Confusion abounds on validity of permit for NL plant

By Carolyn Lange

WILLMAR -- The validity of a 27-year-old conditional use permit that was approved by the Kandiyohi County Commissioners in 1981 but was not officially recorded until last month, was debated Mo-nday by the county board of adjustment.

After hearing comments from some of the 60 people that packed the small meeting room, and amid confusion about which state law was applicable, the board tabled a decision until June. 9.

"Don't lose faith," said a woman quietly to several residents as they left the room.

The board was asked by the New London town board to overturn a decision made in April by Zoning Administrator Gary Geer.

Geer said then that the conditional use permit approved in 1981 for a bituminous asphalt hot-mix plant in New London Township was still valid, even though no one knew the permit existed until a new application for a hot-mix plant at the same site was submitted this year.

Geer continued to defend his position on Monday, citing state law, the legal opinion of County Attorney Boyd Beccue and the written minutes of the April 9, 1981, county commissioner minutes.

The issue before the board of adjustment is wrapped in complicated interpretations of what the county commissioners intended regarding putting conditions on the permit when they voted in 1981, and what the official record says regarding the action the county board actually took.

There's also a question of when a permit can be legally recorded under the state law of 1981, compared to the state law of 2008, and questions about environmental regulations that didn't exist 27 years ago.

Caught in the middle are the people who built homes, resorts, campgrounds, a horse boarding stable and new housing developments who never knew that a permit for a bituminous asphalt hot-mix plant in their neighborhood lay buried in a vault in the county offices.

Had they known, they told the board of adjustment, those homes and businesses would never have been built.

Even the most thorough of title searches would never have revealed that a permit for a hot-mix plant was allowed on the site of a little-used gravel pit, located just off state Highway 23 near Long Lake between New London and Hawick.

No such legal document existed in the county recorder's office and no one can recall there ever being a hot mix plant operating at the site.

Chad Monson, a local contractor, didn't know such a permit already existed for the land he bought until he applied for a conditional use permit this spring.

When the viewing committee for the Planning Commission visited the site, Harlan Madsen, a county board member who was on the Planning Commission back in 1981, said he'd been there before and remembered a permit being approved.

Geer then discovered the original 1981 application by Fred Hegstrom in the vault. He also found minutes from the Planning Commission recommending a list of conditions, including a requirement to plant trees, erect a fence and limit plant operations to 45 days.

None of those conditions were ever met, said Wayne Larson, an attorney hired to represent New London Township. Under state law, even the law from 27 years ago, that meant the permit was not valid, he said.

The county board minutes, however, only state that the permit was approved. There is no mention of the conditions.

Geer said that means that there were no conditions attached to the permit, no conditions were violated and the permit is still valid.

Geer officially recorded the old permit last month.

"To say it's OK in 2008 because it was approved in 1981 makes no sense," said Larson, who questioned Beccue's interpretation of the law.

Larson also submitted a West Central Tribune news article from 1981 that says conditions were approved for the hot-mix permit.

Members of the board of adjustment peppered Geer with questions about how a permit could be valid if it hadn't been recorded until 27 years later. They also asked if the 1981 county board minutes were a "summary" of the minute or to be "taken literally."

They said the other permits approved that same day in 1981 should be examined to see if conditions were placed on them, even though the county board minutes make no reference to conditions.

Geer said it's wrong to make assumptions about the intentions of the 1981 county board and therefore the official word on the issue are the words written in the county board minutes.

"The record is what it is," said Geer.