Say no to the Asphalt plant in Madison County

Keep Madison the “Jewel of the Blue Ridge”


Sustainable Madison is a non-profit composed of Madison County residents and property owners who believe in the practice of Earth stewardship by our members, our government and the public. To foster stewardship, Sustainable Madison encourages governmental and citizen responsibility in protecting our natural resources. Sustainable Madison advocates grassroots involvement to empower our community in environmental issues. Our focus is on preserving the health and beauty of “The Jewel of the Blue Ridge Mountains” for future generations. We seek to ensure sustainable economic growth which benefits our county’s environs, tourism, and the health of its people.

The Latest News

An asphalt plant in Madison County is closer to reality than ever before, now that a judge has overturned Madison County’s unanimous Board of Adjustment ruling denying the permit.

The BOA is preparing to sign the permit on 9/28/20 and construction on the asphalt plant can begin immediately. The asphalt plant owners must now seek an Air Quality Permit from the Department of Environmental Quality (DEQ). The DEQ must listen to the public, and if there’s enough outcry, must hold a public hearing.


PLEASE SEND AN EMAIL TODAY, telling the DEQ that this is the wrong location for this polluting industry.

Click here to send an email to the DEQ.

Sept 4

Today the courts, sadly, overturned the Board of Adjustment’s ruling and remanded the case back to them. The court has ordered the BoA to issue the Conditional Use Permit to Madison Asphalt.
Regardless of this disappointing turn of events, it is still up to the NC Department of Environment and Natural Resources (NCDENR) to issue a Department of Air Quality (DAQ) permit. It’s imperative that we demand the DEQ (Department of Environmental Quality) do a combined air study on all permitted pollution sources (there are already 2) within one mile of the quarry as well as hold a public hearing on the permit. We can make an impact on the issuance of this permit by demanding a public hearing; by demanding that the state listen to and hear the voices of the people who will be most affected by the placement of this industrial polluter; county residents.
It is urgent that we email the following people and share our concerns about an asphalt plant in Madison County. We have the right to be heard and this is our time. Brendan Davey – brendan.davey@ncdenr.gov Michael Abraczinskas – michael.abraczinskas@ncdenr.gov We are grateful, as always, for the support this cause has garnered from so many of you. From the woman who reached out to tell us that the sale of her home fell through when the potential buyer learned of the asphalt plant, to the wonderful family whose backyard ends where the stacks will be, belching smoke literally into their yard – we have been bolstered by your stories and they have affirmed our commitment that this is an ill-advised location for a manufacturing facility of this kind. We have heard you and we share your concern and dismay. This isn’t over yet. Please send your emails. Be heard.

Sept 2

The County and Madison Asphalt went out of their way to step back from the Settlement Agreement and “Consent Order” as binding on the individual respondents, the BOA, or the court. The court agreed and said that the individual respondents were not “prejudiced” by either document because the court is free to make it’s own decision on the merits.

This means our hearing on Madison Asphalt’s appeal will go forward Friday September 4th at 10:30 AM at the Watauga County Courthouse in Boone, NC. There is a 30 seat capacity. First come, first seated. Masks must be worn.

We gave our brief and related material for this Friday’s appeal to the judge after this morning’s hearing.We are hopeful that the Judge will uphold the Board of Adjustment’s unanimous ruling.


July 23rd

On July 23rd, Madison County residents who make up the parties-with-standing in the Madison Asphalt Plant case filed a Declaratory Judgement action against the Madison County Commissioners (and Madison Asphalt, as an interested party) in order to challenge the settlement agreement they entered into on June 23, 2020. The purpose of this Declaratory Judgment action is simply to challenge the settlement agreement the Commissioners entered into with Madison Asphalt as unlawful and outside the scope of the County’s authority. This is not a lawsuit involving monetary damages and only serves to resolve the uncertainty as to whether the County’s action—by avoiding Madison County’s own ordinances and North Carolina law regarding the quasi-judicial process—can legally be taken.
While the citizens involved with this case always hoped to work hand in hand with our county government to uphold the Board of Adjustment’s unanimous vote denying the permit, the Board of Commissioners left us with no choice but to challenge their closed-door dealings with Madison Asphalt. Despite the fact that the citizens are named parties to the permit appeal pending in Superior Court, the County and Madison Asphalt did not involve the citizens in their settlement negotiations and are attempting to resolve the appeal without regard to the clear rights of the citizens. This is illegal and improper, as alleged in the Declaratory Judgment action. The settlement agreement which the Commissioners entered into attempts to circumvent Madison County’s own quasi-judicial zoning process and purports to force the Madison County Board of Adjustment—who is supposed to be an impartial board tasked with approving or denying the permit based on sworn testimony and evidence—to grant the permit regardless of their original ruling on the matter. The Declaratory Judgment action requests that the court invalidate the settlement agreement as illegal and outside of the authority of the Commissioners, as well as to enjoin or prevent the entry of the consent order requiring the Board of Adjustment to grant the permit.
The Commissioners, in entering into this settlement agreement, have acted improperly by essentially granting Madison Asphalt a permit without using its own legally-prescribed procedures, and instead entered into a private contract under the threat of current and future litigation. For example, in recent interviews, Commissioner Wechtel stated that the Commissioners were told that Madison Asphalt would be suing them for millions of dollars if the county did not win the appeal. This is apparently what drove the Commissioners’ decision, not fairness or their duty to follow their own laws.
Moreover, the Commissioners’ concerns about the merits of the appeal are not valid. The Board of Adjustment heard over 36 hours of sworn testimony before voting to make their unanimous ruling denying the permit. There were no grounds for the county to be held responsible for paying Madison Asphalt’s legal fees and yet the Commissioners—who did not personally attend any of the 36 hours of hearings on the asphalt plant—were bullied into entering into this settlement agreement. The Board of Adjustment carefully considered the sworn testimony offered during the hearing, and in entering into this settlement agreement the Commissioners have opted to re-weigh the evidence outside of the quasi-judicial process and under the duress of threats.
The Commissioners are also beholden to Open Meetings and Public Records laws that require them to disclose certain public records related to the appeal and settlement, especially now that the settlement agreement is signed.. The parties with standing—and indeed the public generally—must be made aware of the dealings between the County and Madison Asphalt and the motivations of the County for entering into this agreement. The parties with standing’s attorneys requested these documents in June—and have followed up numerous times—but to this date have not received the requested documents.
The Declaratory Judgement action we have filed to challenge the settlement agreement is not a lawsuit seeking any monetary damages for the party-with-standing or the community at large, but rather is an appropriate method of ensuring that the County follows its own laws and procedures regarding land use permitting. In these types of Community vs. Polluting-Industry cases, it is common practice for well-funded asphalt companies to threaten additional lawsuits and issues into the fight in an effort to hold the County hostage and drain the pockets of the community-funded efforts. Indeed, we expected Madison Asphalt to try to throw all the wrenches they could into this fight. Legally, however, Madison Asphalt cannot be given a pass to sidestep County permitting laws simply because they have threatened additional lawsuits against the County. But this is exactly what the settlement agreement purports to do: it carves out a special exception for Madison Asphalt by agreement. What a shame it is that the Madison County Commissioners were not properly informed and fell victim to such bullying.
We are confident that the courts, through this Declaratory Judgment action, will determine that the Commissioners have violated state and County laws regarding quasi-judicial hearings and that they have overstepped their authority.

Board of Commissioners Meeting - June 23rd

It is with great sadness and anger that we relay the events of this evenings’ BOC special meeting.

The county voted 3-2 to approve the asphalt plant. To their credit, Norris Gentry and Craig Goforth both stated that they were in favor of letting the legal process play out. However, they were overruled, with Brigman stating that Madison Asphalt had done “everything right and were being punished”. We can assure you that they did NOT do everything right; their application permit was riddled with errors in even the most basic of things, like stack heights and setbacks.

Sustainable Madison laid out a strong case with numerous expert witnesses, many of them members of our own community, who put their reputations on the line for truth. Truth about the dangers to our air, to our water and to our way of life. Noise, odor, traffic and particulate air pollution are now in our future, unless the case moving forward prevails, and yes, the case is still moving forward. The Parties with Standing have an Appeals court date of September 4, 2020. Sustainable Madison will be funding the legal fees for these Madison County residents. We may also be filing suit against the County for illegal negotiations which may have violated the quasi-judicial process. We will update the community when our attorney has received and reviewed all communications between Madison Asphalt and Madison County lawyers, which were legally requested weeks ago, and to which the county has still not complied. We will share any updates on further proceedings or decisions made by the citizens with standing. As our lawyer said after tonight’s ruling “just because they say it’s raining, doesn’t mean it’s raining”.

It is beyond disappointing to have our county government negotiate a settlement behind closed doors and with no public comment. And it is a disservice to the fine members of the Board of Adjustment who sat through 35+ hours of testimony and with careful deliberation, made the right call for the safety of our community. What message does this send to the committed citizens who serve on all of our county boards?

Sustainable Madison has been buoyed by this community’s support and response. To have 75+ people come out and show support on a Tuesday evening was, indeed heartening. We are grateful for the support. We will need it in the coming months.

Madison Asphalt files appeal

The attorneys for Madison Asphalt have filed an appeal against the county’s decision. The appeal should be heard within the next year in the Madison County superior court. A copy of the appeal can be found here.

Official Hearing Record filed

Madison County filed the official record of the ruling for the Board of Adjustment asphalt plant hearing with the court on Friday the 27th of September.

The applicant has 30 days to file their appeal. Their appeal will be against the county ruling, therefore the applicant is taking the county to court. For this reason, Sustainable Madison and the parties with standing are not included in the appeal when it is filed. Any of the parties who had standing at the hearing and presented a case, who desire to be involved in the appeal, will need to have their legal representation file an intent to intervene with the courts once the appeal is filed by the applicant.

Brian Gulden, the attorney representing the group of residents who comprise the first party that has standing, and whose fees were paid for by Sustainable Madison, will be filing an intervention as soon as the appeal is filed. This will allow him to defend the case he laid out in court during the appeal.

The official ruling filed by the County Attorney can be read here.

The complete transcripts of the full hearing can be downloaded below:

Volume I
Volume II
Volume III
Volume IV
Volume V
Volume VI
Volume VII
Volume VIII

Board of Adjustments rules against the Asphalt Plant Application 5-0

The Madison County Board of Adjustment voted unanimously to deny Madison Asphalt’s permit on the grounds that they had failed to provide the burden of proof on all three of the required statutes. The board of adjustment is made up of Madison County community members, who shared the same concerns that we did. Sustainable Madison and all of the Madison residents who have fought hard, continuously for 7 months were not in it for self preservation, we have been fighting for the community as a whole, especially those vulnerable populations in our community who do not have a voice or a choice, like the patients at Elderberry and the children at the Early Childhood Development Center. We fought for our environment, our town, our people. We will continue to work to protect our Jewel, and have so many projects we want to take on in this community! 

Thank you to everyone who has been there cheering us on, offering insight, showing up, donating, and being there in so many ways! You are so loved and appreciated!

If you missed the hearings you can watch the archives steams on our FaceBook page and on this website.

Important - The Board of Adjustment Hearing is Continuing

The Madison County Board of Adjustment will be meeting again in the County Courthouse on Monday June 17th at 6:00 pm. During this hearing the board will hear testimony from expert witnesses and landowners opposed to the issuance of the permit.

Sustainable Madison has retained an attorney on behalf of those opposed to the plant as well as paying the witnesses who will testify as to why the plant should not be permitted.

Sadly, the way the zoning laws are written, the onus and expense of proving the asphalt plant will be hazardous to the health and economic prosperity to the community falls to our community of which Sustainable Madison is helping to lead the way. This is why we still need your financial support, please donate by clicking on the Donate button above.

The hearing will likely last several days and may be scheduled on subsequent Mondays. Unlike Board of Commissioner meetings there will not be an opportunity for public comments during the hearing. There will be a period where those members of the public who would be affected by the plant will have 3 minutes to voice their concerns. After all the witnesses have testified the board will then decide on whether to approve the conditional use permit.

 

What's happening

French Broad Paving Company, whose business is largely in Buncombe County, has formed a limited liability corporation  for the sole purpose of opening an asphalt plant in Marshall and they have recently filed a permit requesting approval for building and operating the plant on land it leases in the McCrary Quarry. Once approved by the county Board of Adjustment they will request a permit  from, the N.C. Department of Air Quality which will then allow the project to proceed.

In our view, an asphalt plant at this site raises a number of concerns.

Public Health
Asphalt plants emit many toxic chemicals including Arsenic, Benzene, Cadmium, Chromium, Formaldehyde, Toluene, Xylene and more. Government emission standards do not take into account the topography of our mountains nor the many temperature inversions that occur in our area which can concentrate pollutants.

Within a 1/4 mile of the proposed site are located a nursing home, county preschool program, medical center, health dept, jail, fairgrounds and more. Many of these populations are more at risk from the pollutants.

Tourism
Tourism revenues in Madison County were over 39 million dollars in 2017 supporting local businesses and providing many jobs in the county. Pollution and odors emitted by the plant would likely impact the number of visitors coming to the county causing harm to local businesses and reducing the sales tax revenues the country receives.

Property Values
Properties located near the asphalt plant will suffer from reduced property values as well as suffering possible health issues. In addition to reducing the value of families properties, this will impact the county thru reduced property tax revenue.

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Contact us at sustainablemadisoncounty@gmail.com
PO Box 1135, Marshall, NC 28753