Neighborhoods Seek Polluting Industries Buffer

Published Friday, August 22, 2014 at 1:18 pm

[youtube]https://www.youtube.com/watch?v=E55k-tqhBKs&feature=youtu.be[/youtube]

Editor’s Note: Last night’s public hearing on the ETJ issue was covered here. While overlap exists, the following article focuses more on a potential polluting industries ordinance that would protect neighborhoods.

By Jesse Wood

Aug. 20, 2014. Before a Watauga County Board of Commissioners public hearing on Tuesday on the extraterritorial jurisdiction (ETJ), the Blue Ridge Environmental Defense League and Watauga Citizens for Local Control held a press conference advocating for a countywide, two-year moratorium on polluting industries.

This proposal comes after the passage of Sen. Dan Soucek’s sponsored bill in the N.C. General Assembly earlier this summer that strips Boone of its ETJ, effective Jan. 1, 2015.

In addition to the moratorium, BREDL and WCLC are calling for the development of a polluting industries ordinance that would be mirrored after a similar ordinance Ashe County enacted in 1999.

The ordinance states: “Polluting industries, by their very nature produce objectionable levels of noise, odors, vibrations, fumes, light, or smoke that may or may not have hazardous effects. These standards shall allow for the placement and growth of polluting industrial activities, while maintaining the health, safety and general welfare standards of established residential and commercial areas in Ashe County.”

The Ashe County ordinance says that a polluting industry shall not be within 1,000 feet of a residential dwelling or commercial building and not within 1,320 feet of a school, daycare, hospital or nursing home facility.

Other regulations include:

  • Permanent roads used more than six months in a year must be surfaced with a “dust-free material;
  • Material piles and accumulation of other by-products may not exceed 35 feet of original contour of land; and
  • A security fence of at least 10 feet must installed

The ordinance does allow for variance and hardship requests. See the entire Ashe County ordinance below.

Lou Zeller, executive director of BREDL, speaks during a press conference outside of the Watauga County Administration Building on King Street before the public hearing.

Lou Zeller, executive director of BREDL, speaks during a press conference outside of the Watauga County Administration Building on King Street before the public hearing.

At the public hearing, ETJ residents expressed concern with asphalt plants, rock quarries and other high-impact businesses operating to close to their homes and neighborhoods. Neighborhoods represented at the meeting included: Seven Oaks, Sunny Knolls Acres, Jordan Cook Road, Locust Hill, Snaggy Mountain, Homespun Hills and Fieldstream.

For example, Sandra Spach, a resident in the Sunny Knoll Acres neighborhood for 35 years, expressed concern about the expansion of Radford Quarries, located off of Bamboo Road, next to her residential area.

She said a rock crusher is being assembled for operation on the expanded site and that with the expansion there will no longer be an adequate buffer between the quarry and her home. (Boone Planning Director Bill Bailey noted in a High Country Press article earlier this year that Radford Quarries had expanded beyond its permit and state officials were notified.)

Spach added that with the extended operations, the quality of life will be “drastically impaired by the unhealthy air quality” from the dust the quarry stirs up – not to mention the dust carried over in windy weather. She noted what would be “intolerable noise” and the potential damage to wells and homes with the vibrations of rock-blasting operations.

In addition to the declining “quality of life,” Spach added that her home values would plummet, too.

Watauga County currently has an Ordinance to Regulate High Impact Land Use, which states that asphalt plants, chemical and explosive manufacturing facilities, electricity generating facilities and chemical storage facilities can’t be within 1,500 feet of a school, daycare facility or nursing home facility.

As one pro-ETJ resident mentioned at the public hearing on Tuesday, this measure doesn’t include residential dwellings or neighborhoods.

“I ask you to start there,” Catherine Fountain said, referring to the protection of residential homes. “And I very much urge [you to enact] the two-year moratorium on polluting industries.”

Even some of those who advocated against Boone’s ETJ are in favor of the two-year moratorium – and figuring out a way to protect concerned neighborhoods without blanketing the entire ETJ area with a “one-size-fits-all” approach.

While Templeton said that “some regulations can actually devalue undeveloped property and farmland that makes up a majority of the ETJ zone” and suggested abandoning the current boundaries of the ETJ, he also encouraged the council to work with concerned neighborhoods regarding residential zoning areas sought “without hurting” or regulating every single property owner in the ETJ.

In the press conference before the meeting, BREDL Executive Director Lou Zeller said this ordinance and the two-year moratorium would serve as a “stopgap until the protections afforded by the ETJ can be reinstated.”

“The model we are recommending for Watauga County is the ordinance enacted by its neighbor Ashe County in 1999. It is a conservative public health measure which has served the community well for 15 years,” Zeller said.

While commissioners didn’t vote on a two-year moratorium or specifically discuss it, the board did direct the Watauga County Planning Board, which had several members in attendance during the public hearing, to look at the entire ETJ issue and come up with recommendations for the commissioners to consider.

Below is the Ashe County Polluting Industries.


Ashe County, NC Code of Ordinances
TITLE XV: LAND USAGECHAPTER 159: POLLUTING INDUSTRIES DEVELOPMENT

CHAPTER 159:  POLLUTING INDUSTRIES DEVELOPMENT

Section

159.01   Title

159.02   Purpose

159.03   Authority

159.04   Jurisdiction

159.05   Definitions

159.06   Permitting standards

159.07   Variance process

159.08   Non-conforming use

159.09   Separability

159.99   Penalties for violations

§ 159.01 TITLE.

This chapter shall be known as the Polluting Industries Development Chapter of Ashe County, North Carolina.

(Ord. passed 11-15-99)

§ 159.02  PURPOSE.

For the purpose of promoting health, safety, and general welfare of its citizens and the peace and dignity of the county, the County Commissioners hereby establish certain criteria relating to polluting industries to accommodate activities as defined herein. Polluting industries, by their very nature produce objectionable levels of noise, odors, vibrations, fumes, light, or smoke that may or may not have hazardous effects. These standards shall allow for the placement and growth of polluting industrial activities, while maintaining the health, safety and general welfare standards of established residential and commercial areas in Ashe County.

(Ord. passed 11-15-99)

§ 159.03  AUTHORITY.

This chapter is adopted under the authority and provision of G.S. § 153A-121.

(Ord. passed 11-15-99)

§ 159.04  JURISDICTION.

This chapter shall apply to all areas of unincorporated Ashe County, which are not included in the extraterritorial jurisdictions of any municipalities. All municipalities and their respective corporate limits shall be exempted from the ordinance, unless they choose to adopt this chapter or some form thereof.

(Ord. passed 11-15-99)

§ 159.05  DEFINITIONS.

The definitions shall be unique to this chapter and may not be interpreted for usage in ordinary, everyday language.

AIR POLLUTION.  The emission of air contaminants as defined in G.S. § 143-215.108.

ACTUAL MEASURED DISTANCE.  For the purposes of this chapter, the distance requirements shall be measured from the proposed building to the existing dwelling or other structure.

NOISE.  Any unreasonably loud, excessive or unnecessary sound that takes in consideration for volume, duration, frequency, time, and other characteristics of sound.

ODOR.  The minimum concentration in air of a gas, vapor, or particulate matter that can be detected by the olfactory systems of a group of healthy observers.

PERSON.  A person shall be defined to include individual, corporation, partnership, an entity or any association thereof or any other business entity.

POLLUTING INDUSTRY.  A polluting industry shall mean an industry, which produces objectionable levels of noise, odors, vibrations, fumes, light, smoke, air pollution or other physical manifestations that may have an adverse effect on the health, safety or general welfare of the citizens of Ashe County.

SMOKE.  The visible vapor and gases given off by a burning or smoldering substance.

VIBRATION.  Any ground-transmitted movement that is perceptible to the human sense of touch.

(Ord. passed 11-15-99)

§ 159.06  PERMITTING STANDARDS.

(A)    A permit is required from the Planning Department for any polluting industry. A uniform permit fee of $500.00 shall be paid at the time of the application for the permit. No permit from the planning department shall be issued until the appropriate Federal and State permits have been issued.

(B)    The location of a polluting industry, both portable and permanent shall not be within 1,000 feet, in any direction, of a residential dwelling unit or commercial building. The location of a polluting industry shall not be within 1,320 feet of any school, daycare, hospital or nursing home facility.

(1)   Permanent roads, used in excess of six months, within the property site shall be surfaced with a dust free material (i.e. soil cement, portland cement, bituminous concrete).

(2)   Material piles and other accumulations of by-products shall not exceed 35 feet above the original contour and shall be graded so the slope shall not exceed a 45 degree angle.

(3)   A security fence, constructed of either wood, brick, or aluminum, shall be installed where the proposed extraction takes place. The fence shall be a minimum of 10 feet in height at the time of installation.

(4)   The operation of this type industry shall not violate the Ashe County Noise Ordinance.

(Ord. passed 11-15-99)

§ 159.07  VARIANCE PROCESS.

(A)    Where strict adherence to the provisions of this chapter would cause an unnecessary hardship, the Planning Board may authorize a variance. Any authorizing of a variance shall not destroy the intent of this chapter. Any authorized variance shall be recorded in the minutes of the Planning Board meeting.

(B)   A hardship, as used in the context of this section, shall be considered to be some unique or unusual character to the proposed site, including but not limited to unique, size, shape, contour, or distance requirement. An economic hardship to the applicant is not to be considered for a variance.

(C)    All requests for a variance shall be submitted to the Planning Department at least seven days before the next scheduled planning board meeting.

(Ord. passed 11-15-99)

§ 159.08  NON-CONFORMING USE.

Any existing person operating in non-compliance of this chapter may continue to operate as a non-conforming use, but may not expand without a variance permit in accordance with provisions thereof.

(Ord. passed 11-15-99)

§ 159.09  SEPARABILITY.

Should any section or provision of this chapter be declared invalid or unconstitutional by any court of competent jurisdiction, such declaration shall not affect the validity of this chapter as a whole or any part thereof which is not specifically declared to be unconstitutional or invalid.

(Ord. passed 9-2-08)

§ 159.99 PENALTIES FOR VIOLATIONS.

(A)   Misdemeanor. Any person who violates a provision of this chapter shall be guilty of a misdemeanor and shall be subject to punishment as provided for by G.S. § 14-4. Each day of a violation of this chapter shall be a separate offense.

(B)   Financial penalties. In addition to criminal penalties for a violation of this chapter, the Board of County Commissioners may impose civil penalties for each day’s continuation of the offense. The amount shall be limited to $500 per day. A penalty unpaid 30 days after the offender has been cited for violation of this chapter may be recovered in a civil action in the General Court of Justice.

(C)   Other remedies. All appropriate remedies for relief authorized by G.S. § 153A-123, including orders for mandatory and prohibitory injunctions and for abatements, may be used to enforce this chapter.

(Ord. passed 11-15-99; Am. Ord. passed 3-5-12)

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