Neighbors Not Giving Up on Fight To Stop Dirt Extraction

A new dirt extraction site near Mineola has gained approval by the Mills County Board of Adjustment but a group of area residents fed up with the truck traffic, flying dirt and what they call dangerous road conditions aren’t giving up their fight.

Andrea McChesney, an area resident and attorney, said last week following the board of adjustment’s decision to issue a second dirt extraction special use permit to landowner Cory Leick, that she has been approached by more than two dozen area residents about appealing the board’s decision.

McChesney said plans are in the works to file an injunction in district court that neighbors hope will stop Leick’s dirt hauling operation. She feels Leick hasn’t lived up to the standards in his initial dirt extraction site nearby and shouldn’t have been issued a second special use permit.

“There is an ordinance already in place that they chose to ignore,” McChesney said of the board’s decision. “My position is there is an ordinance and there are performance standards spelled out. The ordinance says ‘shall’ it doesn’t say ‘may.’ The word shall is not something that’s an option; it’s a duty and a requirement. It says it right there (in the ordinance).”

The board voted 4-0 to approve Leick’s newest dirt site, located on a 39.8-acre parcel of land along Barrus Road and west of 237th Street. Leick, who also serves on the board of adjustment, abstained from the vote due to conflict of interest.

McChesney, along with nearly 50 other area residents, attended last Tuesday’s meeting to voice their concern about the dirt extraction project and to hopefully dissuade the board from approving a special use permit for Leick.
At their February meeting, the board also voted 4-0 to re-approve a 2012 special use permit for Leick’s on-going dirt project located east of 230th Street and south of Brothers Avenue. That project is expected to be completed by September after the extraction of the nearly one million cubic yards of dirt for use in construction of the Highway 34 Bridge in Mills County and the Google project in Council Bluffs.

The original site has been plagued by complaints from area residents about safety concerns of semi-trucks hauling dirt up and down Barrus Road up to 12 hours a day, dust in the air, slick, mud-caked roads, noise from the work site and diminished property values. In January, 200 area residents signed and submitted a petition to the board opposing the project.

Leick, who could not be reached for comment, had said previously he is aware of the concerns and criticisms of the project. But he feels he has made every effort to alleviate the concerns with improved safety protocols for truck drivers and by purchasing a street sweeper to keep area roads clean.

Darin Whatcott, building and zoning official for Mills County, said detailed performance standards are required for all special use permit applications. Whatcott said Leick included in his standards things Leick believes will help minimize the dirt and dust issues.

But the issue for neighborhood residents appears to be the fact the special-use permit and the agreed upon performance standards cover only the work on Leick’s property – not on Barrus Road, where neighbor complains have centered on slick, dirt covered roads, flying dirt and heavy truck traffic.

“The public perception is that they want more control over the roads and off the property,” Whatcott said. “And this board doesn’t do that and they’ve tried to explain that many a time and it doesn’t seem to go anywhere.”

Whatcott added Leick has made several recommendations to help mitigate dirt issues – including a “rail shaker” to shake excess dirt off trucks as they get onto Barrus Road and water trucks as well as limiting operation days from 6 a.m. - 6 p.m. – but those are not laws nor are they closely regulated by the county.

“These are the standards he’s provided and the board’s accepted those,” Whatcott said. “The board then can review them every 12 months and if the board feels the standards aren’t being helpful to the neighborhood or they’re still having issues then the board can look at setting different conditions. But they can take it at face value based on what he’s willing to do to keep his neighborhood safe and clean and he’s doing the best he can do allowed under the ordinance.”

The board did not request any additional performance standards in Leick’s special-use permit language.
McChesney said she was surprised the board of adjustment would ignore the on-going problems at the site when approving a second site, considering Leick freely admits there have been issues.

“The landowner admitted it,” McChesney said. “The ordinance says ‘no special use permit shall be granted by the zoning board of adjustment unless the board shall find.’ They made none of those findings and they just did it.”

McChesney hinted the question of board impropriety could be a factor in the residents’ appeal to district court. She cited Leick’s presence on the board and board president and Glenwood attorney DeShawne Bird-Sell having represented Leick in previous dealings.

“I think it goes beyond some undue influence and gets into conflict of interest,” she said. “Mr. Leick is the land owner and a zoning board member. I don’t think you can get past that or the fact DeShawne admitted she represented him in the past and may currently, I don’t know.”

To McChesney’s knowledge, since the inception of Mills County’s zoning ordinance in 2006, no landowner has appealed the decision of the board of adjustment to the district court. McChesney and Omaha attorney Terri White plan to make a “concerted effort” on challenging the board’s decision within 30 days. They have been in touch with Google, Leick’s primary dirt customer, and McChesney is encouraged by the response of the Internet-giant.

“I think they recognize there is opposition because there are legitimate concerns,” she said. “I cannot reiterate enough, this is not just a bunch of citizens or homeowners who don’t want to put up with some extra traffic. This isn’t the case. There’s some real safety concerns and in talking to other homeowners we wonder what is it going to take for the county to recognize that? Does someone have to die because it’s that dangerous. That’s not an exaggeration. It’s a legitimate concern.”

Mills county, according to County Attorney Tricia McSorley, has had no communication with Google concerning Leick’s dig site. From comments she heard at last week’s meeting, however, she anticipates there will be a legal challenge to the board’s decision.

“There will probably be further action,” McSorley said. “A lot of people were voicing their next step as they left the meeting last night,” McSorley said. “That’s always their (the area residents) option. There’s nothing we can do to stop them. I believe the board did a good and thorough job. And I stand behind the work the board did. They took their time, tabling it and moving it to the next month to be extremely thorough.”