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PHOTO BY BILL SHEFFIELD,
WATAUGA DEMOCRAT
Using
a basic diagram of an asphalt plant, Pam Williamson presents
evidence and testimony.
After
months of preparation by both Boone Asphalt Company (BAC)
and the town of Boone and after weeks of testimony it was
perhaps not surprising that the final moments would contain
a bit of procedural confusion.
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The motion to grant or deny Boone Asphalt Company’s application for a conditional use permit (CUP) was made and stated, withdrawn and restated and finally a vote was taken before the smallest crowd, approximately 30 people, to attend any of the meetings.
Boone Board of Adjustment (BOA) member Rich Crepeau made a motion that the Boone Asphalt Company’s application did not comply with the town’s Unified Development Ordinance (UDO). He specifically cited provisions dealing with odor and smoke emissions.
A further consideration expressed in the motion was the concern that BAC had changed the equipment and the site plan since it had obtained its permit from the N.C. Division of Air Quality (DAQ) and the changes, not considered by DAQ, might serve to invalidate the permit. The BOA voted 6-to-1 that the application was not in compliance and denied the application for a CUP.
The Boone Asphalt Company’s application was for a CUP to construct and operate an asphalt plant on Landfill Road, 400 feet south of U.S. 421. The proposed site was just east of Boone in the town’s extraterritorial jurisdiction (ETJ) and in the Bamboo neighborhood.
Boone Town Attorney Samuel Furgiuele had an easy evening. More than two hours of evidence and testimony was presented by Pam Williamson and Ralph Grosswald, both residents opposed to the application.
Williamson and Grosswald came prepared with exhibits and testimony and presented their case without questioning by Furgiuele. Warren Hutton, attorney for BAC, cross examined both witness following their extensive testimony during the five and a half hour meeting.
Williamson testified that her home, built in the 1930s and listed on the registry of North Carolina Historic homes, was one-third of a mile from the proposed site and was near a home also listed.
“The homes are architecturally and historically significant,” Williamson said, “and the noise, smoke, odor and traffic from the proposed asphalt plant will affect the value of the homes.”
Williamson said that she and Grosswald had worked together in research on asphalt plants, the permitting process and the impact of the plants on communities and individuals since 1997.
She testified that she had helped, in an advisory role, people calling from all over the country concerned with asphalt plants in their communities.
Williamson testified that the proposed plant would release air contaminants and, as such, must comply with state laws and standards. She said that the DAQ permit was granted for old site plans that have now been significantly modified as to both the type of equipment and its placement on the site.
The meteorological modeling to test the impact of emissions and pollutants was based on the outdated plans and the new plans had not been “modeled.”
Modifications to the site plan without DAQ permission was prohibited by the terms of the permit, according to Williamson.
Williamson also presented evidence and exhibits she said questioned BAC assertions of the number of jobs and salary range to be brought to the community.
She presented evidence in support of her contention that an asphalt plant is, by federal agency and industry definition, a heavy industrial use and, as such is prohibited by the UDO in the town or the ETJ.
Williamson referred to Gencor and BAC documents to argue that the plant would produce six and a half pounds of particulate emissions per hour during operation. Those particulates, in addition to health risks, were, by definition, smoke and odor producing and prohibited by the UDO.
She identified a number of the particulate emissions as condensable particulates. “I call them ‘devil particulates,’ ” Williamson said, “because they shift shape from gas to liquid and solid as they condense.”
She presented evidence on the previously unaddressed area of the noise that the plant, its equipment and trucks would produce.
Williamson attempted to introduce a number of press reports and studies dealing with health issues and cancer studies.
Hutton maintained a continuous objection to much of Williamson's evidence. He said that he was unable to verify the authenticity, ensure that the evidence was properly and completely offered or cross examine the authors of the reports and studies.
The BOA granted a number of his objections at the end of the hearing as well as his objection to a series of video-taped interviews, conducted at the Mint Hill asphalt plant, of nearby residents.
Williamson ended her portion of the presentation by saying, “DAQ will come and test the plant within 180 days of operation. They will test the operation on brand new equipment, and new bags (used for pollutant capture); and then they are gone. They (DAQ) will not monitor the plant. Who will?”
Like a professional wrestling tag team, Williamson turned, tagged Grosswald and he stepped into the ring.
Grosswald addressed the area of smoke emissions and the effect of the asphalt plant on property values. He referred to court decisions, governmental law experts and a series of dictionaries. He argued that in the absence of a definition of “smoke” in the UDO, the BOA must use the common definition. The definition of smoke was simply “visible emissions.” He said that the emissions from similar plants that BAC witnesses had identified as steam were, in fact smoke. Steam, he argued from a series of dictionary definitions, was invisible.
Grosswald also introduced a letter and tax records provided by Phillip Barrier, Avery County tax assessor. The letter of explanation and the records of 13 property owners near the Pineola asphalt plant said that the values of the properties in question had been lowered during tax revaluation because they were located near to the plant.
Hutton started his cross examination of Grosswald by questioning the assertion that the tax records showed that the property was revalued because of the asphalt plant. He argued that the records failed to show if the use of the property had changed or if the cited reason for the revaluation (proximity to the asphalt plant) was the decision of the Avery County tax board or simply the claim of the property owner.
Grosswald referred Hutton back to the Barrier letter stating that the value of the properties was reduced based on proximity to the asphalt plant.
Hutton began his cross of Williamson by asking, “You know a lot about asphalt?” “More than you,” Williamson answered to laughter. “Maybe,” Hutton said, “but I’m gaining on you.”
Hutton questioned the source of Williamson’s evidence and her conclusions. He addressed a study saying that a site in Todd (similar geographically to the Landfill Road site) was unsuitable for commercial development. Hutton said that Williamson’s conclusions were inaccurate in that the Todd site was found to be unsuitable for economic reasons and BAC was prepared to spend the money so the economic issue was not a concern.
Both attorneys presented brief closing arguments. Furgiuele argued the failures in the application and the technical fact that BAC had never presented a lease for the site and did not own it.
Furgiuele questioned if BAC had the legal authority to make the application.
Hutton’s argument was that BAC was proposing the best equipment on the market and a willingness to follow all reasonable requests of the town. Asphalt was needed and this was the best plan the town would get.
Hutton’s argument did not sway the board. Following the vote, Hutton said that he had issues with the facts and evidence presented to the BOA, but no decision had been made on the next step.
“I will sit down with my clients and we will decide where and how to proceed.”
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