HOW WE SEE: Nuisance Vs. Menace

By Editorial

Posted: November 13, 2009 at 6:10 a.m.

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The Fayetteville city government has gone too far in passing a nuisance ordinance targeting the rock quarry at Big Red Dirt Farm. If the letter of the law allows the city’s action, the letter of the law needs changing.

Property rights are at issue here. So are the separation of powers, whether legal boundaries mean anything and the simple principle of fairness.

We lament the noise from the quarry that afflicts nearby homeowners, but the matter of whether the quarry owners can operate as they do is already before the courts - where the proper jurisdiction resides.

The quarry is in the county, located within a mile of the city’s western border. The Fayetteville City Council has jurisdiction inside the city, plus some very limited planning authority within five miles of city limits. Yet the city passed an ordinance declaring a quarry in the city or within a mile of the city to be a nuisance. The ordinance sets restrictions upon both the manner and the hours in which a quarry can operate. The Rogers Group, owners of the quarry, filed suit this week against the ordinance.

Even if the city annexed the quarry’s site, it would have trouble changing the land’s legal use because the business is an ongoing operation. This overreach into restricting the use of property a mile away is remarkable.

Ask anybody who has ever owned a home near a swine farm. The legal recourse for preventing a neighbor who is in the county from doing something unpleasant is limited. This is not a new problem in Northwest Arkansas. The courts will have plenty of case law to use in making its decision.

Back in 2008, the owners of Big Red Dirt Farm went to Washington County’s government to get a permit for this quarry. The county planning board advised against it, but the quorum court approved the change anyway. Neighbors to the quarry’s site promptly filed a lawsuit, which is pending.

Shortly after, the owners asked to expand the quarry. This time the county rejected the idea - and they are now being sued by the quarry owners.

Then the city council passed this ordinance. Now we have a third legal action.

At least the attorneys involved have work.

The city claims this authority because the mining operation is a nuisance to people living in the city.

The city has used this “nuisance” approach to impose restrictions on local business within city limits. Bakery Feeds and Thunder Valley Speedway spring to mind. We will watch with interest to see if the city’s authority to declare a business a nuisance virtually at will within city limits survives this courtreviewed attempt to go beyond city boundaries.

Opinion, Pages 5 on 11/13/2009

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