Quick Summary the Bee won’t tell you in the opinion of the Citizens Against Linscott Interstate Asphalt Plant who was at the hearing. (Bee article posted below)
Judge Jeff Brudie, from Lewistion, heard the case with a full courtroom of supporters for our side.
Gary Allen, our very qualified attorney, felt our argument was very strong and the opposing arguments were extremely weak.
County Counsel, Bill Wilson, actually waived his time to Mr. Linscotts attorney, John Finney, and Interstates attorney, Elizabeth Tellison, which from the beginning looked like he had thrown in the towel, maybe his sickness was slowing him down, eventually he did start coming around and talking, but nothing of any legal substance, other than claiming he took offense to our attorney, Gary Allen’s, implication that Bonner County were interpreting their own comp plan incorrectly.
Interstates lawyer, Elizabeth Tellison, didn’t bring up much legal arguments either, but discussed their “great neighbor” status which had nothing to do with the lawsuit, or the case, and questioned the validity of our claims regarding health and argued that “active” pit, is considered “active” as long as Linscott was working in the pit whether he is legally running his pit or not, it’s “active”. It seems Interstates lawyer is very clever at manipulating or interpreting the laws to favor her position and is inaccurate in her assessment regarding case law when she attempts to speak the language as an attorney.
Linscotts lawyer, John Finney, didn’t fair very well either with his comments that we didn’t have standing, or that we were a nonprofit and we didn’t sign the appeal or reconsideration hearing paperwork, yet there were well over 100 names who personally signed who felt they would be personally affected. He claimed because we are a nonprofit group - it is not legal to be a party to the lawsuit. He claimed we hadn’t certain things in the file, which proved the fact that he clearly had not read the files sent in. He didn’t bring up many facts or case law to back up any statements he made similarly how he wrote his super long response brief he had sent to the judge (40 pages, and normally they are limited to around 20), which argued litigation already ruled upon by this judge.
Our attorney felt confident that we should prevail in voiding the ordinance 557, which was adopted illegally because of the public summary. Wording for the hearing said they would be discussing- gravel pits in industrial zones - but in truth the hearing actually added asphalt plants to 3 zones(including R-5), was illegal and is VOID.
The other side claimed the judge could not decide the validity of this ordinance. In my opinion, and in the many watching the Judge’s body language, it was evident he was siding with Gary. He actually asked their lawyers - how would you suggest the Citizens Against Linscott fight ordinance 557?(paraphrasing here)with his arms crossed and with some light sarcasm. They answered the judge by saying we would have to battle it with a declaratory hearing and Gary said that is one option the other is at this judicial hearing.
To clear up what it would mean if he agrees with our attorney and does pronounce that ordinance 557 was illegally adopted, it would simply be VOID. That means the asphalt plant could not be added to R-5 or any of the other 2 zones either. It means the county would have to start over and resubmit the ordinance change attempting to add it to the 3 zones including R-5 and property summarize in the public notice and have two more hearings for that, then Linscott would have to put in an application again and have two more hearings to get it through.
The next issue for the judge to decide is nonconforming land use ordinance issue we have with the Linscotts aggregate mine pit. Expanding, or growth, is limited on nonconforming land, which is very clear in the nonconforming land ordinance. Grandfathered land, or nonconforming land, is allowed to grow 10% without a permit and up to 50% with a permit, and Linscott has grown from 17 acres when he was grandfathered in 1981, to approx. 112 acres, so over 400% growth without any permits to aggregate mine - so that means he is not in compliance with this ordinance and should not be considered active if he's not compliant. He also is not allowed to expand or add to nonconforming land and an asphalt plant is ADDING.
As Gary argued, the property owner has to be in compliance with all laws for the planning director to issue ANY permits, and because Linscott has outgrown his land and is illegally running because he has no permits, the gravel pit should not be considered “active”
The BC Comp Plan says the asphalt plant has to be on an “active” gravel pit, and Linscotts/Interstate lawyers argue if it’s running - it’s active, and being legal is irrelevant to this situation.
Judge Brudie will give his written decision in the next 30 to 60 days and they will have 42 days to appeal, which he can’t imagine they will do because they truly have no case or case law to back up their argument, and he also feels we have a good chance at getting our funds paid for by the county and possibly by the other attorneys because a lot of time was wasted on argument which had no legal merit.
Our attorney continues to remind me that he has been shocked by judges before but if it goes the way he thinks it should because of the law, we will win all three - both ordinance issues and our fees.
Continue to pray, and continue to contribute, as this is extremely costly and will take time to pay off and please be ready to battle if we win and they attempt to ram rod this through another way.
www.nosagleasphaltplant.com
nosagleasphaltplant@gmail.com