Commissioners Decline Road Use Agreement

MISSOULA – The Missoula County Commissioners discussed the road use agreement required by the Powell County Planning Board to add Evergreen Drive as a secondary haul route for the proposed Cottonwood Gravel Pit at their public hearing May 10. The commissioners unanimously declined the request for the tri-party agreement between Missoula County, Double Arrow Ranch Landowners Association and Deer Creek Excavating and will submit their decision to Powell County.

Evergreen Drive is a dedicated road right of way that is an unmaintained Missoula County roadway.

Powell County Planner Carl Hamming said that the Conditional Use Permit for the Cottonwood Gravel Pit identifies the Cottonwood Lakes Road as the only haul route. The DARLOA Board requested the Powell County Planning Board amend the CUP by lifting the restriction on Evergreen Drive so it could be used as a secondary haul route.

"This is a compromise because it restricts use just for DARLOA projects and not hauling all the way through to Highway 83," said Hamming. "The primary route would still be Cottonwood Lakes Road to Highway 83."

Hamming said that when the original amendment was brought to the Powell County Planning Board to change the CUP, they questioned why Missoula County wasn't involved since everything involved Missoula County roads. The board approved the amendment pending the road use agreement with Missoula County at their Jan. 11 meeting.

Chief Public Works Officer for Missoula County Greg Robertson told the Commission that he believes entering into the proposed agreement is not legal or enforceable. The county has little authority to place restrictions on the use of right of ways.

Robertson suggested the Department of Environmental Quality would be a better agency than the county to address restrictions. They deal with haul routes and hours of operations in their permitting process and outline it in the operations plan.

Missoula County Lead Deputy County Attorney John Hart concurred with Robertson that the DEQ permitting process is where the restrictions can be implemented. In terms of Montana public road law, the commissioners are not authorized to enter into an agreement and the agreement couldn't be enforced.

Strohmaier asked Hart if DARLOA could enter into an agreement with another third party for use of a county road to which he replied no. He later clarified that Deer Creek Excavating and DARLOA can enter into an agreement as a third party contract per Montana Code Annotated 7-14-2127. In this case, an excavator voluntarily agreeing to not use a road with a third party is acceptable.

"It is just not something Missoula County can enforce or enter in to based on the nature of the agreement being it concerns a Missoula County Public Road right of way," said Hart.

DARLOA's attorney Martin King said the intention of the DARLOA board's request to use Evergreen Drive was three-fold. First they wanted to protect the integrity of the roads within the Ranch and ensure that the main haul route didn't go through DARLOA onto Highway 83. Second was to make quality gravel at low cost available. And third, was to allow an emergency evacuation route for the DARLOA landowners which is important for residents.

"My client didn't come up with this, the Powell County Planning Board came up with this. They negotiated this agreement to provide protection for all of those concerns and in addition it provides for another concern because it limits the traffic on Highway 83 for gravel trucks that are going to be used to service DARLOA."

King said the public use agreement was not a prohibition on the public use or anyone else's use of the road. It is merely a contract between DARLOA and the contractor developing the gravel pit to allow the use of gravel within the development.

"I disagree with Mr. Robertson and Mr. Hart, with all due respect, that our contract violates the statue," said King. "The operator of the gravel pit has said [he] will limit [his] use voluntarily. I would ask that you make it clear to Powell County and DEQ precisely the position of the county that you feel you can't control this road in the form of a road use agreement or otherwise so there is clarity."

Commissioner Jean Curtiss responded that it appears like they are trying to restrict the use of a road so that is why the Commission doesn't want to be involved. They are not trying to restrict access, they just do not feel Evergreen Drive was the best route. Had Double Arrow been zoned they wouldn't have to worry about having a gravel pit next to them.

Supporters of the secondary haul route and DARLOA board members spoke to the Commission. They highlighted that this would be a lower cost, high quality option for projects and road maintenance on the Ranch. It would also provide a second source of gravel for the Ranch instead of only one gravel provider in the area.

The use of Evergreen Drive for projects on the Ranch will save time, distance and money. To restrict commercial access to a quality product that would benefit the Ranch does not make sense on a road that the county does not pay to maintain.

Curtiss said that she grew up in a family with a gravel pit and they didn't charge a different price because they drove further. She finds it odd that there would be a charge that is different.

Other points included Deer Creek Excavating longevity in the community and trust that they will not use Double Arrow roads to service people off the Ranch. Also since the Cottonwood Lakes Road is closed in the winter, Evergreen Drive is the only way to access the pit from December through April.

Residents of Evergreen Drive and others in opposition to the agreement said the DARLOA board doesn't represent the landowners and is working against their interests. Opponents pointed out that the road does not meet the standards of a county road. It is too narrow for two vehicles to pass in places and has blind corners and dust abatement will be an issue. The two main accesses to the Ranch are wide, paved roads and are the only access for other contractors.

A couple landowners who live on Evergreen Drive said they purchased property on a dead end road and would have reconsidered if they knew it was going to be opened up for commercial use.

Strohmaier said that the letter from the Missoula County Commissioners asking for Evergreen Drive to be an emergency access still stands as a part of the CUP for the proposed gravel pit.

Curtiss motioned to not sign as a party to the agreement as proposed by the staff report. They unanimously voted to not sign the agreement and agreed to send a letter to the Powell County Planning Board.

"I think some of the things that people pointed out today is why we sent the letter in the first place," said Curtiss. "That road isn't really appropriate to become a haul road and we will just stand by that."

To further pursue using Evergreen Drive as a secondary haul route, Hamming said Deer Creek Excavating will need to bring a request back to the Powell County Planning Board. As it stands now, Deer Creek Excavating would be limited to using Cottonwood Lakes as its only haul route.