Company sues county over permit condition

John Richmeier
jrichmeier@leavenworthtimes.com

A company that recently was approved a special use permit for a sand quarry in Leavenworth County is going to court to object to one of the conditions of the permit.

An attorney filed an appeal and petition for judicial relief Tuesday in Leavenworth County District Court on behalf of Kaw Valley Companies.

On July 15, county commissioners approved a special use permit for Kaw Valley Companies, Kansas City, Kansas, to operate a surface mining operation in the area of 166th Street and Lenape Road.

The permit comes with a number of conditions.

Kaw Valley is not appealing the County Commission’s approval of the special use permit. But the company is appealing the decision to include a condition that requires Kaw Valley to pay to bring roads that will be used for the sand quarry’s truck hauling route “up to county standards prior to hauling.” This includes the reconstruction of the roads that will be used for the hauling route.

The reconstruction of the haul route was suggested by Olsson, an engineering firm used by the county government.

Justin Johl, an attorney for Kaw Valley, argues in the court filing that the requirement to reconstruct the hauling route is not supported by evidence.

“It is unreasonable, arbitrary, capricious, and oppressive to require Kaw Valley to cure defects in the County’s public infrastructure that are not caused by Kaw Valley’s Project, that preexist Kaw Valley’s Project, that will continue to exist regardless of Kaw Valley’s Project, and which have no relation whatsoever to Kaw Valley’s Project. A party can only be required to offset the adverse impact that its Project will create – not to provide a windfall and betterment to the County.”

Johl also wrote that it is “unreasonable and extortionate to require Kaw Valley to bear the cost to improve County roads, which is the County’s obligation.” He argues “outsourcing the obligation to private industry through coercive conditions on permitting use of property is impermissible, unreasonable, and an unconstitutional abuse of power.”

Kaw Valley is asking a judge to strike the condition from the special use permit and declare the county government must bear the cost of bringing the hauling route up to county standards.

Kaw Valley officials are arguing the company should have to pay only $84,084 per year to the county to maintain the route. This amount is based on an annual traffic impact fee that had been calculated during the application process for the special use permit.

The company also offers an alternative solution in which the court would award damages for the loss of economic benefit of the property in excess of $500,000.

Senior County Counselor David Van Parys, who serves as the attorney for the County Commission, said Thursday that “the county will take appropriate action to protect the interests of the county.”

The sand quarry has faced opposition from residents in southern Leavenworth County. People opposed to the mining operation have expressed concern about safety issues including increased truck traffic as well as the impact on neighboring property values.

Commissioners approved the special use permit by a vote of 4-1. Commissioner Mike Stieben voted against it.

Twitter: @LVTNewsJohnR