BOONE — "If at first you don’t succeed, try, try again.”
These were the words of Will Canu during the public comment portion of the April 16 Watauga County Board of Commissioners meeting. Around 23 people spoke in opposition of a potential asphalt plant being built on Rainbow Trail in Boone — a topic of debate, hearings and court rulings over the last four years.
"We’re here to ask for your help," said local business owner Andrew Mason. "We know you didn’t cause this problem, but you do have an opportunity to assist. We ask for your assistance now in the short term and the long term."
Before the meeting, about 200 people gathered on the sidewalk in front of the Watauga Administration Building to protest the plant. The nonprofit environmental activist group High Country WATCH — Wataugans Against Toxins Close to Home — organized the rally. People wore green and held signs in solidarity.
The protest came after the Supreme Court of North Carolina declined to hear an appeal in the Rainbow Trail asphalt plant case on March 27, letting stand an N.C. Court of Appeals ruling that found the county erred in denying a high-impact land use permit to Appalachian Materials for the proposed plant in 2015.
"This is an instance where we have to go to the mat," Canu said. "Keep trying until we’re certain that this asphalt plant won’t be constructed, won’t go into operation and all means should be on the table."
Bobby Herring was the first person to speak to the commissioners, saying his residential property is one of the first properties adjacent to where the proposed asphalt plant would be. The suggestion Herring had to the commissioners — in the case that the asphalt plant cannot be stopped and moves forward — was to purchase property that would be convenient for an asphalt plant and swap it with Appalachian Materials LLC.
Former Boone Fire Marshal Ronnie Marsh addressed the commissioners as well, saying he wasn't asking the county to deny a permit to everyone who wants to come into the county to build a business. Marsh said that if people look at Maymead's asphalt plant located on N.C. 105, there aren't many residences around it, as it used to be the Brown Brothers Asphalt Plant. However, he said the Rainbow Trail asphalt plant would be built within a neighborhood that's already existing.
Lauren Waterworth addressed the commissioners from the standpoint of someone with background in environmental law and who teaches environmental regulation at Appalachian State University. She said not only does the matter have professional interest to her, but personal as well, as her daughter will start to attend Hardin Park School — near the vicinity of the proposed asphalt plant.
Waterworth requested that the county compile information relating to statistics on how many residences, schools, child care facilities and vulnerable populations are within a mile- and two-mile radius of the proposed site; effects on property values if the asphalt plant were to go forward; any permits Appalachian Materials will be required to obtain and requirements of those permits; a compliance history for Appalachian Materials, its parent company and affiliates; any nuisance or personal injury claims against Appalachian Materials; as well as establish a baseline for monitoring air quality and water quality near the site.
Waterworth also asked that the information be made available to the public.
The case started in 2015 when Appalachian Materials — affiliated with Radford Quarries — appealed a decision by county Planning and Inspections Director Joe Furman to deny a high-impact land use permit for an asphalt plant on Rainbow Trail.
Appalachian Materials appealed this decision in July 2015 to the Watauga County Board of Adjustment. Sharon and Terry Covell — homeowners whose property was located next to the proposed asphalt plant — and the Blue Ridge Environmental Defense League Inc., subsequently filed motions to intervene as parties to the developer’s appeal.
The board upheld Furman’s decision after hearing the appeal the following October. Appalachian Materials appealed to Watauga County Superior Court that December and the case was later heard in 2017. Superior Court Judge Gregory Horne affirmed the board’s decision on Sept. 8, 2017.
In November 2018, a three-judge panel of the N.C. Court of Appeals unanimously reversed and remanded the Watauga County Superior Court decision — stating that the Gragg Educational Center, the school’s central office, did not qualify as an educational facility under the high-impact land use ordinance. The ordinance at the time barred high-impact uses within 1,500 feet of an educational facility.
County attorney Anthony di Santi said the process will now be back in Furman's hands. He said the first thing the county has to do is get the case back before Horne. Horne will then remand the case to the Board of Adjustment, who will remand it back to Furman. At this time, Furman will begin his evaluation again. di Santi said it may be four to five months before the responsibility is given back to Furman.