Cannot regulate quarry, city told

Fayetteville barred until suit resolved

— The city of Fayetteville has no authority to regulate a limestone quarry that sits within a mile of the city while the quarry operator’s lawsuit over the city’s regulatory attempts is pending, a federal appeals court said Monday.

The opinion by a threejudge panel of the 8th U.S. Circuit Court of Appeals in St. Louis upheld a preliminary injunction imposed by U.S. District Judge Jimm Larry Hendren at the request of the quarry’s operator, Rogers Group Inc., upon filing its challenge to a new city ordinance.

In response to noise and vibration complaints from residents living near rock quarries, the city passed an ordinance on Oct. 20, 2009, that restricts rock-blasting and other noisy activities at quarries. The ordinance was aimed at abating a nuisance.

It requires that before operating a quarry within the city, or within a mile of the city’s corporate limits, quarry operators must obtain a city license, which is obtained only by meeting certain criteria.

The criteria include limiting quarry operations to 60 hours a week; restricting “major noise-making activities,” including blasting, rock breaking, dump truck tailgate banging and the use of backup warning devices, to the hours between 8:30 a.m. and 4:30 p.m. Monday through Friday; and allowing rock blasting only during a five-hour period on the first and third Wednesday of each month.

The ordinance also requires quarries to comply with measures to protect city roads.

Punishment for violating the ordinance includes criminal sanctions, fines, and in the case of multiple violations, suspensions or revocations of the quarry’s license.

At a preliminary hearing before Hendren, a vice president of Rogers Group testified that the company would lose about $13,000 a week under the ordinance’s restrictions. He said the restrictions would also limit the company’s ability to bid on and meet larger customer orders, which would hinder its competitiveness in Northwest Arkansas, and that the ordinance’s restrictions would be detrimental to the quarry’s future expansion plans.

In granting the temporary injunction until the merits of the case are de-cided at trial, Hendren found that there was a threat of irreparable harm to Rogers Group unless the injunction was issued.

The city appealed, arguing that it has the power under Arkansas law to abate a nuisance within a mile of its corporate limits.

The appeals panel said that while state law allows cities to “cause any nuisance to be abated” in the one-mile area, a rock quarry is only considered a nuisance if a court has deemed it so.

“The Arkansas Supreme Court has recognized that while a rock quarry may, under some circumstances, constitute a nuisance, it is not a nuisance per se - that is it cannot be said to constitute a nuisance under all circumstances,” according to the opinion.

Without a judicial determination that the quarry’s activities constitute a nuisance, the city has no authority to regulate the quarry, the opinion said.

The panel included U.S. circuit judges Kermit Bye of Fargo, N.D., Arlen Beam of Lincoln, Neb., and Lavenski Smith of Little Rock.

Northwest Arkansas, Pages 7 on 12/28/2010

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