Aug. 31—HAMLET — An ongoing legal battle with local environmental ramifications has been submitted for review to the North Carolina Supreme Court.
On June 13, 2023, T.C. Morphis Jr., and Brady N. Herman, of the Brough Law Firm, on behalf of Chad Gardner, Lisa Gardner, Lonnie Norton, Hope Norton, the Town of Dobbins Heights and the City of Hamlet, filed a petition for discretionary review to the state court of final appeal, with the ultimate goal of preventing International Tie Disposal from opening a biochar production facility on Marks Creek Church Rd., one and a half miles from Hamlet's extraterritorial jurisdiction. The petition is the culmination of three years of dispute with the county.
Owned by Polivka International, and headquartered in Weddington, NC, International Tie Disposal is in the biochar business.
According to the Golisano Institute for Sustainability at the Rochester Institute of Technology, "Biochar is a carbon rich material that is made from biomass through a thermochemical conversion process known as pyrolysis." The United States Department of Agriculture defines pyrolysis as "the heating of organic material, such as biomass, in the absence of oxygen," and goes on to explain that "because no oxygen is present the material does not combust but the chemical compounds (i.e., cellulose, hemicellulose, and lignin) that make up that material thermally decompose into combustible gases and charcoal."
International Tie does not consider the pyrolysis process as incineration, because they say that no combustion is involved, rather, only the chemical decomposition of condensed substances by heating that occurs spontaneously at high enough temperatures, or a chemical change or degradation of material brought about by the action of heat.
The Vote
In the summer of 2020, a convoluted timeline of local government action, and electorate retort began to unfold in Richmond County, ultimately leading to the aforementioned four individual plaintiffs, and two municipalities filing suit against the county.
In August of 2020, The Seaboard Coastline Railroad (CSX), submitted a rezoning application to the county for a 167 acre plot of land located in the southeastern portion of the county at 174 Marks Creek Church Road.
Prior to rezoning, the property was zoned rural residential and agricultural residential. The request submitted by CSX would see the property rezoned to heavy industrial.
According to the Richmond County Zoning ordinance, agricultural residential is "established primarily rural, agricultural, and sparsely spaced residential development. Rural residential is "established primarily for the protection of the county's residential growth areas from incompatible land uses." Finally, and alternatively, heavy industrial "is established as an area where the principal use of land is for heavy industries, which, by their nature, may create some levels of nuisance."
On August 31, 2020, Richmond County Economic Developer Martie Butler submitted a request letter to Director of Planning Tracy Parris to rezone the property.
"Changing the zoning of this parcel will give CSX the opportunity for continued growth in Richmond County," stated Butler in the letter.
On September 8, 2020, the Richmond County Planning Board held a meeting to consider the rezoning of the property and voted unanimously to recommend the proposal to the County Board of Commissioners.
On September 15, 2020, International Tie Disposal submitted an Air Quality Construction Permit Application to the North Carolina Department of Environmental Quality Division of Air Quality. The permit was a synthetic minor construction permit, which if approved, would pave the way for International Tie to construct a biochar production facility on the Marks Creek Property.
The permit outlined the step-by-step process by which International Tie would take creosote soaked railroad ties and untreated lumber, employ the pyrolysis process, and create carbonaceous biochar, to later be used by third parties in the sequestration of carbon or as biofuel. Additionally, International Tie illustrated the potential pollutant outputs of the Hamlet facility and outlined the pollution mitigation measures to be implemented.
Pursuant to Title V of the Clean Air Act, International Tie's Hamlet facility would operate under the requisite upper limit necessary to be considered a synthetic minor source of pollutants. Accordingly, International Tie said their Hamlet facility would produce less than 100 tons per year of pollutant emissions, including, nitrogen oxides, volatile organic compounds, and carbon monoxide. Additionally, International Tie dictated that their operation would produce less than 10 tons per year of individual hazardous air pollutants.
Potential sources of pollutants in the biochar process from start to finish includes untreated wood and railroad tie handling and sizing equipment, biochar kilns and product handling, sizing, and packaging equipment.
International Tie will run 426 kilns on site in total, at an estimated 160 kilns per day, while the remaining kilns are being prepared for the following day's operations.
Each kiln will process approximately 2,000 pounds of "raw woody material", whether it's creosote soaked railroad ties or untreated lumber. The kiln firing process runs on the combustion of natural gas, with each kiln load requiring seven to eight hours to completely volatilize unwanted chemical components necessary to produce carbonaceous biochar.
Following the pyrolysis process, individual kilns will cool for approximately 10 to 18 hours. According to International Tie, combustion related emissions only occur during the pyrolysis process, and not during the cooling stage. The biochar produced is then screened, crushed to a desired size, and then held in a storage silo. 500 pounds of biochar will be produced by each individual kiln. The finished product will then be loaded onto pallets and prepared for off-site shipment by truck or rail.
International Tie used a study from a similar pyrolysis operation, Biochar Now, in Weld County, Colorado, to depict the emission factors necessary to fall under the synthetic minor threshold, but that test only used three kilns and was fed by non-creosote soaked wood. In their application, International Tie does cite emission figures for creosote ties, but the study only used one kiln.
On October 6, the Richmond County Board of Commissioners held an open hearing to take public comment on the proposed rezoning of the Marks Creek Church Road property. Emails and letters from concerned parties were presented to the board.
Lonnie and Hope Norton own property immediately adjacent to the south end of the area being considered. They drafted an eight-point letter of concern, which included financial ramifications, environmental pollution, noise pollution, increased traffic and wear on roadways, proximity of development to a church, wildlife impacts, impacts on livestock and the degradation of neighborhood character. The Nortons went on to say, "It would appear that preparations are already underway for the construction or use of this area for heavy industrial use, making all this moot and the submission of questions and comments from the affected property owners just a formality."
Bryan and Beth Holzbach wrote to the board questioning the motives of the rezoning effort. They asked who owned the property, and if the rezoning request was a result of the intentions of a specific industrial entity to develop the property, and if so, whether that entity could be openly identified.
In an email response, Tracy Parris told the Holzbachs that the property was owned by CSX and that the rezoning application was at the request of CSX for the purposes of consistency considering that the adjacent property was already zoned heavy industrial.
Donald Chappell, on behalf of residents and property owners in the area, urgently requested that the parcel remain zoned rural residential and rural agricultural. Chappell echoed many of the sentiments articulated by the Nortons. Chappell's primary concern though, was water. He indicated that residents in the area are all on well water and was concerned that rezoning to heavy industrial could lead to potential contamination.
Shannon Chappell wrote that rezoning the property would affect the community environmentally, physically, financially, and psychologically. She added the deleterious affect heavy industry could have on local wildlife, including the red headed woodpecker, currently endangered, but living in the area. 25 individual names were submitted alongside Chappell's letter.
Members of the Marks Creek Presbyterian Church expressed their consternation considering their church was established at its current site in 1861 and is still a "very active and community-minded church." The congregation indicated that much of the City of Hamlet's water supply comes from Marks Creek, and that contamination is a serious concern for any heavy industry.
"We realize we are a poor county and need industry to increase our tax base, but we implore you to seriously consider the long lasting effects for the community and the church," the church members wrote. 72 members of the Marks Creek congregation signed the letter.
Martie Butler, in favor of approval, submitted a letter to commissioners indicating the benefits of rezoning CSX's property to heavy industrial. She articulated the longstanding relationship between Richmond County and CSX, and that railroad jobs are some of the best paying jobs in the county. Additionally, she said that the Planning and Zoning Board, and authors of the land use plan, voted unanimously to recommend rezoning the property. Butler assuaged concerns on water and wells, stating that with economic development projects comes grant money for infrastructure improvements. Butler said that money would be available to extend waterlines to the community members surrounding the property.
CSX Director of State Government Affairs John Dillard wrote that CSX has owned the property in question since 1956. He said that the majority of the property owned and operated by CSX is already zoned for industrial use, and that rezoning the church property would be an effort by CSX to achieve consistent zoning on all their property in the area.
Following the public hearing on October 6, the Board of Commissioners reconvened on October 8 to carry out a vote on the proposed rezoning. At the meeting, county staff read an email from Heather Hudson on behalf of her parents, Chad and Lisa Gardner.
Hudson indicated that her family lives adjacent to the CSX property and manage chicken farms. Hudson said she was concerned with the potential for pollution, increased traffic, damage to the surrounding ecosystem, and her family's livelihood provided by their chicken farms.
While not read at the meeting, as it was received after the prescribed deadline for submission, Virginia Seymour drafted her concerns to Tracy Parris. Seymour said that she had received disturbing news that CSX is planning on installing a plant to process creosote-soaked railroad ties on the property. Seymour asked how many commissioners knew of the proposed plan.
The Board proceeded to vote on the application. Commissioner Ben Moss recused himself from the vote, as he was an employee of CSX. The vote to rezone the property passed by a four to two margin, with commissioners Kenneth R. Robinette, John B. Gardner, Rick Watkins, and Tavares Bostic voting in the affirmative, and commissioners Jimmy L. Capps and Don M. Bryant voting nay.
The Lawsuit
On December 3, 2020, Chad Gardner, Lisa Gardner, Lonnie Norton, Hope Norton, the Town of Dobbins Heights, and the City of Hamlet filed a lawsuit against Richmond County in Superior Court, seeking a declaratory judgement that the rezoning of the Marks Creek property to heavy industrial is void and of no effect.
The Brough Law Firm asserted that the individual Plaintiffs (Nortons and Gardners) have standing to bring a lawsuit because they, "will be directly and adversely affected by the rezoning and will suffer special damages distinct from the rest of the community as a result of the proposed use of the property."
Standing is a legal determination used to ascertain who has a legal right to sue in a specific court.
Additionally, Plaintiff's attorneys asserted that the Municipal Plaintiffs, the Town of Dobbins Heights, and the City of Hamlet, also have standing to bring suit against the county because "International Tie's proposed biochar production facility plant will have a significant negative impact both on the water supply for both the Municipal Plaintiffs and on the general quality of life for the residents of the Municipal Plaintiffs."
"Municipal Plaintiffs will suffer damages distinct from other municipalities in Richmond County," the Plaintiff's attorney's continued, based on proximity to the rezoned property. The complaint highlights that the City of Hamlet's water supply system serves 10,000 people in the City of Hamlet and the Town of Dobbins Heights, the primary source of which is Marks Creek, less than 2,500 feet from the rezoned property.
The complaint further asserted that "the toxins and emissions generated from International Tie's proposed use of the property as a biochar production facility, such as carcinogens benzene, methylene, chloride, chloroform, tetrachloroethylene ('PCE') and trichlorethylene ('TCE') could likely contaminate and pollute the ground and surface waters that feed into the water supply of the Municipal Plaintiffs, which in turn, could result in negative and adverse health effects to their citizens and residents."
The Plaintiffs relied on two legal claims to render the rezoning proposition null. First, that the county failed to comply with the statutory requirements for consistency statements, and second, the county failed to consider all permissible uses allowed in the heavy industrial zoning district.
North Carolina General Statute 153A-341(b) outlines a series of three distinct rubric statements that a county board of commissioners must utilize when adopting or rejecting a zoning amendment. In the rezoning ordinance for the Marks Creek property, the Richmond County Board of Commissioners adopted the following: "The Richmond County Board of Commissioners does find that the action is reasonable and in the public interest due to its consistency with strategic land use plans and policies that has been adopted and other officially adopted plan that is applicable."
The Plaintiffs, in their first claim, assert that the county failed to comply with the state's statutory requirements. "It fails to describe how the rezoning is consistent with the county's strategic land use plan and it fails to explain why the rezoning is reasonable and in the public interest," states the claim.
As to their second claim, the Plaintiffs contend that the property was rezoned heavy industrial for one reason and one reason only — a biochar production facility.
"CSX submitted its rezoning application with the county for approval on the sole basis that the property would be used for a biochar production facility, and upon information and belief, the Board of Commissioners relied on this representation when it rezoned the property," the Plaintiffs claimed.
"The Board of Commissioners approved the rezoning without determining that the property is suitable for all uses permitted in the heavy industrial zoning district," the claim concludes.
On February 8, 2020, Henry L. Kitchin, Jr. and Caroline E. Keen, of McGuire Woods Law Firm, filed a motion to dismiss the complaint filed by the Plaintiffs.
Kitchin and Keen submitted a two-part grounds for dismissal.
The Defendants asserted that the first and second claims for relief in the Plaintiff's complaint "must be dismissed because neither states a claim upon which relief can be granted," and that "because Plaintiffs Town of Dobbins Heights and City of Hamlet lack standing to assert those claims."
Regarding the first claim, the Defense argued that the Board of Commissioners' consistency statement meets the requirements outlined by general statute, and accordingly, having been adopted by a governing board with a zoning amendment is not subject to judicial review.
As to the second, the Defense stated that, the claim included no allegations of facts, but rather, "only general allegations upon information and belief."
"The Plaintiffs do not — and cannot allege that the Defendant, in rezoning the property, entered into a reciprocal agreement with the landowner or the would-be owner of the 'biochar production facility' described in the complaint," the Defense continued.
Finally, the Defendant illustrated that both the Town of Dobbins Heights and the City of Hamlet lacked sufficient legal standing to challenge the county's zoning decision. The motion to dismiss stated that in order to establish standing, "Dobbins Heights and Hamlet must be able to establish that their damages are specific and distinct from the rest of the community," and by failing to do so are not in a legal position to bring suit against the county.
On June 14, 2021, Superior Court Judge Dawn Layton rendered a ruling on the county's motion to dismiss. Layton granted the defendants motion in part and denied in part.
The court dismissed the plaintiffs first claim — that the Board of Commissioners failed to adopt a consistency statement pursuant to North Carolina General Statute 153A-341(b). On the second claim, that Richmond County failed to consider all permissible uses allowed in the heavy industrial zoning district, Layton denied the Defendant's motion to dismiss. Lastly, the court affirmed the county's motion that the Town of Dobbins Heights lacked standing, but denied the Defendant's assertion that the City of Hamlet lacked standing.
Following Judge Layton's dismissal in part, on July 2, 2021, the Plaintiffs filed a notice of appeal to the North Carolina Court of Appeals. The appeal was drafted specifically to challenge Layton's decision to grant dismissal of the Town of Dobbins Heights for lack of standing.
After nearly two years, on May 2, 2023, the North Carolina Court of Appeals published their opinion.
The Plaintiff's appeal is interlocutory, in that, despite Dobbins Heights being found to lack standing to proceed in the case, claims remain pending before the trial court by the other Plaintiffs. Typically, there is not a right of immediate appeal for an interlocutory order. According to the opinion, an interlocutory order is immediately appealable if "the order deprives the appellant of a substantial right that would be lost unless immediately reviewed."
The court uses a two-prong test to determine if a substantial right has been affected.
"The right itself must be substantial, and the deprivation of that substantial right must potentially work injury to the appealing party if not corrected before appeal from final judgement." The court goes on to say that this assessment is strictly construed on a case-by-case basis.
Dobbins Heights articulated a substantial right claim by saying that there is a possibility for inconsistent verdicts amongst plaintiffs if the appeal is dismissed.
North Carolina Court of Appeals Chief Judge Donna Stroud, with Judges Tyson and Zachary concurring, found that "Dobbins Heights' argument does not meet its burden of demonstrating the applicability of the substantial right exception to the particular case before this court."
According to Judge Stroud, the Plaintiffs cited Creek Pointe Homeowner's Ass'n v. Happ, which does indeed mention a substantial right, but provides no legal analysis to explain what the Plaintiff's substantial right actually was.
Furthermore, "the appellant cannot meet its burden under the inconsistent verdicts doctrine simply by asserting that the facts involved in the claims remaining before the trial court may overlap with the facts involved in the claims that have been dismissed," Judge Stroud said.
Despite a dismissal by the three judge Court of Appeals panel, on June 13, 2023, the Plaintiffs filed a petition for discretionary review to the North Carolina Supreme Court.
Plaintiffs Perspective
While the North Carolina Court of Appeals shot down the Plaintiff's attempt to ensure that Dobbins Heights has a stake in the conversation, Hamlet City Manager Matt Christian, who has spearheaded efforts to ensure Richmond County citizen's concerns are heard, remains undaunted.
"We thought it was necessary to advocate and have our due process to make sure that this issue was identified," Christian said. "We think that it's prudent to understand and go through all the process we can to ensure that Dobbins Heights is represented as a stake holder in the issue; they are basically adjacent to this whole operation, and you know, this is a classic case of an environmental justice issue," Christian continued.
Independent of the Court of Appeals opinion, Christian says there is only one reasonable outcome for him and the citizens of Hamlet and Dobbins Heights. "I think throughout the process, that has been a goal for us, for them (International Tie Disposal) to find somewhere else to go," Christian said.
While Christian is an ardent supporter of the Plaintiffs, he understands why CSX and International Tie Disposal would seek to develop their biochar facility. "You know CSX has an interest too, they've got this industrial waste product that they are trying to add value to through a process and put it back into the market, and I'm sure for them, that makes a lot of business sense, you know, and I'm sure they have very smart people that make very credible arguments on why that's a good thing, and that's where reasonable people can disagree," Christian said.
Despite recognizing the economic impacts for the county, the rail industry, and International Tie, Christian said, "for us, our concern is what is the long term impact of the health and well being of our community here in Richmond County."
The Daily Journal sought comment from Richmond County Manager Bryan Land, who in reply, said that he was not at liberty to discuss the ongoing litigation or proceedings surrounding International Tie Disposal.
The Daily Journal will continue to follow the case as it unfolds.
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