Petition asks court to look at dirt dig permit

A group of Mineola-area residents have filed a petition in Mills County District Court they hope will overturn a controversial decision to approve a second dirt extraction special use permit in their neighborhood.

On April 23, Omaha attorney Terry White on behalf of petitioners Kerrie Lippincott, Janett Babb, F. Raymond Griggs, III, Robert Vaughn, Kerri Vaughn, Janice Golka, Ted T. Golka, Tony Juarez and Deb Juarez filed a petition to request a writ of certiorari. The petition asks the court to review and consider the March 24 decision of the Mills County Board of Adjustment to grant a special use permit to Cory Leick to extract dirt from a 40 acre parcel along Barrus Road and 237th Street. A victory for residents would overturn the board of adjustment’s decision and, they hope, end Leick’s dirt extraction project.

Attorneys in the matter held a status conference via telephone May 5 to discuss the petition. Judge Mark J. Eveloff is assigned to the case.

The board’s March 24 decision has been especially hard for area residents to swallow after two years of truck traffic, flying dirt and dangerous road conditions on Leick’s other dirt extraction site nearby, just east of 230th Street and south of Brothers Avenue. Like the first site, the second dirt extraction site will be a minimum two-year project with an expected one million cubic tons of dirt to be removed from the property.

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, diminished property values, dust in the air, slick, mud-caked roads and noise from the work site. In January, 200 area residents signed and submitted a petition to the board opposing the project.

The residents’ petition cites a conflict of interest on the part of board of adjustment president DeShawne Bird-Sell and Leick, who serves on the board but recused himself citing conflict of interest. Bird-Sell, a Glenwood attorney, did not recuse herself after it was revealed she had represented Leick in past legal matters, as recently as September 2014, according to filings. Bird-Sell voted in favor of Leick’s special use permit.

The petition goes on to allege the board of adjustment disregarded zoning ordinances and public submissions and statements of area residents that Leick’s project was not living up to the standards set in the special use permit.

A message seeking comment on the petition from Mills County Attorney Tricia McSorley was not returned.

Terry White, an Omaha attorney representing the Mineola-area residents, said the petition has as much to do with the problems associated with the initial site as the second proposed dirt dig site to the east.

“This really goes back to the first dirt dig and the difficult circumstances the residents in the area have dealt with for years,” White said. “This is an effort to make sure the county does their job and takes into consideration all the factors in the ordinance for granting a special use permit.”

Allegations of impropriety and what White calls a failure of the board to follow the letter of the law, coupled with a disregard for public opposition to the special use permit raises serious issue with the permit’s validity, according to the attorney. White’s clients are of the opinion the board has not taken the area residents complains about the matter seriously enough.

Ray Griggs is one of those residents. He lives approximately 300 feet from the second dig site. Griggs, named as one of petitioners in the writ of certiorari, pulls no punches when talking about the board of adjustment’s decision and just why neighbors felt like they were forced to take legal action.

“I think it’s a shame we have to go to a judge to try and force the county to enforce its own ordinance,” Griggs said. “This is a clear cut case that this permit shouldn’t have been issued and the first permit should not have been issued either after three years of absolute compelling evidence that the performance standards that are required to be met are not being met. Only if we suspend the laws of physics can we accept those performance standards have been met.”

Griggs feels the neighbors’ complaints to the county supervisors, zoning official Darin Whatcott and the board of adjustment have been ignored.

“They don’t care,” Griggs said. “I’ve read the zoning ordinance and state law and the reasons these laws exist is to protect the general welfare of all of us. This zoning ordinance comes into conflict when two competing interests or groups are co-pursuing their dream.”

The neighbors, Griggs said, aren’t against progress and have no personal bone to pick with Leick or a property owner pursuing “their dream.”

“We have nothing against Cory,” Griggs said. “We have nothing against Google. What we want is competent, responsible, law abiding county government. We’re all pursuing our dream. All of us say the same thing, we have nothing against Cory. He’s a business man pursuing his dream. The problem is this is at the cost of others who bought their property so they could enjoy it without trucks and dust and these things.”

Griggs said many neighbors have expressed to him regret about not fighting the initial special use permit more vehemently two years ago. This time around, he said, neighbors are more “organized and angry” and have no intention of letting the second dirt site proceed without a fight.

The short range goal of the petition is to stop the dig. But long range, Griggs said, he’d like to see future zoning board decisions made according to the ordinance, not the personal opinions of the zoning board members.

“Zoning is about balancing two competing dreams,” Griggs said. “That’s why there are performance standards. It’s why you can’t put an adult movie theater next to a school. Why you cannot put a hog processing plant next to a church. Why you can’t build an amusement park in the middle of downtown.

“They are all competing dreams and revenue producing enterprises but the law has to balance what one person wants to do with what someone else wants. And the board didn’t do that.”

Both White and Griggs agree the most compelling evidence of the board’s failure is the question raised in the petition of a potential conflict of interest on the board itself.

White said the board has never directly acknowledged a potential conflict  with anyone other than Leick, who excused himself from the vote but remains on the board. White thinks Leick being on the board and his past legal relationship with Bird-Sell “could inhibit certain people (on the board) from saying things.”

“The fear when there’s a conflict of interest is that someone will be influenced by someone’s incorrect considerations and when a second issue comes up later, there will be a repayment for the favor done,” White said. “It’s definitely a real issue.”

Neither Leick nor Bird-Sell could be reached for comment.

Leick does not plan to start soil extraction from the second site until early fall, when the first site is complete. If the current petition is not resolved by then, White isn’t ruling out seeking an injunction to stop Leick’s work.

“The statute does address that possibility and we (the petitioners) will consider that,” White said. There is time to get through at least the initial phases of the lawsuit before that becomes too much of an issue.”