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Asphalt plant denial overturned

03 November 2016
Poyner Spruill

This article was originally written by James Howell with the Ashe Mountain Times.

JEFFERSON — The Ashe County Board of Adjustments made a landmark decision on Thursday, unanimously voting to overturn a decision to withhold a permit from Appalachian Materials, LLC, a group seeking to operate an asphalt plant in the Glendale Springs community.

Through a long chain of decisions since mid-2015, Appalachian Materials was denied a polluting industries permit needed to move their asphalt operation forward.

During the quasi-judicial hearing, the Board of Adjustments, which is made up of the same members as the planning board, was asked to rule whether a decision made by Planning Director Adam Stumb to deny the permit was justified.

The board’s ruling against Stumb’s decision will reopen the opportunity for Appalachian Materials to settle an asphalt plant in Glendale Springs.

Chad Essick, an attorney representing Appalachian Materials from Poyner Spruill, LLP, explained what will happen next:

“The chair has asked us to prepare a written decision of findings of fact and conclusions of law, and we will present those to the board to review and execute and sign. From there, there is a 30-day appeal period for anybody who wants to try to appeal it.”

Many members of the Glendale Springs community attended Thursday’s meeting in protest against the asphalt plant. Many attendees were also members of a local advocacy group called Protect Our Fresh Air, which formed in opposition to the asphalt plant last year.

“I think the Board of Adjustments, the planning board, just completely forgot their role and responsibility to protect the health and welfare of the citizens of Ashe County,” said Pat Considine, a member of Protect Our Fresh Air.

“What they’ve taken up is their desire to support a polluting industry that will put 278,000 pounds of air pollution in our air on an annual basis; that’s what they’re supporting,” Considine said. “I’m disappointed, and I’m sorry that they’re not supporting the citizens of Ashe County.”

Decision

The quasi-judicial hearing actually began on Thursday, Oct. 8, and lasted for more than six hours.

During the hearing, five witnesses testified and were cross-examined by the opposition, including Stumb, Derek Goddard, Beryl Miller, DJ Cecil, and Tony Pendola. The board adjourned without rendering a decision, needing more time to think about the evidence.

Board members ultimately favored Appalachian Materials because Stumb’s reasons for denying the permit were too thin.

Under the old polluting industries ordinance, which was active at that time, a polluting site cannot be within 1,000 feet of a commercial building.

Stumb originally didn’t note any commercial buildings within that distance from the proposed site. But after a second look, Stumb concluded that two sites, a weighing area used by Radford Quarries and an old barn could both be considered commercial sites, and denied the permit.

However, members of the Board of Adjustments didn’t believe either site should be considered as a “commercial building.”

The weighing site belongs to Radford Quarries, which is under that same ownership group as Appalachian Materials. For Board of Adjustments members, it made little sense to require business owners to buffer one of their operations from another.

As for the barn owned by local man Beryl Miller, BOA members agreed it shouldn’t be considered a commercial building, for multiple reasons.

BOA member Priscilla Cox noted that her chicken coup is larger and nicer than the barn, and her chicken coup shouldn’t be considered a commercial building. BOA members Darrell Hamilton and Rick Surber agreed.

“It’s not taxed as a commercial building,” Hamilton said. “If we’re going to be consistent, and we call that a commercial building, than your chicken house and every farmers barn needs to be taxed as a commercial building, and I don’t ever see that happening in this county. I can’t call it a commercial building unless we’re going to do it across the board and be fair about it.”

Surber cited Beryl Miller’s affidavit, which outright stated that his barn wasn’t a commercial building. The barn has no parking, employees, customers, telephone, internet, etc…

After further discussion, the Board of Adjustments unanimously appealed Stumb’s decision.

Cox, who is the longest-serving member of the board, noted that the planning department is normally very good about working with developers when discrepancies arise.

The entire board agreed their ruling to appeal Stumb’s decision shouldn’t be viewed as an indictment on Stumb or his performance.

At the next meeting of the Ashe County Planning Board, the board will vote on what terms the new plant will operate under, and is expected to sign paperwork prepared by Appalachian Materials’ legal team.

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