Lolo gravel pit neighbors file suit against Missoula County

Laura Lundquist

(Missoula Current) Residents of a Lolo neighborhood are suing Missoula County to keep a gravel pit from expanding.

Last week, the Carlton Protection Trust sued Missoula County and the County Board of Commissioners in Missoula County District Court over the Commissioners decision to allow the Hendrickson gravel pit to expand into an adjacent 80-acre property. The Trust – a nonprofit organization of neighbors living near the gravel pit – also asked the judge to place a permanent stop on the expansion until he rules on the lawsuit.

“Here, the County’s application of negligent, secretive, arbitrary, capricious and abusive decision-making as described above has allowed an illegal land use to proliferate and grow in a residentially zoned neighborhood where industrial-scale mining is expressly prohibited,” Graham Coppes, plaintiff’s attorney, wrote in the complaint.

Coppes filed three counts against Missoula County.

First, the county allegedly violated zoning regulations by approving a variance to a residential zoning area without showing that the gravel pit owners would suffer a hardship and by failing to consider the spirit of the citizen-passed zoning ordinance. Second, he asked the judge to declare the gravel pit illegal because it violated the residential zoning ordinance.

Missoula County spokesperson Allison Franz said the county doesn’t comment on pending litigation. In August, Franz said state law doesn’t require the commissioners to consider the spirit of the ordinance. That item was part of a state court ruling.

Finally, Coppes asserted that the county violated the public’s constitutional right to participate, because the gravel pit expanded for years without the public knowing or being allowed to object. That “stymied Plaintiff’s/Appellant’s ability or opportunity to reasonably participate and mutated ‘what should have been a genuine interchange into a mere formality,’” Coppes wrote.

The Hendrickson gravel pit is located in an area south of Lolo that was zoned by a 1976 citizens’ initiative, ZD40, to be low-density residential. Any nonconforming industrial activity existing in 1976 wasn’t allowed to expand, according to the zoning rule.

Coppes’ research finds little evidence that a gravel pit existed in 1976. Aerial images from 1955 show a small disturbance on the corner of the property that was probably used for building the road on the property. Similar images from 1966 and 1995 show a slight enlargement of the pit to approximately 2 to 3 acres.

After Stanley Hendrickson bought the land in 1991, he continued to expand the gravel pit to 72 acres by applying for approval and permits from the county and Montana Department of Environmental Quality starting in 1993. At that time, Hendrickson attested that the pit was not in an area zoned residential, according to court documents.

The county continued to grant zoning compliance permits that allowed Hendrickson and the current owner, Western Materials, to amend their DEQ permits to allow more expansion and industrial activities, including an asphalt plant.

Coppes cited several communications between DEQ, the county and gravel pit owners that show the county knew the gravel pit was illegal. For example, in a letter dated Oct. 27, 1998, Rod Samdahl, DEQ Reclamation Specialist, informed Hendrickson that the operation was five times larger than that permitted – it was 15 acres at the time – and that the operation of the hot asphalt plant was not permitted.

Hendrickson and JTL, Inc., operated without a permit between 1998 and 2008. When Hendrickson requested a zoning compliance permit from the county in 2008, county internal communications show the county decided to grant the permit since Hendrickson had already disturbed 72 acres of ground and the DEQ permit had a reclamation date of 2020.

The problem is DEQ reclamation dates can be repeatedly amended. Western Materials, who took the pit over in 2015 – requested and received a new date of 2045. Western Materials has also amended its DEQ permit to allow more changes, such as hours of operation and an asphalt plant.

“At no point between 1993 and 2021 were residents of ZD40 notified of the County’s
continued issuance of Zoning Compliance for the ongoing expansion of the operation nor did they have reason to suspect that the Hendricksen Mine had not gone through the proper channels to receive a lawful variance to operate an industrial gravel and asphalt mine within a residentially zoned neighborhood,” Coppes wrote in the complaint.

Most recently, in October 2023, Western Materials applied to the county for a variance to allow them to expand onto 80 adjacent acres owned by Scott Leibenguth. That led to a series of five County Commission meetings that ended with the county granting the variance on Aug. 6 despite the neighbors’ opposition.

“The Commissioner’s deliberations focused entirely on the need and their future aspirations for county-wide development rather than the impact to Plaintiff/Appellant and other neighboring residential communities,” Coppes wrote.

Coppes wrote that internal communications between the county and Western Materials show “a very close working relationship, even deferring to Western’s legal counsel for guidance in preparing their internal Staff Report.” They also show that the county and Western debated forcing an amendment to ZD40, but that might require 60% of the neighbors to vote in favor. In a letter to the county, Western attorney Alan McCormick wrote “that’s an insurmountable task from any practical perspective.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.