Marion County Attorney Unpacks Sand-Plant Regulating

by Leslie Lytle, Messenger Staff Writer

At the Nov. 7 Marion County Commission Workshop, county attorney Billy Gouger schooled the commissioners and more than 40 concerned citizens attending on the County Powers Act and other options for regulating sand plants and like nuisances. Only commissioners were permitted to comment and raise questions. At issue is the possibility of a sand plant locating in the Jump Off community.

Gouger said the county had three options for regulating nuisance activities: one, zoning, which must be adopted county wide; two, adopting a Powers Act and subsequent regulation of activities the county defined as “nuisances”; three, filing a lawsuit to “abate” the nuisance. Gouger gave the example of Chattanooga filing a lawsuit to successfully close a motel housing homeless people.

Gouger said private individuals could also file a lawsuit to collect damages, but he expressed little confidence in the tactic. Jasper homeowners with cracked walls from blasting at a nearby rock quarry failed to collect damages. “It’s difficult to prove,” Gouger cautioned.

Chair Linda Mason asked about the county lawsuit option in the case of a sand plant. “Having a court declare a quarry a nuisance under [state] law, which is different from County Powers Act regulation, would be difficult if not impossible to do,” Gouger said. “A quarry is a recognized legitimate business activity.”

Gouger explained adopting a Powers Act gave a county the authority to regulate “nuisance” activities, such as sand plants, but not to prohibit them. A county with a Powers Act must decide what activities were nuisances and how to regulate them. The Powers Act could not be used to regulate agriculture and surface mining. Surface mining pertained only to “minerals.” Sand was not considered to be a mineral, Gouger said, so sand plants could be regulated.

Asked about how to enforce Powers Act regulations, Gouger said counties were limited to levying a $50 fine unless the county filed suit against the violator.

In a current lawsuit involving Tinsley Sand and Gravel’s intention to operate a sand plant in violation of Grundy County Powers Act regulations, Gouger said the ruling handed down was only a summary judgement denying Tinsley’s request to dismiss the case. The court had not handed down a decision on the arguments heard in August. Gouger stressed the case lacked legal precedent in Tennessee, and attorneys had to seek supporting arguments from out-of-state sources.

Gouger also noted Grundy County’s regulations prohibited sand plants within 5,000 feet of a residence, but the measurement was done “property line to property line.” He urged caution in drafting the wording of any regulations the county adopted.

Asked about road damage from heavy trucks serving a Jump Off sand plant, Gouger said most of the impact would be on Highway 56 which fell to the state to maintain. Regarding the “agricultural” property listings of the Jump Off tract Tinsley Sand and Gravel was considering purchasing, Gouger said Marion County had no zoning, and the “agricultural” denotation was for tax purposes only.

“We’ve got to help [the Jump Off] people,” Commissioner Ruric Brandt said. “People in Jasper say they have cracks in their walls from blasting, but Jasper has water. They don’t have water up there. Put these peoples’ shoes on. What would you want the county to do for you?”

“You [commissioners] answer to the people who put you in that chair,” Mason said. “You’ve got to make your decision based on their wishes. I’m torn. It’s a horrible situation.”

“We make decisions every meeting that affect the whole county,” Hargis said. “Not just [our] district.”

“I don’t want zoning,” Brandt said. “The Powers Act is the only tool we have.”

To allay concerns about unwanted Powers Act regulations being passed, Brandt suggested Powers Act regulations be adopted only by county-wide referendum. Gouger said state law stipulated Powers Act regulations be adopted by a two-thirds majority vote of the county commission, and the law would need to be changed to make a special exception for Marion County. Gouger added referendum would be “a cumbersome process,” since it required a county wide vote and county elections only occurred every two years.

At the October meeting, the commission voted 9-3 to adopt a Powers Act, one vote short of the super majority needed to put a Powers Act in place and allow the county to regulate sand plants. A revote is expected at the next commission meeting Nov. 27.

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