Essay by Forrest Whitman
Land Use – June 2002 – Colorado Central Magazine
RECENTLY I VOTED with the Gilpin Planning Commission as we sent a gravel pit and reclamation project down to the Court House for decision by the County Commissioners. During the break I swear I heard some of the neighbors muttering “Kill the Planning Commission and get a new one!” Maybe that was just my imagination, but the phone calls I got first thing the next morning sure were real. I didn’t like the Pactolus gravel mining and reclamation project from the start, but the Gilpin planning commission had no real choice but to vote for it. How can that be?
Planning Commissions Play by the Rules
A county planning commission is there to make a recommendation to the County Commissioners. It makes that recommendation based on zoning regulations, the County Master Plan, and an attempt to balance the desires of all stake holders in any project. Once we’d looked at the Pactolus plan and modified it to meet all those considerations we could do nothing else but send it along.
If we’d voted “no” we’d be liable to lawsuit. County attorneys constantly remind planning boards, elected officials, and so on, never to put the County in jeopardy. Gilpin County has just paid out about $15,000 in legal fees defending Sheriff Hartman in a lawsuit over which fire company he calls out. That’s just the latest legal action. Anyone involved with any county has to be very, very careful these days.
So how did we balance the interests of the stake holders and what are the Commissioners likely to do?
The Stake of Gilpin County
The county has a stake in keeping water flowing in our wells and keeping our sewage out of our neighbor’s property. In time of drought (and we’re there folks) it’s a big threat. The county hopes that at complete “build out” somewhere around 12 to 15 thousand people will live in Gilpin.
Every time the County can get a lot line eliminated (a BLE) that’s a step toward the goal of livability. Every time the County can get a conservation easement that’s a step toward the same goal. The Pactolus project cannot proceed until the applicant signs a conservation easement. That means forever (and the courts mean forever) that 40 acres of land can be used only for a conservation area with one, (and only one) house on it.
Gilpin County has a stake in how the County develops, and mining is definitely a part of that plan. Not only is the Pactolus property zoned for mining, but several other clauses encourage a gravel mine there including: “use by right” (p. 21 of the Master Plan); “The mining industry should be allowed and encouraged to operate” (p. 41); “It is incumbent on the County to prevent the unthinking placement of potentially valuable and vital resources beyond reach by assigning permanent land uses to areas where surface access or mineral extraction is required (p.22).
Also the “darn fool clause” (and that’s a quote from the plan) applies to buyers or builders of residences where mining activity is likely (p.22). Do I think the Master Plan mining code should be modified? Yup, but that’s the code we’re operating under here.
How About the Stake of the Operator?
The operator owns the property and has his private property right to mine the gravel and reclaim the area into an attractive and saleable area. He must put up more than $100,000 in bonds to various government agencies before he can begin. Since he’ll use the property as his bond collateral he could lose everything if he doesn’t comply with all regulations.
He can only proceed with mining and reclaiming 2 acres at a time and is subject to scrutiny before he can go on to the next two acres. He still has to get permission from Federal agencies (Corps of Engineers etc.) and he still has to secure his water rights. Even if the commissioners give him the green light, he’s a long way from operating.
Would I want to do all of that on a “break even” gravel extraction project with the hope of a big re-sale profit, (or a profitable fishing club) one day? Nope, but I’m not the applicant. Would I sue the County if I was turned down? Given the climate in today’s courts, I’d sure be tempted.
How About the Stake of the Neighbors?
The neighbors absolutely hate this project. They, and the Pactolus neighborhood association, told us that till 12:15 a.m. during the public hearing. They really wanted us to consider the background of the applicant. His bonding company can consider that, but we cannot. Some of the neighbors talk of eventually buying the property for a neighborhood association park.
Wouldn’t that be super! But in the meantime they hate the project, and if a few of my phone calls are any indication, something close to that emotion is aimed at members of the Planning Commission.
What we did do for the neighbors’ stake in this was to set restrictions, very stringent ones, on the operator. He can remove only gravel resulting from the past mining activity on the site. Any surface area not disturbed by past mining cannot be disturbed this time. Gravel can be removed only for reclamation and fish habitat enhancement purposes and on only 180 days a year for the five-year total plan. Only 12 trucks can come in and out between 8 a.m. and 5 p.m. (weekdays only, excluding school bus schedules). Trucks can only go the mile or so from highway 72 to the site, not up South Beaver Creek Road.
Only five days per year can “big noise” happen on the site. These are the so called “blasting days”, and I wouldn’t want to live nearby on those days, nor would I like just the daily noise during the 180 days of operation. Some 13 other restrictions apply including runoff regulations, size of trucks, dust and noise suppression, road cleaning and so on.
All of the restrictions are to ensure that “the operation will not cause undo adverse impact on the reasonable enjoyment of neighboring property.” But what is “reasonable”? We think we did our best.
Harmony In Pactolus?
We set up a three-member conflict resolution committee to try for harmony on a day-to-day basis. One representative from the homeowner’s group, one from the County, and one from the operator will meet. If they can’t resolve any conflict within 15 days the conflict goes right to the Commissioners for resolution. Maybe I’m too optimistic, but I have some hope this committee can function. So, how will the commissioners decide next month?
County Commissioners Look At the Bigger Picture
It’s more fun to be a County Commissioner than on a County Planning Commission, because that’s where wider issues can be considered. Commissioners will have to decide if the right balance has been struck between all three stake holders. They’ll have to decide how to “spin” our recommendations. They can consider the intangible factors beyond the technical. They can look at “quality of life issues,” “the æsthetic impact,” “special needs” and so on.
For instance, some neighbors are horrified by the visual impact of a gravel and reclamation project. Others think the operator should set up a nature path by the creek for neighborhood use. They’ll all have their say before the Commissioners.
The Commissioners are elected, so they’ll respond to the political concerns of the stake holders in some ways our Planning Commission couldn’t consider. That’s why I like decisions made in public, political, forums. But, in the meantime, please don’t shoot the Planning Commission!
As you may have guessed, Forrest Whitman serves on the Gilpin County Planning Commission. He lives in Rollinsville.