that will be done after this, but in the back of my heart I hope that people’s rights will be looked at, so I vote ‘aye’.”

Councilman Solomon had already stated his feelings and said, “I vote ‘aye’ with some regrets, because of the employment situation, that bothers me.”

The motion to deny the appeal carried in a 4-1 vote.

A motion to table renewal of the town manager’s employment agreement until Feb. 7 passed unanimously.

Council members Jared Hatch and Mark Reed were not able to attend the meeting and had requested that this item be tabled.