Posted by: Patricia Salkin | February 25, 2011

8th Circuit Affirms Injunction Preventing Enforcement of Rock Quarrying Ordinance

The City of Fayetteville, Arkansas sought to use extraterritorial jurisdiction to license and regulate quarrying operations up to one mile outside it’s corporate limits.     The Rogers Group, which operates a limestone quarry as a pre existing nonconforming use sought an injunction to prevent enforcement of the ordinance, which, among other things, limited quarrying operations to a total of 60 hours per week and allowed “major noise producing activities” only between 8:30am and 4:30pm Monday through Friday. The ordinance also restricts rock blasting to a five hour period on two days each month and included several safeguards to protect City roads from all vehicles exiting the quarry.  Violations included criminal punishment, fines and suspension or revocation of a license.

In affirming the district court’s grant of an injunction in favor of the Rogers Group, the circuit court explained that rock quarries are not nuisances per se, and that under Arkansas law, the City may only regulate in an area one mile beyond it’s corporate limits to abate a nuisance. Since a rock quarry may, under certain circumstances, constitute a nuisance, and since it is not a nuisance per se, absent a judicial determination that the quarry’s activities constitute a nuisance, the court said that the City has no statutory authority to regulate it in the guise of abating a nuisance.

Further, the court held that the Rogers Group established a threat of irreparable harm since it submitted evidence that it would suffer loss of goodwill if forced to operate under the ordinance’s restrictions, that it would not be able to expand, and that truck restrictions would drive away customers.

Rogers Group v City of Fayetteville, Arkansas, 629 F.3d 784 (8th cir. Ark. 12/27/2010)  

The opinion can be accessed at:

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