Archive for Thursday, December 21, 2000

Controversy continues with quarry annexation

December 21, 2000

Opinions differ on the wisdom of a measure that relieves the city of DeSoto from any legal expenses regarding the annexation of Sunflower Quarry.

A clause in the annexation agreement that makes the quarry part of the city requires Hunt Midwest Mining Inc. to indemnify the city for any legal fees that result from a court challenge over the annexation. Dec. 7, the city council authorized Mayor Steve Prudden to sign the agreement pending completion of remediation and screen plans for the quarry site.

City officials supporting the annexation say the measure spares city taxpayers the expense of defending the agreement in court.

Critics charge the clause allows the city to avoid responsibility for a bad policy decision.

"I see that as minimizing the city's responsibility, which has good and bad consequences," said Councilman Linda Zindler, who lives near the quarry and voted against the agreement.

The clause is an insurance policy against a lawsuit such as the one the Sunflower Neighborhood Group is vowing to pursue, Mayor Steve Prudden said.

"It's a good position of strength for the city," he said.

The threat of a lawsuit does serve as a deterrent to bad or unpopular policy decisions, said Mark Crumbaker of the Sunflower Neighborhood Group. A city might not give an agreement the scrutiny needed if it was assured it wouldn't have to answer for the legal bills, he said.

But Prudden insisted the indemnification clause supports an already strong agreement.

"We backed up and double checked everything out," the mayor said.

City Attorney Patrick Reavey agreed. The agreement went through numerous drafts during the three months it was before the council, he said.

During that time, neighbors and Johnson County officials had opportunities to express their concerns most of which were addressed at a public hearing and council meetings, he said.

Reavey added that the city and Hunt Midwest have no conflict of interest based on the draft petition for a lawsuit Sunflower Neighborhood Group lawyers presented the city council Dec. 7.

That petition challenges the procedure the city used to annex the quarry. The Sunflower neighbors maintain bringing the property into DeSoto through an annexation agreement violated their due process rights. The petition contends the city should have made the annexation contingent on the DeSoto Planning Commission approving a special use permit regulating the quarry's operations.

Zindler and Crumbaker point out that petition is only one lawsuit and others might be forthcoming. Hunt Midwest and the city might not share a compatible position in a lawsuit involving the agreement's regulations or their enforcement, they said. In fact, Zindler and Crumbaker said they could foresee the city suing Hunt Midwest over enforcement issues.

Crumbannexation agreement short-circuited his and other neighbors' due process rights. Competing against Hunt Midwest's money in court constrains the neighbors' due process rights in the legal arena, he said.

Hunt Midwest could defend the agreement in court itself or reimburse the city for its legal expenses. Reavey said ask the council for direction on how the policy should be handled.

As far as his job is concerned, there is no conflict of interest, Reavey said. He is required to represent the interests of the city, and that is what he will do, he said.

Reavey said he thinks it is too early for anyone to talk about a lawsuit. The annexation agreement's approval is contingent on the city council approving a finding of fact and conclusion of law that Reavey is now preparing.

"That will explain when and why the council choose to take the actions it did," he said. "I think it will remove any suggestion this was something concocted in a smoke-filled room."

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