Enforcement and Inconsistency: Borrow Pits & BackfillingJul 1st, 2012 | By Jessica Gonzalez | Category: news
As reported in previous articles, the current council’s problem with enforcing ordinances regulating borrow pit excavation and backfilling is nothing new and the problem most definitely pre-dates their tenure.
The ordinances on the books, drafted by former councilmen, have been challenged in court for being unconstitutionality vague. Typically, legislation might be called unconstitutional for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed should the law be broken.
So to avoid further legal problems and to ensure that future borrow pits are properly backfilled, the council has been working on new legislation that is expected to clearly define what a borrow pit operator is required to do, post-extraction.
But a new ordinance is only half of the battle– the other half is actually enforcing the legislation.
A history of inconsistency
The Nairn & Idlewild pits–granted permits by the previous council– are perhaps the biggest example of the PPC’s wishy-washy nature when it comes to enforcing the borrow pit regulations they author and pass.
In April 2009, Ordinance 09-87, offered by Council member Jerry Hodnett, was approved by a 6 – 3 vote. The ordinance states that “any person who constructs, operates, uses or owns a borrow pit site shall provide a performance bond in favor of Parish Government, guaranteeing the backfilling of a pit…”
However, in July of 2009, the PPC unanimously granted a permit to Citrus Reality LLC and White Oak Reality LLC to excavate at their Hwy. 23 site, despite the fact that the company put up a property bond– not the performance bond required by Ordinance 09-87.
A performance bond is issued to one party of a contract as a guarantee against the failure of the other party to meet obligations specified in the contract. A mortgage as property bond is funded by a mortgage on one or more properties, differing from a cash-funded performance bond. In a default situation, mortgage bondholders have a claim to the underlying property and could sell it off to compensate for the default.
On White Oak Realty and Citrus Realty’s Property Bond application, dated August 12, 2009, it states that “In order to secure the full and punctual payment and performance of all obligations required to be bonded under the Ordinance (09-87) and all amounts due thereunder, Mortgagor has agreed to execute and deliver this Mortgage as Property Bond…”
The permit to excavated at their Hwy. 23 Idlewild site was signed and approved the next day by the permits department.
So when the pits weren’t backfilled after 180 days of inactivity, the council was legally able to seize the property put up in the bond. But there was one problem: the mortgaged property was the land that housed the un-backfilled pits.
For the past few weeks, there has been an ordinance on the agenda offered by District 6 Councilman Burghart Turner which states it is to “supersede, and amend all prior ordinances” pertaining to the guidelines for operating borrow pits.
The language in the legislation differs from prior ordinances mainly in the way it clearly defines what is expected of borrow pit operators including the specifications for obtaining a permit, standards for operating borrow pits, the processing of the permit application, and what is expected for existing non-permitted borrow pits.
According to the proposed legislation, the permit applicant must come up with a performance bond equal to 110 percent of the estimated cost to fill the excavated site as determined by the Department of Planning and Zoning, before the permit is granted.
As an additional way to ensure all permit applicants meet the ordinance’s requirements, the legislation states that the DPZ must retain the services of a licensed professional engineer to review and certify the completeness of the application package.
The proposed legislation also addresses the issue of enforcement by way of the council’s police power. Police power is commonly used in state and local government as the basis for enacting a variety of substantive laws in areas like zoning, land use, and nuisances among others.
“The division is adopted, pursuant to the Plaquemines Parish Council’s Police Power, for those purposes necessary to protect the safety, health and welfare of parish residents and property…to forever curtail the effects of unsafe, nuisance, and non-permitted borrow pit construction, and to ensure that any such excavation of borrow pits is fully, completely and thoroughly reviewed, engineered, regulated and monitored.”
The ordinance was deferred for a second time, at the June 28 meeting, and will be on the agenda at the regularly scheduled July 12 meeting. Until a new ordinance is in place, the six month moratorium on borrow pit permits passed last month remains in place and the federal funding gap for many of the parish’s impending levee projects remains unresolved.