Clark County Council directs staff to pursue repeal of Cholachee Bluff surface-mining overlay after Court of Appeals ruling

The Clark County Council on March 26 directed staff to move forward with repealing the county's Cholachee Bluff Surface Mining Overlay after a Court of Appeals ruling that found the county out of compliance with the Growth Management Act.

The council’s action followed testimony from David McDonald, attorney for Friends of Clark County, who summarized the multi-year procedural history and appeals tied to Granite Construction’s 2021 application and subsequent SMO proceedings. McDonald told the council, “The SMO still has a valid order of invalidity,” and recapped earlier votes, Planning Commission actions and appeals dating to 2021 and 2022.

Why this matters: The Court of Appeals decision, issued March 10, 2025, affirmed a Growth Board finding that Clark County was not compliant; the county now faces limits on when and how it can accept new loan or grant applications until it achieves compliance. Legal counsel told the council there is an April 9 deadline if the county intends to seek further appellate review rather than repeal.

Chief Deputy Prosecuting Attorney Chris Cook summarized the immediate legal timeline, saying, “On April 9, if the county is to appeal the Court of Appeals ruling, that's the deadline.” That timeline helped shape councilors’ decision to pursue repeal rather than another appeal.

Council discussion and direction were brief but unanimous in tone. Councilor Little said he was “in my interest to try to get in compliance as soon as possible and not challenge it any further,” citing the risk to future funding opportunities. Councilor Young expressed concern that repealing the SMO could lead future applicants to submit less information for surface-mining requests, but said the time for further delay had passed. Councilor Balcott also said she supported moving to repeal and “come into compliance.”

Staff outlined next steps: planning staff will bring the repeal to the Planning Commission for a work session on April 3, 2025, followed by a Planning Commission hearing and a county-council hearing scheduled for April 17, 2025, with an accompanying staff report returned to the council after the Planning Commission step.

Details from the record: David McDonald reviewed the file dates the council heard: Granite Construction’s comprehensive plan and zoning map change application submitted in January 2021; a Determination of Non-Significance (DNS) issued December 1, 2021; Planning Commission activity through late 2021 and early 2022; council hearings on March 15, 2022 (with votes reported as 2–1 but no action because three votes were required); and later council action on July 22, 2022. The Growth Management Hearing Board found the county noncompliant on March 23, 2023; the Court of Appeals affirmed on March 10, 2025.

Councilors asked staff whether the county already had lost funding because of the noncompliance; staff said the county had not yet lost loans or grants but that some loan applications are not eligible to be submitted while the county remains out of compliance. Staff reported the Clean Water Division indicated some deadlines extend to 2028, giving the county time to return to compliance for those particular funding streams.

What the council actually decided: The council gave direction to staff to proceed with the repeal process, move the matter to the Planning Commission work session on April 3, then the hearing on April 17, and to return a staff report following that work session. The council did not record a formal roll-call vote on repeal at the March 26 meeting; members signaled their support and indicated staff should proceed.

Next steps and potential consequences: Staff will prepare materials for the Planning Commission and the council; the county has until April 9 if it wants to file an appeal instead of repealing. If the county delays or materially changes course after accepting certain grants or selling property related to compliance, staff warned that program timeliness and eligibility for some federal programs could be affected.

Speakers quoted in this article are those who addressed the council on this agenda item during the March 26 meeting; the Planning Commission will hold additional public-record proceedings ahead of any final council decision.

Ending note: The Planning Commission work session on April 3 and the subsequent April 17 hearing will be the next formal public steps. Council staff said they will return a staff report to the council after Planning Commission deliberations.