The City and Borough of Juneau heard an appeal Wednesday of a proposed gravel pit and rock crusher in the Montana Creek area.

No decision was made at the hearing, however Hearing Officer Michael Lessmeier, an  attorney with Lessmeier and Winters Lawyers, LLC, said that though he has 45 days to make a decision, he doesn’t expect his decision to take that long.

Peggy and Rich Mattson and fellow homeowners in the Montana Creek area filed an appeal to overturn a Planning Commission decision to approve a rock crusher proposed for their neighborhood, a D3 zone.

The CBJ Planning Commission approved Coogan Construction’s permit application SGE20110003, A Conditional Use Permit for sand and gravel extraction activity along Montana Creek Road at the West Glacier Borrow Pit Lot 1 on April 10.

Lloyd Coogan, a partner in Coogan Construction, has said the entire permit for sand and gravel removal and screened, crushed material rests on approval of the crusher. The demand for crushed rock is not high enough in Juneau to run a gravel pit economically without onsite crushing, he said. What demand there is, he said, would result in approximately 100 hours of crushing a year.

The appellants had three main arguments against the crusher.

Attorney for the appellants, Bob Spitzfaden of Gruening and Spitzfaden Attorneys at Law argued that the crusher would not be compatible with the surrounding neighborhood, CBJ code allows a crusher in an area zoned D3 only if it is used to crush rock for a public road and used on site and the crusher would be a primary, not incidental, portion of Coogan Construction’s sand and gravel operation at the site.

Spitzfaden said the west Mendenhall Valley area has transitioned to a more residential area since 1984. Therefore a rock crusher operation is no longer compatible with the surrounding neighborhood, he said.

Additionally the CBJ 2008 Comprehensive Plan does not call for gravel extraction in the west Mendenhall Valley, Spitzfaden said, it calls for residential uses. Though the area has been home to a rock pit and crusher, the existing pit is expected to play out sometime around 2017, he said.

Spitzfaden said the planning commission had to adopt a number of conditions to the Conditional Use Permit to deal with the incompatibilities between the crusher and the surrounding neighborhood.

“That is not say that 20 or 30 years ago, when there were a lot fewer residences out there, that there could have been some co-existences,” Spitzfaden said. “But things change.”

This particular crusher is not permitted in the D3 zone, Spitzfaden said. He said a crusher in this zone is only authorized if used for public road construction and the crushed sand and gravel is used on site, according to CBJ code 4.150.

The rock crusher is not incidental, insubstantial or an accessory to the gravel pit operation, Spitzfaden said referring to CBJ code and what he said was a relevant Supreme Court decision.

Coogan Construction, he said, is not marketing the raw sand and gravel, it is selling crushed material.

“If you can’t have an operation without the crusher, it isn’t insubstantial, incidental or relatively minor,” Spitzfaden said.

Hearing Officer Michael Lessmeier said he did not believe the Supreme Court case, which refers to junk cars, relates directly to the rock crusher.

Jane Sebens, deputy city attorney testified on behalf of the Planning Commission.

She said the commission approved the rock pit and crusher as an accessory use in a D3 zone.

“What the record here shows is seven reasonable minds, reviewed and deliberated on the evidence, they applied a reasonable interpretation of the law to that evidence and they reached a unanimous, well throughout decision,” Sebens said.

Sebens said the appellants’ briefing contained “gapping omissions.”

“One outstanding error,” Sebens said, “…I would challenge the appellate to show us where the Planning Commission found that the rock crusher is the primary principle use taking place on this site. That is a pretty significant mischaracterization of the record.”

Sebens said the planning commission knew it could not approve the permit if the crusher was a dedicated crusher. It is not impossible to haul away the rock to be crushed off-site, but the economics don’t allow it, she said. While the rock crusher could be locates somewhere else, “the gravel is where it is,” Sebens said. Coogan Construction, however, is not allowed to bring rock onto the site to crush, she said, as it would make the crusher a principle use and not an accessory use.

Historically, CBJ has considered rock crushing as an accessory to sand and gravel permits, Sebens said.

Sebens said CBJ has found that for temporary public road projects, the Conditional Use Permit process was too much. A permit for use of a rock crusher for these types of road projects, she said, can be had by department approval.

The Montana Creek area is a neighborhood where there has been sand and gravel operations, “because that is where the sand and gravel is,” Sebens said. Contrary to the appellants’ argument, the CBJ comprehensive plan calls for sand and gravel extraction before residential uses, she said.

“Nobody wants gravel extraction in their neighborhood,” Sebens said. “The good news is it isn’t for forever.”

“The Planning Commission believes that the appellant did not meet the burden of proof,” Sebens said. “The appeal should be denied.”

Coogan’s was represented by attorney Dan Bruce with Baxter, Bruce and Sullivan.

Whether the rock crusher is an accessory to the gravel extraction does not have to do with the value of the crusher to the operations, Bruce said, it is the amount of its use. The permit is for sand and gravel extraction, he said, not only for a rock crusher. “Mining the gravel and the rock, screening it, washing it and then crushing a portion of the materials that are removed,” Bruce said. The crusher is a “small portion of the operation.”

The conditions imposed on the permit does not represent a failure of the process, they help minimize the impact of this use that may be otherwise inappropriate in the neighborhood, Bruce said.

“Sand and gravel is recognized as a basic component for the development of the community,” Bruce said. “The more expensive you make it the more expensive development becomes. That is why you crush things on site.”

“There is no other conclusion that there is substantial evidence to support the findings of the planning commission,” Bruce said.

• Contact reporter Russell Stigall at 523-2276 or at russell.stigall@juneauempire.com.