Recently, the Ashe County Planning Board reversed the decision to deny a permit to Appalachian Materials for an asphalt plant on Glendale School Road. The decision was a miscarriage of justice. In its decision, the Planning Board overlooked certain facts and invented questionable arguments. This ruling, if it stands, is one with negative consequences beyond Glendale Springs. At risk is the county’s ability to protect the welfare of its communities and the health of its residents.
The county’s Polluting Industries Ordinance, approved in 1999, created a statewide landmark in public policy. Subsequent legal challenges confirmed it. Ultimately, the US Court of Appeals for the Fourth Circuit upheld Ashe County’s ordinance. With this, the law’s validity was settled, the county’s regulation was supported and local government control was strengthened.
Last year, the county moved to strengthen the ordinance governing polluting industries, those which produce objectionable levels of noise, smoke, dust and fumes. On August 6, 2015, Blue Ridge Environmental Defense League presented an “Ordinance to Establish a Moratorium on Polluting Industries” to the Ashe County Planning Board. Two months later the County Commission approved the moratorium. After due consideration, the new High Impact Land Use ordinance was finalized and approved by the Ashe County Board of Commissioners on October 3, 2016.
Although the County Commission updated and improved the seventeen year old rule, the Planning Board has been an unwilling actor, and their latest decision finds them paddling upstream against the clear intent of our elected officials.
The main point raised in the asphalt company’s appeal was the issue of vested rights, defined as a property interest which cannot be taken away without the consent of the owner. Appalachian Materials claims such a right. However, the events of the last year prove otherwise.
From the beginning, the company’s permit application was unsettled. Between June 5 and August 11, 2015, the proposed plant doubled in size, from 150 thousand tons of asphalt to 300 thousand tons per year. Significantly, the larger plant application came after the moratorium was introduced, nullifying any claim to vested rights.
Further, the determination of when a proper application for a permit has been made is left to the county staff who must be satisfied that everything is in order before issuing a permit. In this case, the Planning Director determined that the application did not meet the requirements of the polluting industries ordinance.
In its decision on the appeal, the Planning Board overlooked fatal a flaw. Legal actions, such as the Appalachian Materials appeal, must be free from unfair conduct in regard to the claim. However, in August of 2015 the company misled the public and county officials when it said that “all of our permits are in place” except the air quality permit. Not so. Deficiencies cited by the NC Division of Energy, Minerals and Land Resources put the brakes on the company’s application. Because of these failings, no air permit was issued until February 2016, well after the moratorium was enacted, further undermining any claim of vested right.
Moreover, the Planning Board bobbled the ball on the question of what constitutes a commercial building, rejecting recommendations from its own staff. The county’s Polluting Industries Ordinance requires that no polluting industry be located within 1,000 feet of a residential dwelling unit or commercial building. Here the Planning Board invented new criteria in order to reject two plainly commercial buildings: a weigh station at the proposed asphalt plant site and a nearby barn. Planning Board member Priscilla Cox said that the amount of traffic defines whether a building is commercial, yet there was no evidence to support this novel idea. Also, the Board’s Darrel Hamilton said that a barn cannot be a commercial building because it’s not taxed. This is not true. Barns and their values are listed in Ashe County’s property tax base.
Throughout this process, members of the Planning Board have resisted the clear message from elected officials, saying they were “insulted by our county commissioners.” But the Planning Board’s duty is to recommend to the County Commissioners ordinances promoting orderly development and advise them concerning amendments. There was no cause for being offended. The final decision is always left to those who answer directly to the people.