Strack Excavating appeals quarry permit ruling

Thursday, October 18, 2012

After having lost its permit to operate a limestone quarry near Saxony Lutheran High School, Strack Excavating LLC of Cape Girardeau is taking its case to the Eastern District of the Missouri Court of Appeals.

Brian McGovern of Chesterfield, Mo., who represented Strack at the circuit-court level, has filed an appeal with the St. Louis-based court that seeks to overturn a decision by Judge William Syler, who ruled that the Missouri Land Reclamation Commission was in error when it granted Strack a permit to operate a limestone quarry north of Saxony Lutheran.

Saxony Lutheran had argued in circuit court that the 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, Strack's mine-plan boundary was only 55 feet from Saxony's property. But, in response to a change in state law, the commission modified the permit to require a larger buffer before giving approval. The permit was granted under the condition the boundary be 1,000 feet from school property.

In response, Strack claimed that vacating the permit would be an undue hardship, with the quarry effectively shut down.

Syler agreed with Saxony Lutheran, reversing the commission's decision and vacating Strack Excavating's permit. He also ordered the permit application sent back to the commission and denied Strack's request to operate the quarry during the appeals process.

"If the General Assembly had intended to confer statutory authority on the commission to impose conditions in a permit, then it would have expressly done so," Syler said in his Sept. 12 opinion.

Strack still has a permit that allows for the selling of dirt and the crushing of limestone that has already been mined, but there can be no further drilling without the permit that was vacated in court.

Stephen G. Jeffery, who represents Saxony Lutheran, said that the appeals-court case will be straightforward.

"We have a strong legal argument," Jeffery said. "The issue is whether or not the commission has the authority to go around making conditions. Clearly the statutes don't provide for conditions to be imposed in the permit-application process."

McGovern could not be reached for comment.

No hearing date has been set by the Eastern District Court of Appeals.

klewis@semissourian.com

388-3635

Pertinent address:

County Road 601, Fruitland, Mo.

Map of pertinent addresses

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