Judge reverses state decision on quarry near Saxony Lutheran

Thursday, September 13, 2012

Saxony Lutheran High School won a major victory Wednesday against the Department of Natural Resource's Land Reclamation Commission when a Cape Girardeau County judge overturned a land commission ruling awarding a mining permit for a quarry near the school.

The judgment, issued by Judge William Syler, reversed a commission decision that had granted Strack Excavating of Cape Girardeau a permit to construct a limestone quarry adjacent to the school's property.

"We are pleased with the ruling," said James Maevers, chairman of the Saxony board of regents. "The court has recognized the significance of our concerns regarding a limestone quarry so close to our school. Our goal has always been to get the best possible result for our students, and we have."

Saxony Lutheran High School had appealed the issuance of Strack's permit to the circuit court on the grounds that the land commission was prohibited by law from issuing a permit to a quarry that has a boundary within 1,000 feet of an accredited school. At the time the permit was issued in September 2011, Strack Excavating's mine plan boundary was only 55 feet from Saxony's property, but the commission modified the permit to require a larger buffer before giving approval.

The school contended that the law did not give the commission the power to impose a special condition that would grant Strack a permit so long as its mining plan boundary was relocated 1,000 feet or more away from Saxony property.

The court agreed with Saxony Lutheran High School.

"If the General Assembly had intended to confer statutory authority on the Commission to be able to impose conditions in a permit, then it would have expressly done so," Syler said in his decision.

The court found the commission's order failed to comply with an express mandate in Missouri Revised Statutes that prohibits a permit from being issued when a mine plan boundary was within 1,000 feet of an accredited school.

"In this context, the language used in Section 444.771 is clear and unambiguous," Syler said in the ruling. "It does not authorize the commission to place a condition in the permit to relocate the mine plan boundary."

In addition to reversing the commission's decision, the circuit court judgment also vacated the permit issued to Strack Excavating and directed the commission to comply with the law.

Steve Jeffrey of Clayton, Mo., who represented Saxony Lutheran High School, was jubilant.

"In 2011, the legislature concluded that quarries should not be located close to schools," he said. "The circuit court has determined the process followed by the Land Reclamation Commission with respect to the quarry was flawed."

Nanci Gonder, spokeswoman for the Missouri attorney general's office, which had represented the commission in court, said the office was reviewing the decision and had no further comment.

Strack Excavating owner J.W. Strack could not be reached for comment, but the future of the limestone quarry seems limited to either appealing the judgment of the circuit court or starting the permit application process over again in accordance with its decision.

klewis@semissourian.com

388-3635

Pertinent address:

County Road 601, Fruitland, MO

Map of pertinent addresses

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