Cul-de-sac Mining

by Cara Gardner

How would you like to wake up in the morning to the sounds of a bulldozer crushing rock, or to the smell of diesel with your coffee? Not ideal? Laura Bubna doesn't think so either, but that's what is going to be happening in her neighborhood. She's finding that there is little she can do about it.

"I get calls weekly from my neighbors who are very concerned," says Bubna. "All I can tell them is, 'talk to the County.' It's out of our hands, and that's a very helpless feeling."

Rock-crushing is just one part of the multi-million dollar project underway in the Bubnas' Carnahan neighborhood. Bubna lives very close to the area of Eighth and Havana where Spokane Rock Product is building a basalt-mining and asphalt production plant. When completed, the plant will be only 100 feet from her back door.

Steve Robinson, vice president of Spokane Rock Product, says the company is willing to take extra steps to assure environmental safety and to appease neighbors concerned about the health and environmental risks of the mine. For instance, Spokane Rock Product is building an asphalt shed with tanks, which will captures emissions and keep the air clean.

"We checked with manufacturers, and there is no facility like it in the Northwest," Robinson says. "We offered to do it as a mitigating factor. We've been going to great lengths to minimize concerns."

Wendy and Rick Kurtz, Laura Bubna's next-door neighbors, aren't impressed. "Where we stand, no level of contamination is acceptable," says Wendy Kurtz. "To say that these levels of contaminate are okay in a residential neighborhood is preposterous."

Just this week, however, the neighbors were dealt a setback when Spokane County Commssioners voted 2-1 not to appeal a previous court decision that enabled the project to go forward.

The entire episode underlines the changing face of the Valley, from what used to be largely agricultural and rural to the urban place it is today. How else do you get a huge parcel stuck in between the businesses on Sprague and the homes on the lower South Hill that is still zoned for mining into the 21st century?

Now, with the last obstacle apparently out of the way, perhaps the West's first urban mining operation can get underway.

Miners Next Door -- Spokane Rock Product has leased the land where it plans to build the new plant. Before starting the project, the company applied for all required permits, and Robinson claims that his company has properly obtained them. Yet when the Spokane County Air Pollution Control Authority (SCAPCA) gave Spokane Rock Product an air permit, many neighborhood residents were baffled.

Eric Skelton, director of SCAPCA, says that the organization is required to allow 15 days for public comment before issuing air quality permits. But because of the number of complaints piling up, SCAPCA extended that public comment period.

"We held a 30-day public comment period and a public hearing. We had about 200 addresses from the letters we'd received, and from what the Department of Ecology had gotten. We compiled a mailing list based on those letters," says Skelton. He adds that about 130 people signed in at the March 2002 public hearing, most of them residents of the Carnahan neighborhood.

Wendy Kurtz says that meeting didn't calm any of her concerns. "I had a feeling that SCAPCA's mind was made up before the hearing. What SCAPCA is not willing to recognize is that this site sits in the middle of a residential area," Kurtz says. "That's our disappointment. Not even the County Health Department is willing to recognize that, and that is what baffles me."

Not only will the neighborhood contend with the odor of diesel once the asphalt pit is up and running, but residents there are already battling dust, and they worry there will be more dust as the project continues.

Skelton insists that Spokane Rock Product has already planned to take care of its dust. "SCAPCA has dust rules that we enforce, and basically the rules say you can't have visible dust leaving the property line," Skelton explains. "Spokane Rock Product will be paving access roads and be required to use water and water trucks to keep surfaces wet enough, so that no dust goes beyond the property line."

Even the company's high technology can't create an invisible wall, which is what it would take to prevent all the dust from floating just 100 feet to the row of houses on 14th Avenue.

"I'd say we have to change our furnace filters once a month," Kurtz says.

But it gets worse. Even if some neighbors could live with extra noise, or even the smell of diesel, none of them are prepared to deal with the ruined view or the lowered property values of their homes. Laura Bubna says that the view out her window is obstructed: "They've built this dirt berm, about 10 feet high, right behind my house."

Neighbors say the value of their property has already dropped. Many claim they didn't know that the adjacent property was zoned for mining when they moved into their homes. But the same property owner, Mike Schuler, is both the builder of some of the homes in the neighborhood and the one who is leasing the site below to the asphalt plant. He could not be reached for comment.

"When we purchased our home, it was on the premise that these houses were 'view' property." says Kurtz.

Spokane Rock Product's Robinson is hardly sympathetic. When asked for a response to the predicament, Robinson answers firmly, "It's a mine zone."

While Spokane Rock Product continues to develop the site, neighbors are trying to organize. Rick Kurtz is determined to see his battle through, even as the County is bowing out.

"I think we'll be dealing with some kind of class action legal suit in some way, shape or form," he says, adding carefully that he doesn't harbor ill will toward the company. He just wishes it would go away.

Looking through the chain-link fence that borders the mining pit, he adds, "If a business is trying to be a good neighbor, and trying to be good to the community, then I guess it would have to ask itself, 'Is this in the best interest of the community?' I guess it depends on what side of the fence you're on."

Paving Ahead -- Spokane Rock Product leased the Carnahan property believing it had found the perfect spot. What exactly makes these 50 acres so great?

"Three things," says Robinson. "Available resources, zone mining and perfect location." He adds that the area's basalt rock is premium for asphalt, and the site is close to the freeway -- something that's very important in the asphalt business. There's a crucial time period between producing asphalt and laying it down, so working close to the freeway means Spokane Rock Product can not only get to its locations faster, but be considered for jobs that otherwise it'd be overlooked for, says Robinson.

Some neighbors have speculated that the location was chosen to best compete for the contract to pave the north-south freeway. If the new freeway were to be fully funded, the project would run into the billions and require many thousands of truckloads of asphalt from somewhere. Currently, however, the outlook for the new route is dim, as last fall Washington state voters rejected a gas tax increase that could have jump-started the long-awaited project.

But possibly the best part about the property, Robinson adds, is the fact that it was already zoned for mining use.

So why is there a mining zone in the middle of a residential neighborhood? Though now a residential area, the land was occupied by a mining company more than 25 years ago.

The mine was shut down due to a nuisance clause with the County, and the land has been vacant since then. Houses have sprung up all around this area, but the County never changed the zoning.

"It just wasn't necessary," says Jeff Forry, senior building technician with the County's Building and Code Enforcement Department.

In 1981, a Comprehensive Plan was established to rezone areas that had become residential or urban because of general growth in the area, but for some reason that plan wasn't applied to this particular site.

"Spokane Rock Product had initially made contact in early 2000 with general discussions of what they wanted to do on the land," says Forry. "We knew they wanted to do some mining and recycling of construction materials and rock-crushing. This would have been consistent for the mining zone."

It was no secret that the company planned to make its newly leased property a mine for basalt rock and asphalt production. This is why Robinson says the company was so surprised when it learned about Spokane County's decision to rezone the land to prevent such a use.

Rezoning would mean that if the company didn't secure its permits for mining by the time the County rezoned, then Spokane Rock Product would not be able to go forward with its plans.

Spokane County Commissioner Kate McCaslin claims the company knew about the rezoning. "We mailed information about the Comprehensive Plan and what we were working on to every property owner in the area," McCaslin says. "You would have to be living in a cave not to know the County was going through a major overhaul with zoning."

Forry agrees that rezoning shouldn't have been news to Spokane Rock Product. "There's an urban growth boundary defined under the Growth Management Act for Spokane County," he explains. "It takes in all areas that could have urban or residential population densities. Their property was originally zoned mining, and surrounding areas were zoned urban/residential. Under the new Comprehensive Plan, the property was zoned low-density residential."

But Spokane Rock Product's Robinson insists the company knew nothing about this going into the project, even after submitting its initial applications to the county.

Today, the land in question is zoned residential. Spokane Rock Product insists it is grandfathered in because it submitted its permit application before the Board of Commissioners' decision to rezone. Forry recalls the race against time that took place.

On January 15, 2002, the Board of County Commissioners met to discuss the application of phase one in the Comprehensive Plan for the Growth Management Act. On the same day, Spokane Rock Product prepared to submit its application for permit to the County's Building and Code Enforcement.

"The company's application was submitted at 1:50 pm," Forry says. "The board didn't reach their decision to change the zoning to residential until 2 pm."

Despite only a 10-minute difference, Spokane Rock Product would have been in the clear. With its application in, the company was already vested and could still mine the residentially zoned acres. There was just one problem: Spokane Rock Product did not submit a complete application.

"There is a test for complete applications that contain state and local regulations," Forry explains. "Spokane Rock Product's application failed that test."

Because of this, the County refused to issue the permit. Spokane Rock Product appealed to a Hearing Examiner, who claimed not to have jurisdiction on the matter. The company then took it a step further.

Determined to get its permit, Spokane Rock Product filed an appeal in Superior Court. Last year, Judge Robert Austin ruled in favor of the company, granting it the permit.

But the County, equally determined, countered this ruling by filing for a stay pending appeal. While the County decided whether to appeal, things were supposed to be on hold for Spokane Rock Product. But Robinson said nothing would stop the project, and they would move forward anyway -- which is just what they did.

Too Costly a Battle? -- On Tuesday afternoon, in a room packed with Carnahan neighborhood residents, County Commissioners met to decide whether to appeal Judge Austin's decision. Spokane Rock Product had calculated that if they prevailed and Spokane County had to pick up the legal tab, it could cost as much as $1.7 million. (County officials calculated their exposure at less than $500,000.)

Apparently the dollars and cents of the matter prevailed, as Commissioner John Roskelley voted along with Phil Harris -- someone he often doesn't agree with on land-use issues -- to drop plans for an appeal.

"We're responsible to the taxpayers," Roskelley told the gathering. "There's nobody you'll ever see or ask that protects the environment more than I do. We didn't want to see this happen. But I'm not going to stick my neck out knowing the chances of winning an appeal based on a technicality.

"I'm disappointed, too," he concluded. "It's a hard decision to make. We had to sit down and go back and forth and weigh all the options. People don't see that part of it."

As he left the meeting, disappointed neighbors greeted him with remarks like, "You're ruining our neighborhood."

Meanwhile, Commissioner McCaslin, apparently sensing it was her last whack at the issue, took some parting shots before the vote went against her.

"In this case, we must look at the facts, look at the law and do what is best for the community," she said. "I believe business people have an inherent responsibility to conduct business in an ethical manner. The appropriateness of a mine in that zone faded long ago.

"Owning a business brings with it responsibilities," she added. "The responsibility to be a good neighbor. To do the right thing, even when it's difficult. In this case, this business refuses to do the right thing."

Rock and a Hard Place -- What will happen after the dust settles? According to Spokane Rock Product's Robinson, "Spokane County will be our biggest customer."

McCaslin hesitates to agree. "We have to buy based on the lowest responsible bidders," she says.

While plans for the mine continue, the landowner who is leasing to Spokane Rock Product continues to build houses on the property just adjacent to the mine. And on March 31, the issue will get even murkier. That's when the new city of Spokane Valley will officially incorporate. The land in question is in the new city, not the County. The new city will inherit the controversy, but it doesn't look like they'll have legal standing to do anything about it.

For Rick and Wendy Kurtz, as well as other Carnahan residents, however, the fight isn't over. The steady procession of bulldozers alongside the dirt berm behind their house is a constant reminder of the unforeseen catastrophes that can come with home ownership.

"Wendy has said that it's like the land that time forgot," Rick Kurtz says, shaking his head and looking at the 50-acre pit below him. "This was once all trees -- trees and lots of basalt rock."

Publication date: 02/06/03