Between a rock and a hard place

PALMER — Mat-Su Borough Planning Commission members may suffer a touch of déjà vu when they’re asked to vote May 20 on a controversial gravel pit permit application.

That’s because after a spirited public hearing on Monday Northern Gravel and Trucking’s application for a conditional use permit to mine up to 40,000 cubic yards of material a year for 10 years the conditional use permit didn’t even make it to a vote in front of the commission.

“I don’t know why they didn’t take a vote,” said Northern Gravel co-owner James Baxter. “I don’t think the (commission’s) procedures were followed correctly.”

Baxter had hoped to have a decision Monday from the commission that aligned with a borough staff recommendation to approve the gravel mine, with conditions. Instead, after an emotional round of public testimony — most from neighbors of the property off Buffalo Mine-Moose Creek Road — the commission failed to move the application to a vote.

Commissioner Brian Endle made a motion to vote on the staff recommendation to approve the permit, but that motion did not get a second, said Alex Strawn, the borough’s development services manager.

“Now we’re putting it back on the agenda under ‘unfinished business’ for May 20,” he said. Because there has already been a public hearing on the application, the May 20 meeting will not include public testimony.

What has Baxter upset is that the commission failed to vote on his application when he believes it should have.

“There was one member who gave a first, but there wasn’t a second,” he said. “But according to parliament procedures, a second isn’t required.”

While Baxter may have an argument with the process for an appeal, the planning commission acted according to its normal procedure when no member seconds a motion, Strawn said.

“Their normal way of doing business is they require a second on motions like that,” he said. “To go forward without a second motion would be contrary to what they’ve done in practice and contrary to what’s in their policy manual.”

For Baxter’s part, he said he feels commission members were swayed by the emotional testimony of neighbors portraying him and his gravel pit as a public menace and a threat to the neighborhood’s safety. In fact, he said, many of those same people are past customers who purchased gravel from him.

One neighbor who submitted a written response to Northern’s permit application included a detailed account of the driving record of Baxter and his operation. Baxter said two can play that game, however, and he found some dirt on his neighbors as well.

“I ran everybody who filed a negative claim on the gravel pit through the court system and it was unbelievable what you find,” he said. “There was one lady, she had a DUI and was also charged with reckless endangerment of a child, and I know for a fact she still continues to drive up there. Another person right around the corner from us, he had two DUIs, and there were assault charges for a couple of others. They want to talk about (what kind) of neighbors we are, but …”

That doesn’t mean Baxter’s gravel mine deserves to continue operating, some argued Monday, pointing out that the pit continued to operate after its two-year administrative permit expired in September 2012. By law, a landowner can extract up to 2,000 cubic yards a year, but no more.

The borough was actually a buyer of Baxter’s gravel, and when it was brought to the borough’s attention that the permit had expired, Northern was told to cease extraction until it could obtain a legal permit, Strawn said.

And while it’s not a popular stance with some residents in the area, the borough has no choice but to recommend approval of a permit that’s legal and follows borough code, he said when asked why staff would recommend a permit for an outfit that had been operating without one.

“That’s a great question,” Strawn said. “Here’s my take on it. If he does not get a permit, then he’ll still be able to, under code, extract 2,000 cubic yards per year. There would be no noise requirements on him whatsoever. He could run that 24 hours a day. Our philosophy is not to say no, but to say yes, with these exceptions to protect the public.”

One of those requirements in the proposed permit include posting a flagger at the stop sign by the intersection of Buffalo Mine Road and Mike’s Lane, which accesses the mine property.

“If you have a flagger up there with a radio, to me that mitigates that concern,” Strawn said of complaints that trucks speed through the intersection, don’t stop and are a danger to children who load on and off school buses.

Baxter acknowledges his permit expired, but said continuing to operate after extracting 2,000 cubic yards was an oversight and not intentional.

“My permit did expire, I didn’t realize it had expired and I had a contract with the Mat-Su Borough,” he said. The borough had made an order for 15,000 tons of gravel shortly before the permit expired and “we kept processing it and kept hauling it and I didn’t even think about the permit we were so busy.”

Some residents of the area aren’t confident that Northern Gravel and Trucking will abide by a permit full of conditions because it didn’t before, said Glen Price, an attorney representing some of those residents at Monday’s public hearing.

“The applicant completely ignored many conditions of the administrative permit,” he said. “It expired Sept. 23, 2012, and until recently, it was still operating without a permit. So I think the issue of prior conduct is very relevant here. If he’s not going to follow conditions in an administrative permit, how is he going to follow them in a conditional use permit? To add more conditions to satisfy people’s concerns is useless. He’s not going to follow the conditions.”

Baxter said he hopes the commission will vote to approve his permit on May 20. If it does not, he said he would likely appeal.

“These people want to bitch and complain about these gravel pits,” he said about those who don’t want them near their homes. “But the sand that sands Buffalo Mine Road (in the winter) comes from my gravel pit. If they don’t want natural resources, let’s park all the cars and start riding horses.”

Contact reporter Greg Johnson at greg.johnson@frontiersman.com or 352-2269.