Washington County sued over red dirt mine decision

Some officials say changes needed to avoid disputes

The Washington County Courthouse, Tuesday, February 14, 2017 in downtown Fayetteville.
The Washington County Courthouse, Tuesday, February 14, 2017 in downtown Fayetteville.

FAYETTEVILLE — Washington County is being sued again over a planning decision, and some officials want to reduce the likelihood of more legal disputes.

Bobby Morris has filed an appeal to Circuit Court of the denial of his application for a conditional use permit for a red dirt mining operation off Wedington Drive, west of Fayetteville. The county’s Planning Board denied Morris’ request, and the Quorum Court voted to uphold the denial.

Morris said after the Quorum Court meeting where the request was denied he would take his case to the courts.

“All the way, as far as we need to go,” he said at the April 18 meeting.

The county recently ended another planning appeal that went to the state Court of Appeals, which upheld a Circuit Court ruling to grant a permit to the White River Landing events venue. That appeal took nearly three years to be resolved. County Attorney Brian Lester said the case cost the county more than $20,000.

Some county officials say they’re concerned the planning process makes lawsuits more likely and changes need to be made. All land in unincorporated parts of the county is zoned for agricultural or single-family residential use. Any other use requires a conditional use permit.

“I’m not surprised, I knew it was coming,” said Harvey Bowman, justice of the peace for District 3, of Morris’ appeal. “I’m still working on our conditional use permit appeals process. I’m talking with a lot of folks. We may have a session with the Northwest Arkansas Regional Planning Commission folks. We’ve got to come up with something different.”

Carl Gales, chief of staff for County Judge Joseph Wood, agreed the process needs to be reviewed and possibly changed. He said some of the criteria for granting or denying conditional use permits are subjective and leave the county open to legal challenges.

The request for a conditional use permit has to meet seven criteria to be granted, according to the county’s planning ordinance. The first three include having an application on file and fee paid; notifying neighbors of the application; and determining that adequate infrastructure — roads, drainage and other public services — are present or will be made available.

The remaining four criteria address the compatibility of the project with the surrounding area and a determination that the project won’t be detrimental to or endanger the public health, safety, morals, comfort or general welfare. The project must also not be injurious to the use and enjoyment of other property; not substantially diminish or impair property values; and not impede the normal and orderly development and improvement of the area for uses permitted.

In the White River Landing case decided by the Court of Appeals, both that court and the circuit court cited the county’s failure to state the reasons for the denial of the permit when they ruled in favor of the applicants.

“We get these appeals to the Quorum Court, and we have a room full of people,” Gales said. “If the JPs decide one way, half the room is happy and the other half isn’t. We’ve gotten to where we’re going to be sued by one side or the other no matter what we decide. It’s not normal.”

Sue Madison is justice of the peace for District 12, which includes east-central Fayetteville. Madison said any planning process is going to require making difficult choices and dealing with some opposition.

“That’s the way these systems work,” Madison said, noting she has also served on the Fayetteville Planning Commission. “I don’t have any problem with the current system. It’s important that people be able to appeal a decision to an elected body.”

In the notice of appeal filed Wednesday, Morris argues the denial of his application “is in violation of statutory provisions.” He claims the decision exceeds the Quorum Court’s authority, was “effected by other error or law,” not supported by evidence and was arbitrary, capricious and an abuse of discretion.

Morris is asking the court to reverse the Quorum Court’s decision and order the county to grant the permit.

He plans to mine red dirt on a 20-acre parcel of land, according to information submitted to the county during the planning process. The mining would be done in stages over a 10-year period. As many as 75 dump trucks could make trips to and from the mine daily, according to Morris’ application.

Neighbors objected to the plan, complaining about noise and dust from the site, possible contamination of ground water and wells, the hazards of heavy truck traffic on narrow county roads and the incompatibility of the mining operation with surrounding residential and agricultural uses.

The Quorum Court voted 10-4 to deny the permit.

Marty Matlock, one of the neighbors who has opposed the project before the Planning Board and the Quorum Court, said he expected the appeal to circuit court. Matlock said the neighbors will monitor the court proceedings and, if the Quorum Court’s decision is overturned, decide how they can continue fighting the project.

“We’re committed to protecting our rights,” Matlock said.

Tom Sissom can be reached by email at [email protected] or on Twitter @NWATom.

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