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Posted October 26, 2012 | comments 1 Comment

Judge rules against quarry in water access lawsuit

By Alex Bridges

A federal judge ruled in favor of a Frederick County agency in a lawsuit against a quarry operator over access to a major source of water.

Judge Michael F. Urbanski in U.S. District Court in Harrisonburg on Friday denied motions for summary and partial summary judgment sought by Carmeuse Lime & Stone against the Frederick County Sanitation Authority. Urbanski ordered the court to schedule the case for trial and directed parties to set a date.

The authority filed the lawsuit against Carmeuse, then O-N Minerals Co., also known prior as Global Stone Chemstone Corp., over access to water in the firm's quarries in Clear Brook and near Middletown. Carmuese also operates a quarry in Shenandoah County near Strasburg.

The lawsuit focuses on the interpretation of an agreement reached in 2000 between the authority and the quarry operator. The parties assumed the operator would seek to rezone property and the agreement called for the county agency to reimburse the firm for the costs associated with that process.

Carmeuse argues the agreement calls for the authority to reimburse it for all costs associated with rezoning, including those incurred in complying with proffers made during the rezoning. The authority argues the agreement limits the reimbursements to the costs associated with the final rezoning process.

"Plainly, genuine issues of material fact abound as to the obligation of the Authority to reimburse Carmeuse its costs expended to comply with its rezoning proffers," Urbanski states in his memorandum opinion. "On its face, the Agreement is ambiguous, and the parol evidence is in conflict as to which interpretation of the Agreement reasonably reflects the parties' intent. This issue, therefore, requires resolution by a jury."

Carmeuse filed motions for summary judgment and partial summary judgment against the authority. Urbanski at a hearing Aug. 7 heard arguments on the motions from Carmeuse attorney Thomas Lawson and Henry Coleman III, legal counsel for the authority. The judge indicated at end of the hearing he would render an opinion after which the court could set a trial date.

The judge cites an agreement reached between the authority and the operator, then Chemstone, which grants the agency the unlimited right to draw water from Carmeuse's quarry pits, except for amounts required by the company for its operations. As Urbanski notes the crux of the dispute centers around the scope of the authority's obligation to reimburse Carmeuse for the costs associated with the rezoning process for the firm's Middletown and Clear Brook parcels.

The disagreement focuses on an obligation of the authority to reimburse Carmeuse for the cost to build earthen berms around its quarries. The authority has argued it would make no sense to agree to reimburse the costs of the berms because their construction may not occur for years.

Carmeuse alleges the authority stopped making the required payments, Urbanski states. The defendant attributes the action to a change in the authority's management. Carmeuse also contends the authority failed to support the operator's rezoning efforts, against the agreement, thus increasing the costs, according to the judge.

Likewise,Carmeuse contends that the authority extracts water from inactive pits but not from where the operator is trying to mine resulting in significant additional costs, the opinion states. Urbanski, in his opinion, says the agreement in no way obligates the authority to take water from the active quarry pits.

The authority filed the lawsuit in Frederick County Circuit Court on Jan. 28, 2011 after Carmeuse began asserting the agency breached the agreement and then allegedly threatened to cut off the water supply. The authority sought declaratory and injunctive relief. The lawsuit was then transferred to the federal court Feb. 7, 2011.

Carmeuse argued the court should grant summary judgment on the claim the authority breached the agreement and there exists no genuine issues of material fact in dispute.

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com

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