Archive for Thursday, June 5, 2003

Kansas Supreme Court rules against Hunt Midwest

Company seeking de-annexation with decision

June 5, 2003

The Kansas Supreme Court released an opinion Friday upholding an earlier ruling voiding sections of the 2000 annexation agreement that brought Hunt Midwest Mining Inc.'s Sunflower Quarry into De Soto.

"We're thrilled with the results," said Penny Seavertson, who with her husband, John, were among the 13 quarry neighbors to challenge the annexation in court. "It's like a David and Goliath story twice."

The decision, which came seven months after the case was argued before the court, put an end to a two-year court battle between the company and the neighbors. The ruling also left Hunt Midwest's future in De Soto unclear.

The Supreme Court's decision puts Hunt Midwest in a precarious position of operating Sunflower Quarry without a permit. The company must seek one through city regulations adopted earlier this year or Johnson County, which would require de-annexation. Either permit alternative would require a public hearing before the appropriate planning commission.

De Soto City Attorney Patrick Reavey said Hunt Midwest officials called Friday, saying the company would seek to de-annex from the city. Johnson County officials have said in the past the quarry could continue to operate while it sought a permit from the county.

City officials said the permit issue and possible de-annexation would be on Thursday's City Council agenda.

The Supreme Court didn't void the annexation. Like Johnson County Foster Thomas' earlier summary judgment, it found those parts of the annexation agreement allowing the quarry to expand violated the due process rights of the neighbors.

The Supreme Court's decision stated, "we have long held that the power of a city government to change the zoning of property, which includes issuing special use permits, can only be exercised in conformity with the statute which authorizes the zoning.

The public, particularly the adjoining landowners, did not receive a real hearing in front of the planning commission as required by K.S.A. 12-757(b) since the city council prohibited it from receiving evidence or information from the public. Additionally, no recommendation was made by the planning commission to the city council as required by K.S.A. 12-757(b). A planning commission recommendation, either for or against adoption of the proposed change, is a prerequisite to the city council's right to approve the proposal."

De Soto Councilwoman Linda Zindler said Sunflower Quarry should remain part of the city.

"The only thing out of all this murky nonsense that was positive was that we could better regulate them," she said. "This is our opportunity now to truly regulate and control what goes on out there.

"This is 700 acres in the growth path of our city."

Earlier this year, the De Soto City Council approved a quarry zoning classification and permit regulations that are stricter than Hunt Midwest's old county permit in several ways. It required the quarry to renew its permit every five years instead of 10, shortened the daily hours of operation and required added testing.

De Soto Mayor Dave Anderson said he would be inclined to support de-annexation if the city received assurances from the county that it would adopt the city's stricter regulations.

"We spent a lot of time crafting the special-use permit," the mayor said. "As long as the terms are in there, it doesn't really matter to me."

Reavey said the state statute governing de-annexation was generally applied to rights-of-way. City councils were to consider four factors when making decisions about de-annexation requests, he said. The factors were:

  • Proper notification was given.
  • No private rights were injured or endangered by de-annexation.
  • Public would not suffer any inconvenience.
  • Justice requires the granting of the petition.

It was the city's lack of quarry zoning and operating permit that led city planning consultant Sean Ackerson to recommend an annexation agreement for Sunflower Quarry.

Zindler said the Kansas Supreme Court's ruling made clear there were restrictions on what cities can do through such agreements.

"The city was rezoning by contract, and that is illegal," she said. "Now there is case law, there will be no rerouting around planning commissions. Home rule does not supersede zoning law.

"The sad part of all this is it took the residents coming together and spending thousands of dollars to do this."

Anderson agreed with Zindler, saying he was glad the embarrassing and divisive legal battle was over.

Despite the cost of the litigation, the neighbors might still have a legal bullet left to use against the now permit-less quarry, Seavertson said.

"I'd rather wait and see what they would do before I respond, other than to say they have violated our rights and they have been operating the last two years illegally," she said.

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