Rogers group challenges Fayetteville's authority to regulate mining in county

ORDINANCE CHALLENGED: Quarry Files Complaint Against City

ROGERS GROUP REQUESTS PREVENTATIVE COURT ORDER

By Skip Descant

Wednesday, November 11, 2009

FAYETTEVILLE — The operators of a limestone quarry just outside Fayetteville want a judge to say the city has no authority to regulate activities there.

“The city has no authority to regulate the quarry, which is located entirely outside the city limits,” the Rogers Group argues in a complaint filed in U.S. District Court for the Western District of Arkansas.

The Rogers Group is requesting a court order to prevent the city from exercising authority over its business operations outside the city.

Last month, the Fayetteville City Council passed a resolution to limit quarry activity inside the city, but also within one mile of the city. The council concluded in a 6-2 vote that because the quarry had become a “nuisance,” aldermen had authority to draft an ordinance to mitigate mining activities that create noise, dust and explosive shock.

The Rogers Group argues any nuisance it may cause by its operations must be proven in court.

“A city cannot just declare this operation to be a nuisance,” said Stephen Giles, a Little Rock attorney representing the Rogers Group. “If the quarry was located in the city limits, the city would have some more authority.”

The complaint also states restrictions on hours of operation would cause undue fi nancial losses.

“Although ostensibly intended to regulate rock quarries pursuant to the city’s police power, the ordinance will have the effect of putting the quarry out of business by making it impossible to operate the quarry in an economically viable manner,” the court fi ling reads.

“Some of the regulations in the ordinance are just totally unreasonable,” Giles said.

The city plans to deny the allegations made by the Rogers Group, said Kit Williams, city attorney.

The issue of mining and quarrying came to the forefront beginning in late 2008, when 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 planning board rejected the request, but the Quorum Court granted the changeover on appeal. Neighbors sued, and the case is pending in court.

Shortly after, the Rogers Group asked to expand its 45-acre quarry just north of Big Red into a neighboring 100-acre dirt pit. The planning board and Quorum Court both rejected the expansion, and the company sued.