Driggs P&Z recommends that Teton County not revoke the M1 zoning on the Burns Concrete Batch plant tower.
Driggs P&Z issues recommendations on batch plant tower.
Now that Teton County has unanimously prevailed at the Idaho Supreme Court in their 5-year legal battle over their 2007 denial of the 75-foot Burns Concrete batch plant tower at 1750N and Highway 33, County Attorney Kathy Spitzer has issued a cease and desist letter to Burns Concrete, regarding usage of the temporary tower that is currently onsite. Spitzer has also petitioned the City of Driggs to give recommendations on whether the zoning for the tower should be reverted back to commercial (C3) zoning, or remain as Manufacturing (M1) zoning. Thus, the City of Driggs now held a hearing to consider Spitzer’s request to reverse the zoning designation for this batch plant.
If the M1 zoning is revoked, the temporary cement tower that is visible out there today will be removed. If the M1 zoning remains in place, the issue becomes trickier because the height limit in M1 is 45 feet. Part of the reason why Burns desired to build a 60-foot wide, and 75-foot tall batch tower in the first place was to create self-contained cement operation. During the original approval process back in 2007, a self-contained, buffered plant was the original concept and design that was approved by the City and County. Because of the high visibility of this location along the scenic corridor, both the public and the decision makers at that time desired a quiet, contained, cleaner plant. However, from there, the facts get tricky. Teton County has maintained that at the time of Burns’ original conditional use permit application, Burns stated that they needed a height variance of “just a few feet” to build their plant. Then, at the final steps of the permit process, the County learned that Burns desired to construct a tower that was actually 30 feet higher than the code would allow. Thus, the Board of County Commissioners at that time denied the permit because 30-feet was significantly higher than any height variance request they were expecting from Burns.
So how does this relate to the M1 zoning that you mentioned earlier?
Well, if the property remains M1, Burns can still build a 45-foot tower, but it will not be the clean, contained design that will control vibrations, dust, sand, and other irritants. Through all of the litigation at the Idaho Supreme Court, Burns maintained that they could not build a clean operation without a 75-foot tower. Thus, one additional argument from Spitzer was that Teton County was originally promised a clean batch plant – not a dirty plant. If the impacts of plant cannot be effectively contained at 45 feet as promised, then it is not within the realm of what Teton County originally approved.
City attorney Steve Zollinger was also present at the hearing and he took a more conservative approach to the situation. While he did opine that P&Z could easily recommend either C3 or M1 zoning, he thought it was most prudent to wait an additional 18-months in order to allow every last possible deadline under Burns’ development agreement to expire. From his perspective, that would extinguish any additional claims Burns may have that their development agreement was still valid.
What did P&Z decide to do?
As the saga of Burns Concrete has now entered its 5th year, it was clear that several members of P&Z did not have the benefit of understanding the long, complex history of this particular batch plant. It was equally difficult for P&Z to stay focused on making a recommendation as to what the best zoning for that particular property should be. Instead, the conversation often drifted back to the terms of Burns’ original development agreement (which was the subject of a lively debate between Zollinger and Spitzer). But also, P&Z seemed to desire keeping the batch tower onsite despite the 5 years of litigation because, if nothing else, it was already there. One topic that was not really discussed much at all was usage of the site. The temporary plant that is onsite today has seen very little use these past 5 years. If the plant were to be intensively used on a daily basis, what would those impacts be? Would it once again be critical to have a self-contained, lower-impact batch plant? Is there a better location to house such an intensive use and keep it away from the scenic corridor, such as within the vicinity of the Driggs Airport where there are already other intensive uses?
In the end, P&Z took a slightly neutral stance, and voted unanimously to recommend that the M1 zoning designation remain in place, but noted in their motion that C3 zoning would also be appropriate for the site.
What happens next?
It looks like the chapter in a hard-fought land use victory for Teton Valley will not be closing just yet. Burns Concrete will now go to hearing before the Driggs City Council and then ultimately to the Board of County Commissioners. If you are interested in emailing comments to Driggs, you can send them to city planner Doug Self at firstname.lastname@example.org. We will keep you posted.