Neighborhood group will bring annexation to court
Although the city of DeSoto's recent annexation of Sunflower Quarry appears headed for a court challenge, the city doesn't have to worry about legal bills.
Hunt Midwest Mining Inc. President Lee Derrough confirmed last Thursday that his company would be responsible for all legal expenses should the city be sued over the annexation of the quarry the company operates south of DeSoto.
On Nov. 18, the city council voted 3-2 to give Mayor Steve Prudden the authority to enter into an annexation agreement with Hunt Midwest Mining Inc.
That vote, however, didn't represent the final action on the agreement, which annexes Sunflower Quarry and regulates its operation. Thursday, the council adopted a resolution that approved the last-minute changes made in the annexation agreement during the Nov. 17 meeting.
The vote to approve the resolution reflected the same split among council members that was revealed Nov. 17. Council members Duke Neeland, Brad Seaman and John Taylor voted yes, while Tim Maniez and Linda Zindler voted no.
With support for the annexation already demonstrated three weeks earlier, Thursday's council action might appear a mere formality. However, Sunflower Neighborhood Group members used the occasion to plead their case. Mark Crumbaker said the annexation seemed to be motivated by a fear that Olathe would annex areas south of DeSoto.
"I personally feel that is an irrational fear," he said. "My neighbors would fight that. We consider ourselves part of this city."
Crumbaker insisted the quarry's neighbors didn't want to close down Hunt Midwest's operation, but wanted the quarry properly regulated. The best way to ensure that, he said, was to turn the annexation request over to the DeSoto Planning Commission.
The planning commission's procedures would give neighbors a greater voice in the quarry's regulations, Crumbaker said.
If the council approved the annexation agreement, the neighbors would reluctantly sue the city, he said. Following Crumbaker's plea, Sunflower Neighborhood Group attorney Brian Doerr presented the council with a draft petition of a lawsuit.
City legal counselor Patrick Reavey said he was confident the annexation agreement was legal and would withstand any court challenge. State law allows cities to relax or forego regulations as an incentive to annex surrounding property, he said.
Hunt Midwest's Derrough was also optimistic the annexation agreement would survive a legal challenge.
"We don't particularly want to get into a lawsuit, either," he said. "But we feel the city has acted appropriately. We will defend a lawsuit."
In the annexation agreement, Hunt Midwest agreed to pay all legal expenses associated with defending the agreement in court.
The city council didn't refer the annexation request to the planning commission because of concerns over the quarry's future zoning, Reavey said.
The planning commission would have had to work within existing city zoning regulations, which restricts quarry operations to property zoned for heavy or light industrial uses, Reavey said.
With that zoning, it would be difficult for the city to prevent other industrial uses on the property, Reavey said. The city would then be stuck with the industrial uses when the quarry closes in 40 to 50 years, he said.
The annexation agreement allows the city to bring the property into DeSoto without changing its current rural residential zoning, Reavey said.
The city attorney's argument didn't sway Crumbaker or Doerr. Both said the property could retain its rural residential zoning, while the city regulated Hunt Midwest's operation under a special-use permit developed by the planning commission. That would duplicate the procedure the county has used to regulate the quarry the past 10 years, they said.
The Sunflower Neighborhood Group would challenge the annexation agreement in court, Crumbaker said. But he was realistic about the group's chance of success against a company with Hunt Midwest's resources.
"We'll take them as far as we can go," he said. "In the end, they have unlimited funds. They can tie this up in court until we run out of money."
The annexation agreement will not be final until the city approves Hunt Midwest's plans to remediate the quarry site and to buffer and screen the property. Those two plans are to be submitted within 90 days.
Sunflower neighbors will again ask the city council to reconsider the annexation when those two agreements are up for approval, Crumbaker said.
"We'll take a run at it," he said. "It's (the annexation agreement) detrimental to the growth of the city. People are concerned about this. Maybe we can rise up more people."