Opponents hint at potential legal challenge
Alamance County’s commissioners have given the all-clear to a controversial plan that local property owner Kenneth Phillippie has floated for a new landfill to offload land clearing and inert debris.
The commissioners voted 4-to-1 on Monday to greenlight this “stump dump” on a 99-acre lot at 4115 Clapp Mill Road. This site, which runs through an unincorporated area south of Burlington’s municipal limits, is located within a short distance of several other privately-owned landfills, including an existing stump dump that Phillippie operates along Kimesville Road.
Although Phillippie has already received the state’s blessing to operate his facility, the county’s ordinance for heavy industrial development requires that he receive a so-called “intent to construct” permit from the county before he embarks on his project.
Under Alamance County’s development rules, the county’s leaders are more or less obliged to sign off on an industrial permit as long as it meets certain criteria that are spelled out in the applicable ordinance. This process is markedly different from the practice of zoning, which limits a parcel’s allowable use to the activities compatible with its zoning classification.
In jurisdictions with zoning, a change in this classification is needed for a commercial or industrial project to break ground in an area that has traditionally been set aside for residential or agricultural use. In Alamance County, the absence of zoning allows these more intensive land uses to go up in essentially any location where they can meet the provisions of the applicable ordinance.
This state of affairs was perhaps best summed up by commissioner Sam Powell before he joined the majority of his colleagues in approving Phillippie’s proposed permit.
“We are required to approve it unless there is a regulation that is not being met,” Powell acknowledged during Monday’s three-hour meeting. “So, our hands are tied in that situation.”
Phillippie’s own experience with Alamance County’s approach to land planning originally began in 2025 when he submitted an incipient version of his plans for the proposed stump dump along Clapp Mill Road.
The property owner went on to yank this proposal from consideration after it came in for criticism from the county’s planning board in December. Phillippie went on to submit a revised version of his proposal earlier this calendar year. This application came up for a public hearing before the planning board in March. Despite stiff opposition from many neighboring property owners, the planning board’s members voted 6-to-1 to pass the application along to the county’s board of commissioners.
Due to continued objections from neighbors, the commissioners were hesitant to rubberstamp the planning board’s recommendation when Phillippie’s application reached them on April 6. They resolved, instead, to let the opponents make a formal presentation before they rendered their final decision. The commissioners also extended the same opportunity to the applicant – setting the stage for a legal debate that ultimately took place when the commissioners convened on Monday.
During a regularly-scheduled meeting that evening, the commissioners allotted 15 minutes apiece to attorneys for Phillippie and some of his most hardened detractors.
Speaking on behalf of the applicant, Burlington-based lawyer Paul Koonts pointed out that his client’s permit application has passed muster with both the county’s planning staff and a majority of the county’s planning board. He added that many of the complaints which critics have hurled at Phillippie’s plans concern things that lie outside the purview of county officials.
Koonts went on to zero in on the suitability of Clapp Mill Road to serve as the main point of access for his client’s facility. He noted that the NC Department of Transportation has judged this route adequate to handle the projected 77 dump trucks a day that the applicant anticipates at the height of the facility’s operations. All the same, he recalled that the state agency has lowered the speed limit, widened some curves, and installed other signage in expectation of the additional truck volume.
“Not only has the NCDOT said they were going to do it,” Koonts said, “but they’ve actually done it in preparation for this permit.”
On the other side of the case, Bob Hornik, an attorney with the Chapel Hill-based Brough Law Firm, tried to convince the county’s governing board that its members not only have the power but the duty to vote against the permit application.
“Some of you have suggested that your hands are tied,” Hornik insisted. “But your hands aren’t tied. You have some discretion. You have to interpret the ordinance, and I’m going to help you do that, I hope.”
Hornik went on to throw out three arguments – each of which he said would on its own be enough to derail the permit application.
The attorney’s first contention was that the site’s internal access road should be considered part of the landfill’s operational area. As such, he insisted the road ought to be subject to the same 150-foot buffers that the ordinance demands around the rest of Phillippie’s operation.
Hornik also asserted that the county’s ordinance seems to carve out two different categories for land clearing debris, such as tree limbs, and inert debris, like concrete. He added that the applicant has wrongly assumed both kinds of waste fall into the ordinance’s relatively lax “Class I,” while he argued that the more onerous “Class III” is the proper category for inert debris.
Hornik’s final claim was that the permit application is “incomplete and inaccurate” because it fails to specify the locations for activities like burning and mulching, which he construed as forms of “waste processing.”
“I think you’ll come to the conclusion, and I think it’s an inescapable conclusion, that you have to deny the application,” Hornik declared. “And if you don’t,” he added, hinting at the potential for litigation, “I don’t think it’s necessarily all she wrote.”
In addition to Hornik, himself, the commissioners heard from several of the landfill’s detractors, who availed themselves of a designated public comment period to address the county’s governing board.
Some of these critics had made previous forays before the commissioners to complain about things like the allegedly premature start to the landfill’s activities, the reported dispersal of ash from Phillippie’s site preparations, or the anticipated volume of truck traffic that would serve the proposed operation.
On Monday, these return visitors were joined by a few first-time speakers, including Jim Powell, a retired biotech executive who founded one of the corporate predecessors to Burlington-based LabCorp. Powell drew on his scientific background to claim that Phillippie’s incineration of yard waste could release hazardous chemicals whose effects he likened to the infamous defoliant Agent Orange.
“The science is clear, these emissions are dangerous, persistent, and costly to the community,” Powell insisted. “In Alamance County, we need to be careful we don’t create our own Agent Orange phenomenon.”
Meanwhile, realtor Jenny Blythe offered a more commonplace argument against Phillippie’s plans.
“I don’t know the science,” she confessed. “My concern is for Alamance County homeowners. I know that nationwide, properties that are within 5 miles of a landfill can depreciate 15 percent.”
In response to the critics, Koonts assured the commissioners that he had heard little, if anything, on Monday that his client hadn’t successfully addressed at the planning board level.
Phillippie’s lawyer argued, for instance, that Hornik’s claims about the applicable ordinance merely repackages the same specious arguments that the county’s planning board had previously heard and rebuffed.
“This is the same argument that we’ve heard multiple times in public comments,” he added, “and it boils down to that Alamance County doesn’t know what it’s doing…They’re trying to muddy the water with the definition of land clearing debris and inert debris…But the fact is we’ve gone through every hoop and marked every box in the affirmative, the planning board passed it 6-to-1.”
Koonts proceeded to suggest that the opposing counsel was deliberately misreading the county’s ordinance when he asserted that the proposed landfill is subject to Class III requirements. He insisted that the ordinance only mentions inert waste in the context of Class III industries in order to state an exemption, while other activities, like mulching and the incineration of yard waste, aren’t even addressed by the ordinance.
Koonts’ point about forms of “waste processing” like mulching was later buttressed by Alamance County’s attorney Rik Stevens.
“The planning department’s interpretation,” Stevens told the commissioners, “is that our HIDO [or Heavy Industrial Development Ordinance] does not regulate turning vegetative materials into mulch. Period…It is not an activity that we regulate under the HIDO.”
Stevens added that the planning department has deemed other forms of “waste processing,” like the incineration of yard waste or the crushing of concrete and asphalt, to fall outside the scope of the ordinance.
He nevertheless told the commissioners that it is ultimately up to them to accept or reject the planning department’s position. He conceded that they can theoretically part ways with the county’s planning staff when it comes to the status of the facility’s internal access road, which the opponents have argued should be considered part of the landfill’s area of operations.
Matthew Hoagland, the county’s planning director, informed the commissioners that he has chosen not to lump this extended driveway in with the site’s operations because of the difficulties posed by the 150-foot buffer that the ordinance demands around the operational area.
“I don’t think the buffer is applicable to the road,” Hoagland said. “If we interpreted the ordinance that way, we could never have a roadway access an area of operation.”
The inherent contradiction was put even more bluntly by Steve Carter, the vice chairman of Alamance County’s commissioners.
“You’d have to bring in things by helicopter,” Carter asserted when the considered the buffer’s ramifications.
Carter went on to cast the lone vote of opposition against Phillippie’s application, citing his general dismay over the wording of the ordinance. Commissioner Pam Thompson made the motion to approve the requested permit, which was seconded by Powell, and supported by commissioner Ed Priola, and Kelly Allen, the chairman of Alamance County’s commissioners.
