Appeal hearing

Watauga County Planning & Inspector Joe Furman, left, looks on as the Watauga County Board of Adjustment deliberates.

BOONE — The Watauga County Board of Adjustment voted unanimously Oct. 16 to affirm Watauga County’s decision to deny a high impact land use permit for an asphalt plant on Rainbow Trail.

The decision came after three days of testimony and evidence presented by the permit applicant, Appalachian Materials LLC, and the Watauga County Planning & Inspections Department. Four nearby residents were also represented by attorneys as intervening parties in the case.

“It’s a shame it has to come to this — that somebody had to spend the money to get to this point when it could have been averted a lot sooner by some due diligence,” said board member Baxter Palmer. “As far as I’m concerned, we have no other choice but to affirm the ordinance administrator’s decision.”

The board adopted more than more than a dozen findings of fact in support of its decision.

At issue was a June 22 decision by county Planning & Inspections Director Joe Furman to deny the HILU permit request because the proposed site is within the ordinance’s required 1,500-foot buffer from an educational facility — the Watauga County Schools Gragg Education Center. Furman’s denial letter also indicated the application was incomplete and lacked sufficient information to determine if the project would comply with ordinance requirements.

Key among the arguments considered by the board was whether the Gragg Education Center was an educational facility as defined by the ordinance and thus protected by the 1,500-foot buffer.

Appalachian Materials’ attorney, Chad Essick of Raleigh firm Poyner Spruill, argued that the center — which houses the county education offices and serves as a venue for Board of Education meetings — was not an educational facility as defined by the ordinance: “includes elementary schools, secondary schools, community colleges, colleges and universities. Also includes any property owned by those facilities used for educational purposes.”

And he questioned Watauga County Schools Superintendent Scott Elliott about whether the predominant use of the facility was in fact for office space, school board meetings and school bus maintenance, but Elliott testified that the facility is used for student testing, student events, internships, teacher training and workshops, and that all activities at the center were related to the provision of education.

The board ultimately voted 4-1 to adopt a finding of fact that the center is an educational facility under the HILU Ordinance, with board member Bill Ragan voting nay.

Also at issue was an Aug. 28, 2014, meeting of Appalachian Materials Manager D.J. Cecile, its hired engineer, Derek Goddard, Furman and County Planner John Spear, as well as a subsequent request from Goddard for a map showing all buffering requirements under the HILU Ordinance. While all four testified that the discussion included the potential transition of the town of Boone’s extraterritorial jurisdiction to the county, Furman and Spear disagreed with Cecile’s and Goddard’s testimony that the meeting also included talk about the potential Rainbow Trail asphalt plant.

A map emailed from Furman Sept. 10, 2014, in response to Goddard’s request did not depict a 1,500-foot buffer around the Gragg Educational Center or any buffers that would impact the Rainbow Trail site.

But Furman noted that the map was dated as last being updated in 2011 and said he made it clear the map was not official, inviting Goddard to view a larger map at the county offices.

Greensboro attorney David Pokela of the firm Nexsen Pruet represented Furman and the county and argued that the emailed map was not legally binding. Pokela cited case law that held, he said, that “you only have what constitutes a final and binding determination by a zoning (or) land use official if it relates to a formal, specific request for an interpretation that is specific to a site and situation specific.”

“I think there was a specific request to provide all buffering requirements under the HILU Ordinance,” Essick countered. “If Mr. Furman had said ... ‘Look, you can’t rely on this; this is just an unofficial map’ ... do you think my client would have moved forward and spent $50,000 if he didn’t believe that the request he made of the ordinance administrator was a binding decision that he could rely on in making an investment in his company? Citizens and propertyowners have to be able to rely upon information that’s provided from the ordinance administrator on what these things mean.”

The parties also disagreed about whether the application and supporting materials contained sufficient information for a HILU permit to be issued.

The appellant contended that all of the information related to parking, building height, outdoor lighting, setbacks, landscaping and screening was submitted as required by the ordinance. But Furman said he needed additional information, including a valid grading permit and driveway permit, to determined if the project would comply with the ordinance’s standards.

“It’s not a requirement, but I have to have enough information to prove a site is workable,” Furman testified. “In administrating an ordinance, you can’t throw common sense out the window.”

The board adopted findings of fact concluding that the ordinance gave the ordinance administrator the authority to require the additional information.

The June 15 HILU permit application from Appalachian Materials — an affiliate of Radford Quarries — came in the midst of public opposition and debate related to a separate asphalt plant proposed by Maymead on U.S. 421 east of Boone.

A group called High Country WATCH formed as a chapter of the Blue Ridge Environmental Defense League in opposition to the asphalt plant projects, and the group has raised money to support legal efforts to fight the projects.

The organization provided legal representation for the intervenors — Terry and Sharon Covell and Bobby and Joanne Herring, residents of Wake Robin Lane. The intervenors were represented by Boone attorneys Ham Wilson and Chelsea Garrett.

Decisions of the Board of Adjustment may be appealed to Watauga County Superior Court. Reached after the hearing, Essick said he and his client have no comment at this time.

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