Archive for Thursday, September 18, 2003

Judge de-annexs quarry

Hunt Midwest free to seek county permit

September 18, 2003

After a three-year associaton rocked with controversy, Sunflower Quarry is no longer a part of the city of De Soto.
Johnson County District Judge William Isenhour issued a court order Tuesday de-annexing Hunt Midwest Mining Inc.'s Sunflower Quarry. In doing so, Isenhour found the Kansas Supreme Court ruling in June overturned so many of its key contractual components to make the agreement meaningless.
With the ruling, Hunt Midwest will apparently seek a conditional use permit from Johnson County to operate the quarry, south of 91st Street.
Tuesday's victory for Hunt Midwest came after a string of courtroom defeats as the company first sought to defend the controversial December 2000 annexation agreement with the city and then sought to end the agreement.
In March 2002, Johnson County District Judge Thomas Foster sided with the quarry's neighbors opposing the annexation when he ruled on parts of the annexation agreement were unlawful because they violated the due process rights of neighbors. The Kansas Supreme Court upheld the ruling in May -- an action that left Hunt Midwest without a permit to operate the quarry.
The Supreme Court's decision prompted Hunt Midwest to request de-annexation from De Soto. When the City Council denied that request, the company went to court what proved to be a successful attempt to void the annexation.
But Hunt Midwest received a further setback in July when Thomas ruled the company had to get a permit to operate the quarry within days. Hunt Midwest attorneys told Tuesday that transcripts of Foster's ruling indicated the company was only required to apply for a permit by that time.
De Soto City Attorney Patrick Reavey said Isenhour ruled Hunt Midwest entered into the annexation agreement because of land use provisions that allowed the quarry to expand. When the Supreme County throw out those sections of the agreement, it motivation to enter into the contract.
Reavey, in turn, argued the agreement had a clause stating the contract would remain valid if any of its provisions or exhibits were ruled invalid. The clause was included at Hunt Midwest's insistence, he said.
The city would have a strong basis for appear, Linda Zindler, a vocal critic of the, said it was time for the city to walk away from the three-year long conflict.
"I don't think it would be in the city's best interest to appeal it," she said.
De Soto Mayor Dave Anderson was of like mind.
"I polled the Council, and there's no interest in an appeal," he said. "Thank God it's over. This thing has been a mess for four years."
Hunt Midwest starting discussing a possible annexation of the quarry in 1999 and 2000 when it appeared Oz Entertainment Co.'s redevelopment proposal for the Sunflower Army Ammunition Plant would close its through Sunflower to the quarry. At the advise of city planning consultant Sean Ackerson, the City Council began considering a annexation agreement in September 2000. That agreement, which would be struck down because it short-circuited city's zoning and planning processes and thus denied the quarry's neighbor due process rights, was passed in November 2000.
Dean Palos, the county's acting planning director, said Hunt Midwest filed papers for a conditional use permit soon after the Supreme Court's ruling. The county didn't take any action, however, because it lacked jurisdiction until Tuesday, he said.
The request would be directed to the Northwest Consolidated Zoning Board, Palos said. The process would require a public hearing, but Palos said he had no idea what the schedule for consideration of the permit would be. The county would want the city's input in that process, he said.
The city has still has a voice in the future of the quarry in the form the K-10 overlay agreement that established joint planning to an area in southern De Soto and in the unincorporated area north of 103rd Street. That line divides the quarry.
Johnson County Counselor Don Jarrett said the substance of Hunt Midwest's application would determine how much consequence the overlay district would have on its conditional use permit. Land uses within the overlaid district would be subject to De Soto's approval, those to the south would not, he said.
After Judge Foster nullified the annexation agreement's land use provisions, the city created a special use permit to regulate quarries. It had several provisions more stringent than the county conditional use permit Hunt Midwest has operated under for the last 13 years. The city required quarry operators to renew permits every five years instead of 10 years and also required more frequent reporting of quarry operations.
Anderson said in his view the city should focus on the need for adequate enforcement of quarry operations and reclamation of mined property and not the duration of the permit.
"There hasn't been real reclamation out there," he said. "Hunt Midwest says that because of how the are quarrying the site and that's its coming. Expansion of the quarry would a whole lot more palatable if they would restore what has been mined."
The scarred earth was also incompatible for any redevelopment at neighboring Sunflower, Anderson said.
Hunt Midwest starting discussing a possible annexation of the quarry in 1999 and 2000 when it appeared Oz Entertainment Co.'s redevelopment proposal for the Sunflower Army Ammunition Plant would close its through Sunflower to the quarry. At the advise of city planning consultant Sean Ackerson, the City Council began considering a annexation agreement in September 2000. That agreement, which would be struck down because it short-circuited city's zoning and planning processes and thus denied the quarry's neighbor due process rights, was passed in November 2000.
In their brief to Judge Isenhour, Hunt Midwest attorneys had asked that De Soto repay the taxes the company had paid the city while annexed and reimburse the $10,000 it agreed to pay the De Soto Park and Recreation Department annually. Isenhour didn't take action on the request, instructing Hunt Midwest to file a separate action if it wanted to pursue the matter.

Commenting has been disabled for this item.