Joe’s Pit Zone Change Seems Likely To Be Settled In Court

A public hearing was Dec. 7 at Taylor Town hall regarding a request by Brimhall/Rim Country Gravel, LLC regarding an appeal of the Taylor Planning and Zoning Commission’s recommendation concerning a zone change request for Joe’s Pit, which is on Paper Mill Road near Cottonwood Wash.

David Hamlin, representing residents, stated during the public hearing, “Local residents have been relying on area zoning for many years…The Town of Taylor has made it clear that it would consider mining operations on that parcel to be against the town zoning ordinance.” He gave several reasons why this should not be approved, including damage to or destruction of safety, security, health, peace, noise and decreasing property values. There were concerns expressed regarding the company, including, “It is unacceptable that money and influence should prevail. I trust it will not.”

Kirk Brimhall, representing Brimhalls, gave a history of his company during the public hearing. He explained that it is regulated by federal and state mining rules, and that unannounced visits are made to ensure it is in compliance with regulations. He explained that he spoke with former councilwoman Meryl Dunaway and planner/consultant Greg Loper, who had been hired to write a general plan as state statute required, and both had assured him that the general plan would protect the mineral rights so he didn’t worry about it.

“I was perplexed when I went to pick up the application for a sand and gravel operation” and was told it wasn’t allowed, he said.

Brimhall noted that the firm provides an economic benefit to the community, not only with approximately 100 employees, but by purchasing as much of its supplies locally as possible, and with the Snowflake pit, he requested that the taxes be paid to the town at the point of delivery rather than where it is picked up, which gives a two percent sales tax revenue to the town of Snowflake. He said he would do the same with Taylor.

“I encourage the passage and preservation of our jobs and the sand and gravel reserves that need to be protected for the public benefit, safety and welfare for the entire area,” said Brimhall.

Hamblin referred to SB 1598 sponsored by Senator Sylvia Allen, and stated that in his observation of the bill, Brimhalls did not meet the standards.

Spencer Smith, attorney for Brimhalls, said that in his opinion, SB 1958 protects this operation.

“Obviously, if denied this will raise the argument in a judicial position,” said Smith, noting they have done the archeological and environmental studies, and have a reclamation plan.

“There’s a number of issues here, it’s not going to be simple,” said Smith regarding litigation. “It will be an issue if cities and towns have authority to regulate mining, and every city and town will be interested in this case, as well as mining, because it’s a statewide issue.”

Mayor Hatch asked Hamblin and Brimhall to come to the podium following the council members’ return from an executive session where they received legal advice.

“Would you be willing to try and organize so we could have a representative from the neighborhood?” asked Mayor Hatch of Hamblin.

He replied that he would be willing to help with an ordinance, but would deny the zoning change request.

When Brimhall was asked that same question, he was in favor of working with residents to create an ordinance.

Both agreed they have wanted a sand and rock ordinance from the beginning of plans to open Joe’s Pit.

Brimhall said he felt the ordinance should “offer protection to the property owners and not take away our property rights.”

Hamblin was in favor of an ordinance, but in no way wanted his participation construed as compromising with the aggregate operation.

“That is my view. I would never want my participation to be construed as to giving in to this going forward,” said Hamblin and Harvest residents applauded him.

“That would be our proposal,” said Mayor Hatch, who had explained that he would like both parties to create an ordinance with the support of the town staff. “I throw that out there to see if you would be willing to do that,” noting the council has discretion to postpone a decision for two more meetings, which would be two months.

“But you run the risk of losing everything if it goes to the courts,” Mayor Hatch said to the residents of Harvest Valley.

“As we look at new Senate Bill 1598… It’s a brand new senate bill,” said Councilman Alan Ramage, explaining that Hamblin interpreted it one way and Brimhall’s attorney interpreted it another. “We run the risk of being an example to the whole State of Arizona and going to litigation.” The councilman expressed concern that if Brimhall’s won the litigation, the town would be obligated to pay the firm for what it lost, which could be millions of dollars.

“We have a letter from Senator Allen, which explained some things, but it left me in much doubt of what is in SB 1598, and I think its going to be litigated and litigated to where we don’t know the outcome,” said Ramage. He noted that Allen was putting through a referendum to put teeth into the bill.

Hamblin said that Allen indicated to him that the law was to be interpreted in favor of the residents and that she was going to put an amendment, not to put teeth into it, but to protect the towns’ zoning capacity, and felt that was a further defense for property owners.

Vice Mayor Jane Lee pointed out that would take some time, and Ramage noted that before that, the council must make a decision.

“I don’t think we have any control over that. I think it will be decided in court and we’re giving you, tonight, some say in how it turns out and keep it from going to court,” said Ramage.

“To put it bluntly, folks, this council doesn’t seem to have the power, because of the mandates that are coming down, but we have the power to make a decision. This council is almost ineffective in this matter,” said Councilman Gary Solomon.

The council gave both parties time to discuss the situation with others they were representing.

When they reconvened, Hamblin said they would be willing to write an ordinance, but they will take their chances in court.

Lee Hale, a Harvest Valley resident, was adamant that they take their chances in court and not make any attempt to negotiate. He said he felt the town had been unfair to the neighborhood since it was incorporated to have use of the well.

“You’re not listening to me,” said Mayor Hatch.

Hale responded, “I’ve listened to you four times.”

“I feel like we’re making a mistake by making a decision with the emotion,” said Councilman Mark Reed who had stated previously that it’s not clear legally where this is going, but noting that both sides feel confident they will win if it is litigated. “The only thing I’m confident in, is if you can negotiate something in a friendly matter you would at least have an opportunity to have some say so in how that would happen, because if it goes to litigation, you’ve lost your rights.

“I understand where you’re going, but I feel like you’re rolling the dice,” said Reed to the property owners.

A motion to table the issue for 30 days passed in a 6-1 vote, with Mayor Hatch opposing it.

David Hamblin (left), representing residents of Harvest Valley, and Kirk Brimhall, representing Brimhall Sand, Rock & Building Materials, spoke at a hearing last week regarding a request by Brimhalls to appeal a zone change in order to mine aggregate at Joe’s Pit in Taylor.