FAQs vulcan conditional use permit application

If staff were to dismiss the application outright, it would be depriving a property owner of due process. The zoning code lists asphalt manufacture as a conditional use in the RH zone and provides a process for review of this use. Staff is constitutionally required to follow the process outlined in the town code so as not to deprive the property owner of their rights and due process. The Town Council is the decision-maker on a Type 3 CUP application such as the Vulcan Materials request; staff does not have the authority to deny the application. 

No. The request is still under review. To complete the analysis, staff has requested that Vulcan provide an air modeling study. Once the study is complete and has been reviewed, the analysis will be finalized in the form of a staff report. The staff report will be made available to the public ten days prior to the Planning and Zoning Commission public hearing. The Commission will make a recommendation to the Town Council during the Commission’s public hearing. A decision will not be made until the Town Council public hearing, at which the Council will be presented with the results of staff’s analysis and the Planning and Zoning Commission’s recommendation, and the public will have the opportunity to provide input on the project. 

There is a process that must be followed for zoning cases such as CUPs. That process requires staff to complete an analysis prior to moving the application forward for public hearings where the decision on the application will be made. Staff analysis in this case is incredibly complex due to the nature of the land use that is being requested. Staff has also devoted many resources to reviewing and responding to public comments and inquiries. At this time, staff is waiting on the applicant to provide responses to comments and questions, including the air modeling study that was requested based on public concern. 

11/8/2023 Update: Vulcan has informed staff that the air modeling study is not yet ready to submit. Public hearings will be held a minimum of 9 weeks after the air modeling study is submitted. Once the air modeling study is submitted, staff will update the website.

12/4/2023 Update: The latest information on timing is that it will be at least another three weeks before the air modeling study is submitted to staff. With this timing, hearings prior to mid-March will not be possible. Hearing dates will be announced when scheduled, and the website will be updated when the study is submitted.

The development review process requires applicants to conduct and submit their own studies – traffic studies, drainage studies, etc. Town staff, or in some cases third-party consultants, review these studies for accuracy and best practices. Staff may comment or make recommendations for changes to an application based on what the studies say. Studies are prepared by licensed professionals who put their seals on their work and may incur liability if any portion of the study is found to be incorrect or falsified.  

In this case, Town staff has heard the concerns of the public related to Vulcan’s paid consultant performing the air modeling study. It is important to note that the air model is driven by the specific parameters entered into the model. Vulcan will have to disclose all parameters entered into their model. Ninyo & Moore, the Town’s third-party consultant, will review this study and agree or disagree on the parameters entered by Vulcan. If we agree with the parameters used, then we agree with the results of the model. If the Town were to conduct its own study, we would get the same results as Vulcan. However, the Town will be commissioning an additional third-party reviewer to review the Vulcan study to confirm that the industry’s best practices are being utilized and to review staff and Ninyo & Moore’s recommended impact-mitigating conditions to ensure that practical and innovative solutions are being recommended.  

Yes. When Vulcan’s CUP application is formally presented to the Town Council in an upcoming public hearing meeting, the Council will have several options for their vote.  Some of the options that will be available to the Town Council may include: 1) Deny the CUP application; 2) Approve the CUP as proposed by the applicant; or 3) Approve the CUP, modified with conditions.   

Town staff has been working diligently to support the P&Z Commission’s and the Town Council’s ability to productively discuss any and all of those options. Staff have been working to compile a working draft list of conditions so that the Council can apply extra requirements should they find it necessary to do so. Such conditions may include restrictions on hours of operation, emission control measures, lighting, road improvements, etc. The conditions have been informed by input from residents with their concerns, staff analysis, research of mitigation measures implemented at other HMAPs, and consultant recommendations. A draft list of conditions will be made available for public viewing well ahead of the public hearings with the caveat that there are numerous factors that could change the list between its draft state and the Council’s final decision. 

A General Plan is a comprehensive, long-term guide to the Town’s future, setting forth a vision for Sahuarita to aspire to and providing goals and policies to help get us there.  A General Plan is a policy guideline adopted by resolution. It is not regulatory. Regulations, such as town code, are adopted by ordinance and are considered law. 

State law requires municipalities to adopt a General Plan every ten years and requires that the General Plan be ratified by the voters. Aspire 2035 was adopted and ratified in fiscal year 2017. Public input and consensus are critical components of General Plan adoption. General Plan adoption and major amendments to the General Plan require two public hearings with the Planning and Zoning Commission and a subsequent public hearing with the Town Council. Following Town Council adoption of a General Plan, voters accept or reject the Plan through the ratification process. This ratification process establishes public consensus on the Plan. 

The General Plan includes a series of Elements (or chapters), each with its own topic. Examples of Elements are the Land Use Element, the Growth Areas Element, and the Environmental Element. Each element has a list of goals, each with its own policies, and some of the elements also include maps, such as the Land Use Map.  

The General Plan (GP) informs the code, and the code is the regulatory mechanism for the implementation of the policies. In other words, the GP is the guide that offers procedural and/or development recommendations, and the zoning code and zoning map are the tools that implement the goals and policies of the GP. It is presumed that clear regulations in the zoning code were determined at the time of their writing and adoption to implement the policies of the GP. When the code is clear, we cannot use GP policies to override the regulations of the code.  

Zoning districts (“zones”), as codified in Town Code, are law and regulatory in nature. The General Plan assigns land use designations and is a policy guideline. The GP land use map establishes land use designations such as Medium Density Residential, Institutional, and Resource Industrial. For most of these land use designations, the GP provides a list of zones that are recommended for it. For example, the Medium Density Residential land use designation lists the R-2, R-3, R-4, and MH-1 zones as being appropriate zoning districts for areas that are designated Medium Density Residential in the GP.  

The Vulcan site has a GP land use designation of Resource Industrial and is zoned RH (Rural Homestead).

One of the findings for approval of a CUP is the applicant must demonstrate General Plan (GP) compliance. It is important to note that “compliance” with the GP means that the application will generally further the overall goals of the GP and not be contrary to the GP’s overall goals. The GP has numerous goals and policies, some of which conflict with each other when taken out of context. For example, the GP promotes both economic development and environmental protection. Any new construction on vacant land could be considered harmful to natural habitats. Traffic generated by new commercial development could be considered detrimental to air quality. However, because the GP also promotes economic development, we weigh the goals against each other, and the code helps us implement the competing GP goals. For example, the code gives us standards for riparian habitat protection that permit development while protecting or mitigating impacts to riparian areas.  

Public opinion alone is not enough to deny a CUP. Objections by neighbors to zoning decisions based upon the character of the area are material and properly considered in reviewing the validity of a zoning decision. However, neighbor opposition cannot be the sole reason for denial of the CUP; otherwise, it could be deemed “arbitrary,” which is the standard a court would use to analyze the Town’s denial. Zoning decisions must be made based on facts rather than perceptions. (Aegis of Arizona, LLC v. Town of Marana, Coleman v. City of Mesa).

STC 18.01.030.A.4 states that individual property rights shall not be prejudiced by reason of being a minority, either in numbers or in land owned. If zoning regulations are ambiguous or uncertain, they will be strictly construed in favor of property owners requesting use of their land. Property rights entitled to protection are the applicant’s, not the neighbors’. It is the applicant’s property that is being directly regulated or affected by the Town Code. A denial results in a concrete effect–denial of a use—to the applicant’s property rights. Conversely, approval does not result in a change in the legal rights of neighboring property. Case law (Arcadia Osborn Neighborhood v. Clear Channel Outdoor, LLC) supports this approach. 

Anecdotal evidence is not sufficient to deny a land use application. Detrimental impacts of a proposed land use must be substantiated by factual evidence to be weighed in the balance. The Town’s denial must be on a rational basis relating to the Town’s land use goals. Facts and evidence must create the rational basis for a denial (Gamble v. City of Escondido, Kawaoka v. City of Arroyo Grande, Wait v. City of Scottsdale, City of Tempe v. Rasor).

RH Zone purpose statement continued: "is intended to encourage rural development in areas lacking facilities for urban development and to provide for commercial and industrial development only where appropriate and necessary to serve the needs of the rural area.”

The proposed asphalt plant is specifically listed as a conditional use in the RH zone. Staff’s interpretation is that the writers of the code considered the RH zone’s purpose statement when creating the list of permitted and conditional uses for the zone; the list of uses is presumed to be “appropriate and necessary.” The Town Attorney has concurred that the listing of a use in the zone takes precedence over a purpose statement when determining whether a use should be allowed or not, and that there is not a conflict in considering the proposed asphalt plant on the subject site through the conditional use permit process. 

There are many land uses listed in the RH zone that serve an area larger than the RH zone itself. For example, agriculture is allowed in the RH zone. Agricultural products grown in the RH zone are not limited to those that would serve Sahuarita’s rural areas. In fact, agricultural products grown in Sahuarita are processed for sale worldwide. When making zoning decisions, staff must apply code interpretations uniformly for all users. If we were to interpret the code as suggested, certain agricultural uses in Sahuarita would be nonconforming due to their consumption outside of the town’s rural area. 

Union Pacific will require a private crossing agreement with Vulcan. As part of this agreement, a Safety Diagnostic is being performed and will include recommended safety measures for the crossing based on the proposed use (number of daily crossings, users, etc.).  

The Town Fire Marshal has coordinated closely with Green Valley Fire Department to analyze the International Fire Code for any requirements that would negate the ability to use this access point for fire access. Preliminarily, the determination of the Fire Marshal is that the railroad crossing is not contrary to the requirement for fire access. Staff is continuing to research this topic, and compliance with the fire code will be required. 

11/8/2023 Update: The Safety Diagnostic with UPRR was completed on September 27, 2023. Requirements will include installing lights and gates at the crossing, widening the crossing surface, sign installation, paving the driveway, and using flaggers in the event that the plant opens prior to installation of the lights and gates.

The fire code allows the Fire Marshal discretion to require a secondary access based on his/her knowledge of the anticipated magnitude of a potential incident. UPRR has informed staff that they have reviewed their incident reports related to this crossing and have not found any incidents of delay or blockage. The Town Fire Marshal, in conjunction with Green Valley Fire District and after consultation with the International Code Council and the National Fire Protection Association, has made a determination that additional access and/or a grade separated crossing to the site will not be required. This determination is based on the potential for blockage of the access road as well as limited potential for public harm in the event of a fire incident.  

Environmental Impact Studies (EIS) are typically a federal tool used to determine the impacts of projects involving either federal dollars or federal lands.  Additionally, besides air and water quality impacts, which are already being evaluated on this CUP application, a major component of the EIS tool is the evaluation of alternative sites.  That said, the use of an EIS in this instance is not appropriate as only one site is identified in this CUP application. 

Staff has inquired about this technology with our consultant, Ninyo & Moore. It was explained to us that RTO technology is not intended for this type of plant. It is meant for much larger plants with greater emissions, such as power plants. If applied to a hot mix asphalt plant, the consultant stated that it could worsen emissions. Instead, staff has been researching other technologies that are more appropriate for asphalt plants and which serve the purpose of reducing emissions. 

11/8/2023 Update: Staff has reached out to our consultant for additional information on RTOs as may be implemented in the manufacture of asphalt. We were provided with examples of RTO technology that had been used at asphalt shingle manufacturing facilities. We are not aware of any examples of this technology being used in a hot mix asphalt plant such as is being proposed on this site. Our consultant explained that the potential worsening of emissions with an RTO system is caused by the additional fuel used (natural gas, propane, used oil, etc.) to power the RTO, and the additional CO₂ and N₂O emissions are not controlled by the system. Literature suggests that the system might be self-sustaining under certain conditions, but this manufacturer claim has not be evaluated. Instead of a RTO system, staff will likely recommend a blue smoke eliminator system, which is industry best practice for reducing emissions. 

11/13/2023 Update: Our consultant has provided further information about the difference in asphalt shingle manufacturing vs asphalt batch manufacturing to help explain why the RTO, while it may be appropriate for an asphalt shingle plant, is not necessarily the best technology for a HMAP.

1. Asphalt shingles are made in large lots or continuous manufacturing processes for outbound shipment to distributors and home improvement stores, whereas asphalt paving is done in small “batches” depending on daily demand or local orders pending. An air quality control device that runs 24/7 might be suitable for a large manufacturer with continuous operation, but may not be suitable for operations that start and stop on a daily basis, like an Hot Mix Asphalt (HMA) batch plant.
2. Asphalt shingles manufacturing requires an “asphalt blowing” process for asphalt saturants and coatings, where air is passed through the hot oil, and this requires control of more process airflow than a typical HMA storage silo and counter-flow drum mixer.
3. Asphalt shingle manufacturing and HMA plants have separate research studies and emission factors, and are regulated differently by the EPA.  
   1. Per EPA AP-42, Section 11.2, Table 11.2-4, Asphalt shingle manufacturing has at total organic compound (TOC) emission of 1.3 lbs./ton of saturant asphalt, and 3.4 lbs./ton of coating asphalt, as well as additional EFs for other steps in the manufacturing process (shingle saturation, etc.).
   2. Per EPA AP-42, Section 11.1, Table 2 (EPA 454/R-00-019), HMA plants have a total volatile organic compound (VOC) emission factor of 0.050 lbs./ton of HMA produced, which is roughly 1% of the TOC emissions produced by the two “asphalt blowing” processes in asphalt shingle manufacturing.

Vulcan provided information in their application regarding their truck traffic including the 2022 average operation day truck traffic, their expected average days with the HMA plant, and the maximum  truck potential.  

*Number of operational days in 2022 was 105 days. Vulcan estimates that the site will be operational 250 days per year with the HMA plant in production.

It is important to note that the traffic volume on Old Nogales Highway was 8,819 trips per day when last counted in 2022. The road is designated as an arterial and is designed to handle volumes of over 16,000 trips per day while still maintaining a reasonable level of traffic flow.  The increased number of trucks will not have a substantial impact on the road’s ability to handle traffic. Additionally, when Old Nogales Highway was designed it was known that this road would be an arterial road. As such, a higher volume of heavy vehicle traffic would be associated with this type of use and the pavement section constructed accordingly. The new heavy vehicle trips proposed by this use would not be outside of what the road was designed to handle.  

Should the Town Council determine that the findings support approval, staff may recommend that road improvements be required. These improvements may include turn lanes, acceleration lanes, deceleration lanes, and surface treatments.  

11/20/2023 UPDATE: A traffic impact study (TIS) or a traffic impact analysis (TIA) is a specialized engineering document prepared by qualified traffic engineering firms and individuals to assess the potential effects of a proposed development on the surrounding roadway network. Vulcan was required to submit a TIS with their application. The purpose of a TIS or TIA is to determine the potential traffic impacts of a proposed development on the existing road system. It helps ensure safe and reasonable traffic conditions once the development is complete and protects the community’s investment in its street system. The study may also recommend geometric or operational roadway improvements to accommodate the proposed traffic. ADOT and the surrounding jurisdictions maintain specifications and guidelines for the best practices in conducting a TIS/TIA to advise applicants as to what is necessary for a comprehensive, complete and acceptable TIS/TIA for development projects. A TIS/TIA not meeting those guidelines is considered incomplete and unacceptable.

The Town has hired a third party consultant to review all traffic documents related to this project to ensure they meet the required specifications and guidelines. The consultant for this work is a Professional Engineer licensed in the State of Arizona and is also certified as both a Professional Traffic Operations Engineer and a Road Safety Professional specializing in infrastructure. Additionally, all documents have been reviewed by the Town Engineer, a registered Professional Engineer in the State of Arizona and by the town’s Traffic Signal Operations Manager, who is certified as both a Traffic Signal Operations Specialist and Road Safety Professional. 

Staff has requested an air modeling study to determine the plant’s emissions and how they will interface with the atmosphere. The study will take into consideration the plant’s proposed location at the bottom of the existing pit. This analysis will be included in the staff report. Should the Council choose to approve the application, they may require additional mitigation measures be placed on the plant to minimize emissions. Vulcan will be required to obtain all necessary permits through the Pima County Department of Environmental Quality. 

Different agencies have the ability to regulate different aspects of a business. The Town has jurisdiction over land use decisions. PDEQ and ADEQ have jurisdiction over environmental permits.  

Not necessarily. Tax status is looked at differently from land use status. The Town makes land use decisions while the Pima County Assessor makes decisions on tax classification. In land use law, discontinuance of a nonconforming use results from the concurrence of two factors: 1) the intent to abandon; and 2) some overt act or failure to act which carries the implication of abandonment (Kubby v. Hammond). The city may not terminate nonconforming use just because a year has passed. Some conduct within the control of and attributable to the property owner must be a cause of the condition justifying termination (City of Glendale v. Aldabbagh). The purpose of tax classification codes is to assess property taxes uniformly across the region so that like properties are taxed at the same rate.  

11/8/2023 Update: Staff has continued to work closely with the Town Attorney on this matter, and the determination is that there does not appear to be a legal issue with the status of the nonconforming sand and gravel use. However, staff has requested that Vulcan provide financial records or some other proof of continued operation.