The Haines Borough Assembly extended its Tuesday meeting into a third day after wrestling for hours with two appeals of a controversial conditional use permit issued by the planning commission.

During the extended meeting Wednesday, the assembly decided to wait for advice from its attorney, delaying a decision on a challenge to the permit that would allow Southeast Roadbuilders to excavate 7,500 cubic yards of rock near the Skyline subdivision.

Company owner Roger Schnabel told the assembly future construction plans in Skyline include “reconnaissance work” like drilling, blasting and excavation of materials, but Schnabel applied for a conditional use permit primarily to create and move fill for the harbor expansion project.

Skyline residents Lenise Henderson Fontenot and Ella Bredthauer each appealed the planning commission’s decision, arguing the body failed to adhere to borough code and comprehensive plan guidelines.

After testimony at Tuesday’s meeting on Henderson Fontenot’s appeal, the assembly voted to uphold the planning commission’s decision, adding back into the permit conditions recommended by interim borough manager Brad Ryan that the planning commission had removed.

Also, the assembly added several conditions of its own, including requiring a safety plan.

Ryan had judged Schnabel’s permit against eight mandatory criteria in code for allowing conditional use. However, the commission did not reference code in making its determination. It focused primarily on Ryan’s operational recommendations.

The assembly reconsidered its position Wednesday, however, after Bredthauer combed through dozens of borough code sections she argued Schnabel and the planning commission failed to conform to in the application and approval process.

“This permit is deficit,” Bredthauer said Wednesday. “It was not completed with due diligence. It shouldn’t have made it past the approval process, yet it did, which makes me concerned and worried that code was not adhered to in the entirety of this process.”

She said the “commercial” and “residential” work activities described in Schnabel’s permit don’t align with the actual industrial use the project entails. Heavy industrial work is defined, in part, as activities that generate “noise, dust, fumes, vibrations or glare,” and includes resource extraction.

But Schnabel maintained because he’ll be blasting and removing rock from the property anyway, labeling his project “resource extraction” is a problem of semantics. Hauling rock to sell as rip-rap from the site is defined as resource extraction. He said he could circumvent the conditional use process by offloading the rock to a permitted discard site at Fourth Avenue and then reloading and taking it to the harbor project.

“Then it changes its meaning and now I can move material from Fourth Avenue to use it commercially on the project,” Schnabel said.

Schnabel also questioned why homeowners in Skyline are upset about his company hauling a volume of material similar to what trucks in the past delivered to many of their homesites.

“I’m in a position right now that I can’t quite understand the drama of this mainly because what they’ve seen the last ten years up there is a lot more or greater impact than what you’re going to see the Southeast Roadbuilders come down (with) to the harbor project,” Schnabel said.

Schnabel attorney Dan Bruce told the assembly many of Bredthaeur’s arguments inappropriately added and rewrote provisions to the borough’s code and were outside the purview of the appeal process.

“We’ve heard a lot today, effectively of new evidence maybe clothed in the guise of argument, but really there’s been a whole bunch of new evidence,” Bruce said. “I have not heard a lot of discussion or references to the record and the record is the transcript of the planning commission hearing when they heard this permit.”

Assembly member Heather Lende said Wednesday she left the meeting the night before believing the assembly had a made a good compromise with Skyline neighbors and Schnabel.

“I still in many ways think we have done the right thing,” Lende said. “I question, though, whether we’ve done the legal thing. I appreciate Ella (Bredthauer) very much bringing us right back to code.”

More than a dozen residents testified, most in favor of the planning commission’s decision. Among appeal supporters was Young Road resident Joe Poor, who played a recording of a passing dump truck.

In an effort to protect the borough from potential legal action, the assembly voted to delay the meeting, and its decision, until 1 p.m. Friday, March 17.