A zoning designation on about 330 acres of northeast Clark County property deemed by a state authority to be inadequately assigned will remain as the applicant for the designation and the county itself make a legal challenge to that authority’s decision.
During its June 27 meeting, the Clark County Council voted 3-2 to agree with a prior decision by the county’s planning commission about the Chelatchie Bluff surface mining overlay. A month prior, the planning commission voted 4-2 to reject county staff’s recommendation to rescind the placement of the overlay, following a ruling by the state’s Growth Management Hearings Board earlier this year.
The overlay on land near Northeast Healy Road and Northeast 424th Street was first approved last July, Jose Alvarez, a planner for the county, said at the meeting. Two months later, a local land use group named Friends of Clark County appealed the decision to the state’s Growth Management Hearings Board.
On March 22, the board struck down the overlay expansion because the county did not provide an environmental impact statement. Because the county issued a “determination of nonsignificance,” it did not go through with the environmental review. Following the hearings board’s ruling, the county rescinded that determination.
Since then, the county and the applicant for the overlay have appealed the hearings board’s decision, county staff said. That determination ruled the county as noncompliant and its placement of the overlay invalid.
Being noncompliant in the eyes of the hearings board could render the county ineligible to apply for and receive certain state grants and loans, Christine Cook, an attorney for the county, stated. There was also the slim chance the state would impose sanctions on the county, though she didn’t believe it was likely.
“I think that’s only happened once, so I wouldn’t expect that to happen here,” Cook said.
Being in noncompliance with state land use law isn’t new to Clark County. The county lost $10 million in loan funding for public works that had already been approved because it was previously not in compliance on another issue.
The hearings board ruled that not completing that environmental review “places at risk 330 acres of environmentally sensitive lands by authorizing mineral extraction without an adequate analysis and consideration of the potential adverse environmental impacts of this action.”
“The idea is that you should have had in front of you enough information that you could make an informed decision about what the outcome of the mining overlay would be from an environmental standpoint,” Cook said.
Cook said repealing the surface mining designation was a pragmatic move.
“I think it’s kind of a good thing for counties to endeavor to be in compliance with state law, and we’ve been told in rather stark terms that we are not in compliance with state law,” Cook said.
County staff was well aware that further study into environmental impacts would be needed as a project using the overlay designation went into the permitting stage, Cook said. When argued in front of the hearings board, the board replied that environmental analysis should have happened at the earliest possible time in the process, such as during the placement of the overlay.
Councilors, including council chair Karen Bowerman, were in agreement that county staff did the best they could while formulating the overlay.
“I don’t blame staff for being inadequate in their approach to this and its timing,” Bowerman said.
Jamie Howsley, an attorney for the applicant, said the hearings board didn’t have the best track record when their decisions were appealed, mentioning a few cases just this year. He added the removal of the overlay could also remove the applicant’s standing in court.
Howsley also asked about the apparent rush in making a decision about the overlay.
“When an applicant is trying to get things through the county decision-making process, it can take a very long time,” Howsley said. “This thing is moving with such speed, I’m not sure that the council nor the county’s (prosecuting attorney’s) office or their staff have slowed down enough to think through what is actually going on here.”
Councilor Gary Medvigy also questioned the authority of the hearings board.
“The Growth Management (Hearings) Board is not empowered to create law,” Medvigy said.
He took issue with the board making a decision on one of the earliest stages of a potential project, when the details of any project were still unclear.
“Normally you do an environmental impact (study) once you have a project, a permit, something that you can evaluate, and that takes a lot of time and it takes a lot of money,” Medvigy said.
Medvigy wanted to see what the courts said about the county’s appeal.
“If they say the growth management board was right, then so be it. We will abide. But at this point, I do not wish to repeal the overlay,” Medvigy said.
Councilor Sue Marshall voted against the majority decision. She favored staff’s approach to covering any potential issues from letting a noncompliant part of code continue.
“Being aware that this is going to take a good deal of time to be resolved in the courts, I would weigh in on protecting the county’s interests and not being out of compliance with the Growth Management Hearings Board,” Marshall said.
Councilor Glen Yung said he’s read the arguments of both the board and the applicants and felt they each had their merits. He believed the council should advocate for a change in process.
“The reason that I don’t like the position that we’re in is because I think the process is wrong,” Yung said.
