SAGLE — Bonner County commissioners unanimously affirmed their approval Friday of a hotly contested asphalt batch plant proposal despite strenuous push-back from neighboring landowners and a comprehensive legal argument that a conditional use permit for the project cannot be lawfully granted.

The commission agreed to revisit its approval earlier this year of a proposal to relocate an Interstate Concrete & Asphalt plant from Sandpoint to Frank Linscott’s gravel pit on the west side of U.S. Highway 95 north of Monarch Road after opponents moved for reconsideration on a host of grounds. Commissioners agreed last month to reconsider its approval after questions were raised about the gravel pit’s alleged status as a nonconforming use.

However, the Bonner County Planning Department and its legal counsel, Deputy Prosecutor William Wilson, concluded that the gravel pit and the batch plant are defined in the land use code as distinctly separate uses even though they work in harmony with one another. Moreover, the nonconforming use standards don’t apply because batch plant operations are an allowable use in that zoning district.

“Nonconforming standards don’t apply because this is a conditionally permissible use in the zone and it’s not a prohibited use,” land use planner Samuel Ross told commissioners.

Testimony during Friday’s public hearing was subdued. More than a half-dozen people voiced support for the proposal but declined to comment further. Even more voiced opposition but also declined to elaborate on their positions or yielded their time to other speakers.

A significant portion of the opponents’ testimony consisted of reading into the record a nine-page letter drafted by counsel for Citizen Against Linscott/Interstate Asphalt Plant, which argued that the pit is an unlawful nonconforming use which has been expanded over the years. The letter also points out that pit is out of compliance with Idaho Department of Lands regulations.

“This is an unlawful expansion — plain and simple,” said Jonna Plante.

IDL is seeking a $10,000 civil penalty for alleged violations of the Idaho Surface Mining Act and a $248,000 reclamation bond and an updated reclamation plan. The state has also warned that it may seek $1.8 million in penalties and closure of the pit if the penalty isn’t paid and reclamation bonding isn’t updated.

Commissioners, however, declined to link its decision to Linscott’s troubles with the state because the matter has not been settled. Commissioner Steve Bradshaw said such a move would deprive Linscott of his rights as a landowner.

“In order for me to deny this permit, I would have to deny Mr. Linscott due process. I would have to assume that he’d been charged, legally represented, tried and found guilty in a court of law that he is in fact unlawful. That has not happened,” said Bradshaw.

Commissioner Dan McDonald said the county’s counsel made it clear that the only question to be answered is whether the plant fits with the land use code, particularly a requirement that the plant be located adjacent to an active gravel pit.

“Our code does say this fits. It’s not a use that’s prohibited,” McDonald said.

Commission Chairman Jeff Connolly said he was unable to accept the opponents’ argument in light of the county’s legal advice.

“To go against legal counsel and say, ‘Oh, no. We’re just going to do this because we believe the appellants’ argument’ would be totally wrong,” said Connolly. “That puts the county at more risk than I’m willing to do.”

All three commissioners, however, noted that a condition of approval requires that the batch plant be located near the gravel pit.

“If they don’t retain their permit and IDL shuts them down, then there goes the batch plant as well,” McDonald said.

Keith Kinnaird can be reached by email at kkinnaird@bonnercountydailybee.com and follow him on Twitter @KeithDailyBee.