Zoning Issue

Published 12:00 am Friday, July 18, 2008

Zoning issue comes back for round two

By John Howell

Batesville’s mayor and aldermen on Tuesday wrestled during much of their meeting with a zoning variance adopted July 1. It allowed Memphis Stone and Gravel to dig aggregate gravel material in city limits on property zoned for single family residential and light commercial use.

The regular meeting opened shortly after 2 p.m. with a motion by Ward Three Alderman Stan Harrison to rescind the variance. Ward Two Alderman Rufus Manley sided with Harrison by providing a second, but Ward One Alderman Bill Dugger voted against rescinding the variance as did Alderman-at-Large Teddy Morrow.

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Mayor Jerry Autrey voted with Dugger and Morrow, breaking the 2-2 tie. Ward Four Alderman Bobbie Jean Pounders was out of town for medical treatment. Autrey had said prior to the meeting that he had spoken with Pounders before her departure and she had requested that her July 1 vote to allow the variance be honored.

Pounders, Morrow, and Dugger had voted July 1 to approve the variance.

After Harrison’s initial motion to rescind the variance was defeated, he made a motion to add eight performance conditions to the variance that affects an area on Highway 35 South.

Again, Manley provided the second. Discussion eliminated one of the conditions and the vote split 2 -2. This time the mayor voted with Harrison, and the conditions were added to the variance.

The problematic variance had been also the subject of an hour-long special called meeting that began at 1 p.m. Assistant City Attorney Colmon Mitchell told officials that an executive session was needed to discuss pending litigation. Stan and Mona Harrison, whose residential property adjoins the area affected by the variance, have filed notice that they will appeal to circuit court the city officials’ approval of the variance.

(Scott Harrison is the brother of Alderman Harrison; Mona Harrison is the sister of assistant City Attorney Mitchell.)

Mississippi’s open meeting laws permit discussion in executive session of potential pending litigation when specific legal strategies are discussed.

Minutes finally approved

The variance and conditions also resulted in a long delay for approval of the minutes. When the mayor could get no motion for their approval, he moved to the next item of business. City officials redirected their attention to the minutes about 3 p.m. when Manley made a motion that they be accepted subject to the conditions that had been added to the variance. Harrison provided a second and the minutes were approved 3 to 1 with Dugger voting for their approval and Morrow voting against.

Near the meeting’s end — sometime after 4 p.m. — aldermen revisited the variance issue and voted to reduce the number of conditions to from seven to four. Then, before adjournment, they added back one more.

The latter actions were conducted after the small crowd that had jammed the city hall meeting room dispersed. Owners of homes along Highway 35 South near the affected area with an attorney who represents the Harrisons sat on one side of the room. Members of the Seale family who own the proposed mining site sat on the other side of the aisle with officials from Lehman-Roberts Paving Company and its sister company, Memphis Stone and Gravel, and their attorney.

Memphis Stone and Gravel mines the aggregate material for use in the manufacture of asphalt at the Lehman-Roberts facility nearby.

The seven conditions — $5 per load of material hauled paid to city street department; 30 months’ completion; operating hours 7 a.m. to 5 p.m. weekdays; berms and screening from neighboring property and roads; watering to prevent dust; restoring property to original condition; and fines not to exceed $5,000 for violations — were restated at the request of Scott Harrison.

Harrison, who has opposed the mining operation adjacent to his home, then asked that his attorney, Paul Watkins of Oxford, to be allowed to speak on his behalf.

“Even with conditions this doesn’t address the underlying problem, a gravel pit variance in a residential and light commercial zone; you’re changing the zoning,” Watkins said.

Watkins cited the city’s zoning ordinance that prohibits a variance that allows “disruptive use.”

“This variance is not in keeping with your comprehensive plan or zoning,” Watkins told city officials.

Lehman-Roberts attorney Pat Lancaster followed Watkins and told city officials that the concerns expressed by Harrison and his attorney should have been presented at a June 17 public hearing about the firm’s variance request.

Lancaster asked Lehman-Roberts President Hal Williford to discuss the difficulties of meeting some of the conditions. Williford said that company could comply with the conditions limiting the total amount of time for the project, the hours of operation, and the berms and screening requirements.

“We want to be good neighbors; that’s the reason we have a big berm,” Williford said, referring to the existing site along Highway 35 outside city limits.

“I’ve never run across that,” Williford said about the requirement to pay a $5 per load fee to the city street department. He described the separation of the mined aggregate after extraction and the difficulties it creates in determining numbers of loads.

“That’s impossible,” Williford continued, discussing a requirement to restore the property to its original state. “There’s no way to recreate the topography,” he added. Williford said the site would be reclaimed and a small lake would cover the mined area.

The Lehman-Roberts executive also pointed to the difficulty presented by the language of the condition that would result in a fine.

“’Any violation,’ that’s very subjective,” Williford said. “If we’re unresponsive for a length of time, that’s understandable.”

Action deferred

When Williford finished his remarks, Mayor Jerry Autrey asked for Street Superintendent Teddy Austin for his department report.

Other Highway 35 homeowners who, in addition to the Harrisons, attended the meeting to oppose the strip mining included Bob Callihan, Bill Joiner and Angie Griffin. After Williford’s comments, they quietly debated among themselves about what else might happen and then left.

The landowners — Billy and Jane Seale and Harvey and Georgia Seale — and Lehman-Roberts officials were equally perplexed about what to do next.

“Is it over, did we win?” one asked in a stage whisper. They left a few minutes after the homeowners.

Only many minutes later — after reports from the superintendents of the departments of streets and gas, the city code administrator, the chiefs of fire and police and the city clerk — did aldermen revisit the variance question.

“I don’t know where we stand,” Manley said, alluding to the variance. His statement triggered discussion of the appeal to circuit court.

Ward One Alderman Bill Dugger then made a motion to rescind or delete the conditions adopted earlier. Morrow provided a second to Dugger’s motion. During further discussion, Dugger’s motion was honed to include the conditions that Williford said would be feasible for Memphis Stone and Gravel — 30 months to completion, operating hours, berms and screens and dust containment.

Again, the aldermen’s vote tied over the motion — Dugger and Morrow for, Manley and Harrison against.

Again, Autrey broke the tie. “I vote with accepting 2, 3, 4 and 5,” he said, citing the numbers corresponding to the listed conditions.

Harrison insists on fine

Harrison was adamant that a fine for violations be added.

“If we’re not going to have a fine, what does it matter?” he asked.

Mitchell said that current fines for zoning violations ascend daily from $500 to $1,000.

“What I’m trying to do is get somebody’s attention; … I’m just concerned about the fine, that’s all,” Harrison continued.

Dugger said that the operation will also be subject to inspection by officials of the Mississippi Department of Environmental Quality with its fine schedule.

“I hate to depend on DEQ,” Harrison replied.

Harrison subsequently made a motion that item number eight on the list of conditions be added — that a fine not to exceed $5,000 be levied against Memphis Stone and Gravel for violating the conditions added to the July 1 variance.

Harrison’s motion passed 4-0.