Parish To Appeal Judge’s Ruling That Big Shake Borrow Pit Can Operate Without Seeking Planning Commission/Council Approval
The St. James Parish Government and the new owners of the Big Shake borrow pit are currently in a legal dispute that centers around the St. James Parish’s Land Use Ordinance/Plan and whether the new owners should comply with the rules and regulations of the Parish’s Land Use Plan.
To understand the current dispute, one must understand the history of Big Shake.
In summary, and according to legal proceedings filed in Court:
*In 1989, Yolande Schexnayder & Sons (YSS) was incorporated as a sugarcane farm. YSS was the original owners of the property in question.
*March of 2008: YSS enters into a purchase agreement with Louisiana Earth Corps (LEC) and grants LEC the rights to market, mine and sell clay from roughly 100 acres of the property. At this time the property is named “Big Shake Pit”.
Also at this time, LEC conducted soil boring and analyses and identified high quality clay suited for use in levee construction and LEC applied for a contract with the US Army Corps of Engineers to sell clay to be used in the post-Katrina Hurricane Storm Damage Risk Reduction System (HSDRRS).
*October of 2009: The Corps accepts Big Shake Pit as a suitable borrow pit to supply clay for levee systems and several pits/cells were dug, some as deep as 30 feet, and clay was barged and trucked to supply the HSDRRS with clay.
Also, from 2009 to 2012 roughly 677,000 tons of clay was excavated from the Big Shake Pit, and the contract between YSS and LEC remained in affect until December of 2020.
It should also be noted that some top soil was excavated from Big Shake in 2014, but work stopped shortly thereafter, and no earthen material has been removed from the property since 2014 and the land has been used to grow soy beans and sugarcane.
*2013: YSS went into receivership and Wanda Taylor was appointed “Receiver” by the Court.
*April of 2014: St. James Parish adopts its Land Use Plan/Ordinance, which designates certain uses for land throughout the parish, and the Big Shake property in question is designated as Agricultural/Residential.
*December of 2020, St. James Construction Materials, LLC (SJCM) purchases Big Shake from YSS, which included roughly 490 acres of land. With the new purchase, Big Shake increased more than 370 acres as the original land planned to be worked as a borrow pit was roughly 100 acres.
Court documents show SJCM is actively seeking a contract with the Corps of Engineers to supply clay to the West Shore Lake Ponchartrain Hurricane Risk Reduction Project, which was funded by Congress in 2018 and remains in the Army Corps of Engineer’s design phase.
One caveat or one ironic twist to all of this is if the West Shore Project ever becomes a reality, the clay mined in St. James Parish would possibly be used to construct levees to protect St. John Parish, which some predict could increase backwater flood risk in St. James Parish.
Therefore, the dispute between the Parish and SJCM came to light shortly after the December 2020 sale.
In January of 2021, and to prepare to revamp the property as a borrow pit as the company hopes to land a contract with the West Shore Lake Pontchartrain Project, SJCM applied for Parish issued permits to reconnect water and electrical service to the property.
At that time, the Parish advised SJCM in order to use the property as a borrow pit the new owner would have to follow the Parish’s Land Use Plan, which requires Planning Commission and Parish Council approval in order to be deemed a “nonconforming” business and be issued the necessary utility permits.
The Parish’s position was since no clay material had been removed from Big Shake since 2012 and that the land was used to grow sugarcane, which does comply with the agricultural/residential designation under the Land Use Plan, that using the land as a borrow pit would require Big Shake to receive nonconforming status now that the Land Use Plan has been enacted.
The Parish also argued that Big Shake has no claim to the status of a nonconformity under the Land Use Plan because earth mining did not occur for a period of 6-months or longer, and earth mining was not a use of land existing as of the effective date of the land use ordinance.
So, upset with the Parish’s refusal to award utility permits, SJCM filed suit in District Court and asked a Judge to issue a preliminary injunction to prevent the Parish from requiring Planning Commission or Parish Council approval before issuing the permits.
So, on March 23rd, all parties involved met in Judge Alvin Turner’s Court and held a hearing where both sides argued their cases and in the end Judge Turner, on April 7th, ruled in SJCM’s favor and granted a preliminary injunction that prevents the Parish not only requiring Planning Commission/Parish Council approval, but from taking any action to slow down or prevent any work on the Big Shake property.
After Judge Turner’s ruling, the Parish filed a Notice to Appeal Turner’s ruling with the Fifth Circuit Court of Appeal and the Clerk of Court is currently in the process of preparing the transcripts and the official record.
In SJCM’s Petition for Preliminary Injunction, attorneys argue several points as reasons Judge Turner should allow the company to proceed and the following are some of the main points:
*SJCM argued the Big Shake Pit has, since before 2013 and since the Land Use Plan was adopted in 2014, never ceased operating as a borrow pit.
The petition points to many other activities other than actual mining of clay that coincide with running a borrow pit business and that many of these activities have been ongoing and have never ceased for more than 6-months.
These activities include: soil boring, sampling and testing of soil for suitability for various projects, maintaining cells where excavation has already occurred to prevent collapse, creating and maintaining roads as needed from ingress and egress, keeping property in a state of compliance with applicable regulatory requirements, clearing trees and bushes, removing surface clay and stockpiling materials in advance of levee and other large scale construction projects, and posting and maintaining signs on the property advertising the availability of earthen materials for sale from Big Shake.
The petition also argues that although no clay was mined and sold for many years, the Big Shake has never ceased due to the constant marketing of the property.
The petition points out that Wanda Taylor, the Court appointed receiver for YSS, was paid a weekly salary for managing and operating the property as a borrow pit since the effective date of the Land Use Plan to the present, and that YSS has actively pursued certification of the property as a clay-borrow source for the West Shore Levee Project, which would be a significant business opportunity - especially since Big Shake is in such close proximity of the proposed project in neighboring St. John Parish.
Lastly, and among other arguments made, SJCM says from 2008 to the present that numerous meetings, phone conversations and email exchanges were had between YSS and St. James Parish officials and at no time was YSS ever told they were in violation of the Land Use Plan or there would be the need to seek Planning Commission or Parish Council approval.
So, for now Big Shake is and will continue to operate as a borrow pit and will continue to seek a clay buyer. More to come as the case makes its way through the legal system.
In speaking with some of the landowners, who would be most affected by the pits should they be dug at some point in the future, all shared similar concerns.
Some of those concerns are: What will be the impact on neighboring property and home values? Will there be a dust problem? Will this affect drainage? What are the hours of operation? How will 500,000 trucks filled with dirt impact traffic and will they damage local roads and highways? What conditions will the pits/cells be left once all the clay is mined? Will the Pits go to adjacent property lines or will there be a buffer zone?
As you can see there are a lot of questions about the impact such a large scale project could have on local residents.