Thursday, April 28, 2005 | 9:40 a.m.
A District Court judge has given Henderson five days to decide whether a developer can resume construction blasting near homes.
District Judge Douglas Herndon said Wednesday the city doesn't have the right to postpone for another month its decision on whether a blasting permit should be revoked or reissued.
On March 24, Henderson halted all blasting in the city within 300 feet of homes after residents complained the explosions damaged their houses. All blasting outside that range was allowed to continue.
Herndon said he won't tell the city whether to revoke or reissue the permit for Foothill Partners, the developer of MacDonald Highlands, but he said the city must make a decision. Foothill Partners agues a further delay in preparing the site for construction is costing the company money in interest payments on the property and lost sales.
Henderson has a "bigger duty to its citizens" to address the safety concerns of the blasting, but the city has to do so in a "reasonable manner," Herndon said in his ruling. He said the city's own codes call for it to act on permits within five days.
"I can't tell you how to act, but the city has to act within five days," Herndon said.
Herndon gave Henderson some leeway on when the five-day period starts. The developer is required to submit information requested by the city before the city makes a decision on reissuing the blasting permit for a 91-acre site west of Dragon Ridge Country Club.
Herndon's ruling gives the city until early next week to decide whether the developer should get a blasting permit for a nine-acre parcel in MacDonald Highlands. The city put off that decision after suspending blasting permits March 24.
The city is awaiting the results of a $36,743 consultant study on whether the damage is linked to blasting in MacDonald Highlands and Crystal Ridge subdivisions. That report won't be completed for another month, and city officials wanted to delay a decision on the permits until then.
Foothill Partners contends the blasting hasn't cracked the walls of homes as some residents have complained. Henderson has the strictest blasting ordinance in the state, according to the developer.
Randall Jones, the attorney for Foothill Partners, said he's pleased with the ruling because it at least requires the city to act. If the city revokes the permit and doesn't have a legitimate reason for doing so, the case could go back to Herndon for relief, he said.
"This is a difficult situation for all concerned," Jones said. "The key here is that we don't want to cause harm to anybody. We want to go forward because we think we are doing this in a way that is safe."
Assistant City Attorney Mark Zalaoras said he was disappointed with the decision but thought it was unlikely the case would be appealed to the state Supreme Court. He said no decision has been made on whether to revoke or reissue the blasting permit in MacDonald Highlands, but if it is restored, more restrictions could be placed on it.
"Certainly our preference was to get the report and base any decision on the study from our expert," Zalaoras said. "We are going to ask (the consultant) for some suggestions on how to proceed. The question is how do we limit each blast to prevent anything from happening."
MacDonald Highland's resident Glenn Christenson, who has cracks in walls in his home, doesn't want the city to reissue the permits and allow blasting near homes.
"I could not imagine the city would issue a permit and allow a potentially dangerous activity to take place in a neighborhood setting," Christenson said. "This whole thing is such a source of frustration for a number of people in the area. Hopefully, the city will protect homeowners against this activity."
Zalaoras said the city doesn't decide the fate of permits based on public recommendations but will instead rely on experts like its blasting consultant.
During Wednesday's hearing, Jones said the city "overstepped the bounds of prudent caution" and overstepped its own codes when it suspended the permit and put off a decision on issuing a second permit. He said the city based its action on unfounded fears rather than on science.
Zalaoras contends the city acted prudently in halting the blasting to examine if it had caused any damage. He argued the city has the discretion to take such action.
A Foothill Partners consultant found its blasting couldn't be causing any damage to homes, Jones said. Henderson's code allows 0.5 inches of vibration per second, well below the national average of two inches of vibration per second, he said.
Foothill Partners, through its contractor, Donner Drilling & Blasting, has used ammonia nitrate to clear rock formations for home and road construction.
"Some of the people will never be convinced the blasting is not damaging their homes," Jones said after the hearing. "Stucco cracks from wind and rain and settling. If there is stucco cracking and blasting in the neighborhood, that's what people think it is. It doesn't matter what science tells you."
On Tuesday, Henderson approved a permit allowing blasting on a 36-acre section of MacDonald Highlands, as long as the blasting is outside of 300 feet of homes and utilities. Jones said it is inconsistent for the city to allow blasting outside of 300 feet when the same level of vibrations per second can be generated on blasts inside and outside that range.
Foothill Partners has eight lot sales in which escrow can't be closed until the blasting is completed, Jones said. Two potential buyers have backed out because of the delays, he said.
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