Archive for Thursday, January 31, 2002

Judge’s ruling leaves quarry’s fate in limbo

January 31, 2002

Last week's ruling by Johnson County District Court Judge Thomas Foster left the future of the Sunflower Quarry in legal limbo.

De Soto City Councilwoman Linda Zindler and City Attorney Patrick Reavey said the city needed to ask Foster for a clarification on the ruling. In November 2000, the city council approved an annexation agreement that brought the quarry south of 95th Street into the city and regulated its operation.

Foster issued a summary judgment Jan. 22 in favor of the Sunflower Quarry's neighbors. The neighbors didn't ask the judge to throw out the annexation but rather to invalidate that part of the annexation agreement, which allowed Hunt Midwest to expand its operation.

Unclear to Zindler and Reavey is whether the city can regulate Hunt Midwest's existing operations through the annexation agreement. As the governing body, the city needs to understand the consequences of Foster's rulings, they said.

According to the lawyer who represents 14 of the quarry's neighbors, the ruling could threaten Hunt Midwest's current operation.

"We think the door is now open to go back and ask the judge to cease operations," said attorney Bill Nelson. "Neither Johnson County or De Soto has issued a permit to quarry that is in active force. The property reverted to agricultural when the Johnson County permit expired. Rock quarries are not allowed in agricultural zoning."

But Nelson said he didn't know if his clients would pursue that option. He said he would know more once he discussed possible options, including a settlement with Hunt Midwest, with his clients Friday.

"Our clients have always expressed an openness for that (settlement) option ," he said. "The other side hasn't welcomed those overtures to this point."

Nelson noted the neighbors are now in a stronger position. Last fall, the neighbors offered Hunt Midwest a settlement agreement that would have reduced the annexation agreement's duration from 10 years to five and restricted the quarry's expansion.

Hunt Midwest attorneys did not return phone calls from the Explorer. It would appear Hunt Midwest's alternatives include an appeal to Foster's ruling to the Kansas Court of Appeals, a settlement agreement, or if the neighbors don't seek a more restrictive ruling continued operation of Sunflower Quarry within the setback restrictions established by a 1991 Johnson County conditional use permit.

The company could also seek de-annexation and hope for better terms through a new conditional use permit from the county.

Hunt Midwest's considerations will have to include the willingness of the city to rezone the property from agricultural to industrial. The city's long-term plan designates the quarry's eventual land use as mixed low- to-moderate residential.

From the city's perspective, a change to industrial zoning is unattractive because it would remain with the property even after quarry operations ceased. It was just that concern that prompted De Soto planning consultant Sean Ackerson to first suggest in September 2000 that Sunflower Quarry be annexed and regulated through an annexation agreement rather than a special use permit.

It appears the city will not be part of any appeal. Zindler and Councilman Tim Maniez opposed the annexation and have publicly stated they didn't want the city to appeal Foster's ruling.

Monday, Councilman Brad Seaman, who voted for the annexation, voiced his opposition to any appeal.

"I'm not pursuing it at all," he said. "I hope Hunt Midwest de-annexes.

"If I could turn the wheels back, I wouldn't vote the way I did. We didn't do anything wrong, but it had the appearance of doing something wrong. I can see that now."

Hunt Midwest's stated motivation for pursuing annexation was the uncertain future of its access road to the quarry, which travels through the northeast corner of the Sunflower Army Ammunition Plant. The company approached the city when it appeared Oz Entertainment Co. could gain title to that property.

In the annexation agreement, the city agreed to use its power of imminent domain to secure the quarry another access route should the process become necessary. Johnson County rejected Hunt Midwest's earlier request to do the same.

Oz's demise would seem to remove the uncertainty of the access. Seaman suggested Hunt Midwest had little to gain from annexation with the threat to its access road removed with Oz's demise.

Hunt Midwest sought the annexation as its 10-year conditional use permit with the county was up for renewal.

While he said talk of de-annexation was speculative, Johnson County Legal Counsel Don Jarrett said he wouldn't anticipate the county refusing to allow the quarry to operate should it apply for a conditional use permit.

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