Quarry may take legal action to avoid being part of incorporated Fruitland

Attorneys for Heartland Materials LLC say the quarry company will take legal action against being included in the proposed Fruitland village and that Cape Girardeau County does not have the authority to approve Fruitland's incorporation petition.

David R. Human of Husch Blackwell LLP of St. Louis wrote a statement of opposition dated Feb. 27 that was formally reviewed by county commissioners Thursday. Human asserts in the letter that statutes governing incorporation require that the matter be put to a vote.

"Absent such election," Human says in his letter, "the County Commission lacks the authority under Section 72.130 to incorporate the Proposed Village."

Human is citing the Missouri statute that governs incorporation for areas within two miles of another municipality. Last year, the same law required that Fruitland apply to and be declined for annexation by Cape Girardeau and Jackson in order to become an independent village. Cape Girardeau declined based on not meeting guidelines that say annexed properties must touch and be compact along existing city borders.

Jackson's response was more complicated. As Jackson was considering the annexation application and preparing a plan of intent, owners of a portion of Fruitland, the land with the Heartland Materials quarry, applied independently for voluntary annexation to Jackson. Several other Fruitland industrial interests, including a second quarry, also applied, contingent upon the success of the Heartland parcel.

Jackson responded to the original Fruitland petition two weeks shy of the one-year deadline for the city to act by accepting part of Fruitland for annexation -- the parts that had applied to join voluntarily. Ultimately, none of the industrial lands were joined to the city because a petition was filed that put the issue to a vote. The annexation was overturned at the ballot in February.

The crux of the argument at this point is whether Jackson's actions constitute acting "favorably" or "unfavorably" on the Fruitland petition. If accepting part of the area means it was favorable, no vote is required by law. If declining a portion means the action was "unfavorable," then a majority vote is necessary. Who exactly is eligible to vote on the matter is not explicitly stated.

In November, when asked if Jackson's decision left the rest of Fruitland free to incorporate, city attorney Tom Ludwig said it was a "matter for litigation."

Human's letter to the commission refers to Jackson's action on the incorporation petition as "unfavorable" and therefore requiring a public vote.

How the county regards Jackson's actions and how that may affect the county's processes has not been stated. Assistant prosecuting attorney Frank Miller, who has been consulting with the commission about the Fruitland incorporation, was out of the office Thursday. Messages sent by email and phone Thursday to Presiding Commissioner Clint Tracy, Associate Commissioner Paul Koeper and Associate Commissioner Jay Purcell were not returned.

Human also says large tracts of nonresidential property are included in the proposed incorporation area in violation of statutes that describe what kinds of land can be incorporated.

The county also identified the land issue as one of three "points of contention" in its Feb. 23 response to the Fruitland incorporation petition and asked that the boundaries of the village be redrawn. Village proponents said last week they are in the final stages of preparing an answer to the county's concerns.

"Inasmuch as Heartland is vehemently opposed to its property being included in the area to be incorporated, Heartland will take any and all legal action necessary to exclude its property from the current boundaries of the Proposed Village," Human says near the end of the letter to the county.

Who the target of future legal action might be should Heartland be included in the village -- the county or Fruitland or both -- is not clear. Human was in meetings Thursday afternoon and was not available by email or phone.

salderman@semissourian.com

388-3648

Pertinent address:

Fruitland, MO