I-49 construction halted near Fort Smith

[bugo]

http://swtimes.com/sections/news/work-halted-during-property-dispute-chaffee-crossing.html

Work Halted During Property Dispute At Chaffee Crossing

By Jeff Arnold

Times Record - jarnold@swtimes.com

Quarry operations by APAC at Chaffee Crossing are suspended until at least July 10, effectively halting work on Interstate 49 through the area, by order of a Sebastian County Circuit Court judge.

Circuit Judge Michael Fitzhugh granted a temporary restraining order Friday at the request of Fort Smith attorney Christopher Conley, on behalf of David Harp. Harp purchased 26 acres at Chaffee Crossing in September and then sold 13 acres. He has an agreement to buy another 300 acres surrounding the 26 acres.

APAC operates the Custer Boulevard Quarry and a processing area, and the company is building another facility within the 300 acres Harp is eying near the Interstate 49 corridor, under the terms of a lease with the Fort Chaffee Redevelopment Authority, according to the lawsuit.

In the complaint, Conley argues that there are ongoing violations of environmental controls imposed on the property when the Army conveyed it to the FCRA; that the APAC mining permit is invalid because its application was flawed and it's operating beyond the permitted area; and that APAC is trespassing on property Harp owns, where the company built truck scales and buildings and placed large volumes of crushed rock.

FCRA Executive Director Ivy Owen said the quarry is permitted, licensed and operating legally, and he described himself as "flabbergasted"  when he was served with Fitzhugh's order Friday afternoon, because Harp doesn't own but has an option to buy the 300 acres.

"This (shutdown) is costing Arkansas and APAC a ton of money, and it's shut down work on I-49 (at Chaffee Crossing),"  Owen said.

In October, the Arkansas Highway and Transportation Department let a $22 million contract to APAC Tennessee to pave the entire six-mile stretch of I-49 through Chaffee Crossing, according to the FCRA 2012 annual report.

Mining Rights

Sebastian County Sand and Gravel entered into a mining lease with FCRA on the disputed property in 2010 and APAC acquired the company the following year, according to exhibits attached to the complaint.

APAC successfully applied to the Arkansas Department of Environmental Quality to acquire SCSG's mining permit for the property in March 2011. In August 2012, it entered into a mining lease with the FCRA to operate on the 300 acres that Harp obtained an option to buy from the FCRA in February 2012, according to the complaint. Harp has until Sept. 20 to exercise his option.

Conley argues APAC's 2011 application to acquire the permit was invalid because APAC claimed at the time it had the right by "deeds, leases or other instruments to conduct quarry operations for commercial and other purposes at this location,"  but it didn't enter into a lease in August 2012.

Water Impoundment

Among the environmental protection provisions the Army imposed when it conveyed the property to the FCRA was a prohibition on surface water impoundment – constructed or allowed to develop naturally – because of its proximity to a former landfill, according to documents attached to the complaint.

The FCRA is required to abide by that provision and is prohibited from "transferring or leasing the property without the inclusion of the environmental protection provisions,"  according to the agreement with the Army.

Copies of the original lease and amended lease between FCRA and SCSG and a copy of the lease between FCRA and APAC do not mention the prohibition against groundwater impoundment, according to the complaint.

Owen said the environmental controls are included in an addendum to the lease APAC acquired when it bought out SCSG and are available to view at the office of attorney Mark Moll, who represents the FCRA.

Conley included photographs of water impounded in a pit at the quarry site, which he claimed is ongoing.

The agreement conveying the property to FCRA "clearly and unambiguously prohibits the Custer Quarry operations, as they are occurring at this time,"  according to the temporary restraining order Fitzhugh issued.

Trespass

With regard to the trespass claim, Conley claims APAC knowingly expanded its processing area onto property Harp owned, damaging the property, and the company at times prohibited Harp or his representatives from accessing the property, according to the complaint.

The complaint claims the trespass continues with the FCRA's knowledge.

Owen said APAC was already operating on the property Harp purchased in September 2012, Harp was fully aware of the company's presence, and at a meeting he attended, Harp agreed to allow that work to continue, telling the FCRA and APAC he wanted to be a good neighbor.

"Recently, these issues and petitioner's concerns were addressed with the FCRA's executive director and other staff members. Petitioner was assured that the matters would be address and corrected. However, since that time, the quarry operations have only increased, more ground water has been impounded and the trespass onto petitioner's land has become even more invasive,"  according to the complaint.

Owen said FCRA officials had discussions with Harp, but he was blindsided by the restraining order because Harp never gave any indication he intended to sue.

Fitzhugh ordered all activity at the quarry, the processing area and on Harp's property to cease immediately until a ruling is issued on whether to grant a preliminary injunction.

Lease Validity

Finally, Conley argues a lease between APAC and the FCRA for APAC to construct the plant near the I-49 corridor on the 300 acres is invalid.

The lease to build the plant on the property Harp optioned required Harp's consent because his option to buy was executed prior to the lease for the plant location, according to the complaint.

In his order, Fitzhugh said "as presented by petitioner and accepted by this court"  neither the FCRA or APAC received Harp's consent to enter into the plant lease agreement, which is "sufficient grounds for this court to enjoin any further activities"  until a July 10 hearing to determine if a preliminary injunction should be granted.

Conley also claims APAC failed to secure an ADEQ permit to operate the plant, which is required before construction of the facility begins.

Harp is seeking a permanent injunction and damages.

APAC-Central President Bryan Kalbfleisch couldn't be reached for comment at his Fayetteville office.

APAC-Central and APAC-Tennessee, both members of the Old Castle Materials Group, are named parties in the suit. Old Castle is not named in the complaint.

[rte66man]

What a dickhead! No discussions, just SUE!!!!

rte66man

[Grzrd]

TV video report: I-49 Construction Resumes After Settlement Reached.

[Henry]

Quite possibly the dumbest thing I ever heard!

[Avalanchez71]

What is wrong with just using US 71?

[US71]

What is wrong with just using US 71?

Outdated, overbuilt commercially, plus the land around Ft Chaffee was cheap.

[nexus73]

What a tangled web we weave...LOL!  Too many fingers in the property pie.  Cut the guy who had the option a check that gets him out of the way, nail out the quarry operator for failing to abide by the environmental restrictions to get some of that money back and call it a day.

Rick