Dirt Dig Case Going To Trial Feb. 9

A group of Mineola residents fighting a dirt dig site in their neighborhood will finally have their day in court Feb. 9.
Omaha attorney Terry White, on behalf of nine plaintiffs, filed suit last April against the Mills County Board of Adjustment for its controversial decision to grant a special use permit to Cory Leick to extract dirt from a 40-acre parcel west of Mineola along Barrus Road and 237th Street.

The board’s March 24, 2015, decision was hard for area residents to swallow after two years of truck traffic, flying dirt and dangerous road conditions on Leick’s other dirt extraction site nearby, just east of 230th Street and south of Brothers Avenue.

The case will be heard next by District Court Judge Gregory A. Hulse. The bench trial will begin at 9:30 a.m. and is expected to last one day, according to Mills County Attorney Tricia McSorley.
White, the Mineola residents’ attorney and McSorley submitted briefs to the court regarding the case’s legal arguments.

The suit’s petitioners – Kerrie Lippincott, Janett Babb, F. Raymond Griggs, III, Robert Vaughn, Kerri Vaughn, Janice Golka, Ted T. Golka, Tony Juarez and Deb Juarez – are asking the court to review and overrule the March 24 decision. The suit alleges the board of adjustment disregarded the standing zoning ordinances, public submissions and statements of area residents that Leick’s project was not living up to the standards set in the special use permit.

The suit goes on to assert a conflict of interest on the part of board of adjustment. During the March hearing, it was revealed board president DeShawne Bird-Sell had represented Leick in past legal matters, as recently as September 2014, according to filings. Bird-Sell did not recuse herself from the vote at that time. Leick is also a member of the board of adjustment but he did recuse himself, citing the conflict of interest.

Bird-Sell voted in favor of Leick’s special use permit.

White said the case remains a question of whether the board followed the letter of the law, coupled with what she called a disregard for public opposition, when it issued Leick a special use permit.

“The judge will consider what the board did based on the stated record at the board level on the information they had,” White said. “The county attorney turned over everything from the board level. The proceedings, the recordings and everything they did at the board level was given to us at the court’s direction.”

The judge will hear both sides of the case as well as likely witness testimony before issuing his judgment in the following weeks.

“The judge will decide if the board’s decision was acceptable and proper or he can decide it was not and that they (the board) didn’t consider the right factors and regulations,” White said. “There’s a wide range of things in between he can do.”

McSorely, the Mills County Attorney, said the judge’s decision comes down to a question of whether the board of adjustment acted legally or illegally in issuing Leick’s special use permit.

“I believe many of the issues (brought up in the petition) are irrelevant,” McSorely said. “The judge is looking at if the board acted illegally when making its decision. That’s the standard. I feel it was not illegal and I feel some of the issues are opinion issues or neighbor complaints but not a matter of illegality by the board.”

If Judge Hulse rules in favor of the board, the permit will stand. If the judge rules in favor of the plaintiffs, Leick’s permit would be invalidated. The permit request would the have to be re-submitted for consideration by the board.

“We believe the board didn’t consider all of the correct factors and that there were additional factors the board considered that are beyond those that are in the regulations and the actions they took are not supported by what they need to consider as stated in the regulations,” White said.

White stands by the initial petition saying, the board didn’t consider all the factors the neighbors brought up or those in the regulations when issuing the special use permit. Among those “factors,” she said, was the board’s failure to consider the overall condition of the air around the dirt dig site, the environmental impact on the area and the noise complains of the neighbors.

A key question of the case also appears to hinge on the allegation the board had a conflict of interest with Bird-Sell being allowed to vote after it was revealed she had represented Leick

“It remains a part of the case and the judge will be addressing it,” White said.

White said the board’s handling of the conflict of interest question was contrary to its own regulations.

“When it came up, the individual who had the conflict asked the board if they objected to her proceeding (as part of the decision),” White said. “They all said ‘No’ but that is not a procedure that is recognized anywhere. It appears what they did was not correct upon receiving notice of this (conflict of interest).”

White said the recognized procedure is for the  board members to recuse themselves from the decision.
Neither Bird-Sell nor Leick were available for comment.