A West Valley resident recently filed a lawsuit against Flathead County and the Flathead County Board of Adjustment for recent decisions involving an application for a modification to a conditional-use permit that would allow a controversial gravel pit near her property to have an asphalt manufacturing plant.

The plaintiff in the case is Charlene Iannucci who, according to court filings, lives in close proximity to the site of the proposed plant, which is located at 3427 Farm to Market Road. She alleges, among other items, that the proposed use “would adversely affect her ability to use and enjoy her property, adversely affect her health, safety and welfare, as well as the health, safety and welfare of her family. It would also result in the diminution of the value of her property.” She is represented by Kalispell attorney Donald Murray of Hash, O’Brien, Biby and Murray PLLP.

The application in question was submitted by Rob Koelzer of Schellinger Construction Co. earlier this spring. The request is for a modification to a condition in the gravel pit’s existing permit that states “asphalt and concrete batch plants are prohibited.” The gravel pit has long been a source of contention among many in the West Valley area who say operations are disruptive, increase traffic on the roads to and from the pit, are a possible source of pollution, detract from their overall quality of life and more.

Iannucci also filed an appeal to a decision made by county Zoning Administrator Mark Mussman when he forwarded a favorable recommendation for the permit modification to the Board of Adjustment, which has the final say on planning and zoning applications it reviews. The appeal, filed with the Flathead County Planning and Zoning office in May, essentially stated Mussman accepted an application that was not complete as it lacked substantial information and that a prohibited use shouldn’t be treated as a normal condition, but as an actual prohibited use. The appeal was heard by the board on Aug. 4, and failed on a 2-2 tie vote.

The issues outlined in the request for appeal, as well as others, are brought forth in the new lawsuit, which was filed in Flathead County District Court on Aug. 17.

The lawsuit alleges the county failed to follow its own zoning regulations by accepting an application that was “not correct or complete” and that the decision to process the application as a conditional-use permit amendment was “not appropriate.”

Though additional information regarding the proposed asphalt activities was later submitted by the applicant, the lawsuit states “the application did not contain sufficient information about the proposed activity or its potential impacts to allow either the county or interested citizens to evaluate the proposal and make informed judgments about those potential impacts.” It continues, stating the board “should have upheld the plaintiff’s appeal on this issue and returned the application to the applicant as incomplete and inadequate without taking any action on the application.”

The complaint further asserts the condition that prohibits asphalt plants is not actually a condition, but is being treated as such by the county since the item appears at the end of a list of actual permit conditions. The “so-called ‘condition’ by the county is actually an absolute prohibition against the very use the applicant now seeks to have authorized,” the complaint states, adding the condition “can either be enforced or rescinded, but it cannot be amended or modified through the process benign employed here by the county.”

The suit also claims the county and board should have to seek guidance from the district court — an argument that dates back to when the property’s original permit was granted in November 2010 after a separate legal battle. According to the lawsuit, when the permit was OK’d nearly a decade ago and conditions went into place, Flathead County District Court “retained jurisdiction of the matter so the parties could return to the District Court for appropriate guidance, clarification or other interpretation of the Court’s judgment, by the Court.” Therefore, the county and board are “obligated” to seek guidance of the District Court before taking any action on the pending application.

As it stands, the Board of Adjustment is expected to take a final vote on the permit modification during a regular meeting on Sept. 1 from 6 to 9 p.m. at the Flathead County Fairgrounds. The board’s agenda, however, is subject to change.

Reporter Kianna Gardner can be reached at 758-4407 or kgardner@dailyinterlake.com