After nine months of battling a proposed gravel pit near their residential development in rural Tooele County, the residents of South Rim are hopeful the end is near.
They hope a report from the state Office of the Property Rights Ombudsman released last Thursday will pave the way for a final vote by the Tooele County Commission on a request to rezone a 176-acre parcel south of Silver Avenue from their subdivision to allow gravel extraction .
Some residents have vigorously opposed the rezone. They claim the rezone would put a gravel pit 200 feet from some residences in the subdivision.
Their opposition goes back to a August 2016 Tooele County Planning Commission meeting during which Josh Maher, a South Rim resident, asked about the gravel pit expansion. He was told that he would have to take the matter up with the county commission, according to the minutes of the meeting.
Southside Gravel, the current owner of the property, filed the request for the rezone in October 2016. If granted, the rezone would allow a current 10-acre gravel pit at the site, which has been determined to be a legal nonconforming use, to eventually expand to extract gravel from the entire 176-acre parcel.
The planning commission voted unanimously in December 2016 to recommend that the county commission not approve the rezone request.
The county commission delayed final action on the rezone request, because Jay Harward, managing partner for Southside Gravel, requested an opinion from the state Office of the Property Rights Ombudsman.
Harward wanted to know if a legal doctrine known as “Diminishing Assets” would allow him to expand the boundaries of the 10-acre gravel pit.
As a legal non-conforming use, the 10-acre pit was restricted to the existing footprint, according to the ombudsman’s first opinion.
In response to Harward’s request, the ombudsman issued a ruling on May 25. According to that opinion, under a 50-year-old court ruling, if the nonconforming use involves a resource like gravel, that diminishes or is consumed in the process of use, the nonconforming use may extend to the boundaries of the parcel at the time the property became nonconforming.
The Tooele County Commission has not made an official statement on the ombudsman’s opinion from Thursday because they have not met with legal counsel to discuss the ruling.
One county official said that the ombudsman’s ruling appears to restrict gravel extraction in the pit area to the original 10-acres included in the 1996 conditional use permit and part of six adjacent acres that the pit had expanded to, which was grandfathered as a non-conforming use.
With the second ombudsman’s opinion completed, South Rim resident Scott Hunter requested last week that the county commission place Harward’s rezone request on the agenda for their June 6 meeting.
“After reading the state ombudsman opinion, I am pleased to see that the conclusion is the same as what the county attorney’s had opined, Mr. Harwood cannot expand beyond the 10-acre plot without a rezone,” wrote Hunter in an email to the county commission. “Please provide closure to the issue by putting the vote on the agenda for 6 June.”
Advisory opinions issued by the Ombudsman’s office are not binding, but if the issue that is the subject of an advisory opinion is litigated on the same facts and circumstances, and is resolved consistent with the advisory opinion, the prevailing party may collect reasonable attorney fees and court costs from the opposing party.