Archive for Thursday, June 10, 2004

Fatigued county zoning board continues quarry permit decision

June 10, 2004

Early Wednesday morning, the Northwest Johnson County Consolidated Zoning Board continued a public hearing on a proposed conditional use permit for Sunflower Quarry without making a recommendation on whether county commissioners should approve the document.

Even had zoning board members not expressed fatigue, it would have been difficult for them to shift through six hours' worth of starkly contrasting testimony from Hunt Midwest Mining Inc. representatives and the many opponents who advocated the quarry be closed.

The board tentatively agreed to continue the meeting July 19 at the County Administration Building in Olathe.

The long evening added another chapter to the contentious and complicated history of Hunt Midwest's four-year effort to secure a new permit to operate the quarry immediately east of the Sunflower Army Ammunition Plant south of 95th Street. It was a history much alluded to during the hearing, especially by the quarry's opponents.

But the circumstances that had Hunt Midwest apparently unlawfully quarrying while seeking the conditional use permit needed to operate also concerned zoning board members Roy Holliday and James Neese.

"I cannot remember somebody coming to us for a conditional use permit while totally out of compliance and paying a fine on a daily basis," Neese. said.

It had happened, interim county planning director Dean Palos said, but not on the scale of Sunflower Quarry, which has been cited daily since mid-November for operating without a permit and earned another set of near-daily citations since January for blasting without a permit.

Rich Lind, codes enforcement attorney for the Johnson County Legal Department, said a "highly unusual" September 2003 court-ordered de-annexation of an operating quarry explained the conundrum Neese. identified.

Although the county had a very strong case, Johnson County Codes Court had not yet found Hunt Midwest in violation of operating without a permit, Lind reminded the board. To avoid a protracted legal battle and reduce the county's risk, Johnson County Chief Legal Counselor Don Jarrett agreed to enter into plea negotiations with Hunt Midwest, he said.

Closing the quarry was considered, but the county rejected that option when it considered the harmful consequences on customers who needed rock from the quarry to fulfill contractual obligations, he said.

Lind said he expected Hunt Midwest to agree to a plea agreement soon, requiring it to pay about $40,000 in fines.

The situation was a "nightmare" for Hunt Midwest, Hunt Midwest Mining President Lee Derrough said.

"I can never have envisioned in my wildest imagination that we would be placed in this position," he said.

But Derrough and Hunt Midwest attorney Larry Winn III said Hunt Midwest wanted to focus on the future and the new permit. The two men said that had been the company's position since Hunt Midwest officials first applied for a new permit a year ago, shortly after the Kansas Supreme Court found sections of the annexation agreement unlawful because they voided the due process rights of neighbors.

The quarry had operated the last year without a permit because of the complexities involved in developing a new permit to for the quarry and not Hunt Midwest's disregard for the county's legal authority, Winn said.

The first two of the long evening's many speakers, Palos and Johnson County zoning administrator Paul Greeley, agreed. They worked extensively with company officials, its neighbors and outside experts since the official de-annexation to develop the conditional use permit, Palos said.

The staff recommended approval of the application, which it found to be compatible with the surrounding agricultural land uses and consistent with the county's comprehensive plan because it was both isolated and near a major highway.

The permit included 38 stipulations that would mitigate the quarry's detrimental effects on neighbors, Greeley said. It represented improvements from Hunt Midwest's original 10-year permit for the quarry the Johnson County Commission approved in 1991 and the regulations the city of De Soto developed while the quarry was part of the city, he said.

Those stipulations included limiting blasting to noon on weekdays with explosions forbidden when atmospheric conditions would make the blasts more noticeable at nearby residences. If noon blasts were canceled because of such conditions, they could be rescheduled for 4:30 p.m.

Hunt Midwest also agreed to more restrictive stipulations regarding dust control, operational noise levels, spillage, and screening and buffering, Greeley said.

The proposed permit was not in compliance with the requirement for 850-foot setbacks to neighboring property lines that were included in the county's quarry regulations adopted in 1994, three years after the first Sunflower Quarry permit was approved, Greeley said. The proposal would allow Hunt Midwest to mine and operate within that setback on its western boundary to the Sunflower plant and to the northwest, where there wasn't a neighbor for more than 2,000 feet.

County staff agreed it would be more disruptive to neighbors should the quarry be made to comply with the setbacks by moving the mining to the east, an area closer to existing residences, Greeley said.

The adjacent Sunflower property is part of the proposed 2,000-acre expansion of Kill Creek Park. Greeley said Hunt Midwest agreed to screen its operation from the future park with a 3,000-foot long berm. The company also agreed to allow the extension of the Kill Creek Streamway Park within its western buffer.

The new permit would require Hunt Midwest to report its reclamation effort on an annual basis and retain a consultant in that field, Greeley said.

The 1991 permit allowed Hunt Midwest to open a maximum of 25 acres to mining at one time. The proposed permit would allow 150 acres of "disturbed land," defined as areas being mined, the process plant and associated storage, stockpiles and sediment ponds, and land being reclamation or awaiting such efforts.

Palos said the new reclamation requirement was developed with a better understanding of how the quarry operated. And although Greeley conceded when pressed by Neese that Hunt Midwest "probably wasn't" in compliance with its 1991 reclamation requirements, he said those standards were flawed.

"The 1991 CUP said property had to be reclaimed by October 2000," Greeley said. "That was not realistic."

Hunt Midwest Mining Vice President Bob Schmidt disputed any claim that quarry was not in compliance with reclamation requirements. After reviewing the 1991 reclamation stipulations, his interpretation was that the company was in full compliance, Schmidt said.

"What most people perceive as reclamation is the final six inches of top soil," he said. "Actually, we are working on land-form formation constantly."

Anthony Bauer of Bauer-Ford Reclamation of Lansing, Mich., one of six experts testifying in favor of Hunt Midwest, said the reclamation efforts at the quarry were appropriate and consistent with industry standards. Quarry reclamation started with the building of general land forms with final specific land forming left to an active quarry's final years when the next land uses were known, he said.

Objecting to Neese's implication Hunt Midwest had a "history" at the quarry, Winn said a search of the county records indicated the quarry had a history of compliance.

"There isn't a single complaint indicating non-compliance," he said. "I don't know what the perception is, but the reality is there was not one complaint."

That claim was disputed by Penny Seavertson, president of the Sunflower Neighbors Group formed in 1990 in response to the then-proposed quarry, and her husband, John Seavertson.

Penny Seavertson said she and other members of the group met regularly with representatives of Hunt Midwest about neighbors' complaints the first four or five years after the quarry opened. Those meeting were discontinued because they weren't effective, she said.

John Seavertson said neighbors complained in 1996 about increasingly disruptive air blasts. The county hired a consultant, who recommended the use of charges of 100-pound explosive per delays or more be discontinued, he said. Hunt Midwest, he said, refused to comply with the recommendation.

Conditional use permits depended on good faith on the part of the applicant and a willingness to enforce them by the governing jurisdiction, Seavertson said.

"Even if the stipulations in the application packet were written perfectly they would still be useless because Hunt Midwest has had a history of not abiding by them and the county has had a history of not enforcing them," he said.

Penny Seavertson and many of the speakers who followed her to speak in opposition said the quarry should be closed because the neighborhood had changed since 1991, when the quarry was approved as a temporary use.

The quarry, which County Chief Legal Council Jarrett argued was a heavy-industrial use when it was under the De Soto jurisdiction, was incompatible with surrounding rural residential land uses and inconsistent with the future land use plans of Johnson County and De Soto, which that indicated the area to be low to moderate land uses, opponents said. Its operation would invite other heavy industrial uses in the area and at the Sunflower once it was transferred and the goal of the K-10 Corridor Association's goal of attracting high tech and bio-science development to the corridor, opponents argued.

Heavy-industrial uses were prohibited in the city of De Soto and Johnson County's joint K-10 Overlay District Sunflower Neighbors Group attorney Brian Doerr said.

The quarry's incompatibility with the neighboring land uses would only get worse with the transfer of Sunflower and the expansion of Kill Creek Park and the extension of the Kill Creek Streamway Park, quarry opponents agreed.

The marathon hearing ended with Winn agreeing to submit his rebuttal of the opponents' points in writing. Zoning board members agreed to tour the quarry before resuming the meeting next month.

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