Judge Reverses Decision On Controversial Dirt Dig Site

It may have taken 412 days, but a group of Mineola-area residents angry over a controversial dirt excavation site have won their battle in court.

On June 8, Judge Gregory Hulse reversed a March 24, 2015 decision by the Mills County Zoning Board of Adjustment that had granted a special use permit to Cory Leick for the extraction of more than 1 million cubic feet of dirt from a 40 acre site west of Mineola near Barrus Road and 237th Street. The dirt was hauled out for use by Leick’s contracting company in various construction projects.

The suit, filed on behalf of plaintiffs Kerri Lippincott, Janett Babb, F. Raymond Griggs, Kerri Vaughn, Janice Golka, Ted T. Golka, Tony Juarez and Deb Juarez challenged the board’s approval of the permit and sought to halt the dig operation.

The judge’s decision in favor of the plaintiffs comes more than a year after its filing. The ruling found the county’s zoning ordinance was not followed when the board, in their unanimous approval of Leick’s request, did not follow the law by requiring performance standards be met. The Mills county statute reads “No special use permit shall be granted by the Zoning Board of Adjustment unless such board shall find” the applicant has met all 12 statutory performances standards.

“The judge found that the board failed to consider the performance standards that are set out in the Mills County ordinance and as a result they did not do what was required of the statute,” said Terry White, an Omaha attorney representing the plaintiffs. “So he reversed their decision.”

Multiple messages requesting comment from Leick were not returned.

The board’s original decision to grant the special use permit to Leick for soil extraction in an agriculture-residential county zoning district has been a thorn in area residents sides for nearly four years. Leick was granted a previous permit on a site nearby, at Brothers Avenue and 230th Street, for a similar project that drew harsh criticisms from neighbors. When Leick applied for a second special-use permit for another dirt dig site, area residents, who had complained of dirt and dust in the air, increased semi-truck traffic and noise on the original site, sought to stop it.

The plaintiff’s suit alleged the board disregarded its own zoning ordinance, despite protests by neighbors Leick was not meeting the required performance standards in the law. The suit also alleged a conflict of interest among board chair DeShawne Bird-Sell and board member Leick, who was – and continues to be – a member of the board. Leick recused himself from the vote. Bird-Sell, who has since resigned from the board, had represented Leick is prior business matters but did not publicly disclose that. 

After months of legal maneuvers on both sides – and Leick continuing to mine dirt from the site – the court’s ruling effectively nullifies the special use permit and ends commercial dirt hauling from the site.

Judge Hulse’s nine-page, written opinion specifically questioned the board’s decision to ignore three of its own 12 statutory performance standards in granting the special-use permit to Leick. While the judge’s decision indicated the board did provide the court with examples of Leick either meeting or addressing nine of the performance standards, the statute requires all 12 to be addressed prior to granting the special-use permit. This, the judge ruled, was a clear violation of the law that led to his reversal of the board’s decision.

Performance standards 10 through 12 cover “malodorous gas or matter which is discernible on any adjoining property or any public street,” concerns about increased movement of traffic “unless procedures are instituted to limit traffic, hazards and congestion” and a clause that the special use permit can’t involve activity that “substantially increases the burden on public utilities or facilities.”

White said the board ignoring those three particular standards, despite the complaints of area residents and attendees at the meeting March 24, made the judge’s legal decision the obvious one.
“Without considering those,” White said, “they failed to do their job. The board was clearly on notice and aware of the requirements and that they were not met.”

An exchange taken from a recording during the March 24 meeting and prominently referenced in Judge Hulse’s opinion would seem to support White’s assertion.

In the March 24 meeting, Board Chair DeShawne Bird-Sell is quoted as saying, “At this time I would ask, regarding the minutes of the last meeting, the performance standards one through nine, and the actual permit, is there a motion?”
Another unidentified board member then says, “I’d make a motion that we approve the special use permit…along with the mentioned performance standards.”

Bird-Sell then says, “Ok, and just for clarification purposes, just the ones we’re referencing in the minutes from the last meeting, correct? We’re not referencing the actually ordinance itself but the ones that are delineated in the last week’s – last month’s meeting. Do I have a second?”

The board then voted to approve the application.

“It is very clear that the board did not consider performance standards ten through twelve in approving the permit,” Hulse wrote in his opinion. “Mills County Ordinances…requires that the board consider, and find, that all performance standards are met before approving a special use permit. Thus, the board acted illegally in approving the permit on March, 24, 2015.”

Judge Hulse’s decision did not address the plaintiff’s allegations of a conflict of interest. But the judge did advise the board to consider his ruling and those allegations if or when Leick were to re-apply for a special-use permit.
“This court formally reminds the board of its duties required by state law and Mills County ordinances and its obligation to fully comply with those authorities,” Hulse said.

“He (Leick) didn’t address standards 10 through 12 and the board didn’t bring them up on their own,” said White, the plaintiffs’ attorney. “They needed to. They had that option available to them and as a result they didn’t do their jobs.”
Just why the board of adjustment would have approved a special-use permit that did not meet the legal criteria and what the judge’s decision has said was acted on “without consideration of performances standards ten through 12” is unknown.

Pat Collins, current zoning board of adjustment president, did not return a message seeking comment for this story.
Mills County Supervisor Lonnie Mayberry also declined comment for this story, as did Darin Whatcott, the county’s building and zoning official. Both referred all questions to the Mills County Attorney’s Office.

Former Mills County Attorney Tricia McSorley represented the county in the suit. She has since left the employment of the county and could not be reached for comment. Current Mills County Attorney Naeda Elliott, who took over her position June 13, has read the judge’s opinion. While she did not work directly on the case during the litigation, she said, “the board of adjustment was following procedures they believed to be in place.”

“I think it’s important that our board does everything by the book and that they’re explaining to the public the reason for the decisions and that’s really what didn’t happen in this case,” Elliott said.
The county attorney declined to speculate why that due diligence didn’t happen.

“I wasn’t here so I can’t tell you if that was something they forgot to do or if it was a mistake or something else,” she said.
Elliott, who said neither she nor the county have any plans to appeal Judge Hulse’s decision, said the case can be a learning opportunity for the county and the board of adjustment.

“I think this can lead to some changes on how things (special use permits) are done,” she said.
Elliot said she sees no reason why Leick can’t reapply for the special use permit but did not have direct knowledge if he intended to do so.

With or without a personal explanation from the county or the board of adjustment, Ray Griggs, one of the eight plaintiffs in the case, feels vindicated by the judge’s decision. While he holds no ill will towards Leick, he said he does feel the county, and especially the zoning board of adjustment’s handling of the case, has raised serious doubts on its effectiveness.

“I’m not a lawyer but the judge, he slammed the county,” Griggs said. “This should be incredibly embarrassing for the county. This decision was not made by an out-of-control zoning board.  When the decision was made last year, a county supervisor, the county lawyer, and the county zoning officer were all present.  They were all very familiar with the concerns of the community. There was no excuse for this decidedly-illegal decision.  They all watched and encouraged this debacle develop over the last four years.”

When asked why he thinks the board approved the special use permit in the first place, in light of the judge’s tersely worded reversal, Griggs said, “I think it was incompetence.” 

“I don’t mean incompetent as in incapable,” he went on. “What I mean is that the zoning board was created to offer a diverse group of citizens to serve as a voice for all the citizens of the community and not as a rubber stamp for the county supervisors and county zoning officer. They did not competently fulfill that role. I’m not sure what additional motivations there were, I’m not saying this is a case of crony capitalism.  But I am disappointed with the arrogant and disrespectful way the public was treated during the zoning board meetings.”
 

The Opinion-Tribune

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