Intercepted Letter -- "Terrible Decisions That Limit the Rights of Landowners"

Dear Editor:

On August 7, Judge Phil Berger Jr. authored an order that denied standing to a couple from Watauga County in their appeal of a case that involves the proposed asphalt plant near their home on the Doc and Merle Watson Scenic Byway, Hwy 421 near Boone. When constructed, this would be the second Tennessee-based Maymead plant in this small county. In that unpublished order, the first sentence of the “Factual and Procedural Background” puts forth four blatant errors of fact. Whether intentional or just the work of a blundering clerk, there is no excuse for such sloppy work from the NC Court of Appeals. One local attorney commented -- “All politics aside, this is one of the worst written findings I have ever read.”

Those misstatements could well have persuaded the other members of the three-judge panel to decide that the substantial legal arguments of the case were not worth considering, and so they took the easy route of agreeing to dismiss standing, an increasingly common practice when the court wants to avoid examining the real legal issues. This decision is contrary to the court’s own previous rulings on standing.

After a three and one half year fight by Watauga County, the Town of Boone, and local citizens, this case has still yet to have a fair hearing. The local Board of Adjustments' ten-day hearing was mishandled, the Superior Court judge admitted in Court that he had gone to see a movie instead of reading the briefs, and Judge Berger characterized the solid evidence presented on the standing issue as “bald assertion.” The undeniable errors of fact in his order will remain unchallenged unless the NC Supreme Court agrees to accept a petition for discretionary review.

These events bring my faith in the system to a new low, and it appears that justice through a fair hearing is sometimes just a fantasy. This is not just a local matter relevant to a small western NC community. It is part of an increasing frequency of terrible standing decisions that limit the ability of neighboring landowners to intervene in zoning disputes so as to not bother big corporations and disturb profits. When citizens and communities seeking to protect their health, property, and way of life have to spend 3 ½ years and hundreds of thousands of dollars without ever receiving a fair hearing, something is terribly wrong.

Judge Berger’s ruling can be read here: https://law.justia.com/cases/north-carolina/court-of-appeals/2018/17-1107.html

David Sengel

Boone, NC

NC Court of Appeals Rules for Maymead; Phil Berger's Little Boy Writes the Opinion

Yesterday the NC Court of Appeals ruled that the Henion family has no standing to contest the Maymead asphalt plant on the Doc and Merle Watson Scenic Byway. The Henions live virtually in the shadow of the plant.

A few things to know about the court's ruling:

1. The decision was written by Phil Berger Junior, the son of the most powerful Republican in the state who literally rigged the ballot in 2016 to get Junior elected to the Court of Appeals.

2. The decision was not published by the Court of Appeals, meaning it has no value as precedent. Unpublished, it is also not readily available to the public. Why, it's almost as though the Court was trying to hide it.

3. The Henions' only remaining option is to petition the state Supreme Court for discretionary review. At least that way someone will see the crappiest piece of legal writing that ever went down.

4. By focusing entirely on the standing of the plaintiffs to sue, Berger's ruling conveniently ignores the issues raised and skirts the merits of the case. He took the easy way out to not bother big business and corporate profits.

Phil Berger Jr.

5. The ruling makes errors of fact, stating that "the Hamptons" controlled Maymead, presumably through ownership. They didn't and don't.

6. Phil Berger Jr. has been accused (July of this year) of campaign finance fraud in his 2016 campaign finance filings with the State Board of Elections. According to the complaint, there were three “suspicious” donations to Berger's campaign for his judgeship that raise questions about whether the named donors were being used as conduits for “mystery money” from other sources who did not want to be identified publicly. That, among other irregularities, omissions, and obfuscations.

Where We Stand on a Maymead Asphalt Plant on the Scenic Byway

Guest Post by Erwin

Many of you reading this are not aware of the current status of all things asphalt in Watauga and Ashe Counties, so I hope to provide a succinct update and perhaps an opinion or two thrown in as well.

As a member of the group High Country WATCH, which has led the opposition to the proposed Maymead plant on the scenic byway, as well as the proposed Radford plant near Hardin Park School,  I sometimes have a hard time believing this fight has been going on for over three years now.  The appeal by Radford is due to be heard in Superior Court sometime this year,  and a decision by the North Carolina Court of Appeals in the Maymead case is likely due in the next two months.  In a split vote, the Ashe County Planning Board actually approved the Radford permit for a plant near Glendale Springs,  a location which is also very near a summer camp for terminally ill children.  I have not heard of any further appeal in that case.

We have always believed that if the particulars of the Maymead case got a fair and thorough hearing that the facts would speak loudly, and Maymead would have to go home without being allowed to put that blight of heavy industry on the last somewhat pristine gateway to our community. Having attended the Watauga Board of Adjustments marathon and the two day Superior Court hearing,  I can testify that the fair hearing is yet to be had. One example: The superior court judge came to court without having read the briefs, and after the first day he said he would try to read them that evening. Instead, he came to court the next day and proceeded to spend 10 minutes telling the court about the new movie ("Arrival") he had gone to see instead.  

A few days before the Appeals Court was scheduled to hear the Maymead case this spring, their lead attorney asked for a continuance claiming he had the flu. That request was denied, and guess who showed up two days later with no symptoms. The surmise is that he didn’t like one of the judges on the panel and was hoping a delay would result in a panel of judges more favorable to Maymead.

So we continue to wait, continue to fundraise ($70,000 has been spent so far on legal fees), continue to hope. In all likelihood, the Maymead case will not be a unanimous decision either way and will end up at the NC Supreme Court. There are also other options including the possibilities of being sent back to the local Board of Adjustments or back to Superior Court. I believe Maymead thought they could wear us down, spend us down, and we would finally give up. We actually almost have, several times, but the continued support of this community has held us together, barely,  and what? Ain’t gonna quit now.

A shout out to our legal team, Davis and Whitlock of Asheville, who has stuck with us with greatly reduced rates and tireless research, as well as Watauga County, whose supporting brief in the Appeals Court stage has been a potential game changer.

One of the very best results of this whole process has been that every residence in Watauga County is now much better protected from high impact industry because of the increased setback rules in the amended HILU ordinance.  If the county had had the foresight to pass some common sense land-use legislation long ago, like most growing counties, the majority of land-use arguments would never come up. And without that in place, they will keep coming up, so keep your eyes open and help us be a watchdog for responsible development.

www.highcountrywatch, on Facebook, and to contribute to funding for the Maymead case, https://www.gofundme.com/stopdeepgapasphalt

The Hampton/Maymead Asphalt Case Reaches Superior Court

Judge John O. Craig III of High Point heard what's become known as "the Maymead case" all day Monday and part of the morning today. At the adjourning of court, the judge said it was a "fascinating" case, well presented and well argued, and he planned to have a decision by the end of the week. Or possibly next week.

Judge Craig has handled some high-profile cases and is well respected. He struck me as attentive, smart, skeptical, and fair. He announced up front on Monday that he knew nothing about the case and had never before handled an appeal of a quasi-judicial board's decision. That was a signal for the lawyers to pitch in and educate the judge. (Verily, I was edified too. )

How will Judge Craig rule? Dunno and won't guess.

The Maymead case has amassed a file of over 5,000 pages. That's mainly the record of the 60 hours of testimony in front of the Watauga Board of Adjustment (BOA), which overturned County Planning Director Joe Furman's revocation of an asphalt permit claimed by Maymead Materials of Mountain City, Tenn. It's a complicated case with a multitude of moving parts.

One of the prime issues of law: Whether the Watauga BOA erred in assuming that "Johnny Hampton" and "JW Hampton Co." were legally the same entity. Johnny Hampton as an individual applied for and got the asphalt permit. JW Hampton Co. now claims ownership, which they also now claim to have sold to Maymead.

The JW Hampton Co. first leased and then sold some acerage to Maymead. In none of those conveyances is an asphalt permit mentioned as part of the lease or as part of a bill of sale. Maymead's lawyer argued that the company wouldn't have paid $1,600,000 for the property without the permit (and poo, said Maymead's lawyer, on the "gotcha technicality" of no explicit, written transference of ownership of the permit).

Johnny Hampton is the minority owner of JW Hampton Co. His daughter owns 51% of the stock and is the CFO. The JW Hampton Co. is a excavation and grading contractor, the biggest in Watauga County. The plaintiffs in this case ("petitioners") -- trying to stop the Maymead Asphalt plant -- maintain that the Hampton Company and Maymead cannot qualify for "vested rights," which the BOE found to be the case, no matter how much they've spent, because neither ever legally owned the permit.

The plaintiffs contend that Maymead and JW Hampton Co. are therefore "third parties," insofar as "third parties" can not earn vested rights. Vested rights are based on a substantial expenditure of money by the owner of the permit prior to any revocation. Jamie Whitlock of Asheville, the attorney for the plaintiffs, said he could find no case in North Carolina of vested rights accruing to a third party, nor did opposing counsel for Maymead produce one.

Mr. Whitlock also argued that the expenditures Maymead and JW Hampton Co. claimed as accruing toward vested rights were almost entirely for the crushing and recycling business as well as the grading business of JW Hampton Co., not progress toward building an asphalt plant, which Mr. Hampton, by his own admission, had abandoned until Maymead came along in mid-2014.  And since Maymead only leased the correct land in May of 2015, a month before the permit revocation, they had no time to (and did not)  accomplish any vesting.

Plaintiffs also contend that the BOA erred in another "finding of fact" -- that there had been substantial progress made on the building of the asphalt plant  -- in the form of a major expenditure of money -- four years after the issuance of the permit by Joe Furman. Judge Craig questioned the county's right to abruptly revoke the permit, in light of the failure of the Watauga County High Impact Land Use ordinance (HILU) to specify a process for revocation, a time-line to establish "lack of progress," and the grounds for revocation. Stacy C. Eggers IV ("Four") argued persuasively that the Hampton standard of performance -- no appreciable, visible progress toward an asphalt plant after four years -- was valid grounds for revoking the permit. In fact, at the time of the revocation, Maymead had not shown that it had actually leased the land for which the proposed site plan for an asphalt plant had been submitted.

The HILU asphalt permit was granted to Johnny Hampton on June 20, 2011. In June 2015, Watauga County development officer Joe Furman revoked the permit -- "given the evidence that he had available at the time" -- because of no appreciable progress toward an asphalt plant. Some dirt had been moved (5% - 7% of what would have to be moved for the plant to operate, according to expert testimony given before the BOA). According to lawyer Eggers, Mr. Furman had every right to revoke the permit.

Jamie Whitlock for the plaintiffs referred to "the fictions" of Johnny Hampton that the Watauga BOA had relied on to rule in his favor -- a "narrative" constructed to explain away secret dealings done to avoid public scrutiny. The lawyer for Maymead, Mr. Tim Terrell of Greensboro, countered that the revocation of the permit had been the result of political pressure. Mr. Terrell wanted the judge to believe that a different standard of doing business prevailed in Watauga, where things aren't necessarily spelled out in writing (like the conveyance of an asphalt permit). Johnny Hampton did business on a handshake. (I believe Mr. Terrell was saying that mountain people aren't too observant of legal niceties and have "no filter" when "just talking," like when giving testimony to the BOA. The "benefit of the doubt" would therefore need to be paid, Mr. Terrell argued.)

Lawyer Terrell for Maymead repeatedly returned to this as his bedrock: the Watauga BOA, after 60 hours of extreme attentiveness, heard all the testimony and the same arguments that Judge Craig is hearing now and still voted that Mr. Furman had no right to revoke the permit. That struck me as a thin reed for heavy logic to lean on, since this whole trial is about the BOA's alleged "irrational" findings of fact in the case. Just because the BOE bought Maymead's argument doesn't prove anything.

Henion Family Raising Money to Take Maymead Asphalt Case to Superior Court

Randall & Carolyn Henion, who are neighbors to the Doc & Merle Watson Scenic Highway and to the Maymead asphalt plant (set down squat on that highway), are raising money through GoFundMe to appeal the Watauga Board of Adjustment's decision to reinstate Maymead's permit to make asphalt and ruin the neighborhood.

The Henions are going forward with an appeal because the Republican majority on the Watauga County Commission would not.

Visit their GoFundMe page and give if you can.

Black Day in Watauga County

The Watauga County Commissioners came out of a closed session yesterday morning -- where they were discussing their own Board of Adjustment's decision in the Maymead asphalt case on the Doc & Merle Watson Scenic Byway -- and voted along party lines, 3-2, not to appeal the BOA decision to Superior Court.

Republicans Jimmy Hodges, David Blust, and Perry Yates voted no. Democrats Billy Kennedy and John Welch voted yes.

Blust and Yates will now have to answer for that in the November elections, as they are running for reelection. May we suggest an appropriate campaign slogan: "Keep Good Ole Boy Politics Alive in Watauga!"

The fix was in for Maymead. Perry Yates wouldn't meet with community members who had organized against the asphalt plant in their neighborhood -- saying repeatedly that he hadn't yet read the order issued by the BOA (the order was released March 22) -- though he had no problem at all meeting with Maymead president Wiley Roark prior to yesterday's vote. Apparently, Yates didn't get around to reading the BOA order until he voted, which is good enough if you're keeping good ole boy politics alive in Watauga. (Incidentally, Maymead president Wiley Roark made the rounds to all the elected commissioners.)

The attorney for High Country Watch, the citizens group opposing Maymead, wrote extensive analysis of the BOA decision and strongly recommended that the County Commission appeal the BOA decision. After all, the High Country Watch lawyers were on the same side with the county's special counsel during the several very long BOA hearings, arguing that County Planning Director Joe Furman had been correct to revoke the asphalt plant permit originally given to Johnny Hampton.

That attorney's analysis was shared with the County Commission (but we won't take bets on whether Perry Yates even read it). You can bet that County Attorney Stacy C. "Four" Eggers read it and persuaded the Republican commissioners in their closed session yesterday morning to ignore it. Where Good Ole Boy politics reign, the squint-eyed man is king!

Here's some of what attorney James Whitlock wrote:

...Fundamentally, the BOA Order suffers from an erroneous application of the doctrine of common law vested rights as established/interpreted by North Carolina courts, resulting in a decision that is based on errors of law, is not supported by substantial evidence, and is arbitrary and capricious. In particular, it is my opinion that the BOA's finding of common law vested rights based on substantial expenditures by JW Hampton Company and Maymead would result in reversal by the Superior Court because neither of these entities are the HILU [High Impact Land Use] Permit holder. Under North Carolina law, a party's common law right to develop and/or construct vests when the following four elements are met: (1) the owner has made substantial expenditures; (2) the expenditures were made in good faith; (3) the expenditures were made in reliance on a valid government approval authorizing the use requested by the owner; and (4) the owner would be harmed without a vested right [case citations omitted].... In regards to (1) above, the North Carolina Supreme Court has expressly held that only expenditures by the permit holder are pertinent to a common law vested rights analysis [case citations omitted].

The BOA Order, while expressly finding that Johnny Hampton was the HILU permit holder, has no factual findings related to any expenditures by Mr. Hampton in reliance on the HILU Permit, because there was no evidence of any such expenditures. Further, the BOA Order has no finding, because there was no evidence to support such a finding, that Mr. Hampton ever legally transferred the HILU Permit to either JW Hampton Company or Maymead. As a result, based on the North Carolina Supreme Court's decision in Town of Hillbsborough v Smith, any expenditures made by JW Hampton Company and/or Maymead are irrelevant to a common law vested rights analysis, and the BOA findings in this regard are erroneous as a matter of law and should be overturned....

Yesterday was a black day for legal procedure but more importantly a black day for the health and well being of hundreds of citizens who looked to Watauga County government to put the interests of voters above the continued practice of good ole boy politics.

Possible Appeal of Maymead Asphalt Decision On County Commish Agenda Next Week

County Commissioner John Welch has requested an agenda item for the commission's regular evening meeting on Tuesday, Feb. 16 (5:30 p.m.): Discussion of the Watauga Board of Adjustment's surprising decision to restore Maymead Asphalt's revoked permit to cook paving material on the Doc & Merle Watson Scenic Highway.

Prevailing rumor is that Commission Chair Jimmy Hodges is against an appeal. So, too, probably are Perry Yates and David Blust, both of whom are up for reelection this year. Those three hold the power to appeal to superior court their own Board of Adjustment's unaccountable decision.

Reelection. Hope for and fear about. That's the leverage the people have now on the issue of bringing more pollution into this county and plopping it down on a scenic highway and in the middle of residential properties.

How Is Maymead Asphalt Like a Bakery?

"And we know you love them too!"

It was a packed house at this morning's Watauga County Commission meeting. Maymead Materials Inc., the asphalt producer that wants a new plant on the Doc & Merle Watson Scenic Byway, asked and received 20 minutes of the commissioners' time to present their side in the fight over whether the county should allow them to set up in near proximity to many residences and two schools.

I was expecting a legal argument from Maymead ... that the company is already "vested" in that property and therefore can't be stopped, or that the county's 30-day moratorium is illegal, or that proposed changes to the High Impact Land Use Ordinance are arbitrary and capricious.

Instead, the audience got a dog-and-pony show -- a bunch of assertions offered by a Greensboro lawyer and a female project manager that asphalt is a naturally occurring substance and is perfectly harmless and that a bread bakery emits as many volatile compounds as an asphalt plant and if asphalt fumes are harmful then why doesn't OSHA make workers wear protective gear, and what's all the fuss any way?

The Maymead female project manager was the comic highlight of the morning. She actually showed slides of herself posing with her two small children with various Maymead asphalt facilities in the background, trying to prove (we assume) that asphalt is tee-totally safe for small children, or at least a convenient backdrop for company-inspired photo ops, but really proving that some professionals will use their own children as cynical props for company P.R. It was enough to make your skin crawl.

This combined assault by Maymead on the audience's logic and its patience reminded me very much of the current incessant TV ads produced by Sea World to convince us all that keeping killer whales in confinement really expresses love for the animals. Those creepy ads have set a new benchmark for industry hypocrisy, and they fool no one. Same for Maymead this morning.

On the other side of the issue, the Commission heard from more than a dozen speakers who pointed out the glaring holes in the county's current High Impact Land Use Ordinance, particularly its lack of public notice/public hearing when a proposed polluting industry wants to locate here. County Planner Joe Furman can very quietly approve those applications -- as he did for Johnny Hampton several years ago, the permit that Maymead has been trying to ride to glory by simple transference of name. The first thing anyone knows who lives nearby is that work has begun. That sick, sinking feeling can visit any homeowner at any time in this county.

The Commission took no action after the public hearing, and one wonders what the three-Republican majority will do, because they hold the power. Can't help but note that circulating among them this morning was former Commission Chair Nathan Miller, who's on record as opposing any government regulation over any land use that a land owner can think up. He was there, perhaps, to jerk a knot in his former obedient followers, commissioners Perry Yates and David Blust, who in a moment of weakness voted for the present moratorium. Nathan Miller will put an end to further and future weaknesses if he can.

ADDENDUM
Oops. Left the meeting early. The Commission did vote 4-1 to add a 750-foot buffer from residential property lines and a 1,500-foot buffer from scenic byways and the Blue Ridge Parkway to the High Impact Land Use Ordinance. They did not add a provision for public notice/public hearing to the ordinance. The single no vote was Commissioner John Welch, who thought the amendments to the HILU ordinance did not go far enough.

The Toxic Dawn in North Carolina

While a growing group of Watauga County citizens have become aware of how Watauga County ordinances actually welcome toxic polluters through weak or non-existent protections, that bunch of Republicans in Raleigh are fast-tracking a bill which loosens regulations for air quality, water quality, and recycling, a new set of regs meant to completely neuter whatever is left of the Department of Environment and Natural Resources (DENR).

Naturally, it's coming out of the NC Senate, which is so far to the right on everything that our feckless governor ... oh, never mind! It's coming out of the Senate, which is where extremism has its home office. And who's "shepherding" this particular piece of backward thinking but Sen. Trudy Wade, she of the Greensboro redistricting meanness, which is also slouching toward Bethlehem to be born.

The News&Observer reports:

...DENR distributed a 12-page analysis for lawmakers enumerating the agency’s concerns with the legislation. The document stands out for its tone of alarm coming from an agency that under Republican Gov. Pat McCrory had vowed to treat businesses as partners and customers rather than adversaries.

“The complaints that would be generated as a result of this proposed legislation would be innumerable,” the document stated. The agency warned that one proposal would lead to “severe environmental damage,” while another could result in federal authorities moving in “to take over the North Carolina public drinking water program.”

Doesn't matter. This Polluter Protection Act will pass the Senate. It'll be up to the NC House to have a sane moment. Don't laugh. It could happen.

Moratorium Applies to Maymead Asphalt

Well, bless their hearts! Eggers Eggers Eggers & Eggers have finally decided that the moratorium on permits granted via the High Impact Land Use Ordinance -- you know, the moratorium that the Eggerses did not want the County Commission to pass in the first place -- does in fact apply to the Maymead corp., because ... wait for it ... Maymead is not vested in the project in any way, shape, or form.

Our county attorneys are always the last to know the facts.

That Was Fast

Eggers Eggers Eggers and Eggers were still hedging on behalf of Maymead -- maybe they're "vested" already in that asphalt plant development on the Doc & Merle Watson Scenic Byway, Four Eggers suggested, leaving that glimmer of hope there for the Big Boys -- but the Watauga County Commission -- all five members, two Democrats and three Republicans -- moved with remarkable speed and no ambiguity to slap a moratorium on any new permit applications under the High Impact Land Use Ordinance, until "defects" in its provisions are worked out.

Commissioners further ordered a 1,500-ft. set-back from any scenic byway and increased set-backs for residences. Details in the Watauga Democrat.

Impressive mobilization of citizen concerns over the location of toxic industries, and the commissioners were much more able than Eggers Eggers Eggers and Eggers wanted to admit last Tuesday to do something quickly and decisively in response to public outcry.

Samuel Johnson once said, "Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully."

The Evolution of Deborah Greene

Back in 2001-2002, Deborah Greene led the county forces who were against land-use planning to protect the citizens/homeowners from polluting industries, specifically (and most especially) asphalt plants. We were fighting on the other side.

Deborah Greene won that battle and in the process managed the defeat of county commissioners Sue Sweeting and Pat Wilkie in the fall of 2002, lambasting those two women as "pro-zoning."

Deborah Greene was a formidable opponent, the best organizer and strategist that the local Republicans had -- smart, capable, and effective.

Last night at yet another public hearing before the Watauga County Commission on yet another proposed Maymead asphalt plant, I heard Deborah Greene repent. She said, "I'm ashamed to say today that I opposed the group [Citizens Against Pollution] that fought an asphalt plant at Roby Greene Road because I was afraid that my farm would be zoned. I'm older and wiser today."

"If it takes zoning to stop it [the newest Maymead asphalt plant]," Greene said in closing, "then zone it!"

Goes to show that there really are "second acts" in America. And that Maymead now has another potent force lined up against their power and their greed.

FOOTNOTE
Several speakers at last night's public hearing mentioned ruefully that there had been no public notice nor public hearing when Maymead first decided it would put an asphalt plant on the Doc & Merle Watson Scenic Byway in close proximity to residential development.

It might interest current County Commissioners that, as originally proposed, the High Impact Land Use Ordinance did include public notice and a public hearing for those negatively affected by the location of a polluting industry. That provision was removed by the Republican-dominated County Commission of that day (as Jimmy Hodges might well remember, since he was sitting on the Commission at that time, as a Democrat).

That public notice/public hearing provision should be reinstated now.

Will the Watauga County Commission Do Anything About the Proposed Maymead Asphalt Plant?

The Watauga County Commission won't do anything to protect the citizens from another asphalt plant if they listen to their attorney, that's for sure.

The attorney representing Eggers Eggers Eggers & Eggers was very discouraging when Commissioner John Welch asked what the procedures were for instituting a moratorium, which is what the majority of the speakers at the public hearing tonight begged the commissioners to pass. Oh it's very difficult, it's very hard, it has to pass rigorous tests, EggersEggersEggersEggers belly-ached, but every specific "test" to warrant a moratorium that EggersEtc. mentioned seemed like a snap to me, especially the presence of an "immediate threat."

What is the proposed Maymead asphalt plant on the Doc & Merle Watson Scenic Byway if not an immediate threat?

Commission Chair Jimmy Hodges said that his fellow commissioners would be considering their options as they went into closed session with their -- ahem! -- attorney, the ineffable Republican agglomeration of EggersEggersSquared. Everyone left the commissioners' meeting at that point, for their closed session. I didn't wait around for them to come out of closed session, and neither did any members of the press. Maybe someone is posted as a guard of the public trust there and will let the rest of us know if the Eggers' brand held the commissioners in check and if they might have stumbled into actually doing something for the rest of us.

Jimmy Hodges, as always now, is the swing vote. The other two Republicans were noticeable silent after the public hearing, though you could see Mr. David Blust's body language and Mr. Perry Yates's facial expression as not-prepared-to-take-action "tells." Mr. Hodges, on the other hand (along with the two Democrats, John Welch and Billy Kennedy), was at least mouthing sympathy and understanding for the plight of residents and school children at two elementary schools near where Maymead intends -- by its own estimate -- to spew 62.32 tons yearly of particulate matter, sulfur dioxide, nitrogen oxide, carbon monoxide, and volatile organic compounds. (Several people during the public hearing said they didn't believe Maymead's estimate for their own pollution -- why would they have any incentive to be honest under NC's current trust-the-polluter regime? -- and neither do I. Those estimates of air pollution are quite simply public jokes worthy of public ridicule.)

Anyway ... Jimmy Hodges, he's the man with the power to do something. Will he? Dunno. He has a history of voting for moratoria on asphalt plants back in the 1990s when he was first on the County Commission. But, of course, he's become a registered Republican since that time, and it's the ironclad Republican doctrine that private land ownership trumps public health, private investment by the neighbors, and the moral dictates of God Himself.

Don't Look to DENR To Save You from Asphalt Fumes

Under the Pat McCrory administration, the NC Department of Environment and Natural Resources (DENR) is an emasculated shadow of its former self, so if anyone thinks its permitting process for a new asphalt plant on the Doc & Merle Watson Scenic Byway will save you and the air you breathe, you should perhaps think again.

As revealed in an intercepted email from a DENR air quality official, either DENR is quite unaware of Maymead's intentions, or else it is willfully trying to mislead the public:

From: "Hartsfield, Taylor" <taylor.hartsfield@ncdenr.gov>
Date: Monday, April 27, 2015 9:33 AM

Subject: RE: Watauga County: Public Records Request.

 Attached is Application 9500134.15A that was received by our office on April 13, 2015. This is an application for an ownership change only. The facility conducts crushing and recycling of construction debris, including concrete and asphalt. No changes to that process were requested. The review process is still ongoing. If you have any other questions, please contact me. Thank you,Taylor

Wiley Roark, the president of Maymead Inc., cheerfully admitted his intentions to Anna Oakes with the Watauga Democrat. He said he considers the plant location a "low-density area outside of town limits" and is therefore, by a curious logic, an "enhancement" for Boone. As if the residents of Boone are the only people who might be affected.

"Low-density area"? We'll see, as the neighbors start to wake up to what's about to happen in their near vicinity.

Maymead still has to apply separately for a permit to operate an asphalt production facility. Roark said he expected that process would take 90 days. We suspect he knows what he's talking about. Without local land-use regs in place, DENR rarely turns down an asphalt plant application. That's going to be especially true under the current regime, which has made DENR a permit-delivery system rather than anything approaching an environmental protection agency.

The Maymead Application to DENR

Maymead's application 9500134.15A requesting "ownership and name change" for the J.W. Hampton "421 Recycling Yard" was received by the NC Department of Environment and Natural Resources (DENR) on April 13. It purports to be a simple request to transfer Johnny Hampton's permit to crush and recycle construction debris, including concrete and asphalt, to Maymead Inc.

But on page 17 of the application, the "Zoning Consistency Determination" form, Maymead specifically states that the property will be used for asphalt production and that the access to the property will be from state-designated scenic Highway 421 (the Doc & Merle Watson Scenic Highway).

DEVELOPING STORY: Maymead Wants To Put an Asphalt Plant on the Doc & Merle Watson Scenic Hwy

Maymead Inc. has started the application process with the NC Department of Environment and Natural Resources (DENR) to build an asphalt plant on land currently owned by Johnny Hampton (adjacent to his current rock-crushing operation) on the new Hwy 421 between Boone and Deep Gap.