John P. Ahlers & Lindsay Taft Ahlers & Cressman PLLC
Construction is an aggregate-dependent industry. Sand gravel and crushed rock are the raw materials (aggregates) necessary to manufacture concrete asphalt road bed and utility bedding vital to the infrastructure growth of the Puget Sound region. These mineral resource products are the building blocks upon which our state’s homes commercial buildings roads bridges and businesses are constructed. The availability of high quality economical and locally available construction aggregates in every county is a fundamental resource to support not only the private construction industry but also the State of Washington and its local and regional public works projects. If readily available construction aggregates are not regionally accessible they must be transported either by truck or barge to population centers. The cost of transportation has been steadily increasing. The cost to the construction industry of ever further haul of construction aggregates will have an adverse effect on local economies. Businesses will not be building in the region’s population centers but instead will resort to building in other communities thus damaging the local economy. There are of course as with most issues competing interests. Homeowners generally do not consider gravel pit operations to be good neighbors.
This issue came to a head recently when Concrete Nor’West attempted to expand an existing gravel resource in Whatcom County. As it turned out the neighboring forest lands (280 acres) were a previously unidentified gravel resource which satisfied the criteria of Comprehensive Plan’s Mineral-Rich Lands (“MRL”) designation. Concrete Nor’West submitted its application to the Whatcom County Planning Staff and Planning Commission both recognized that all of the applicable criteria had been satisfied and recommended designation of the property as MRL to the Council.
When the issue reached the County Council the Board in a split decision based on “the public interest” (an isolated protest by a local property owner) felt that the public interest was served by withholding designation of these qualified lands and secondly reasoned that the application could be rejected because the County’s Comprehensive Plan imposed no duty on the Council to designate lands as mineral resources lands even if they satisfied the MRL criteria. In other words even though lands met all of the MRL parameters there was no mandate in the Comprehensive Plan that those lands had to be designated as mineral rich lands by the Council so the Council denied Concrete Nor’West’s application.
The matter was appealed to the Court of Appeals who ruled in favor of the Commission effectively giving a green light to legislative bodies to cave in to public pressure rather than to make prudent decisions in an issue of vital importance to all county and state residents.
The AGC through its associate member law firm Ahlers & Cressman PLLC supported Concrete Nor’West with a friend-of-the-court brief seeking Supreme Court review of this Council decision. The AGC in its brief emphasized that the public policy in Washington has repeatedly found that extraction of minerals by surface mining is an essential activity making “an important contribution to the economic wellbeing of the State and Nation” and that the public interest must not focus on an isolated neighbor protest but must instead include consideration of the “anticipated impact” upon the entire region and all members of the community.
Finally AGC urged the Commission should not be free to cast aside a qualified application identifying mineral rich lands because the purpose of the Growth Management Act to “maintain and enhance resource-based industries” would not be served if a Council is free to disregard properties which qualify for an MRL designation as “irrelevant” as the Whatcom County Council did in this instance. The matter is now pending at the Washington Supreme Court.
John Ahlers and Lindsay Taft are both active members of AGC’s Legal Affairs Committee. John is a founding member of Ahlers & Cressman PLLC and focuses his practice on construction disputes. Lindsay is an associate with Ahlers & Cressman and works with general contractors subcontractors and suppliers in all aspects of day-to-day operation through contract disputes including bid protests contract drafting and review lien and bond claims REAs contract claims appeals and small-business procurement issues.