City issues permit, asphalt plant underway

Despite continuing questions regarding the official zoning status of a Munsford Drive property, the Memphis-based asphalt Company, Lehman-Roberts Asphalt Paving Co. has begun construction on its prospective New Albany plant.

According to New Albany Building/Zoning Inspector Mike Armstrong, a building permit was issued to the company on June 5, following consultation with New Albany City Attorney Bobby Carter.

“They came in and wanted it,” Armstrong said. “As far as the city’s concerned, the land is zoned industrial and they’re legally able to build. I was obligated to issue a permit to them.”

“We really had no basis to deny it,” New Albany City Attorney Bobby Carter said regarding the permit’s issuance. “To deny it could be considered actionable by [Lehman-Roberts].”

The issue over the construction of an asphalt plant at 1305 Munsford Dr., currently owned by Riverside Traffic Systems, Inc. – a company owned by Booker Farr – has been one of much debate since October of 2007. Following several public meetings with the asphalt plant, as well as city officials, several neighboring residents filed a lawsuit in November to block the construction of the plant.

The basis of the plaintiffs’ claims were that, according to the city’s own ordinances, the 30-acre piece of property has never officially been zoned industrial, but is in fact zoned as agricultural land. Though the city’s official zoning map shows the property to be industrial, there is no evidence in the form of board minutes or legal notice to suggest that the board of aldermen ever officially adopted a zoning change for the property, the plaintiffs argue. Such evidence is required, according to state law and city ordinances. Therefore, Lehman Roberts would have no legal standing for constructing a plant on the site.

The city’s official stance, however, has been that, according to state law, the official zoning map supercedes any board minutes and, therefore, the property is legally zoned industrial.

The plaintiffs in the case filed a request for re-zoning of the property from industrial to agricultural with the city’s zoning commission in late June. Though they contend that their request is to correct the property’s official zoning status, city ordinances and state law required them to follow this procedure and the board of aldermen set a public hearing for Aug. 5, 2008 regarding the matter.

Attorney Bill Rutledge, who represents the plaintiffs in the case, said he and his clients only learned of the building permit issuance on Friday.

“We just found out about it,” Rutledge said Monday. “We have some concern about it, considering the issue is still unresolved.”

Questions regarding the property’s current zoning date back to 1996 when, according to statements made by New Albany City Attorney Bobby Carter, the property, along with land owned by Phil Morris, was changed from agricultural to industrial by the board of aldermen. At that time, the property currently owned by Riverside Traffic Systems was, in fact, owned by M. Allen Jackson, Jr., Robert Bostwick III and New Albany City Attorney Bobby Carter himself. The property was later annexed by the city of New Albany in 2001 and, at the city’s approval, Bridge and Slaughter, an Oxford-based urban planning firm, redrew the zoning map, which reflected the property as being zoned industrial, even though no official evidence of a change in the land’s zoning status has ever been found.

Bostwick, also a plaintiff in the case, said Monday that he, Jackson and New Albany City Attorney Bobby Carter had owned the land previously.

“It’s not a secret,” Bostwick said. “We testified to it in our depositions.”

Because depositions themselves are not open to the public, however, New Albany City Attorney Bobby Carter’s prior co-ownership of the land has never been discussed in the public forum in regard to the possible appearance of conflict of interest – a normal procedure.

Statements made by Bostwick at a Mississippi Department of Environmental Quality hearing on the topic of the asphalt plant in early December of last year, reflect that he believed the property he, Jackson and New Albany City Attorney Bobby Carter owned and sold to Farr in 1999, was still zoned agricultural at the time of sale.

“I own the land, I guess, to the west of this 29 acres,” said Bostwick. “The land that I own is zoned agricultural exactly going up to this 29 acres. I sold this land to Mr. Farr. It was zoned agricultural when it was zoned. To my knowledge, it has never been rezoned. I think we’ve got a zoning problem.”

New Albany City Attorney Bobby Carter is also co-owner of the property adjacent to the land in question, along with Bostwick.

Farr stated that he checked the land’s zoning status before selling it.

“What it was I was going to move my business out there to the property,” Farr said. ‘Then I learned that the property I was renting was for sale and then I didn’t need that property any more. So I asked my wife, a real estate agent, to list it for sale and she said I needed to know how it was zoned. I checked with Mike Armstrong and he told me it was zoned industrial.”

Farr went on to say that he had other inquiries into the purchase of the land after he had checked on the zoning status, but, because it was zoned industrial, the interested parties did not pursue the matter.

The case went before Chancery Court Judge Michael Malski in late April, but was subsequently thrown over to Circuit Court.

In a statement regarding his decision, Malski wrote, “the Chancery Court lacks jurisdiction to hear this zoning dispute against the city of New Albany even if all parties agreed it could.”

He went on to say that the relief sought in the suit should be appealed before the New Albany Board of Aldermen.

Booker Farr’s attorney, Rhett Wise, requested that the public hearing regarding the property’s zoning change be postponed to Sept. 30, 2008, which was tentatively agreed to by lawyers for all parties involved. However, the public hearing remains officially scheduled for Aug. 5, according to City Clerk Anne Neal and no legal notice regarding a change in a hearing date has been submitted to the New Albany Gazette.

The three attorneys involved came to me and requested a change in the date,” New Albany City Attorney Bobby Carter said. “I had advised the mayor and the board of aldermen about the request. I have not confirmed the date of Sept. 30, but I will today [Tuesday]. We will accommodate everyone as best as we can.”