Jul 272011

By Naomi Hatch–

During the tenures of two town managers and three engineers, the Flake family and Hatch Construction & Paving have made several requests from the Town of Snowflake for a special use permit to mine 279.21 acres of gravel. Last week they were given permission to move forward with the first phase of their project.

Jay, Mark and Norman Flake, along with Jason Hatch of Hatch Construction & Paving, were present at the July 19 town council meeting to again request a special use permit.

Hatch noted that the entire application was approved by the mining commission.

The pit is located on the western side of State Route 77, and the property is encompassed on three sides by light industrial and on the northern boundary by residential properties. A small portion of the property is in the floodplain, according to the existing Federal Emergency Management Agency (FEMA) map, but engineering has shown that the floodplain would be larger than the present map shows, and that completion of the Northern Solution and Southern Solution projects will change the floodplain.

Town Engineer Rob Emmett expressed concern with approving both Phase 1 and Phase 2 as requested by the Flake Family.

“The reason we want to get approval for both phases at this time is we don’t want to have to go back and reinvent the wheel,” said Norman Flake, noting they have worked with three engineers and two town managers. “Every time they bring their little pet peeves and their desires. We’ve got very different information from engineers that have looked at this.”

The Flakes showed the floodplain map. “Even if worst case scenario happens and we get a 100 or 500 year flood, we’re at the very end of the food chain and there’s absolutely nothing we can do that will affect anybody else,” said Norman Flake, noting the water will end up in the Cottonwood Wash or against Red Hill. “There’s absolutely nothing we can do to inflict any damage on anyone else, because water will run into Cottonwood Wash.”

He then asked the council to approve Phases 1 and 2 if they meet the requirements and obey all the rules.

The applicants had been directed to submit a financial assurance of $75,000 to cover the cost of developing an engineered floodplain analysis in the event that they initiated any work in the Phase 2 area.

Addressing Emmett, Councilman Chris Brimhall said “You recommend not to approve Phase 2,” then asked the reason.

Emmett explained that the floodplain issue and the screening have not been solved. He referred to the $75,000 assurance bond.

Jay Flake responded, “The FEMA floodplain takes one little corner of pasture of ours…why would you want a $75,000 assurance bond for that one little corner?”

“We’ve had issues as the flood control board that we’ve had to deal with,” said Councilman Tom Poscharsky. “Above that there was a condition that would accept some sort of assurance for Phase 2.

“The second problem of screening is an issue and the third is if this is treated as one plan, you don’t have to do reclamation until the end,” said Poscharsky. “I think it would be to your benefit to have Phase 1 reclamation done.”

“We’re going to be reclaiming as we go, it’s an ongoing process,” said Hatch. “It’s a lot more economical to do as you go.” He also noted that they would be required to follow mining guidelines or be shut down.

“We feel strongly, based on additional documentation we have, that the FEMA maps are not accurate,” said Town Manager Paul Watson. “There’s more than a little sliver in the floodplain … In essence, we have now calculated and stamped engineering plans that show there is a substantial amount of water in a 100 year flood that will come through that area. Based on that we believe a larger portion of the farm land is within the floodplain, so our request was that you need to do engineering and show preexisting conditions, conditions during mining and post mining conditions that are going to take place with the floodplain.”

“We’re prepared to approve Phase 1 and get you going down the road,” said Mayor Kelly Willis.

Mark Flake provided maps showing the diversion of flood waters, and had given a copy to Watson and Willis.

Norman Flake requested that the council approve everything until the town got its things sorted out.

Vice Mayor Jason Whiting asked Town Attorney Robert Hall what the legal ramifications would be.

Hall said that he spent part of the day researching whether there can be approval excluding a small amount of property within the approved area, as requested by Norman Flake.

“I didn’t find anything that said if there’s a little bit you can go around it,” said Hall, but added that he would be willing to look at any statutory references.

“One clear answer is that it can hurt the Flakes. The Flakes have asserted over and over again that it’s been poor Snowflake performance that has caused the flooding and the routing of floodwaters by another party, not the town,” said Hall.

“We wouldn’t be honest if we didn’t say there’s been an allegation that those floodwaters have been Snowflake’s fault. That has been consistent with Norman and Jay and I think from Mark,” said Hall. “Until we get that resolved, the allegation remains.” Hall noted that the Flakes have never withdrawn the claim that they’ll sue the town for damages to the farm. “Tonight, unless they’re willing to release the town from that assertion, that’s clearly the response. They feel like heretofore the town manager did not properly administer the ordinance and that caused the flooding on their land,” said Hall. “To their credit they haven’t sued the town on that.

“My own observation to that area is that their (the Flakes’) statement is accurate. The state highway is an issue,” said Hall. “The Flakes have made the state highway an issue over and over again.

The Flakes reiterated that their concern is new officials, and having to go back to square one for the use permit.

“This is quite an interesting issue in that we all know that there are things in the works right now that are going to change the floodplain,” said Watson, noting that if they came back in three years, the Southern Solution would be completed, the Northern Solution would be completed and the neighboring operation would have moved into another phase. “It may very well be at that point there would be no requirement to do engineering.”

Poscharsky moved to approve Phase 1 and deny Phase 2 over three points, floodplain issues, buffering issues and reclamation. The motion passed unanimously.

“We’ve always wanted to be part of the solution,” said Hatch. “I strongly believe that if we can move forward on Phase 1, phase 2 may resolve itself.”