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Commissioners Schedule Special Meeting on HILO Ordinance After Asphalt Plant Opposition

By Jesse Wood

While there wasn’t any action after the closed session meeting on Tuesday, where the Watauga County Board of Commissioners held a public hearing on potential amendments to the county’s High Impact Land Use Ordinance, the commissioners did “direct staff to review viable options for possible modifications” to the ordinance, according to Board Clerk Anita Fogle.

The board also scheduled a special meeting on June 22 to discuss these options, and the meeting notice stated that a closed session may be held and that there may be possible action after the closed session.

The High Impact Land Use Ordinance regulates asphalt plants, among other polluting industries. A review of the ordinance and the proposed amendments came about after the N.C. General Assembly passed a law eliminating the Town of Boone’s extraterritorial jurisdiction (ETJ) last year and citizens living in the ETJ were concerned about polluting industries moving in next door because the county doesn’t have countywide zoning.

(Currently, the town still controls the ETJ as the municipality and the state are entangled in a lawsuit that hasn’t been settled. The next hearing in this case is set for early July.)

In order to provide some sort of buffer, the Watauga County Planning Board recommended that the county enforce a 500-foot buffer between any residential dwelling and asphalt plants, cement mixing facilities and quarries/stone crushers. Concerned citizens felt that 500 feet wasn’t enough of a buffer and called for a moratorium of asphalt plants and other polluting industries.

The public didn’t know about the proposed Maymead asphalt plant off of U.S. 421 in Deep Gap or form opposition to it until after the planning board was working on its recommendations.

On Tuesday night, more than 200 people attended and more than two dozen people spoke out against the asphalt plant, citing declining property values, health concerns due to the emissions and more. They also noted that two schools – Parkway Elementary School and Two Rivers Community School – were within 1.5-mile radius of the location of the proposed plant.

The board and those in attendance also heard about a new proposed asphalt plant off of Rainbow Trail Road. Radford Quarries recently submitted an application for a plant near N.C. 194 and Hardin Park Elementary School.

After listening to the pleas form residents, Commissioner John Welch asked about the process of a moratorium. Welch then asked if the two proposed asphalt plants would be grandfathered in because applications were submitted before any moratorium could be enacted.

“That’s a very difficult question to answer. It brings up very difficult legal parameters,” Austin Eggers of Eggers, Eggers, Eggers and Eggers Law Firm said, adding that any answer would probably be better left for closed session.

Chair Jimmy Hodges then said that the issue would be taken up later in closed session on Tuesday night.

“We’ll hopefully get back to you (those in attendance) with some answers. We just don’t know when. It’s a lot more involved than saying, ‘Yes. We are going to do a moratorium,’” Hodges said. “There are a lot of legal aspects we have to abide by that the county attorney alluded to. So it’s not a real simple thing to handle.”

Hodges, the chair of the Watauga County Board of Commissioners added that he didn’t want to jump the gun on a moratorium and put the county in “jeopardy” with a potential lawsuit.

While the attorney spoke of the hurdles and complicated issue of instituting a moratorium, concerned citizens feel that the commissioners have a right to institute a moratorium immediately.

In May 2014, David Owens with the UNC School of Government penned an essay on moratoria:

“Any confusion in the case law regarding which process is to be followed in adoption is clarified by [state] statutes, which provide that if there is an imminent threat to public health and safety, the moratorium may be adopted without notice and hearing.”

Owens also cited that the courts upheld Ashe County imposing a one-year moratorium on asphalt plants and other polluting industries in a lawsuit between Tri-County Paving v. Ashe County in the early 2000s.

Residents that live near the proposed Maymead plant in Deep Gap, such as Leigh Ann Henion feel that health complications, such as increased cancer rates, imposed on residents that live near asphalt plants, are an “imminent threat” and warrant an immediate moratorium.

“Pollution in heavy density fog with inversion that would trap and make it easier to inhale toxins, industrial trucks pulling out on main thoroughfare, low regulation, cancer clusters—nearly every citizen commentary was a testimonial about why the proposed industry is an imminent threat to public health and safety. Also, it was stated that there is at least one required county permit that has not yet been issued,” Henion wrote in an email to High Country Press. “So, the question is, why would commissioners not attempt to protect citizens when there is precedent and special moratoria stipulations that empower local officials in situations that put public health at risk?”

The special meeting takes place at the Watauga County Administration Building at 5:30 p.m. on Monday, June 22.