Group looking to develop gravel mine in Dotsero wins appeal from Eagle County Planning Commission
The company is no longer required to apply for an exception to the Dotsero Area Community Plan
The Eagle County Planning Commission voted unanimously to appeal a previous staff decision that required Rincon Materials LLC to submit an exception to the Dotsero Area Community Plan for a proposed gravel mine. With the reversal of this requirement, Rincon Materials LLC will still have to submit a special-use permit application, to be approved by the planning commission and the Board of County Commissioners in order to proceed with the construction of the mine in Dotsero.
Rincon Partners LLC submitted applications for both an exception to the community plan and a consolidated special use permit on Jan. 6, 2021, at which time both were recommended for denial by the planning commission. The company is now restarting the application process but made the case that the requirement for an exception is not necessary and undermines due process.
In a presentation to the planning commission, Sean Hanagan of High Summit Planning argued that the original staff decision was a misinterpretation of the Dotsero Area Community Plan. Staff originally determined that the proposed mine is not consistent with the plan’s Future Land Use Map, which designates the land for rural agricultural use and does not explicitly include resource extraction as a proposed use in that area.
Hanagan said that the community plan is an advisory document, not a regulatory one, and it does not exclude potential uses, as the county’s zoning map does. The 108-acre property is located on resource-zoned land, which permits extraction. Hanagan also noted that the commission has approved nine prior special-use permits for extraction in the area, none of which required exceptions.
The primary argument for revoking the exception was that it undermines due process by requiring the applicant to admit non-conformance before the full application is evaluated by commissioners. A special use permit must be in compliance with the community plan in order to receive approval, and compliance will be determined in forthcoming meetings regardless of whether an exception is submitted. Kerry Wallace, an attorney for Rincon Materials LLC, argued that requiring the company to apply for an exception undermines this process.
Support Local Journalism
“The problem here is that … a pre-application decision is made on conformance without following the regulatory process outlined in the ECLUR (Eagle County Land Use Regulations), not allowing the planning commission or the Board of County Commissioners to actually hear a full application to decide conformance,” Wallace said.
Ultimately, the members of the planning commission agreed that going through an exception process would be redundant and unnecessary, considering that the evaluation of compliance will already be part of the special-use permit application process.
Commissioner Leah Mayer noted that this doesn’t mean the exception clause is never applicable, just that it does not apply in this particular circumstance. Hanagan agreed.
”An amusement park, or those things that were never considered, that are unique, that were never contemplated during the development of the plan — that’s why that clause is a good clause, it’s just not applicable to this use,” Hanagan said.
All four of the commissioners who voted to revoke the exception requirement made it clear that this decision does not reflect any inclination to approve the special-use permit when it comes before them later in the process.
“If we grant an exception, the project could still, at the next step, be told no,” Commissioner Patrick Scanlan said. “If we say no, we don’t want an exception, the project could still go forward. It’s more today about just the process and making sure that we adhere to the due process laid out in the comprehensive plan.”
Commissioner Vern Brock said he was voting in the interest of cutting out unnecessary procedures that only served to confuse the public.
“If I vote to reverse the staff’s decision, I am not granting flexibility to you, the applicant, and that needs to be heard with capital letters, exclamation,” Brock said. “I believe the public would be best able to judge this project in a more simple nature, without all of the word smithing and the legal wrangling … let’s try and make it as simple as possible for the general public.”