Archive for Wednesday, November 21, 2001

Judge hears arguments on quarry annexation after last-minute settlement agreement rejected

November 21, 2001

Lawyers will have one more opportunity to make their case before the judge who will decide the fate of a controversial annexation the De Soto City Council approved last year.

Bob Nelson, attorney for the Sunflower Neighborhood Group, and De Soto City Attorney Patrick Reavey said they and Hunt Midwest Mining Inc. attorneys presented oral arguments to Johnson County District Judge Thomas Foster Oct. 31. The judge has asked for a follow-up teleconference before starting deliberations on the annexation of the quarry Hunt Midwest operates south of 95th Street and east of the Sunflower Army Ammunition Plant. Nelson said the teleconference would be scheduled before the end of November. He expects Foster to make a ruling by Christmas.

The city council approved an annexation agreement that made the Sunflower Quarry part of the city and regulated its operation last year by a 3-2 vote.

The Sunflower Neighborhood Group has asked Foster to make a summary judgment declaring sections of the annexation invalid. The brief argues the annexation agreement circumvented the neighbors' due process rights by eliminating Hunt Midwest's need to seek a special-use permit to operate the quarry. It asks the court to overturn that part of the agreement that allows the company to expand the quarry.

The city and Hunt Midwest have, in turn, asked Foster to make a summary judgment declaring the annexation agreement valid.

In his motion, Reavey argued the opponents missed their legal opportunity to oppose the annexation. State statute requires neighbors to exhaust all administrative remedies available within the jurisdiction before seeking relief in court. If they fail to do so, they "are barred from attacking the city's decisions with the District Court," Reavey wrote.

Attorneys for the neighbors learned of the city's decision not to rezone the property or require a special-use permit on Sept. 20, 2000, Reavey wrote. But they did not raise the matter to the city council until Nov. 2 nor pursue the matter with the De Soto Board of Zoning Appeals within its 60-day time limit.

Hunt Midwest attorneys Paul Schepers and Michael Norris wrote in their motion the annexation agreement is legal under the home rule powers the state grants its cities. Arguing over rezoning procedures in an annexation agreement "is comparable to them asking whether a person should be required to pass a driving test in order to vote," they wrote.

The city did make an attempt to broker a settlement before oral arguments. At the request of Reavey, the neighbors approved what Nelson called a "very fair compromise offer." It asked Hunt Midwest to reduce its planned quarry expansion by half and agree to seek a special-use permit in five years.

That last point led Hunt Midwest to reject the settlement offer, Reavey said. The annexation agreement approved last year must be renewed by the city every 10 years. At that time, the city council will consider regulations in respect to new technology and the quarry's compatibility with surrounding land uses.

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