BENTONVILLE -- A jury will consider the revocation of USA Metal Recycling's conditional use permit by Lowell.
The trial in Benton County Circuit Court is set to begin Dec. 3, 2024, according to a Feb. 28 order signed by Judge Xollie Duncan.
USA Metal Recycling was ordered to cease operations six months ago when the Lowell Planning Commission revoked the company's permit on Oct. 3. The City Council affirmed the revocation Dec. 20 after determining the business hadn't resolved safety issues at its site, like the creation of fire lanes meeting legal standards.
The business filed a notice of appeal concerning the city's decision on Jan. 18. According to state law, certain decisions by municipal bodies can be appealed to county circuit court. USA Metal's notice of appeal requested a trial by jury and did not outline an argument against the permit revocation.
The city maintains the decision was "lawful and legitimate," according to a response from the city and its attorney, Tom Kieklak, filed Feb. 17.
Councilman Eric Schein asked Tom Smith of USA Metal at the Dec. 20 meeting why he would appeal the permit revocation rather than apply for a new permit, which he said may be faster and simpler. The process of approving a conditional use permit can take less than a month, according to Karen Davis, the city's community development director.
Smith said his business shouldn't have been shut down and he wanted the city to reverse its decision. "A barrage of misinformation" led to a rushed decision by the commission, he told the council Dec. 20.
"At this point, I've got nothing to lose," Smith said at the Dec. 20 meeting. "I'm out of money and out of business. If you put someone in a corner like that, it's a bad place to be."
The business has disagreed with representatives of the city about what the conditional use permit did and did not allow.
The permit granted to the business at 721 S. Lincoln St. allowed recycling of metal, but not other materials, which were documented at the scene of a fire last year, according to Davis. The business presented itself as a metal recycling facility, according to an Aug. 5 cease-and-desist letter from Davis to Smith.
According to Smith, there were no conditions on the conditional use permit received in 2009, deadlines given by the commission last year were "virtually impossible" for the business to meet and city staff refused his attempts at communication throughout the process. The name of the business implies it only recycles metal, though its plan has been to also recycle byproducts such as cardboard boxes and shrink wrap, he said.
Mayor Chris Moore said in December city staff hadn't been ignoring Smith.
The Aug. 2 fire was in material dumped on a lot just north of the 721 S. Lincoln St. address, according to Davis. That lot is part of USA Metal's permit, she said.
Material intended to be recycled through USA Metal was also found on a third northernmost lot, which isn't part of the company's permit or associated with any business license, she said. The site was being used to dump debris from Smith's construction company, Redline Contractors, according to a Sept. 8 letter from Davis to the Planning Commission.
Debris blocked fire crews' access to the fire Aug. 2, according to a Fire Department report. Crews were forced to access the fire through the north lot because fire lanes were blocked in the south and middle lots, according to Davis. Firefighters reported arriving at the site of the fire at 5:31 p.m. and leaving just after midnight.
The city ordered USA Metal to halt operations Aug. 5, stating that records from the Arkansas Department of Energy and Environment showed the business recorded construction material at 721 S. Lincoln St. and reported a "change of business" to a construction demolition recycling facility in 2016.
The business' conditional use permit never allowed material such as construction debris at the site, according to the cease-and-desist letter from the city. USA Metal continued operating after the cease and desist, Davis said.
On Aug. 10, the Planning Commission ordered the business to follow the conditional use permit, clean up construction and demolition debris at the site within a week and comply with state regulations to remediate the water in the pond.
The commission voted Sept. 8 to recommend extending the conditional use permit with conditions through Oct. 3, giving the business a list of required actions.
Before the commission's decision to revoke the permit Oct. 3, city Special Services Director Richard Stone said USA Metal had moved all its equipment and debris onto its own property and communicated with the Stormwater Management Department, but hadn't shown completion of any of the other tasks.