Hall v. North Montgomery Materials LLC

• Decision Date: 11 December 2009
• Docket Number: 2060946.,Alabama Supreme Court 1071321.
• Citation: 39 So.3d 159
• Parties: Reuben D. HALL et al.v.NORTH MONTGOMERY MATERIALS, LLC, and Andrea Wood Katsarsky.
• Court: Alabama Court of Civil Appeals

39 So.3d 159

Reuben D. HALL et al.v.NORTH MONTGOMERY MATERIALS, LLC, and Andrea Wood Katsarsky.

2060946.

June 13, 2008.

Certiorari Quashed Dec. 11, 2009

Alabama Supreme Court 1071321.

Court of Civil Appeals of Alabama.

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J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville; and Randall V. Houston, district atty., Wetumpka, for appellants.

Dennis R. Bailey and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.

PER CURIAM.

On June 12, 2003, Reuben D. Hall and 45 other residential real-property owners in Elmore County (hereinafter collectively referred to as “the local residents”) sued North Montgomery Materials, LLC (“the mining company”), and Andrea Wood Katsarsky, requesting the Elmore Circuit Court to declare the mining company's proposed granite quarry a public and/or private nuisance and to enjoin the mining company from operating the quarry. On July 24, 2003, the mining company moved to dismiss the complaint. The circuit court denied that motion, after which the mining company answered the complaint and the parties engaged in discovery.

On June 2, 2005, the State of Alabama ¹ filed a complaint against the mining company in a case numbered CV-05-254, requesting the circuit court to declare the proposed quarry a public nuisance and to enjoin its operation. On motion of the local residents, the circuit court consolidated the State's action with the instant case. It is apparent that the cases were consolidated for the purpose of trial only and that each case retained its separate identity. See Rule 42(a), Ala. R. Civ. P. The cases were jointly tried on December 14-15, 2006. From a judgment in favor of the mining company, the local residents appealed to the Alabama Supreme Court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The evidence established that the mining company owns 80 acres and leases from Andrea Wood Katsarsky the mineral rights to an additional 140 acres of land at the intersection of county road 428, known as Providence Road, and county road 462, known as Jackson Trace Road, in Elmore County. The mining company plans to conduct a granite-mining operation on the site.

The site of the proposed mining operation is not visible from the road. It is situated “down in a hollow” at the lowest point on the mining company's property, surrounded by a 50-foot no-mining buffer. The site is located in an unzoned, rural area of north Elmore County known as the Buyck community. There are no other businesses in the area. The area is primarily residential, with 48 dwellings, a church, and a cemetery within a mile of the site. The nearest school is 16 miles away; the nearest convenience store/gasoline station is 2 or 3 miles away. Most of the local residents are retired; many are people whose families have lived in the area for generations.

The evidence established that the mining company proposes to produce 450,000 tons of gravel per year from its mining operation and that, once production begins, the mining operation will have 100 to 120 trucks, each 8 1/2 feet wide and weighing 88,000 pounds fully loaded, being driven by independent haulers traveling into and out of the quarry site every day. The local residents testified that they believed the operation of the quarry would destroy the peace, tranquillity, and unspoiled nature of the area. They objected to the air pollution, water pollution, noise, heavy-truck traffic, and deterioration of the local roads that, they claimed, would inevitably occur when the mining operation commenced.

The mining site is located several miles from U.S. Highway 231. The site may be accessed from Highway 231 via three routes. The first route involves exiting Highway 231 onto county road 429, known as Buyck Road, driving northwest approximately five miles, then turning east onto Providence Road for about half a mile to the point where the entrance of the quarry lies. The second route travels from Highway 231 northwest onto Buyck Road, turns north onto Jackson Trace Road, and then west onto Providence Road, a total distance of about three and one-half miles. The third route travels almost due west from Highway 231 on Providence Road for about four and one-half miles. A vehicle traveling on Highway 231 north from Montgomery, the nearest large city, would encounter the Buyck Road exit first and then the Providence Road exit a few minutes later.

All three county roads are referred to as farm-to-market roads. They were not designed for heavy-vehicle use. In the 1930s and 1940s these roads were composed entirely of dirt. In the 1950s or 1960s, the county paved the roads using unknown base materials. The paved driving portions of the roads are at all points 21 feet wide or less and at some points, including the entrance to the quarry, are only 17 feet wide. Providence Road and Jackson Trace Road, which have not been substantially improved since they were first paved, have little to no shoulders. The pertinent portions of Buyck Road were resurfaced in 2004 or 2005, and the shoulders of that road were widened to meet Department of Transportation specifications for county roads. Providence Road has a posted weight limit of 25 tons; the other roads do not have any posted weight limit.

The roads are used primarily by the local residents to access their homes, but they are also traveled by residents of Coosa County heading to and from Highway 231 and are sometimes used by bicyclists. In addition, school buses and a garbage truck regularly use the roads. Occasionally, but not often, logging trucks and gas trucks travel the roads. When the county improved Buyck Road, its asphalt trucks used Jackson Trace Road, which rutted and damaged the road. Although the county patched the road afterwards, the garbage truck servicing the area has undone some of the patch work. The local residents who testified at trial all agreed that the current conditions of the roads, though poor in places, adequately meet their driving needs.

Reuben Hall testified that he had lived in the area for the first 28 and the last 18 years of his life. He explained that, in the interim, he had worked for a Mississippi chemical company and had owned a fertilizer business. He testified without objection that he was familiar with the type of trucks-tri-axle, semi-trailer, open dump trucks-and the common practices of the independent haulers who drive the trucks that would be used in the mining company's quarry operations because, he said, they are the same as in the fertilizer industry. Hall stated that the truckers typically haul a minimum of three loads per day. He testified, without objection, that these trucks would line up near the entrance to the quarry site each morning to pick up their first loads well before the quarry opened, blocking one lane of traffic at and near the intersection of Providence Road and Jackson Trace Road. Hall calculated that, in order for the mining company to meet its projected goal of producing 450,000 tons of granite per year, on an average 8-hour workday 60 trucks would enter and leave the quarry along the roads, a rate of about 1 every 5 minutes.²

Hall stated that the trucks are equipped with a compression braking system, or what are called “jake brakes,” that, he said, sound like a machine gun. He predicted that the noise of the trucks would awaken everyone in the area in the predawn hours. He testified that tri-axle dump trucks are harder on paved roads than standard semi-trailer trucks because their load center is “right over the three axles.”

Hall identified a number of photographs that were admitted into evidence. The photographs depict the condition of Providence Road, Jackson Trace Road, and Buyck Road. Some of the photographs show the narrow or nonexistent shoulders on those roads; some illustrate drop-offs or embankments beyond the paved surface of the roads; some depict little or no clearance between two tri-axle dump trucks meeting each other side-by-side on various sections of the roads.

David Bufkin, the county engineer for Autauga County, testified that Providence Road and Jackson Trace Road are not wide enough to handle 2 gravel trucks, each 8 1/2 feet wide, meeting on a road that is only 18 feet wide. Bufkin testified that Providence Road would deteriorate under the expected heavy use if it were not rehabilitated. He stated that the resurfacing of Buyck Road did not strengthen the base of the road, so it was also susceptible to similar damage. Bufkin testified that the continuing use of the roads by the trucks would first cause potholes and then, he said, the roads would eventually degenerate into dirt roads. He gave his opinion that the number of trucks that would travel the county roads every day as a consequence of the mining operation greatly increased the chance of accidents and presented a danger to the motoring public.

Richie Byard, the county engineer for Elmore County, testified that Providence Road has no shoulders in many places where there are embankments or drop-offs beyond the paved edge. Byard acknowledged that substantial heavy-truck traffic would cause both Providence Road and Jackson Trace Road to deteriorate quickly. He testified, however, that it was feasible to reclaim Providence Road in order to make it suitable for 120 heavy trucks per day. He explained that when the Alabama Department of Environmental Management (“ADEM”) issued the permit to the mining company, the Elmore County Commission had “tr[ied] to be proactive to address the condition of the roads” before the quarry opened for business. He said that, at the request of the county commission, he had developed a plan to upgrade Providence Road. Byard stated that the mining company had approached the county commission with an offer to provide free material for widening the shoulders of Providence Road and had...