Archive for Thursday, October 24, 2002

Hunt Midwest, opponents get day in Supreme Court

October 24, 2002

The vanquished giant got a rematch Tuesday in the two-year-old local David-and-Goliath legal battle just days after receiving added motivation for the contest.

Hunt Midwest Inc. lawyers argued before the Kansas Supreme Court Tuesday that the annexation agreement that brought Sunflower Quarry south of 95th Street into De Soto was a legitimate exercise of the city's home rule powers. The Court's decision will not only settle the two-year-old dispute, but will also have far-reaching consequences on case law involving municipal home rule, attorneys involved in the case predict.

After two months of debate, the De Soto City Council in November 2000 approved the Sunflower Quarry annexation agreement, which also regulates the quarry's operation. The agreement was challenged by 14 quarry neighbors on the grounds it circumvented the due process rights available to them during the zoning process.

In January, Johnson County District Judge Thomas Foster agreed with the neighbors and invalidated that part of the agreement that allowed Hunt Midwest to expand its operation.

Hunt Midwest's appeal was never heard by the Kansas Count of Appeals because the Supreme Court interceded to move the case to its docket. Bill Nelson, attorney for the Sunflower neighbors, said Supreme Court justices might have been motivated by a desire to address a legal issue or an awareness of Appeals Court's busy schedule. The Supreme Court took eight such cases this year.

The case's official name is Mark Crumbaker, et al, vs. the city of De Soto, et al. Although the city of De Soto filed a brief defending the annexation agreement when the case was in District Court, it sat out on the latest proceedings.

Crumbaker said the case was an expensive way to gain name recognition. The neighbors spent about $30,000 on the litigation, he said.

"For a person like me, the cost has a real impact," he said. "Our lawyers were very good about working with us.

"We were fortunate to get some young attorneys who really believed in this. They have maintained the same thing since the beginning of this process."

The central issue from the neighbors' point of view was that any expansion of the quarry operations required an application to the De Soto Planning Commission, Crumbaker said. That, in turn, would require a public hearing and allow the neighbors to protest any decision the Planning Commission made, he said.

The Court's decision on that issue will likely increase Crumbaker's name recognition. Nelson and De Soto City Attorney Patrick Reavey agreed the court's decision would have wide-ranging consequences in the areas of municipal home rule.

"It will become a first impression decision, not only in Kansas but throughout the country," Nelson said. "If the Court decides with them it could expand cities' home rule power and enter into contracts."

Should Foster's opinion be upheld, the Court would increase the power of the Kansas Legislature to influence the processes used in local land use decisions, Nelson said.

Whatever the outcome, Reavey said, the Court is required to make a decision in the next 60 days.

Five days before the Supreme Court arguments, the De Soto City Council gave Hunt Midwest added motivation to win at the Supreme Court when it tentatively approved a special-use permit that would regulate quarry operations and sand excavating operations in De Soto.

Mayor Dave Anderson suggested the permit be developed when the city and Hunt Midwest lost in District Court. Hunt Midwest continues to operate the quarry without a permit while that decision is on appeal. Should the Supreme Court rule against the company, it would have to apply for the special use permit or seek de-annexation from the city to continue operating the quarry.

A sub-committee of the De Soto Planning Commission appointed by the mayor drafted the special use permit. It came to the City Council last Thursday with the Planning Commission's recommendation it be adopted as a text amendment to the city's zoning codes.

Hunt Midwest Enterprises President Lee Darrow and attorney Ken Spain voiced concerns about a number of requirements in the special use permit. Their biggest objection was the requirement companies reapply for the special use permit every five years once an initial 10-year start-up permit was granted.

The annexation agreement in the Supreme Court case would be reviewed every 10 years, as was the Johnson County permit that regulated the quarry before it became part of De Soto.

Auditors would reduce the value of the quarry as an asset for company books by 20 to 30 percent, Darrow said. That move could hurt the retirement packages for him and other key Hunt Midwest executives, he said.

The Council was unmoved by the arguments. City Engineer Mike Brungardt and City Councilman John Taylor, who served on the sub-committee that drafted the special use permit, said the 10-year first-time duration was developed to allow companies to regroup costly investments in property and equipment when opening quarries.

Councilwoman Linda Zindler expressed another reservation that the Hunt Midwest representatives shared. She noted the special use permit appeared to be in conflict with the joint city/county K-10 planning district forbidding quarry operations.

To address that concern, the Council approved the special use permit contingent on the county agreeing it is consistent with the joint planning district.

Should Hunt Midwest lose its appeal, it would have to apply for the special use permit to continue operating in De Soto. That would give the Sunflower neighbors the Planning Commission hearing they desired.

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