VS. Case No. 01 C 116







THIS MATTER COMES ON before the Court this 17th day of December, 2002 for oral argument upon the petition filed herein by Heckert Construction Company, Inc. and Se‑Kan Asphalt Services, Inc. and an answer filed by City of Fort Scott, Kansas. The Honorable Gerald W. Hart presiding.


The plaintiff is present by and through its attorney, Clinton Patty. The defendant appears by and through its attorney, Robert L. Farmer. There are no other appearances.


Thereupon, the plaintiffs present their oral argument in support of their position.


Thereupon, the defendant presents its oral argument in support of its position.


Whereupon, the Court takes the matter under advisement and on February 3, 2003, issues the following findings and orders:


1. The 2001 Kansas Legislature enacted House Bill No. 2369 (the "Act"), which was approved on April 16, 200 1. This Act is codified in the Kansas statutes as K.S.A. 12‑ 16,12 1 and provides, in relevant part, as follows:


(a) As used in this section and K.S.A. 12‑16,122, and amendments thereto:


(1) "City' means and city;


(2) "County" means any county;


(3) "Governing body' means the governing body of any city and the board of county

commissioners of any county;


(4) "Paving material" means crushed rock, asphalt, gravel, aggregate sand or other materials used to pave roads, streets and drives.


(b) Except as provided in subsection (c), the governing body of any city or county shall not sell or otherwise provide paving material to any private person or private entity.


(c) The provisions of subsection (b) shall not apply if the governing body has:


(1) Made a determination that such paving materials are not readily available from a nongovernmental entity; or


(2) Adopted a resolution declaring the existence of `a disaster, emergency or the threat of disaster or emergency.


K.S.A. 16,12 1, House Bill No. 2369, became effective on July 1, 2001.


2. K.S.A. 12‑16,121(c) provides a very limited exception to the blanket prohibition against cities engaging in the sale of paving materials, requiring local governments to make a determination that paving materials are not "readily available" from a private business.


3. K.S.A. 12‑16,12 1 was introduced as a prohibitory measure to prevent local governments from selling any paving materials to the public. `Representative Bob Grant originally requested this bill because it was reported to him that some counties have been selling crushed rock to private individuals ,., [h]e believes public entities should not be in competition with private business." (Minutes of the Senate Trans. Comm., March 14,200 1). During the Legislative session, concern by opponents of BB 2369 was summarized in the February 3, 2001 testimony of Randy Allen, Executive Director of the Kansas Association of Counties as follows:


In areas of the state where there are no private quarries or private sources for counties to obtain paving materials within a reasonable driving distance, neighboring counties would be precluded from purchasing materials from nearby counties even though it might make economic sense to do so.


4. (Testimony Before the Senate Transportation Comm., February 19, 200 1). In response, the Legislature included the "readily available" language in the statute. (House Amendment, referenced in the Supp. Note on HB 2369, attached as Exhibit F).


5. On June 5, 200 1, the Fort Scott City Commission held a public hearing that is required under House Bill No. 2369 which has been codified in K.S.A. 12‑16,12 1, et seq., to decide whether or not asphalt paving materials were readily available from a non‑governmental entity.


6. At the June 5, 2001 hearing, the Commission heard testimony from the plaintiffs who both operate facilities within 36 miles of the City of Fort Scott. In addition to their geographic proximity, both indicated they were willing to sell (and for years have sold) paving materials to private citizens and entities in Fort Scott.


Heckert's plant is located less than 35 miles from downtown Fort Scott. At the June 5 hearing, Heckert provided uncontroverted testimony that:


[w]e have produced and laid millions of tons of hot mix asphalt ...including both public and private projects within the City of Fort Scott ...Heckert Construction has been, and will continue to be, available to produce and place, or produce quality hot mix for others to purchase for placement on private and commercial projects within the City of Fort Scott, ‑whether it be from our Pittsburg facility or a portable installation in the area.


SE‑KAN also testified regarding its commitment to provide asphalt and other paving materials to private projects in Fort Scott from their location 36 miles away. "Both last fall and spring we sold asphalt to a private contractor do work in Fort Scott ...In the past we have done other major jobs in Fort Scott.. .and even more driveways".


7. At the conclusion of the public hearing the Fort Scott City Commission voted unanimously that, based upon the public hearing, paving materials were not readily available from any non‑governmental entity within Bourbon County to meet the kinds of projects that were being discussed by the City Commission which were purely noncommercial, small, residential projects.


8. The City of Fort Scott, in interpreting whether or not asphalt products were readily available relied upon the fact that there were no private asphalt plants in Bourbon County nor had there been for several years, and that no one was interested in providing small amounts of asphalt to a private citizen for his personal residence as the cost of hauling the small amount of asphalt would make it uneconomical and therefore such asphalt was not readily available under the statute.


9. The City of Fort Scott provided invoices as part of this litigation that indicated that during the years 2001 and 2002, there were only three (3) separate sales for a total of $70.62.


10. The plaintiff is asking for an injunction but the City asserts that under K.S.A. 12‑16,122 it can hold a public hearing on an annual basis to decide whether or not K.S.A.16121(4)(c)( 1) applies in making a determination of whether or not there are paving materials readily available from a nongovernmental entity and that the Court has no power to restrain another governing body from exercising its constitutional and statutory authority.


11. The Court finds that the action taken by the City was reasonable and based upon a reasonable construction of the statute. The Court is hesitant to set aside the considered opinion and statutory construction of an elected public body.


12. The Court has set out the testimony of the Plaintiffs concerning their "availability to provide asphalt in the Community of Fort Scott". However,

the record is clear that their work in this community consists overwhelmingly of large commercial projects. While their evidence indicates that they stand ready to provide asphalt for any size project, common sense would dictate that they would have little if any interest in providing asphalt for the type of work represented by Defendant's invoices or could only do so at a cost that would make such small amounts expense prohibitive for the customer.

13. The Court therefore finds that the City of Fort Scott is in compliance with K.S.A. 12‑16,12 1, et. seq., and House Bill 2369 and that Plaintiffs are not entitled to an injunction under the facts of this particular case.