Alamance County’s board of adjustment has dealt another blow to one neighborhood’s struggle to prevent a local property owner from developing a new “stump dump” in an unincorporated part of the county.
After a two-and-a-half hour hearing on Tuesday, this quasi-judicial board voted 5-to-0 to uphold the county-level permit that Kenneth Phillippie has received to establish a new landfill for land clearing and inert debris (LCID) at 4115 Clapp Mill Road.
In issuing this ruling, the board’s members rejected a series of objections that neighboring residents had raised against Phillippie’s plans. Many of these same arguments were previously aired before the county’s planning board, which went on to recommend Phillippie’s proposed permit to the board of commissioners. The commissioners ultimately voted 4-to-1 to approve the permit after they, too, heard the neighborhood’s case on April 20.
The hearing that took place on Tuesday was the continuation of an inconclusive proceeding on June 18 that gave the board of adjustment its first glimpse of the neighborhood’s case against Phillippie’s venture. During this earlier hearing, members of Alamance County’s staff protested that they hadn’t had enough time to prepare for the appeal, which prompted the board to put off the matter until Tuesday.
During Tuesday’s quasi-judicial hearing, Bob Hornick, an attorney for the appellants, laid out a four-point case against Phillippie’s landfill. At the core of this case was Hornick’s contention that both the planning board and the board of commissioners were misled in their decisions by Matthew Hoagland, the county’s planning director.
As the original arbiter of Phillippie’s plans, Hoagland had been instrumental in interpreting the project’s compliance with the county’s ordinance for heavy industrial development. This ordinance is part of a regulatory smorgasbord that the county uses to regulate growth outside its cities and towns, where land zoning determines the locations for different kinds of development. The county, for its part, has never imposed zoning on areas under its direct jurisdiction due to the traditional antipathy that its rural residents have shown to this form of land regulation.
Under the county’s rules for heavy industrial development, a landowner is more or less assured a permit if the project they propose meets the ordinance’s criteria for that kind of facility. The ordinance allows the county’s planning director to make the initial determination about a specific project’s compliance. This ruling must then be reiterated by the county’s planning board and the board of commissioners before the requested permit is issued.
During Tuesday’s hearing, Hornick zeroed in on an assessment of Phillippie’s landfill that Hoagland shared with the commissioners on March 31. Hornick went on to take issue with four aspects of the planning director’s evaluation.
Hornick argued, for instance, that Hoagland had erroneously reviewed Phillippie’s plans under a less restrictive set of standards than an LCID landfill should have received under the ordinance. He went on to contend that the correct set of standards calls for more ample buffers and setbacks than Phillippie has proposed, and it demands roughly a quarter mile of separation from any “protected facility.”
“A protected facility includes houses, residences,” the appellant’s attorney added. “Think about that. How many residents are in a quarter mile radius of the site?”
Hornick also objected that the county’s planning director wrongly omitted an internal driveway that links the landfill with Clapp Mill Road from the facility’s “area of operation.” The attorney repeatedly raised this point even though the board of adjustment had resolved not to consider it during a 45-minute debate that kicked off Tuesday’s proceedings.
Hornick’s final two points concern a “treatment and processing” plant that Phillippie intends to set up within the grounds of the landfill. The attorney insisted that this facility should’ve been treated as a separate, regulated use under the operative ordinance. He added that, as such, the treatment and process plant violates the ordinance’s prohibition on the “co-location” of industrial facilities.
Hornick’s objections to the planning director’s reading of the ordinance came under scrutiny from Paul Koonts, an attorney who has represented Phillippie in his fight for a permit. Koonts insisted that the appellant’s attorney has gone out of his way to put a harsher interpretation on the county’s ordinance than a plain reading of the text would suggest.
“The appellants look at it differently,” he contended. “They’re trying to take every word and expand that limitation as far as they possibly can, even if the language of the ordinance doesn’t read that way.”
Koonts offered Hornick’s claims about the landfill’s internal access road as a case in point of this overly broad reading of the ordinance. He pointed out that, because the ordinance doesn’t explicitly include driveways as part of a facility’s operational area, the opposing attorney has argued it comes under a catchall that alludes to “other uses necessary for the business of the industry.”
Koonts also chided the appellants for offering a “quote out of The Alamance News” as another piece of “evidence” against his client’s permit.
Koonts added that, if the project’s detractors really want to challenge a ruling from the board of commissioners, they ought to take their case before a superior court judge instead of the county’s board of adjustment. Seven of the landfill’s reluctant neighbors have already taken this tack, and their lawsuit, which was filed on May 20, is currently making its way through Alamance County Superior Court.
In the meantime, the board of adjustment was not the least bit inclined to overturn a decision that the board of commissioners had rendered on the advice of the county’s planning board as well as its planning director.
This deference to other county officials formed the basis of the motion that board member Mike Owens made to reject the appeal from Phillippie’s neighbors.
Prompted by the board’s chairman, Ike Holt, to state his motion as a fact-based proposition, Owens still made it clear that was inclined to uphold the opinions of the county’s resident experts.
“The planning board signed off on this, the [planning] director signed off on this, and so did the county commissioners,” he told the rest of his colleagues. “The fact is that I think the director interpreted this correctly.”
The board voted 5-to-0 in favor of Owens’ motion to deny the appeal.
