Deliberations set for asphalt plant appeal hearing

Appalachian Materials looks to reverse earlier decision

By Jesse Campbell -

(Jesse Campbell|Jefferson Post) Appalachian Materials Group makes its case before the Ashe County Board of Adjustments on Oct. 6, 2016.

JEFFERSON-The defense for Ashe County’s planning department described their client’s reasoning as ‘elementary’ in denying a polluting industries permit to Appalachian Materials for a proposed Glendale Springs asphalt plant last fall.

That assertion came during a drawn out board of adjustments appeal hearing Thursday.

Although the board of adjustments likely didn’t find anything about the evening’s lengthy six-hour long hearing rudimentary, the board ultimately agreed more time would be needed to decide the case. The board’s next meeting is at 5:30 p.m. on Thursday, Oct. 20.

Appalachian Materials is appealing a decision made by the county last year to deny its June 2015 bid to construct an asphalt plant in an existing quarry near a sparsely populated community in the southern end of the county.

The company further claims the county succumbed to political pressure in imposing a moratorium on polluting industries permits.

That moratorium, which eventually lasted nearly a year, has since expired as the county adopted a more stringent “high impact land use” ordinance earlier this week.

On Thursday, the Appalachian Materials came before the county’s board of adjustments in hopes of securing the permit it needs to move forward with the plant. The company claims its entitled to the approval since early indications from the county’ planning department suggested it was a done deal.

The company’s representatives argue the earlier approval from the planning department is binding and can not be reversed.

The county contends that Appalachian Materials’ application was incomplete at the time it was submitted because it did not include all state and federal permits including, crucially, an air quality permit.

Essentially, the county and its planning department is asking the board of adjustments to uphold a letter by county planner Adam Stumb in denying Appalachian Material’s request. The county also requested that the board further deny Appalachian Materials request for a variance that would allow them to construct an asphalt plant.

During its opening arguments, the county also argued that Appalachian Materials didn’t satisfy buffer requirements for the proposed plant.

Lengthy testimony, cross examination

Appalachian Materials began the evidentiary portion of the hearing by introducing Derek Goddard, principle consultant of Blue Ridge Environmental Consultants. Goddard was a primary consultant for the company in applying for the permits.

Goddard began his testimony by describing his conversation with Stumb when he submitted the application for the asphalt plant last year.

Goddard said when he met with Stumb he explained the application’s purpose and showed Stumb direct outlined areas of the proposed plant and aerial photos of the site. He also said he provided a sealed survey that describes buffering and how the plans demonstrated compliance with the county’s polluting industries ordinance.

Goddard said Stumb then told him he couldn’t think of a better location for a plant because it was in an existing quarry and sparsely populated. He also said that a barn was clearly visible on the plans when it was submitted.

Goddard said he was told by Stumb that he would make a decision about the permit and indicated that Appalachian Materials had met the requirements upon review of the application.

Furthermore, Goddard contended that at no time did Stumb say anything about the application being incomplete.

Following the June 5 meeting with Stumb, Goddard said he had received an email from Stumb that there were no major deal breakers with the application at that time. He further stated that Stumb provided no comments about missing parts of the application, or compliance issues.

Stumb did indicate to Goddard that a water shed permit was needed, according to Goddard.

Hay is for horses

Following Godard’s testimony, Appalachian Materials introduced the property owner of the building in question to support their argument that at no time did the barn serve as a commercial interest or purpose, which would go against any assertion that they violated buffer requirements for polluting industries as written in the ordinance.

The county’s defense then asked questions of the property owner concerning the primary purpose of the barn and whether or not the Miller family, which owns the barn, used it to store farm equipment.

The county then asked the property owner if the hay stored at the barn was used to make money. A few audience members laughed at the question, but it could’ve been a tactic by the county to demonstrate the barn had a commercial use and therefore violated buffer requirements.

Portable setup

D.J. Cecile, manager of Appalachian Materials, was the next witness to take the stand.

During his testimony, Cecile said after examining the market, he talked about the purpose and placement of an asphalt plant. Cecile said he felt the convenience of aggregates for asphalt in the vicinity of the proposed area attracted his attention.

Cecile said the ease of setup and transportation of equipment necessitated a portable setup.

Cecile then answered questions concerning the layout of the plant and alleged inaccuracies and inconsistencies in the permitting process.

During the course of his testimony, Cecile noted that Appalachian Materials needed some assurance from the county to justify current and future expenditures for the project while they awaited final results of permit. He described a murky permitting process that lacked consistent communication from the county’s planning department.

Cecile also said he was unsure what possible additional information the county might be requesting to satisfy its requirements. He said he received no communication from Stumb on what additional information he might need.

During the discussion of the shed, Cecile said had they been properly notified they could have relocated a shed that was at the subject of alleged buffer violations.

More witnesses

Tony Pendola, of North Carolina Environmental Quality, was the final witness for the evening for Appalachian Materials.

Pendola helped with submitting the application for Appalachian Materials. He discussed the application process, which included mapping and modeling, and served as a third party witness.

After five hours of testimony, the county called Stumb to the stand at 8 p.m.

While on the stand, Stumb said that Appalachian Material’s permit was not complete.

He confirmed the company did not have an air quality permit, which wasn’t prepared until February 2016. He also said the company had not submitted a complete application at the time the county’s moratorium went into effect last fall. The county provided emails as an exhibit to further drive home this point.

Additionally, Stumb said his emails to Goddard explain why the application was not complete.

In his letter denying the application, Stumb said he referenced a watershed permit as an additional basis for a denial. He also discussed buffers and how structures on the property could’ve violated buffers.

Stumb also detailed alleged false statements made to him in the application. One of those was the capacity of the proposed facility, which he said was a misrepresentation. He also said he was able to determine the company’s claim that the asphalt plant wouldn’t be within a 1,000 feet of a commercial or residential dwelling to be inaccurate.

During cross-examination of Stumb, the representation for Appalachian Materials questioned Stumb about why he accepted the application and permit if it was incomplete.

The company spent measurable time concerning Stumb’s thought process on signing off or against applications similar to the one filed by Appalachian Materials. They showed considerable interest to buffering around a shed and barn, which was a central part of their argument that they were not provided proper feedback from the county on its incomplete application.

Closing arguments

During their final statements, the county reiterated its desire to keep the case simple and straightforward.

It said the case rested on one vital component: the absence of an air quality permit, which meant that Appalachian Materials application was incomplete. This application was not complete until a moratorium was already in place, the county claims. They also said that two buildings that qualified as commercial in their application were too close to the proposed asphalt plant and therefore violated buffers rendering the permit unacceptable.

After the county made its final statements, the appellant said that North Carolina case law is on its side.

Appalachian Materials said determinations of ordinances by government entities are binding when they are made. In this case, the company referenced a June 22, 2015 decision by Stumb as binding and stated that governments should not be able to “flip-flop” on issues such as the issuance of permits.

Reach Jesse Campbell at 336-846-7164.

(Jesse Campbell|Jefferson Post) Appalachian Materials Group makes its case before the Ashe County Board of Adjustments on Oct. 6, 2016. Campbell|Jefferson Post) Appalachian Materials Group makes its case before the Ashe County Board of Adjustments on Oct. 6, 2016.
Appalachian Materials looks to reverse earlier decision

By Jesse Campbell

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