SAGLE — Opponents of a proposed asphalt batch plant at an existing gravel pit in Sagle are calling on a district judge to nullify a land use code amendment they contend Bonner County unlawfully adopted in order to accommodate the controversial project.

Counsel for Citizens Against Linscott/Interstate Asphalt Plant filed a petition for judicial review on Tuesday. It challenges a 2018 code amendment to expand allowable uses in a gravel pit within an industrial zone.

The group’s counsel, Boise attorney Jack Relf, argues in the 32-page motion that the notice advising the public of the code change contained a misleading summary that failed to specifically mention that it would allow asphalt plants to be permitted in industrial zones. It further neglected to note that the code amendment would conditionally permit asphalt batch plants in areas zoned farming, agriculture/forestry and residential.

Even if the amendment was valid, Relf continues, the county’s decision does not comport with local land use codes because the grandfathered gravel pit violates the non-conforming use provisions.

The pit sits on a 139-acre site on the west side of U.S. Highway 95 north of Gun Club Road. Frank Linscott purchased the property in 1972, almost a decade before Bonner County had any land use regulations on the books, according to court documents. The pit occupied 17 acres of the site in the early 1980s.

Opponents of the pit contend it is not a lawful non-conforming use because it has expanded over time. To remain lawful, the use of the pit could not have expanded more than 10 percent without a conditional use permit, opponents argue.

“At the time of the board’s decision, Linscott’s pit had expanded to between 97 and 112 acres and was not a legal nonconforming use,” Relf said in the motion.

Moreover, the addition of Interstate’s batch plant further unlawfully enlarges and expands the gravel pit, Relf said.

The county sidestepped the question of whether non-conforming use was lawful or not during the permitting process, which Relf called “unreasonable and absurd.”

“Under the county’s interpretation, the applicant could dig an illegal gravel pit in which to site a batch plant and could operate the plant lawfully, as long as the county turns a blind eye to the unlawful pit, as it has here.

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