Attorneys for a group of Blanco Basin property owners fighting a proposed gravel operation have filed an “Amended Complaint” in District Court, Archuleta County. The action supplants an earlier one filed March 23, alleging a lack of required permitting and potential damages to neighboring properties and a county road, should the operation be allowed.
In the original complaint, plaintiffs William C. Egg, Don Hurt, Jack Latson, Bud Porter, David Skidmore, Cindy Skidmore Sites and Joe Wells charged defendants Gerald W. Feil, Sally S. Feil and Oldcastle Southwest Group, Inc. (doing business as Four Corners Materials) with planning to construct or operate an aggregate crushing, stockpiling and transport operation on the Feil property without first obtaining a required Conditional Use Permit and a Major Sand and Gravel Mining Permit from the county.
The Feil property fronts the Blanco River near the Blanco Basin Road, approximately nine miles up from U.S. 84. To remove an estimated 150,000 to 200,000 cubic yards of stored materials from the property, Four Corners trucks will have to traverse Blue Mountain Place, Nofishum Place (private road) and the Blanco Basin Road. All are gravel routes passing to or through the bordering Blue Mountain Ranches subdivision, where many project opponents live or own property.
The materials “stored” on the Feil property are the result of boring to create a water diversion tunnel on adjacent United States Bureau of Reclamation (USBR) land.
The original complaint cited various Colorado statutes that authorize Archuleta County to provide for the zoning of unincorporated territory within the county, and to regulate its use on the basis of impacts on the community and surrounding areas. It also referred to portions of the Archuleta County Land Use Code (the County Code), which governs county zoning and identifies certain land uses — including mining, resource extraction, processing and sales — as those which must meet additional permitting requirements.
The Feil property is currently zoned Agriculture Ranching (AR), a designation that encourages agricultural production and the preservation of associated lifestyles. According to the complaint, Section 126.96.36.199 of the County Code states, “Commercial uses are generally limited to those associated with agricultural uses.” Additionally, Section 3.1.3 of the code proclaims resource extraction, processes and sales as conditional uses under AR zoning.
Further, the complaint pointed to Section 188.8.131.52 of the County Code, suggesting its intent is to, “... ensure that the location and operation of a [proposed] conditional use ... will not be detrimental to other uses or properties. Conditional uses may not be conducted without County review. Where a proposed conditional use cannot be devised to achieve these objectives, or it is not possible to mitigate its adverse impacts, application for Conditional Use Permits shall not be approved.”
The complaint also referenced County Code, Section 9.1.3, which says, “Aggregate operations which do not require a permit include only those where the use is for an agricultural operation and no material is exported from the site, the activity is approved by the County under a separate permit, and there will be no use of public roads to haul materials.”
Therefore, based on the above-referenced County Code sections, plaintiffs (and their attorneys) concluded that the defendants “are required to obtain both a Conditional Use Permit and a Major Sand and Gravel Mining Permit before they can operate an aggregate crushing, stockpiling and transport operation on the Feil property, which is zoned AR.”
Plaintiffs further attested that any such operation would cause damages far exceeding, “those to the community as a whole because of the adverse impacts of noise and dust associated with the operation; because their private road and the county road and/or bridge accessing their private road will be damaged; and because the exponential increase in truck traffic will increase dust, odor and noise, and make the access to their property less safe.”
Too, they alleged the proposed operation does not meet permitting requirements and any relative permit applications should simply be denied.
In the Amended Complaint (latest complaint) filed May 5, Durango attorneys Jeff Robbins and Josh Mack imposed additional allegations involving access issues related to express and implied easements along Nofishum Place. As a result, additional plaintiffs joining the case include: Joelle B. England, Kirk D. England and Ann Waterman.
According to the latest complaint, “the Feil property has an express easement across Lot 4A (owned by Jack Latson), but the property’s easement across the adjoining Waterman properties, to the extent it exists, is an implied easement.” Too, because the Feils, or their predecessors, have never historically used Nofishum Place for any commercial purpose, plaintiffs believe the original intent of the Feil easement was to limit use to rural residential and agricultural use.
For the record, the USBR and many of the plaintiffs, including Egg, Skidmore and Sites, and the Englands, also enjoy either express or implied easements to utilize Nofishum Place for property access. Regardless, no residents have ever used the road for commercial purposes.
Therefore, “plaintiffs contend that any access or easement rights held by Defendant Feil are insufficient to allow Four Corners’ proposed use of Nofishum Place.” Defendants, on the other hand, believe they have sufficient access or easement rights to allow aggregate transport over Nofishum Place.
Aside from requesting permanent enjoinment prohibiting the construction or operation of an aggregate crushing, stockpiling and transport operation on the Feil property, plaintiffs have asked for judgement granting them costs and attorneys’ fees, and other such relief as the court deems just and proper.
When recently asked about his proposed operation, Feil said the aggregate he hopes to remove from his land consists of “tailings” temporarily stockpiled on a portion of his property, as the USBR constructed a water diversion tunnel “a few years back.” Feil indicated that the USBR held a “temporary easement” allowing it to store the material there, for later removal. Feil insists removing the material will improve the visual appeal of his property.
Apparently, however, the USBR completed the water diversion tunnel in 1969 and the materials, or tailings, in question have remained on the Feil property since that time. In fact, the materials primarily consist of boulders and much of the area has long since been re-vegetated.
Feil also claimed his proposed operation wasn’t subject to state or federal permits, but he wasn’t sure whether the county would require one.
“We checked it out and the state says no mining permits are required,” he said. “A county permit may be required, but the attorneys are working on that.”
In fact, because Four Corners only intends to remove stored aggregate from another source and not excavate virgin material, the project may not be subject to mining permits. However, senior county planner Cindy Schultz told The SUN that, “the county has told them they will need a county permit. We require one due to the nature of the operation. It’s a conditional use.”
By Tuesday afternoon, the county had not yet received a Four Corners permit application, and by press time, a call to defendants’ attorney, Michael Chapman (also of Durango), remained unanswered.
However, a statement in a recent letter from plaintiffs to neighboring property owners reads, “After suit was filed, the parties reached an agreement in which Four Corners agreed to obtain a permit, or if it later chose to not do so, that it would advise us of that decision in time for us to schedule the injunction hearing before the District Court.”
In the meantime, should the project move forward as the Feils and Four Corners apparently hope, between 3,000 and 5,000 truckloads of sand and gravel could traverse Blanco Basin roads during the spring, summer and fall hauling season over the next two or three years.