Fighting back

Therese Dunphy

April 22, 2013

justice statue

For years, State and Province News has been one of the most popular reads in our print edition. Because aggregates operators are primarily concerned with local market conditions, it simply makes sense to stay on top of what is happening in those market areas.

But the coverage also highlights trends across regions and across the nation. Over the last decade or so, I’ve covered more permitting battles than I care to recall.

It seems like some NIMBY group or another is always heralding the detrimental impact an operation would have on noise, traffic or the bucolic nature of the proposed location. And at least a certain percentage of those groups would hire a lawyer and take the operator or the planning department or the city council to court over the permit.

As I wrote the May department, however, I noticed a new trend. No fewer than three state reports cover stories where the operator is suing a local governing body.

For example, M&N Materials is getting another shot at the town of Gurley, Alabama, where the town annexed property it purchased to develop a quarry. By zoning it agricultural, the town cost the operator millions of dollars in lost revenue.

Late last year, the Alabama Supreme Court reversed a $5 million judgment against the town, saying that its steps didn’t amount to a taking. However, both sides are now expected to make oral arguments in front of the court on May 3.

In Rhode Island, Copar Quarries of Westerly Inc. and Westerly Granite have filed a $10 million lawsuit against the town of Westerly, alleging that town employees conspired against the two companies and subjected them to unfair enforcement practices.

The suit claims that the former zoning officer was told not to issue a decision favorable to the two companies, and the zoning officer’s lawyer says she has been intimidated, slandered and threatened by town officials. She resigned in February, weeks before the operators’ lawsuit was filed. No court dates have been reported for this case.

Finally, officials in Shelbyville, Tennessee, are feeling the heat from lawsuits brought by Wright Paving Co., Inc., and Custom Stone LLC. The two businesses are suing the city, the board of zoning appeals, the planning commissions and the former codes and planning director. The suit, also a $10 million case, says the groups are guilty of “violating due process, inverse condemnation, unconstitutional taking, negligence, and creating an unconstitutional ‘floating’ zone.”

A state appellate judge has already ordered the town to consider Wright Paving’s decade-old permit application “at the earliest possible date” and sent the case back to a lower court to see if the operator is entitled to legal fees. The zoning board will review the permit, and the commission will review its site plan later this week.

After decades of legal maneuvers from the opposition, it’s refreshing to see operators standing up for fair treatment. And you can bet AggMan will continue to keep you up-to-date on what happens in these cases.

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