Quarry suit might move to jury trial

Posted: November 2, 2012

The Winchester Star

HARRISONBURG — A lawsuit filed by the Frederick County Sanitation Authority against Carmeuse Lime and Stone in 2011 likely will move to a jury trial following a judge’s ruling last week.

The dispute involves wording in a March 2000 contract between the parties that makes the authority responsible for some of the costs the quarry owner incurs to have county land rezoned for mining operations.

U.S. District Judge Michael F. Urbanski on Friday denied Carmeuse’s motion for a partial summary judgment and a second motion for summary judgement — in which the court rules for one party without a full trial.

The Sanitation Authority draws about 2 million gallons of water per day from Carmeuse-owned quarries in Clear Brook and Middletown — which accounts for between 20 and 25 percent of its water. Carmeuse also owns a quarry in Strasburg, which is not principally involved in the case.

While the judge denied Carmeuse’s motions, the Winchester-based attorney representing the company is pleased the matter is going to a jury trial.

“When this [lawsuit] was filed, and we filed a counterclaim, we asked for a trial by jury,” said Thomas Lawson, Carmeuse’s counsel. “That’s what we were looking for. We didn’t file the case, but when we responded [a trial is] exactly what we asked for.”

On March 2, 2000, the FCSA entered into a lease agreement with Global Stone Chemstone Corp. — later purchased by Carmeuse — allowing for mining operations and giving the FCSA the unlimited right to extract water from the water-filled quarry pits (for $1 per year), according to court documents.

The disagreement between Carmeuse and the FCSA centers on the eighth paragraph in the lease agreement, stating: “The parties recite and understand that certain rezoning of [Carmeuse’s] properties is contemplated. The authority supports [Carmeuse’s] efforts in that respect and agrees to pay for the cost associated with the rezoning process, including consultant and filing fees as well as attorney's fees and court costs.”

The memorandum opinion written by Urbanski and filed Friday states that Carmeuse is claiming the FCSA owes it about $1.7 million, mostly for berm construction at the quarries where the authority leases space. At an earlier briefing, the FCSA admitted it owes Carmeuse $111,542.02, according to the opinion.

“It was kind of interesting to us that the Sanitation Authority acknowledged it owes Carmeuse money,” Lawson said.

He added that Carmeuse believes the FCSA might owe the company more money but that he was unsure exactly how much more.

Uwe Weindel, engineer-director for the FCSA, confirmed Thursday that the authority is not disputing that it owes Carmeuse some money, just not the amount the quarry claims it owes.

In his memorandum opinion, Urbanski stated that the contested cost reimbursement language in the agreement is ambiguous and can be interpreted in multiple ways.

“The agreement does not contain any clear-cut delineation of just what was meant to be included in the reimbursable costs of rezoning,” Urbanski wrote. “On the one hand, the broad scope of the caption of paragraph 8 and the absence of any limitation on the phrase ‘cost associated’ in its text is consistent with Carmeuse’s argument that the authority is obligated to pay for the construction of the berms required by the rezoning. So too is the notion that a proffer is a creature of statute and occurs only in connection with a rezoning.

“On the other hand, the ‘rezoning process’ language in paragraph 8 suggests a limitation, and the kinds of costs referenced therein bear no resemblance to the long term, high-dollar cost of constructing berms around Carmeuse’s expanding mining operations.”

The memorandum opinion did not set a trial date. The lawsuit’s case number is 5:11CV00006.

— Contact Matt Armstrong atmarmstrong@winchesterstar.com