Citizens Urge Commissioners To Appeal Recent Asphalt Plant Permit Decision

Published Wednesday, February 17, 2016 at 1:13 pm
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This photo was taken at the very beginning of the meeting and a few more citizens trickled in as the meeting progressed. Photos by Jesse Wood

By Jesse Wood

“Please appeal” to the local Superior Court was the overwhelming message that citizens gave the Watauga County Board of Commissioners in reference to the county’s Board of Adjustment decision last week to overturn the revocation of an asphalt plant permit proposed off of U.S. 421 just outside of Boone.

Of the roughly 20 people who stood up and spoke before the commissioners during regular public comment on Tuesday, only one of the speakers supported the adjustment board’s decision to reinstate Maymead’s asphalt plant permit.

That was Cherie Hampton-Smith. She is president and majority owner of J.W. Hampton Co. and daughter of Johnny Hampton.

In 2011, J.W. Hampton Co. acquired an asphalt plant permit from the Watauga County Planning and Inspections department – unaware to the public. In January 2015, Maymead began leasing 4.3 acres from Johnny and John Hampton for a potential 13 years with a right of first refusal to purchase 104 acres in and around the site. Maymead also sought to purchase the asphalt plant permit from the Hamptons.

The Watauga County Planning & Inspections department, however, revoked that permit during the summer after protests from the public, citing four years of no “appreciable progress,” among other factors.

The Hamptons and Maymead appealed that decision based on vested rights to the Board of Adjustment, which heard more than 50 hours of testimony over the past few months. Last week after hearing closing arguments, the adjustment board deliberated for only a matter of minutes before overturning the decision revoking the asphalt plant permit.

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J.W Hampton Co. President and majority owner Cherie Hampton-Smith urged the commissioners to not appeal the Watauga County Board of Adjustment decision.

Cherie Hampton-Smith noted that the “past few months have been a nightmare” for her family and J.W. Hampton Co. as their private and corporate income taxes have been subpoenaed and hundreds of business records have been scoured through.

She said that the family company was talked about in the hearings as “liars and criminals.” She asked the commissioners to respect the adjustment board’s decision and not to use taxpayer money to appeal to Superior Court.

“High Country W.A.T.C.H. has two members allowed to intervene. They should put up their personal money and pay for the appeal and not us as taxpayers pay for their fight,” Hampton-Smith said.

High Country W.A.T.C.H., formed in opposition to the asphalt plant proposal, has for months been citing quality of life and health concerns and the declining property values in proximity to asphalt plants.

Anne Ward, a citizen opposed to the asphalt plant and one who has attended commissioner meetings since last spring, had a direct response to Hampton-Smith.

“I agree it’s been a horrible year,” Ward said, looking at the president of J.W. Hampton Co.

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High Country W.A.T.C.H. spokesperson Susie Winters urged the commissioners to appeal the Watauga County Board of Adjustment decision at last night’s meeting.

Ward purchased her home near the proposed site just before it became public knowledge last spring that an asphalt plant permit had been approved for the area four years earlier. She said she would have never purchased the property had she known otherwise.

She said that High Impact Land Use permits, such as the asphalt plant permit issued to J.W. Hampton Co. and then sold to Maymead, should not be allowed for sale. She said that the county’s representation did a “great” job defending its case, such as showing records of the existing crusher and grading equipment as not being vested interest in an asphalt plant.

Chip Williams, another citizen who has frequented commissioner meetings since the Maymead asphalt plant proposal was announced, said he was present for many hours of the Board of Adjustment hearings. He expressed concern at seeing Hampton/Maymead’s representation and their witnesses “having dinner and conversing” repeatedly with Board of Adjustment members throughout the hearings.

Williams said that he felt the Board of Adjustment’s decision “appeared to be emotional and capricious rather than based on findings of fact in law.” He also mentioned that Board of Adjustment members were not trained in law.

“They revealed their bias in that quick decision,” Williams said. “This is not the forum for such a grave and final decision for something that will affect our county forever.”

Sue Counts, who is running against Rep. Jonathan Jordan this election cycle, thanked the commissioners for listening to the constituents last night and asked them to appeal the Board of Adjustment’s decision.

“Listening to the people should tell you very clearly that these people are scared. They are scared for their children’s health and they are scared for their own health. Those closest to the Maymead site – and that’s a whole lot of people in our county – are scared about their property values and their quality of life going down,” Counts said. “They are justified in being frightened. There is not a reliable, unbiased study that claims asphalt fumes and byproducts are actually good for human beings.”

Prior to public comment, Commissioner John Welch introduced the topic before the commissioners. Welch put the matter on the evening’s agenda after the decision came down last week, so the commissioners could discuss what options were on the table.

“We are at the point where the ball could be back in our court … so I think we need to begin the conversation,” Welch said.

Chair Jimmy Hodges then immediately deferred to County Attorney Four Eggers.

Eggers explained that it’s premature to take any action because the written order of the Board of Adjustment’s decision hadn’t yet been drafted. The county and/or intervening party has 30 days from the time it receives the written order to appeal to Superior Court.

Eggers said that Maymead attorney Tom Terrell was in the process of drafting that written order and hadn’t yet finalized a draft for review and subsequent submission.

Commissioner Billy Kennedy questioned whether delays would allow Maymead to continue to prep the site for an asphalt plant. Eggers responded that when Maymead decided to appeal, that decision acted as a stay on the administrative decision to revoke the permit.

“So there has not been anything that stopped or prohibited them from working on the site,” Eggers said, adding that the erection of an asphalt plant can’t happen until after the air quality permit is issued by the state.

(The NC Division of Air Quality has a public hearing slated for Thursday, March 3 at 6 p.m. in the Watauga County Courthouse. DAQ doesn’t have zoning authority, so it can’t decide on where an asphalt plant can or can’t operate. DAQ only looks for emissions compliance when considering air quality permits.)

While Eggers said it is premature to decide on whether to appeal or not, he did suggest that it was “unusual” for the board of commissioners to appeal a decision made by the board of adjustment.

“I would mention to you it is unusual for a board of commissioners to do that as you as a board did appoint all five members of the board of adjustment, and I believe those were unanimous appointments and as the board was attentive in considering and weighing the evidence,” Eggers said.

Eggers that the Superior Court would only address issues of legal errors or issues where there was not evidence in record to support its decision or whether the decision of the board wasn’t supported by competent evidence.

‘The appeal is not going to be a decision of whether an asphalt plant is a good idea or a bad idea or as it related to public health concerns or even as to whether expenditures that may have been spent for grading or rock crushing are related or not related to asphalt plants,” Eggers said. “Many of those are issues of fact for the trial court, or in this case for the board of adjustment, to resolve. So it would be only on that narrow issue and until that order is prepared, it would be premature to decide on whether you wish to appeal.”

Commissioner Billy Kennedy said he was frustrated by the Adjustment board’s decision and said that this problem could have been avoided if stricter High Impact Land Use regulations would have been put in place earlier than last summer (in response to citizens’ concerns with new asphalt plants).

“If these regulations had been in place sooner, we probably could have avoided this. There’s been a movement in the county against regulations for the past 10 or 20 years,” Kennedy said. “The best way to protect your property is to know what’s going around you.”

One of the regulations put into place last summer was the requirement of a public hearing before certain High Impact Land Use permits, such as those for asphalt plants, are issued.

Commissioner Perry Yates came at it from a different angle. Yates said that in 2014, he suggested that these decisions not be made by a volunteer-based Board of Adjustment. He said they should be made by an elected body such as the commissioners.

“Then if citizens aren’t satisfied with the decision, they can vote people out. I lost that vote,” Yates said. “Now, they have the power and we don’t have the power to overturn the decision. All we can do is appeal the powers of law.”


 

The following are the names of the Watauga County Board of Adjustments members, which unanimously voted in favor of reversing the planning department’s decision to revoke asphalt plant permit, according to county staff:

  • Adam Rhyne
  • David Hill
  • Bill Ragan
  • Todd Rice
  • Baxter Palmer

Baxter Palmer served on the Board as an alternate during the recent hearings in place of Ms. Janet Beck.

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