A West Valley landowner and resident has appealed a decision by the Flathead County zoning administrator to forward to the county Board of Adjustment a favorable recommendation that would allow the construction of an asphalt batch plant at the site of an existing gravel pit in West Valley.

Charlene Iannucci, represented by Kalispell attorney Donald Murray, filed the appeal on May 20 with the Flathead County Planning and Zoning Office.

Schellinger Construction is seeking a modification to its conditional-use permit for its gravel pit located at 3427 Farm to Market Road near the intersection of Farm to Market and Church Drive. The original permit was approved in 2005, before the definition of “gravel extraction” was expanded in 2010 to include asphalt and concrete batch plants after a long legal battle.

In the face of intense public opposition, the West Valley Land Use Advisory Board voted unanimously on May 21 to recommend denying the modification, though its vote is only a recommendation.

The Board of Adjustment will hear the appeal on July 7. The board initially was scheduled to make a decision at its June 2 meeting, but the appeal halted further proceedings until the appeal has been decided.

Iannucci’s appeal outlines three points for its justification.

First, the appeal states the Flathead County planning director – referred to as the “zoning administrator” in the appeal – did not adequately consider the Flathead County District Court’s decision in a 2010 case between Tutvedt Family Limited Partnership and Flathead County.

Section 16 Family Limited Partnership is currently listed as the owner of the pit in discussion, with Linda Tutvedt the managing partner.

“The parties – Tutvedt and Flathead County – reached a settlement,” the appeal states, “which included affirming the absolute prohibition against asphalt manufacturing (batching) on the site,” the appeal asserts.

The District Court “retained jurisdiction over the matter” and would be the “only entity” that could make further interpretations of the 2010 decision. Therefore, the zoning administrator’s interpretation of the 2010 decision is not valid, the appeal states.

Deputy County Attorney Caitlin Overland said the District Court will not be involved in any part of the appeal process.

“We’re not in a court of law yet,” Overland said. “The court is wholly unaware of what is happening here.”

Second, the appeal claims the zoning administrator was “erroneous” in interpreting the absolute prohibition on asphalt batching, a condition of original the conditional-use permit, was subject to modification.

“Unlike the other conditions in the CUP (conditional-use permit) that govern operation of the pit and serve to mitigate its impacts, No. 28, the asphalt batching prohibition, is not a condition,” the appeal claims, adding the zoning administrator made a “material mistake” by treating the prohibition as a condition.

Third, the appeal claims the zoning administrator accepted and processed an incomplete application. It states the zoning administrator’s staff report has “virtually no information” pertaining to the proposed batch plant, meaning there is “no way to evaluate the proposal and its potential impacts,” such as traffic.

Traffic was a major concern among many of the residents who spoke in opposition to the proposal at the West Valley Land Use Advisory Board meeting on May 21. Residents also expressed concerns about water quality, air quality and noise, and felt it was not adequately addressed in the Planning Office staff report.

Overland said if the Board of Adjustment decides in favor of the appellant, that would put a stop to Schellinger Construction’s pursuit of its modification – unless the company wants to file something in District Court.

If the board decides in favor of the zoning director, it will still “have to consider the merits of the application” and make a decision to approve or deny the permit modification at a later meeting.

The Board of Adjustment’s July 7 meeting will take place at 6 p.m. in the South Campus Building, 40 11th St. W. in Kalispell.

Reporter Colin Gaiser may be reached at 758-4439 or cgaiser@dailyinterlake.com