Rock Regulations: Quarry Hearings Start Today

TWO COURTS TO JUDGE CASES

By Ron Wood

Posted: November 30, 2009 at 4:22 a.m.

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FAYETTEVILLE — Two hearings are set in two different courts today to address regulating quarries near Fayetteville’s western city limits.

The Rogers Group, which operates a rock quarry, will face off with the city in federal court this morning on whether the city can regulate noise as a nuisance up to one mile outside the city limits.

In the afternoon, the Big Red Dirt Farm, neighbors and Washington County will be in state court arguing whether the county was right to deny a conditional use permit for a rock quarry.

Fayetteville City Attorney Kit Williams said he’s confident the city’s ordinance allowing abatement of a nuisance within a mile of the city will stand up, based on prior case law. There is precedent from a 1901 Arkansas case in which a city sought to quiet a braying mule and was, ultimately, able to do so, Williams said. The city also went down this road several years ago with Thunder Valley Speedway, a dirt-track stock car venue that sat just outside city limits to the south, but could be heard in town on race night.

Williams said cities have wide discretion to address issues outside their corporate limits that affect residents inside the city.

Officials with the Rogers Group declined to discuss specifics of the case.

“We are eager to hear the court’s ruling,” said Tom Kenley, a spokesman for the company.

The Rogers Group wants a federal judge to prevent the city’s ordinance regulating rock quarries from taking effect until after its lawsuit is heard. The city has said it will begin enforcing the ordinance on Tuesday.

Rogers Group contends that the city has no authority to regulate its quarry, including blasting, without a judicial finding that the quarry is a nuisance. The quarry lies entirely outside the city limits but within a mile of the city.

Rogers contends blasting at the quarry is well below the decibel and seismic levels state and federal regulations allow.

The ordinance limits hours of operation for quarries to 7 a.m. to 6 p.m. Monday through Friday and from 7 a.m. to noon Saturday. It says no major noise producing activities can occur before 8:30 a.m. or after 4:30 p.m. Quarries can’t operate at all on Sundays or federal holidays under the ordinance.

Blasting would be limited to hours between 10 a.m. to 3 p.m. on the first and third Wednesdays of the month, unless inclement weather or a holiday intrudes. In that case, another weekday could be designated.

Other parts of the ordinance address dust, mud from dump truck tires, loose rock and gravel and putting identification numbers on dump trucks.

Quarries would also require a city license to operate.

The Rogers Group contends the city’s ordinance would put it out of business by making it impossible to operate in an economically viable manner.

“Despite its recitals and ostensible public purpose, the ordinance was not enacted for and does not contribute to the public health, safety or welfare and was instead enacted with the goal and intent of forcing the quarry to close and, thus, violates the takings provision of the Fifth Amendment to the United States Constitution,” according to the suit.

The Rogers Group wants to be paid for the land and quarry if it’s not allowed to operate.

In the county zoning case, the Big Red Dirt Farm just outside west Fayetteville asked to convert to a limestone quarry. The red dirt operation was grandfathered in because it existed before zoning, but the change of use required county approval. The county planning board rejected the request, but the Quorum Court granted the changeover on appeal.

Neighbors sued, saying a quarry is incompatible with the surrounding area.

Circuit Judge Mark Lindsay on Monday will be asked to reconsider his earlier ruling that he should decide the case rather than letting a jury determine whether the county’s decision was arbitrary or capricious.

Big Red Dirt Farm asked Lindsay to reconsider and give them an jury trial.

In yet a third case, Rogers Group asked to expand its 45-acre quarry into a neighboring 100-acre dirt pit. The county planning board and Quorum Court both rejected the expansion request and the company sued. That case is currently set for a bench trial Jan. 15 before Circuit Judge Mary Ann Gunn.

Neighbors again want to intervene but on the county’s side in this case, according to Dave Bolen, a neighbor of the quarry. Bolen and other neighbors say the county planning board was right to deny the conditional-use permit for a quarry on the site because adequate utilities, roads, drainage and other services are not available in the area. They also say a quarry is incompatible with the surrounding area.

Both Rogers Group and Big Red are located off Hamstring Road, north of Wedington Drive. Big Red’s south property boundary abuts the city limits. Rogers Group’s operation is immediately north of Big Red. Those opposing the two companies are a loosely organized group of nearby property owners.

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