[0:07] [Music]

[0:20] All right, we'll call this meeting to order. Um, thank you for those of you

[0:25] joining us in person and also on Zoom.

[0:31] Um, first item on the agenda is the roll call. Um, so Kevin is going to be our

[0:39] standing in as our alternate this evening. Um, nothing for the board to do

[0:44] on that. Uh, second item is the agenda adoption. Do I have a motion to approve

[0:48] the agenda? Motion to approve the agenda. Second. Second. All in favor? I.

[0:54] Any opposed? Agenda is approved. Um, special

[0:59] presentations. I don't believe we have any. Is that correct, Zach? Correct. No

[1:04] special presentations. Um, we'll move in the

[1:09] consent agenda. The only item there is to approve the minutes from the January

[1:13] 10th, 2024 uh meeting. Do I have a motion to

[1:17] approve the consent agenda? Motion to approve the consent agenda. A

[1:21] second. All in favor? I. Any opposed? All right, next item on the agenda is

[1:29] public hearings. We have H2023-2A. This is Benador Chemicals LLC.

[1:35] This is an appeal of administrative decision.

[1:40] Um, should we move into the uh signup sheet for public health first or

[1:49] allowed? I mean, he's the first to sign up. Please who's going to do things?

[2:04] So, let let's go ahead and go through the people who've signed up on the

[2:07] public hearing first and then we'll um move into those that are on Zoom. Um the

[2:14] first person on here, I'm sorry I can't quite make out the last name. I believe

[2:18] it's you, Mike. It is. It is Mike Felen. Yeah. Um so, we'll let you go first. If

[2:22] you could please uh come to the deis and state your name and address for the

[2:26] record. We need to

[2:30] swear everybody at the same time. Fair enough.

[2:35] Yeah. Anybody in the audience that is wishing to speak needs to stand up and

[2:39] be sworn in and Harley will do that for us. Armen.

[2:50] Okay. So, please raise your right hand. Do you solemnly affirm the testimony you

[2:54] give to the board think it will be the old truth? If so, please state yes. Yes.

[2:59] Thank you.

[3:07] Thank you, Mr. Chairman and members of the board. Um, I'm here tonight. My name

[3:12] is Mike Thielen. I'm a lawyer with WLE Bond Dickinson. Uh, my address is 555

[3:18] Fatal Street in Raleigh. I'm here in behalf of the property owner, Ventor

[3:23] Chemicals LLC. Um we had spoken um the town attorney and the attorney for the

[3:30] board, Mr. Benshaw and Mr. Cook and I had talked about um an order of

[3:34] presentation. Um as this is this is an appeal. So um because we bear the

[3:40] burden, we go first as the property owner here. Um and you'll you'll hear

[3:45] more about what we're appealing, of course. Um, but I'm going to give a

[3:50] brief opening. I'll keep it short. Just explain generally what you're going to

[3:53] hear tonight from our perspective. Then I'm going to move over to that chair and

[3:57] the witnesses. There'll be three witnesses, two from Ventor and one from

[4:02] ERM, which is um the site design engineer for Ventor for this project

[4:07] will come up here and testify from this deis. And I'll sit and ask questions

[4:11] over from the side. Just that's how it'll look visually. Um but moving very

[4:16] quickly um into what you'll hear tonight and you have this on your monitors as

[4:22] well. This is um this is an appeal um it's not it's not an appeal of an

[4:29] interpretation of the ordinance um per se. It is an interp it's an appeal

[4:34] rather of the town from our perspective from the town rendering an

[4:37] interpretation of its ordinance at our request at Ventor's request in August of

[4:43] 2022. Um the Ventor relied on that interpretation over the course of the

[4:49] next 15 months. Um that interpretation was confirmed and you'll hear about this

[4:54] tonight a couple of times by town staff over that 15-month period and then in

[4:59] November of 2023. So 15 months after that original interpretation that we

[5:05] contend is final and binding on the town and correct and legally correct um in

[5:09] our our opinion um that the town changed its interpretation

[5:14] um and you'll hear some more details on that tonight. But the first bullet here

[5:18] is just a general overarching perspective. The town is empowered to

[5:23] render, the town staff is empowered to render and property owners are entitled

[5:27] to ask for, and this is both in state law, case law, and in the town's UDO as

[5:32] well, ask for interpretations of the ordinance. Um, this happens quite

[5:37] frequently in my line of work where I have a client who's going to develop a

[5:41] project, wants to confirm that it can do um what it wants to do on the property.

[5:46] It's not seeking a permit to do what it wants to do, but it says, "I want to

[5:49] open a restaurant." Is this zoning allowed for restaurant use? Something to

[5:55] that effect. And the town writes back, "Yes, it is or no, it's not." Um, and

[5:59] those interpretations, this property is zoned, this, can we do this use on this

[6:04] property are final and binding on the town, um, and final and binding on the

[6:09] property owner as well. They're binding on us as well as a property owner,

[6:13] unless either we appeal it or the town appeals it. It's awkward, but the town

[6:17] can appeal its own interpretations. If the town staff says you can do something

[6:22] that a property owner takes that interpretation, relies on, the town does

[6:25] not appeal it, the town is bound by that interpretation. You'll hear more about

[6:30] tonight. So, June of 2022 um and this is an important fact. Ventor

[6:35] sends an email and reaches out to town staff and asks some pretty specific

[6:40] questions about what um it wants to do on its property. particular, it is

[6:45] trying to put an on-site landfill on its existing parcel. It's a large parcel. It

[6:50] has a chemical plant on the property. Um, and again, you'll hear more about

[6:54] this. There is a lagoon on the property that houses waste water from the

[6:59] chemical plant. Ventor is trying to shrink the size of that wastewater

[7:03] lagoon. And in doing so, it is going to expose some settlement, some sediment on

[7:08] the bottom of the lagoon. So, we're shrinking the size of the lagoon,

[7:11] exposing some sediment. They want to dig up that sediment instead of just having

[7:15] it sit there on the property and move it to another part of the property,

[7:19] actually further away from the boundary of the property, further to the interior

[7:23] of the property, put it into um a landfill on the same site. So, it's not

[7:28] getting anything from the chemical plant. It's only the sediment from the

[7:32] lagoon that's being shrunken in size. So, Bentor reaches out and again you'll

[7:36] see the contents of the email and asks if the proposed on-site landfill is an

[7:42] all other waste related services use permitted by right on the property.

[7:47] That's the specific question that's asked of town staff in June of

[7:53] 2022 town. Um then as part of that submission to the

[7:59] town in June um the property owner veniator gives um a pre-application

[8:04] summary sheet and on that sheet the um the property owner indicates it is not

[8:10] applying for a conditional use permit that it believes it's property to

[8:14] accommodate the on-site landfill that the on-site landfill is permitted by

[8:18] right the town then in July of 22 returns that sheet back to Ventor

[8:24] signing and accepting that pre-application sheet where Ventor does

[8:28] not apply for a conditional use permit because Ventor does not believe it needs

[8:33] at that point to obtain a conditional use permit, but it's looking for

[8:36] confirmation from the

[8:40] town. It's not advancing anymore. Oh, there we go. Thanks. Um, then August

[8:47] of 2022, this is not the determination at issue in this appeal. the town staff

[8:54] issues a letter and um that letter from our perspective was the

[9:00] zoning determination, the written interpretation that's final and binding

[9:03] on the town that says that the property quote is an approved zoning class for

[9:08] the proposed on-site industrial landfill. Neither the town nor the

[9:14] property owner appeals that determination. That's a letter from the

[9:16] town staff. It says that it says other things as well. You'll hear more about

[9:20] this letter tonight. No one appeals that determination. While I did say this is

[9:26] not about the interpretation, you will hear about the interpretation whether

[9:30] the landfill is a waste related use or whether it's some other use. But our

[9:36] position is that we don't have to show that necessarily that's the only correct

[9:40] interpretation. We have to show that that is in fact a correct interpretation

[9:44] that this is a waste related use or otherwise permitted by right. And the

[9:48] town confirmed that with its letter that it sent in August of

[9:53] 2022. 15 months later or thereabouts in November of 2023. And you'll see this as

[9:59] well. The town issues a ventor a memorandum a written memorandum from the

[10:04] town that says again under town laws the use is waste related services allowed by

[10:10] right. So the town has confirmed in our estimation what the town had told us in

[10:16] August of 2022. Then in November then two weeks

[10:21] later in November 15th of 2023, 15 months again after that interpretation

[10:27] that was given in August and confirmed over the course of the last 15

[10:31] months. Ventor gets an email from the town that says that a special use permit

[10:37] is required for the proposed on-site landfills. our opinion, it's our

[10:41] position that that is a reversal of the interpretation it gave in August of 2022

[10:47] and the count the town and the property owner are bound by that. Just just as if

[10:51] we had not appealed that interpretation, which we did not, we would have been

[10:55] bound by it. If the town told us in August of 22 we had to get a special use

[10:59] permit and we did not appeal that, we're out of luck. we've got to get a special

[11:02] use permit here because we thought that the town issued a final and binding

[11:08] interpretation in August of 22. We relied on that. It was confirmed over 15

[11:12] months. The town cannot change its position in November of 2023. You're

[11:17] going to hear from three witnesses again tonight. You're going to hear from two

[11:19] folks from Ventor who were involved in this and you're going to hear from from

[11:24] the civil site engineer at erm who's the vendor and the site design engineer for

[11:29] Ventor on this project. We will keep this as smooth and as quick as possible.

[11:33] You have binders in front of you that have the paper exhibits that we'll refer

[11:38] to as we're asking questions. And with that, do we want to I'll do we want to

[11:44] have Rich open as well or or should we just keep it rolling from this

[11:47] perspective? Um well, I'll let the the board decide

[11:52] that, but I would you know, the staff was going to present their um um staff

[11:58] report and then I was going to follow that up with my comments. Okay. So, um

[12:03] I'll leave it up to the board as to whether they want to hear from Zach next

[12:08] before the witnesses or whether you'd rather hear

[12:12] from from Mr. Theland's witnesses. Honestly, my preference would be to get

[12:17] through everybody on the signup sheet and then proceed with the order that you

[12:22] just

[12:25] suggested because this is a public hearing after

[12:28] all. Some of the folks that are signed up on there, Mr. Chairman, are the

[12:32] witnesses for Ventor. Um, so Jonathine, Kevin Robinson, and Dave Washella. Okay,

[12:40] that's all I have on the list. Let me check and see if anybody's on Zoom that

[12:44] wishes to speak. Otherwise, we'll just proceed with those

[12:48] folks. Nobody's on. Anybody else in the room? Got a hand here.

[12:57] You You'll need to be sworn in first. So Carly, if you could please

[13:11] raise your right hand so affirm the testimony to the whole board will be the

[13:16] whole truth. If so, state yes. Yes. Thank you for state your name and your

[13:19] address, please. Uh my name's Robert Smith. Uh my address is 8258 Quail

[13:24] Hollow Drive, which is uh in the county technically.

[13:29] Um, I just I just wanted to say that uh, you know, I want to thank the town

[13:36] for at least initially having uh, determined that there would be a special

[13:41] use permit uh, process because I think there are some things that are on the

[13:47] local interest that may not have been, you know, in the awareness of the people

[13:53] at the state level or other levels higher that I think should be uh,

[13:57] considered. And in particular, it's the land across

[14:03] from the Vintor site that's now owned by the town. Hasn't been owned by the town

[14:09] too long, as far as I understand it, maybe 10 years. Uh, and it's a historic

[14:15] site where the old mill used to be. And it's also a place where at least there

[14:22] was some discussion as I understand as an outsider of possibly being a park.

[14:28] And I have used that property to access the river. I know that other people do

[14:35] the same thing. And so my concern relates

[14:39] to what is done to make sure that water is safe to access. And I haven't had

[14:45] time to read all the documents, but I've looked at some of the

[14:50] um annual report uh groundwater monitoring ground uh

[14:57] groundwater reports and um there are parameters that are out of spec so to

[15:04] speak and I think those concerns ought to be considered on a local level. So

[15:09] I'm not a lawyer. I have no idea about the uh procedural concerns, but I just

[15:15] wanted to say that I went to the public hearing that was held in December uh and

[15:20] I looked forward to digging into this a little more and so I was surprised to

[15:24] find out that the process was kind of being

[15:26] derailed. Uh that's about all I have. Okay. Thank you, sir.

[15:34] You want me to?

[15:40] Um I'm just I'm I'm fine to do that. Yeah. All right. So, um we do want to do

[15:45] any disclosures if there are any. So, um I'll just read this for the board. Um

[15:51] the the parties to this case are entitled to an impartial board. A board

[15:55] member may not participate in this hearing if he or she has a fixed opinion

[15:58] about the matter, a financial interest in the outcome of the matter, or a close

[16:03] relationship with an affected person. Does any board member have any

[16:07] partiality to disclose and recusal to offer to the chair?

[16:13] Nope. Okay. Thanks, sir. Um, so we'll uh let the town make an opening statement.

[16:21] Um and then um you can do your presentation again with your witnesses

[16:25] uh with cross-examination by the town.

[16:58] So, go ahead. Uh, I'm not sure Mike's on. That's fine.

[17:06] Uh the the the order of the meeting is opening

[17:11] statements and then the appellent ventor puts their case on and then you put your

[17:16] case on. So So this would be your opening

[17:21] statement and not not your not your your whole presentation. I I frankly I would

[17:29] just stick to my staff report and I I don't need to make an opening statement.

[17:35] Well, that well that's not an that's not an opening statement. That's that's your

[17:40] case.

[17:48] So, if I understand you want my presentation?

[17:53] Uh, no. I want to know if you have an opening statement, a summary of of your

[17:58] case that you will put on after Ventor.

[18:06] I will provide you with a brief summary.

[18:16] So, the appeal before you this evening is

[18:23] to determine whether staff's determination or to to make a decision

[18:30] whether the determination of staff was appropriate that a special use permit is

[18:35] required for the proposed um industrial landfill. Uh we believe that the

[18:43] determination was appropriate um based on the ordinance based on the um

[18:49] definitions for heavy industry, light industry, waste disposal services and um

[18:56] we also believe that the um the letter that was issued was not binding. Um in

[19:04] fact it was a uh an assessment of the zoning at the time uh not of the

[19:10] proposed use. Um and uh that letter did include uh ample um um notation that

[19:20] rules and regulations of the town still had to be um adhered to. And so we will

[19:29] um present and we will um address the uh issues that were raised by the applicant

[19:39] in their application. Primarily two points. Uh first point uh was that the

[19:45] letter uh issued by our code enforcement officer Tom Leser was binding and final.

[19:51] We'll address that. Um and then secondly we will address the

[19:57] um determination made by staff and the uh allegation by the applicant that that

[20:07] was erroneous because the use is not heavy

[20:12] industrial but in fact it is light industry light industrial and or uh

[20:17] waste disposal services. So we we we will address that. Um and uh we believe

[20:23] that um the determination was appropriate. Um it was in line with the

[20:28] UDO and uh it should be

[20:33] supported. That that concludes. Thank you.

[20:40] So if you'd like to make your presentation.

[20:46] Yes. Thank you, Mr. Chairman. I would call Jonath Stein to testify.

[20:56] Are these the exhibits? Yes, they are. State your name and your address. Um,

[21:01] Jonath Stein, 1010 Waldorf Avenue, Monroe, North Carolina.

[21:10] Can we go back to the uh to the beginning of my PowerPoint if you don't

[21:14] mind? I know we're jumping around here. Sorry about that.

[21:32] Thank you.

[21:39] Okay. Miss Son, do you work for Ventor Chemicals? Yes, I do. What is your title

[21:43] at Venager? My title is environmental health and safety manager. And have you

[21:48] been involved in Venetra's efforts to locate the proposed on-site landfill on

[21:52] Ventor's property? Yes, I have. As part of that involvement in 2022, did you

[21:57] discuss with the town staff the proposed on-site industrial landfill and how the

[22:01] town's laws address the permitting of the landfill? Yes, I did.

[22:07] If you could turn in your binders, please, to um to exhibit one.

[22:13] It's also up here. Um the portion of which is up here on the slides. And Miss

[22:18] Stein, what is this document behind page one? Um this is a document that I said

[22:24] to or sent to Craig Thomas of the town. Um which basically covers the

[22:30] description of the project that we were doing and it's also where I submitted

[22:35] the forms required for the zoning determination. Okay. And who is Mr.

[22:40] Thomas? Mr. Thomas was the senior planner at that time. All right. And um

[22:44] and why did you send this email to Mr. Thomas back in June of 2022? So

[22:50] basically the company was undertaking a new project. We knew we would need

[22:55] zoning approval and uh the zoning determination was also required by the

[23:00] state of North Carolina. So, we were seeking to get clarification from the

[23:05] town on whether the site was acceptable for proposed industrial solid waste

[23:11] landfill and we needed that documentation to send into the state.

[23:17] Okay. And does your email describe the proposed landfill to Mr. Thomas? Yeah,

[23:22] basically it says that it's an industrial solid waste landfill.

[23:26] um that it meets the definition of a waste management unit which is there

[23:31] solely to support the industrial use of the site. That it meets the um the

[23:38] zoning uh buffers required by the state which was 200 ft from the property line

[23:44] and 500 ft from for residences. And um it also indicated

[23:50] that we would not be taking waste from off-site sources. we would only be

[23:55] getting waste from on-site from the lagoon. So, that was part of the

[23:59] description in the email. Thank you. And this email contains some attachments,

[24:04] too. Is that correct? Yes, sir. It contains um basically the email. Uh

[24:10] there was an aerial photograph of the site showing the landfill location, the

[24:14] proposed landfill location. Right, that's the picture on the left. And then

[24:19] it had a site plan, which you can see is a more technical document, um, a drawing

[24:24] of the proposed landfill. And it also had the pre-application form that the

[24:30] town requires and it also had a table from the UDO that we were specifically

[24:35] asking questions on. Okay. Going back to the email, Miss

[24:40] Stein, um, in the third paragraph there that begins our understanding.

[24:46] Yes. Can you read um starting with that second sentence from the attached can

[24:51] you read that all the way to the end of that paragraph into the record please?

[24:59] So from the attached land use tables from the UDO, development of an on-site

[25:05] industrial landfill that will only receive on-site generated waste for

[25:10] waste management would be deemed all other waste related services and is

[25:15] permitted within EC zoning. We arrive at this conclusion as we are not developing

[25:21] a demolition landfill permitted with limitations or a salvage yard permitted

[25:27] as special use. This opinion is formed by interpreting Harrisburg's newly

[25:32] adopted UDO. Hopefully, you can provide clarification on this issue. Thank you.

[25:39] So, with this email, are you seeking the town's interpretation of its UDO as

[25:43] applies to the use that you've described in this email and attachments? Yes.

[25:48] Okay. Um, going back to the attachments to the email, the one that's there on

[25:53] the right, um, and it's page five of this exhibit from a pageionation

[25:58] standpoint, uh, there's no pageionation, but if you turn to to the fifth

[26:03] sheet to the fifth sheet, which is the the

[26:07] pre-application meeting summary, the fifth sheet behind this tab one, this is

[26:13] one of the attachments to your June 2022 email. Is that correct? Correct. At the

[26:17] bottom right under miscellaneous, you see there at the top there's a bunch of

[26:21] check boxes and there's one for conditional use permit. Do you see that?

[26:25] Yes, I do. And that's not checked, is it? It is not. Why is that not checked?

[26:29] Well, as I said in the um introduction to the email, we thought the site was um

[26:36] met the definition of waste related services and based on the UDO UDO table

[26:42] that that would be permitted by rights. So, we didn't think a special use permit

[26:45] was needed. Okay. Thank you. So, moving on to exhibit two. If you could flip the

[26:51] tab to exhibit two.

[27:05] And what is this document? Uh, basically it's a snippet from the town

[27:10] regulations. Okay. And about halfway down, do you see

[27:14] the term waste related use? Yes, I do. So, is that the definition from the

[27:18] town's UDO that you were seeking the town's guidance on with your June email?

[27:25] Yes. With regard to whether your proposed on-site landfill met that use

[27:29] determination? Yes. Okay. And is that permitted as of right, that particular

[27:34] use on the property? According to that UDO table that we sent along with the

[27:39] application, yes, it was. Okay.

[27:45] Did you get a response from Mr. Thomas to your June 6, 20122 email behind

[27:50] exhibit one? Uh, it took not right away. So, I had to call and or emailed him to

[27:55] follow up with him. Okay. Um, let's go to tab three, please. Um, everybody

[28:03] behind tab three in the exhibit binder. Um, and what is this document, Miss

[28:08] Stein? This is the um pre-application meeting

[28:12] summary. Okay. Is does this look like the same summary that you submitted with

[28:16] your June email? Um it's it's somewhat different.

[28:23] How is it different? Because it has um fees associated with it. I did not put

[28:29] in any fees when I submitted the form. And it also has uh approval

[28:34] signatures on the back page. Okay. Turning to that back page and again

[28:40] thank you to all for jumping around. Two, three, four, five. It's the fifth

[28:46] [Music] page of this exhibit

[28:50] three. And here it is in front of you as well on your monitors. Um, turn to that

[28:56] fifth page at the top there. Do you see where it says participant information

[29:01] and acceptance of requirements? Do you see that, Miss

[29:04] Stein? Yes. Um, and are are those signatures are those are those

[29:09] signatures um of town staff members? Yes. Craig Thomas and Patrick Kings.

[29:16] Okay. And then going back to the first page, this is the last time I promise

[29:20] everybody the back to the first page of that exhibit three. Do you see where um

[29:26] that conditional use permit block? Do you see how that's been

[29:31] um does that remain unchecked? Right. Once again, we didn't believe a

[29:36] conditional use permit was required because we believed the interpretation

[29:41] of the UDO was waste related services permitted by right within that zoning

[29:46] class. Okay. So, this still so this exhibit three, it still has the

[29:51] conditional use permit unchecked, but the town at this point, town staff in

[29:55] your understanding has filled in fee amounts and has signed and accepted this

[29:59] application summary form. Yes. without that conditional use permit block

[30:04] checked. Yes. Okay. Thank you.

[30:11] All right. And so you mentioned you didn't hear from Mr. Thomas for a few

[30:14] weeks. Um flipping to exhibit four behind your binders.

[30:23] And what is this document, Miss Sign? So, basically, this is an email where I

[30:27] reached out to Craig Thomas checking on the status of the zoning determination.

[30:39] Okay. And how does he respond to you in this

[30:44] email? So, at this time, um, when I emailed him, he responded by asking for

[30:50] a formal site plan. Uh, we were a little surprised by that. We didn't think we

[30:55] needed a formal site plan at this point. Um, I told him we were looking for a

[31:00] zoning determination in order to comply with

[31:03] the state regulations under um, North Carolina Administrative Code

[31:10] 15A 13B, which are the application requirements for industrial solid waste

[31:17] landfills. So I specifically called out we were trying to meet the requirements

[31:22] of that regulation and basically that regulation requires that the person

[31:29] putting in the landfill get a zoning approval and or that the property is not

[31:34] zoned. So that's what we were looking for. Um, and then he asked me, um, if I

[31:40] had an example of what was needed and, um, you know, I provided, I think,

[31:48] another follow-up email to him on that. We did. We did. Okay. So, if you'll flip

[31:54] to exhibit five.

[32:01] And what is this document, Miss Stein? This is the um draft letter that I put

[32:06] together to send to Craig so he would have a starting point for his zoning

[32:11] determination. Okay. And then turning to the second

[32:15] page of this exhibit, is this the language you provided to Mr. Thomas as

[32:21] attached to that email on August 18th of 2022? Yes, it is. Okay.

[32:31] So he asked you for a form of letter that you might an example and

[32:38] this is what you provided to him. Okay. And did you send that consistent with

[32:43] your understanding at the time that this proposed on-site landfill is a waste

[32:48] related use permitted by right on the property? Correct. You know no uses had

[32:54] changed. No, nothing had changed in our aside from what we thought was required.

[32:59] Okay, flipping to exhibit six in your tab, please.

[33:08] And what is this document, Miss Sign? So, this is the letter that we got from

[33:13] the town um on August 19th, 2022, a zoning determination letter, which

[33:19] basically said that the proposed industrial landfill zoning was

[33:24] acceptable. Objection, please. She can read the letter or read from the letter,

[33:29] but she can't characterize. Okay. Can you read

[33:35] from the second page of the letter, Miss Stein? had objections to say anything.

[33:45] So,

[33:48] what do you want me to do? Can you read from that top portion of that second

[33:52] page? The first paragraph of the second page. The town of Harrisburg is in

[33:57] receipt of a pre-application meeting summary form, site layout map, and a

[34:03] preliminary site plan which shows the proposed on-site industrial landfill.

[34:08] The current zoning is an approved zoning zoning class for the proposed on-site

[34:14] industrial landfill. And did you understand this to confirm

[34:18] your email of June 2022 as what the use was? Yeah, we did.

[34:24] And you understood that house specifically how did you understand

[34:27] that? So we understood it because the way we

[34:33] phrased the question that it was a waste related use. Um, and it was permitted by

[34:40] right under that UDO chart that we submitted in our

[34:52] email. All right. Now going back, I'm sorry again for the toggling everybody,

[34:58] but going back to exhibit five and M Stein to exhibit five and

[35:04] that draft language that you provided to Mr. Thomas in exhibit

[35:09] five and then going to exhibit

[35:15] six to that language at the top of the second

[35:19] page. Does that language appear to be the same to you? It does.

[35:24] Okay. And what did you take away from that?

[35:28] Um, basically the same same thing that uh the industrial the proposed

[35:34] industrial solid waste landfill was a waste related use permitted by Wright.

[35:51] Did Ventor Did Ventor ever appeal that

[35:55] August 19th, 2022 No. letter? Did the town ever appeal to your knowledge that

[36:02] August 19th, 2022 letter? Okay. Uh, did Ventor rely on that August 2022 letter

[36:10] as a as a zoning determination? Yeah, very much so. So because we got that

[36:14] zoning determination letter that we thought believed that the site was

[36:18] approved for the landfill, we basically began um our final design process. So

[36:26] this was a lot of work over 15 months to um do the design. Some of that design

[36:35] included uh developing a site suitability report, an environmental

[36:40] justice report, a hydrogeeologic report. We also did a postclosure care um uh

[36:47] plan. We did an operating plan. We developed a qual um a CQA plan, a

[36:54] construction quality assurance plan. We developed technical specifications for

[36:59] the design of the landfill. We also did numerous engineering drawings um and

[37:05] spent a lot of time and effort um getting that that design work done. And

[37:12] so it really put us in a a difficult position when uh we found out that you

[37:18] know we needed a special use permit. But but yeah, that's we really relied on

[37:22] that decision to go forward with the project.

[37:27] So, had the town told Ventor in August of 2022 that a special use permit was

[37:32] necessary for the proposed project, would Ventor have pursued that permit

[37:37] before all those other tests and approvals that you just mentioned?

[37:42] Right. We would have, you know, done the special use permit application process

[37:47] um before we did the final design work. And in fact, we submitted that letter to

[37:52] the state. So that that approval letter we got on the 19th, we actually

[37:56] submitted to North Carolina DEEQ solid waste. So this has been moved along the

[38:01] you know the regulatory chain because we believed it was accepted.

[38:06] To your knowledge, has a state accepted that as confirmation that the use is

[38:11] permitted as of right on the property? I don't believe we've gotten specific

[38:14] confirmation on that. The application process is still ongoing.

[38:18] Okay. Now, if you could turn to um tab seven to exhibit seven,

[38:25] please behind your

[38:29] binders. And have you seen this email before? Yeah, this is an email uh to uh

[38:37] Craig Thomas from Michael Thomas back in November of

[38:42] 2023. Uh we were basically checking in uh looking for the next steps. uh but as

[38:48] we're really getting ready to start the project. And who is Michael Thomas?

[38:53] Michael Thomas is a construction project manager that we hired um to begin the

[39:00] management of the landfill project. And if you'll turn to the fourth page of

[39:08] this

[39:10] tab, you'll see a document that begins there.

[39:17] And have you seen this portion of this document before, Miss Stein? Yeah, this

[39:21] is a pre-application uh summary form, I

[39:25] believe, that the town requested that we submit to them. Okay. And if you'll go

[39:29] down to to section two, the type of application required, right? And then

[39:35] under subsection C where it says quasi judicial applications, do you see where

[39:40] it says special use permit? Yes, sir. Is that checked? No, it's not. Okay. And

[39:45] this was submitted to the town by Michael Thomas. Is that correct?

[39:48] Correct. Okay. And at the top there in line one, it says Ventor Chemicals

[39:55] on-site industrial landfill. Is that correct? That's correct. And had the

[39:59] project changed from a use standpoint, maybe

[40:03] things had changed on the margins. We'll hear about that. But had the project

[40:06] changed from a use standpoint the time of the August letter that we just talked

[40:11] about and the submission of this document by Mr. Thomas in November of

[40:15] 2023. No, the use has not changed. Okay. And then flipping to the next exhibit,

[40:23] exhibit 8.

[40:26] Have you seen this document before, Miss Stein? Yes. Okay. And what is this

[40:31] document? This document is a memo from the town of Harrisburg, uh, Mr. Craig

[40:37] Thomas to Ventor Chem Chemicals, Mr. Michael Thomas.

[40:45] Okay. And you've seen this document before, correct? Right. Yes. And we

[40:48] talked about who Mr. Thomas is with Ventor. If you'll look down um in that I

[40:54] guess that bottom half of the first page where it says proposed use, right? Can

[40:59] you tell me what it says going across from proposed use? Right. It says uh uh

[41:04] landfill and then it says waste related services allowed by right. Okay. And did

[41:09] you understand that to be again consistent with the August 2022

[41:14] determination? Right. This is consistent with you know our original questions to

[41:18] the town and the documentation that we've been seeing receiving from the

[41:22] town since since uh June of 2022. Okay. And what is this document dated? Uh 111

[41:31] or excuse me 112 2023. Okay. So, this is from this past November, 15 months after

[41:37] that August, right, 2022 letter. Okay. And then if you'll flip the page,

[41:44] and you'll look at the top there, I'm says phase one,

[41:51] right? Can you read to me what it says? Um, across from phase one, it says this

[41:57] would require the removal of some existing heritage trees. applicant is

[42:01] aware tree mitigation is required and has ample space to replant trees

[42:07] elsewhere on site. On-site industrial landfill will only receive on-site

[42:12] generated waste on-site generated waste for waste

[42:17] management is all other waste related services. Okay. And is that also

[42:21] consistent with what you understood from that August

[42:26] 2022 letter confirming what you understood to be in your June 2022.

[42:31] Correct. Waste related uses uh permitted by right. Okay. And then moving up a

[42:36] bit. I'm sorry. Going back to the first page again. I apologize for

[42:40] toggling where it says process. Process. Uh, do you see halfway down or

[42:48] about maybe 2/ird of the way down the page on the first page?

[42:55] Uh, I see site zoning, proposed use, setbacks, park. Oh, process. Okay, got

[43:00] it. Okay. And you see where it says um pre-application site plan reviews SCP

[43:07] construction docs. Correct. Did that set off any bells or any alarms in Ventor's

[43:13] mind in terms of a departure from what Ventor understood? Was the use permitted

[43:18] by right? No, it didn't really. And you know if if anything it would have

[43:23] applied we thought it would have applied to the chemical manufacturing process

[43:28] itself. Um which is totally separated. You know we have 104 acres. So it's very

[43:33] separate from this proposed landfill use is very different. Okay. And at the

[43:39] bottom there of that same page, the second paragraph where it says the land

[43:44] use, assembly or processing of chemicals is characterized as heavy industrial in

[43:48] the UDO and requires a special use permit. Did you feel that was the same

[43:54] in terms of how you understood Yeah. that middle section? Yeah. That that was

[43:57] related to the chemical manufacturing process um production of uh finished

[44:03] goods and such. uh but not this waste related use of the landfill. We saw that

[44:09] as two separate things. Okay. So your understanding of this memo is that it

[44:14] was confirming again in August um in November, excuse me, of 23 what you

[44:20] understood the town had had determined in August of 22. Is that correct? Right.

[44:24] It seemed very consistent with everything else we had gotten from the

[44:27] town. Okay. Um if you'll flip to the next exhibit, exhibit nine.

[44:33] Have you seen this email before? Yes, this is uh an email from the town

[44:38] Shelley Deart to Michael Thomas of Venator Chemicals, November

[44:43] 15th, 2023. And it basically states uh very

[44:50] surprisingly to us um after 15 months of going through this zoning process that

[44:57] um the site now needs a special use permit.

[45:02] Okay. And was this a surprise to Ventor? Very much so. Why

[45:06] was it a surprise to Ventor? Well, because we had that zoning determination

[45:11] letter from August 2022 which we had submitted in our

[45:16] application process to the state and we felt that we were approved from a zoning

[45:21] perspective.

[45:25] Now, did you believe that the August 2022

[45:28] determination to have answered your email in June of 22? I did. Did you

[45:33] believe it to be correct? I did. Do you believe that this interpretation is

[45:37] correct that the use requires the special use permit? So, this one we we

[45:42] disagreed with, right? We thought that our landfill was a different use

[45:46] altogether. It was that waste related services and based on our interpretation

[45:50] of the ADO table that that was permitted by Wright.

[45:54] Thank you. I have nothing further, Mr. Chairman. Thank you, your witness. Yes.

[45:59] Thank you. Um, Miss Stein, how long have you been with Vanitor Chemicals? 22

[46:06] years. Thank you. And um um when did Vanitor acquire the Chemical

[46:13] Specialties site out here in Harrison? Do you know? I think it dates back to

[46:18] 1965. So, Vantor has owned it. No, I Oh, you

[46:23] mean how long have they owned it? Ventor. Yes. Uh

[46:28] [Music] 2014. I think it was

[46:32] 2014. We were acquired by Huntsman and then Huntsman had a spin-off and it

[46:38] became Ventor Chemicals. I think around 2014.

[46:42] So, uh, prior to that, are you familiar with with the approvals for that site,

[46:49] um, by the town, uh, with reference to all the activities that are out there in

[46:54] connection with that chemical plant? So, if not really, if you're referring to

[47:01] the 2002 uh, special use permit required, no,

[47:05] that was before I came on site. They didn't come on site to 2005.

[47:10] But you are aware of that. It's actually in your exhibit 8 that that is mentioned

[47:15] in this memo. I'm aware of it because Miss Deart sent that to us when she told

[47:20] us that the town had changed their position um and they now wanted a

[47:25] special use permit. That's when I became aware of it. Well, uh I would object you

[47:31] saying the town changed its position. you the the documents speak for

[47:36] themselves, but that's how you interpret that's how I interpreted it that the

[47:40] town changed its position. Okay. Yeah. So, you did not investigate the the

[47:46] history of of this site um back to the time that it became chemical specialties

[47:53] prior to the time that Bentor took it over. Is that correct? I did not.

[47:58] Um but now you see in this memo exhibit 8 that there had been a um some changes

[48:05] to this this site and that they required a special use per correct.

[48:12] As I said I thought the special use permit was related to more of the

[48:16] chemical manufacturing piece of it but we we did see this. Yes, I understand

[48:20] you said that and I would ask you um look at the memo. It says proposed use

[48:26] landfill. Um, does that say anything about the chemical plant itself anywhere

[48:31] in here? No, it says landfill. Okay. And this is

[48:36] one parcel that's over 100 acres. Is that right? Yes. Best of my knowledge.

[48:42] Have you been out to the site? To our site? Yes, sir. There every day.

[48:49] And

[48:51] um there's been a chemical plant out there for as long as you you've been

[48:56] involved with it. Is that correct? That's correct. All right. And the um

[49:01] and that chemical plant develops waste, doesn't it? It does. And that waste is

[49:07] what was placed in the lagoon. Isn't that correct? Uh from a regulatory

[49:13] standpoint, it's not waste. It's a wastewater treatment discharge.

[49:18] Uh the regulatory definition does make a difference. So it is wastewater

[49:23] treatment discharge. The lagoon is part of a permitted NPDS system. Well, it

[49:28] also has some solid waste in the bottom of it. It does create a sediment. Yes,

[49:32] sir. And that that basically came from the chemical manufacturing, did it not?

[49:37] It comes from the chemical manufacturing and that's done on site. The chemical

[49:41] manufacturing is done on site. Correct. So really um this proposed um new use

[49:47] that you are describing is really just a change in the way you're going to deal

[49:52] with the waste that you generate from the pet chemical plant that's on that

[49:56] same parcel. Right. No, the waste management the the way we wastewater

[50:01] treat the the waste from the manufacturing process is not going to

[50:06] change. It's still going to go to the lagoon and the sediments we're proposing

[50:11] go to the from a lagoon to the landfill. So the waste is not going to change or

[50:15] the way we deal with it will not change. But it's not you're not bringing in

[50:19] waste from offsite. We are not. It's all what is generated by the chemical plant

[50:24] on that part. That's correct. And and you don't know what the history of is of

[50:31] that of site when there have been changes to the chemical plant. Do you?

[50:36] Well, I know a lot of regulatory history. I don't know the zoning

[50:39] history. So, let me clarify that. So, um you know, I am an environmental health

[50:45] and safety manager, so I know a lot about the regulatory history. Um but I'm

[50:50] I'm not a zoning expert history on the site. So, that I don't know as much

[50:54] about.

[50:58] Now, um, having said that, are you aware that

[51:02] there are there are NOVs that have not been complied with on that site with

[51:07] reference to the U to the way it the waste has been

[51:12] handled on that site, but from the chemical manufacturing is true? I'll

[51:17] object to that, Mr. Chairman. That's irrelevant.

[51:29] Objection

[51:39] sustained. Let me take you back to your first review. uh number of blinds. That

[51:45] was that email from you to um Craig's comm right and other people

[51:53] in which you describe um that you looked at the Harrisburg UDO and made some

[51:59] determinations on your own. Um is that correct? That's correct. And um did you

[52:05] not just tell me that you don't know that much about J zoning? I'm not a

[52:08] zoning expert. Okay. So, but we we did work with erm and based on their

[52:14] experience and other experiences that they've had with other landfills,

[52:20] um we do look at regulations quite a bit. So, we did read the regulations and

[52:24] try to make an interpretation. But this is your email. Yes, it is. This is your

[52:28] what you uh said. Well, when you made your determination of the UDO um that's

[52:36] described in this email, did you look at table

[52:42] 140.02.02-2 that has the zoning um send me to an exhibit. I don't have that

[52:50] exactly in your um your your attorney point brief. Um it's labeled as exhibit

[52:57] one to that point brief. And um so I can hand it I I think I've got it right.

[53:04] Yeah, that looks like it. Yeah, this is the portion of the table that we looked

[53:08] at. You did look at it. Yes, sir. And are you aware what the zoning is for

[53:14] this property? It's EC employment center. It's one parcel.

[53:19] Correct. Correct. It includes the the chemical plant. Correct. Right. And um

[53:26] what does EC um zoning say about heavy industrial according to this

[53:32] table? It says uh S and what does S stand for? According to the table,

[53:37] permitted as special use. Thank you.

[53:44] Um, do you um dispute that that a chemical plant is is not heavy

[53:50] industrial? Well, I would have to go back to the

[53:54] zoning definitions to make that determination. That would be how I would

[53:58] handle that. As a regulatory person, I always go back to my definitions to look

[54:03] at the regulatory definition. I don't have that memorized.

[54:13] Um, it's actually exhibit 11 in your book. Exhibit 11.

[54:25] Okay. Did you want me to read it or if you read out loud? Uh, you can't. You

[54:31] can go ahead and read the whole um definition of heavy industrial. You can

[54:36] start with paragraph two if you want to. Okay. Uses in this category include

[54:41] establishments that manufacture or process asphalt and coal, cement,

[54:46] concrete, ready mix and concrete products, chemicals, clay and brick,

[54:51] concrete, dry mix, food, metals, petroleum, stucco and synthetic stone

[54:57] and other uses meeting the definition of heavy industrial according to the

[55:01] director. So chemicals is included in that. Would you not agree that that the

[55:08] chemicals that are manufactured by Vantor in that plant

[55:13] um would be considered heavy industrial? Certainly that part of the manufacturing

[55:18] process could be considered heavy

[55:30] industrial. And that's what it says in the memo that is exhibit 8 m

[55:44] under findings. Under findings does it not state that? Uh let's see.

[55:52] Yes. Under the second paragraph the land use assembled that that sentence. Yes.

[55:59] So despite all this language in here under findings and um what you said

[56:05] about the process which doesn't say anything about chemicals in that part of

[56:10] it uh just talks about what would be needed in terms of documentation that

[56:15] you you believe that this just applied uh to or that you you believe that that

[56:20] just applied to the to the chemical plant that's on part of this same park

[56:25] and it didn't apply to to what you're talking about here with reference to to

[56:29] the waste that comes from, right? Because the the landfill is so different

[56:33] in terms of use from the chemical plant. In my mind, they're just two separate

[56:38] things. Would you say that about the the dock, the loading dock on the chemical

[56:44] plant? Wouldn't that be a different use from from manufacturing chemicals? It it

[56:50] could be. I mean, it's kind of an ancillary function. It's not actually

[56:53] the manufacturing. It's I guess an ancillary function of chemical

[56:57] manufacturing. So what you're saying to this board is that if you if you

[57:02] separate out you can separate out certain different parts of the chem

[57:07] chemical manufacturing uh process the

[57:11] actual manufacturer of them from from the um the sales from the um um from the

[57:20] just distribution of of of the chemicals and from the waste that's produced from

[57:26] the chemicals that that's stored on the site. Yeah, those are all separate.

[57:31] There's certainly different pieces of the process, but it's still part of of

[57:36] chemical manufacturing. Would you not say that?

[57:40] I I'll agree to

[57:53] that. Um

[57:57] the pre-application meeting summary that's under exhibit three.

[58:03] Um that was filled out by Ventor by you, was it not? Correct.

[58:09] And it's not completely filled in. It it just partially filled. Correct.

[58:17] Uh, we filled in what we believed to be applicable

[58:21] and didn't fill in what you didn't believe to be completely. Is that right?

[58:27] We filled in what we believe to be applicable,

[58:34] but it wasn't a completed document. It was just submitted with what you felt

[58:38] like you needed to submit. This document's tough. Um, this is a document

[58:43] required by the town. Um, and it uh, you know, it's they they're requesting that

[58:49] the applicants submit them. So, we we fill them out to the best of our ability

[58:58] and then um, that was actually sent back to you from the town at a later point.

[59:04] Is that right? Yes. Right. Now, let me uh direct you to your exhibit four.

[59:13] Um, and these are the emails that went back and forth uh between you and and

[59:18] Craig Thomas with the town. And I had I mean we could read through them, but

[59:25] would could you would you believe that that when you got the responses from

[59:31] Craig that um it appeared to you that he was confused confused about what he

[59:37] wanted? Um, would that be a fair statement?

[59:42] I I don't know that he was confused. I think he just was asking for um because

[59:48] that it's specifically had to comply with that 15

[59:53] NCAAC13B. I think he was looking for what the requirements were for from that

[59:58] regulatory statute. But later in these exhibits, didn't you send him the

[1:00:04] language because he did not have it? I sent him one one paragraph on this

[1:00:09] particular application to that regulatory citation which is um language

[1:00:15] that you that you want to be put in the letter. Is that correct? It's language I

[1:00:19] thought would comply with the regulation. Yes, that was a state

[1:00:23] regulation. It is a state regulation, not a town regulation. Correct. Correct.

[1:00:27] And so, um, so for that letter to be prepared, um, uh, the town used your

[1:00:36] language, um, that was put in the letter. Yes. Rather than its own

[1:00:41] language? Yes.

[1:00:49] Would that not indicate to you that that Mr. Thomas was was confused about what

[1:00:54] was needed in the letter? I I don't really want to comment. Do I

[1:00:59] have to comment on his whether he was confused or not? I I don't know. I was

[1:01:03] just trying to provide guidance. If he knew what to do, he could have developed

[1:01:08] his own letter without your language. Could he not have? I was providing

[1:01:12] guidance on that one regulatory citation. I don't know if he was

[1:01:15] confused or not because that's what you need. It is what I needed. It is what we

[1:01:19] needed to comply with the regulation.

[1:01:38] Now, you you you talked about all this um reliance that you've done on that

[1:01:43] letter and um I haven't seen any documentation of any of that. Uh we've

[1:01:49] heard what you said that you did all these studies and whatnot. I haven't

[1:01:52] seen any of that in your um in your sub submittals. Um and I

[1:02:00] would ask you, you've not um started actual work on that site, have you?

[1:02:06] No, but that documentation was all submitted to the North Carolina DEEQ in

[1:02:12] November of 2023. So, it's public record. It's out there. And in fact,

[1:02:17] many of those same engineering drawings were provided to the town.

[1:02:21] So we do have it. It is public record. Um so it's out there. What what year do

[1:02:27] you say that was? Uh last year 2023. Okay. So it wasn't submitted right after

[1:02:33] that letter. No, we had to develop all that was part of the 15 months of work

[1:02:39] after we thought we were approved. We did all this engineering work and that

[1:02:43] was submitted to the state in November. But not submitted to the town.

[1:02:50] No. the engineering drawings came to the

[1:02:54] town, but these are documents that are required by uh solid waste.

[1:03:22] The letter that you say you're relying on was not written by Mr. Tom Thomas,

[1:03:27] was it? I think the signatory was Mr. Leser, was it not? It's exhibit. What

[1:03:35] exhibit is that? Six. Six.

[1:03:41] He lives to the code enforcement officer for the town. Is that right? Correct.

[1:03:47] And and show it. This letter was not written by the planning director for the

[1:03:53] town. Um the zoning verification letter was not by the planning director.

[1:04:00] Correct. It was signed by Tom Leser.

[1:04:18] I think I'm just about finished.

[1:06:13] That's all the questions I have. Mr. Chairman, thank you. Does the board have

[1:06:16] any questions for

[1:06:37] Miss Stein, are you is your operation currently operating under a special use

[1:06:41] permit? I believe the an addition to the um

[1:06:48] plant made in 2002. Uh the ACQ tank farm was that piece of it. Those are 18 tanks

[1:06:59] um and a truck loading area fall under that special use

[1:07:04] permit. Other than that, I'm not aware of any for the entire site.

[1:07:10] I don't know how that works. So I I don't know. And what about the existing

[1:07:15] closed landfill that's there now? So the

[1:07:20] existing closed landfill that's there now is there under a Rickra part B

[1:07:26] operating permit for postclosure care landfill. But did it have a special use

[1:07:31] permit? I don't know. I don't know the answer to that question.

[1:07:39] It's deed restricted, but I don't know about the

[1:07:44] permitting that was done gosh like in the 80s, 90s. It's been closed for well

[1:07:52] over 30 years. So there is no landfill on the property

[1:07:57] now? No, it's still there. There's a closed landfill on the site. And so what

[1:08:01] are you using today as a landfill? We don't have a landfill on site, an

[1:08:08] active landfill. So that closed landfill is not related to the current operation

[1:08:14] or the lagoon or the new landfill. It was from a remediation that was done on

[1:08:20] site back in the 1980s. So today, your waste goes in the lagoon.

[1:08:27] The treated waste water goes into the lagoon. The solids settle to the bottom

[1:08:33] of the lagoon and the waters are discharged to the Rocky River under an

[1:08:37] NPDS permit.

[1:08:44] So, how many solid waste management units are currently on the subject the

[1:08:51] site? Yes. 112.

[1:08:56] Now, these aren't lagoons, but you asked me about a very specific regulatory

[1:09:00] term, which is solid waste management unit, which can be any place that had

[1:09:06] you had a chemical stored or you used a chemical. So, all that's documented very

[1:09:12] clearly in our Rickra apartment permit and is part of the history of the site.

[1:09:19] But um so you can't you can't think about those things in terms of a lagoon

[1:09:23] because they're not in terms of those 112 how how many are active?

[1:09:30] Um most of them are closed but but some of them are in active production

[1:09:38] areas. So I don't want you to get the wrong impression. Solid waste management

[1:09:42] unit is anywhere a chemical is really not related to the landfill uh

[1:09:49] issue. These are issues related to uh the chemical manufacturing process more

[1:10:02] so can you help clarify something for me? I see an a pre-application

[1:10:07] conference summary here. Which exhibit? This tab seven submitted

[1:10:14] by Michael Thomas. I understand.

[1:10:20] I have some confusion because the date on this exhibit says November 1st, 20.

[1:10:27] It's 111 2023. Okay.

[1:10:36] So he submitted it on the from the email 1112023.

[1:10:41] Yeah, I think that went to Craig via email.

[1:10:50] Okay. So my So that the date is incorrect on the on the pre-application.

[1:10:57] It looks Yeah, it's wrong. It says 11120. Okay. Thank you. Any other

[1:11:03] questions now? Just just for the record, sorry, just

[1:11:09] for the record, Miss Stein, not everybody knows what RCRA is. If you

[1:11:13] could could say what the acronym stands for. Okay, so RCRA is the Resource

[1:11:19] Conservation and Recovery Act. It's a part of the

[1:11:22] EPA waste regulations. Um, and as I said, the site is regulated

[1:11:28] under RCRA because of activities that took place back in the 1980s,

[1:11:34] 1990s. There were other lagoons on the site. They were cleaned up and

[1:11:38] remediated. They were put in a closed landfill, and that's why we have a

[1:11:42] permit for a closed landfill on site. So, all that was managed through the

[1:11:46] state uh North Carolina DEEQ Solid Waste Management. Thank you.

[1:12:00] Thanks. Thank you. You have additional work. I do. I do, Mr. Chairman. I call

[1:12:05] Kevin Robinson.

[1:12:18] Can you state your name and your address for the record, please, Mr. Rob? Kevin

[1:12:21] Robinson, 9905 Larott Court, Huntersville, North Carolina. And do you

[1:12:26] work for Ventor Chemicals? I do, Mr. Robinson. And what is your title at

[1:12:30] Ventor? I'm the site manager. And have you been involved in Ventor's efforts to

[1:12:34] locate the proposed on-site landfill on the property? Yes, since I started in

[1:12:39] October of 2022. Yes, I have been. Okay. And as part of that involvement, did you

[1:12:45] know about Miss Stein's June 2022 email that we discussed earlier that is behind

[1:12:52] tab one of the exhibits? Yes.

[1:13:02] And were you part of that analysis where she came up with the question as to

[1:13:06] whether the proposed on-site landfill is considered a waste related

[1:13:10] use under the town's UDO? I was not. Okay.

[1:13:16] And as part of the involvement, did you know about the town's um August 2022

[1:13:21] letter responding to the June 2022 email from Miss Stein? I did as I was getting

[1:13:26] up to speed on the project after I started. Yes, I I was made aware of

[1:13:29] that. Okay. And when did you first learn about that? Approximately.

[1:13:34] It would have been soon after I started in October of 22. Okay. So, not too long

[1:13:39] after the August letter was sent. That is correct. Okay. And what was your

[1:13:43] understanding of that letter um from the town dated August 2022 with regard to to

[1:13:50] the zoning interpretation aspect of it? uh that that it was uh a zoning

[1:13:56] determination. Um that basically confirmed that uh the proposed on-site

[1:14:04] industrial landfill uh met the conditions of other waste related uses

[1:14:10] and therefore was permitted on site by

[1:14:19] right. Thank you. And in your capacity as site director, it's um

[1:14:27] is it fair to say that you're site manager? Excuse me. Is that correct?

[1:14:31] Yes. Is it fair to say that you're intimately involved with the project and

[1:14:34] how it's going to function on the property as a whole? Yeah, I stay well

[1:14:37] informed. Um uh the the eNS staff keep me well informed of the developments and

[1:14:43] I I try to attend as many of the the steering committee meetings as I can. If

[1:14:48] you could turn to tab two in your book, which is the previously identified

[1:14:52] exhibit from the town's UDO defining waste related

[1:15:04] use. And if you could um you don't have to read it back into the record there.

[1:15:11] Um, but if you recall from Miss Stein's testimony and from exhibit one, that is

[1:15:17] in fact the use that Miss Stein was asking the town staff to confirm as to

[1:15:21] whether or not the proposed on-site landfill met the definition. Is that

[1:15:25] correct to your understanding? Yes, that is correct. Okay. And reading this

[1:15:29] definition, does this seem an appropriate definition in your opinion

[1:15:35] for the proposed on-site landfill as you understand it? Yes, that was my

[1:15:39] understanding.

[1:15:43] I'm not sure he has the um ability to testify to that based on the question

[1:15:49] that was asked. He's giving a interpretation of the

[1:15:55] ordinance.

[1:15:58] Based on your familiarity with the project and looking at this definition

[1:16:02] as it's before you, is it your opinion that this is a definition that would be

[1:16:07] appropriately applied to the use? Yes, that would be my interpretation.

[1:16:15] Okay. At the end of the definition there um you'll see there's about five lines

[1:16:20] in the definition and there's a provision there that says and other uses

[1:16:25] meeting the definition of waste related use according to the director. Do you

[1:16:29] see that language? I do. Okay. It would be your understanding therefore that the

[1:16:34] town is giving a non-exclusive list of things that are included and that the

[1:16:40] director whoever that may be under the ordinance is there to make a

[1:16:44] determination as to what uses actually meet the definition of waste related

[1:16:47] use. That's how I would interpret that.

[1:16:53] Okay. We've heard a little bit about and I don't I don't want to

[1:16:57] um preview too much of the testimony here that Mr. Relle will give but um can

[1:17:03] you explain very briefly to the board how

[1:17:08] the plan proposed on-site landfill will function with regard to the property as

[1:17:14] a whole in terms of its purpose and what it's there for.

[1:17:19] Yeah, it's really there as we look to reconfigure um the existing lagoon

[1:17:24] that's on site. um it's the settling lagoon uh that does allow the sediment

[1:17:29] to settle out from the the water on top and then so what we're looking to do is

[1:17:35] part of the remediation and reconfiguration of that lagoon is to

[1:17:39] remove that sediment um move the burm of the lagoon farther away from the river

[1:17:47] um and then be able to relocate those sediment solids uh into the proposed

[1:17:52] on-site industrial landfill.

[1:17:59] Okay. So, this is a use that is going to receive solid waste only. Is that

[1:18:04] correct? Yes. On site solid waste on site solid waste. It won't be receiving

[1:18:09] waste from any other property or any other use. That is correct. Okay. And

[1:18:15] this is um for the service of shrinking the on-site lagoon to a smaller size and

[1:18:22] then housing the sediment at the bottom of the portion of the lagoon that has

[1:18:27] been drained. Is that correct? Yes. Okay. If you could turn in your book to

[1:18:33] um tab 10, please. And do you know what this

[1:18:40] document is, Mr. Robinson? Uh yes. It's a portion of the definitions from the

[1:18:49] code of ordinances for the town of Harrisburg. All right. And about 34 of

[1:18:54] the way down there, you see the definition of accessory use. Yes. Okay.

[1:18:58] Can you read that into the record, please? Accessory use means a

[1:19:03] subordinate use of a building or other structure or use of land which is a

[1:19:08] conducted on the same lot as the principal use to which it is related and

[1:19:12] b clearly incidental to and customarily found in connection with such principal

[1:19:17] use. Okay. Thank you. And in your understanding of the proposed on-site

[1:19:22] landfill, was it possible that the proposed on-site landfill met this

[1:19:28] definition of accessories within the town's UDO? Uh, yes. That could also be

[1:19:33] an acceptable interpretation. Um, the the landfill itself is located on the

[1:19:38] same lot as the principal use. Um, it is subordinate to that use. Um and and it

[1:19:45] is incidental to and customarily found in connection with uh such facilities as

[1:19:53] the the Harrisburg venator facility and so so therefore I think from that

[1:19:57] definition would also be permitted by right.

[1:20:01] Okay. So the accessories and the waste related use that you read earlier the

[1:20:05] definition are both permitted as of right on the property. Is that correct?

[1:20:08] To my understanding yes. Okay. Um so with those in mind, did you

[1:20:15] believe the August 2022 um town letter um did you understand that to

[1:20:23] be correct and defensible and therefore binding on you and the town as an

[1:20:29] interpretation of the town's UDO? In my

[1:20:35] opinion, All

[1:20:50] right. Objection sustained.

[1:20:57] if you could turn to tab 11 please in your

[1:21:04] binder and if you'll read um and it doesn't have to be read into the into

[1:21:10] the record again here as Miss Stein did but the definition under there under

[1:21:14] heavy industrial do you see that definition Mr. Robinson? Yes. Can you

[1:21:19] can you review that to yourself?

[1:21:25] Yes. And in your view, based on your

[1:21:29] understanding of the proposed on-site landfill, did that meet this definition

[1:21:34] of heavy industrial use as defined by the town's UDO?

[1:21:38] In my opinion, no. Because the the landfill was objection

[1:22:07] Yeah. C can you rephrase the question, please? You're asking a witness to make

[1:22:10] a professional judgment. Sure. Based on your understanding of the

[1:22:15] proposed on-site landfill, was it your understanding that the use as described

[1:22:21] would meet this definition as set forth in the town's UDO for heavy

[1:22:25] industrial? Hold up. Hold up, Kevin. You object. You want to object.

[1:22:32] I think I will. Um, I think that sort of dealt with part of my objection, but I

[1:22:39] think you're still asking him to to make the um uh give an opinion on the

[1:22:44] ultimate issue in this case, and I don't think he can do

[1:22:48] that. That's for the board to decide. I wouldn't I wouldn't say we're asking for

[1:22:54] the ultimate issue. I'd say we're asking if he therefore believed the August 22

[1:23:00] letter to be correct and defensible as opposed to clearly off

[1:23:06] base.

[1:23:11] At the board of adjustment hearings, the rules of evidence are somewhat relaxed,

[1:23:15] but since council's present, we need to to hue pretty carefully to the rules.

[1:23:21] It's a little awkward because we have for every time there's an objection, we

[1:23:24] have to have a consultation. So, you need to give us a

[1:23:29] minute. You need to give us a minute, please.

[1:23:41] [Music]

[1:24:10] Okay. Sorry.

[1:24:43] Um, so we'll sustain the objection. We'd like you to consider that the witness

[1:24:48] obviously can testify to whether or not uh his opinion on the matter and how he

[1:24:53] interprets it, but not to make a determination

[1:24:56] um on the the ultimate decision which is this board's

[1:25:02] um prerogative. Thank you, Mr. Chairman. Thank you.

[1:25:07] Um then one more Mr. Robinson on this based on your

[1:25:13] review uh your understanding of the proposed use and based on your review of

[1:25:18] the definitions of waste related services

[1:25:22] um basing your definition of accessory use and based on the definition of heavy

[1:25:27] industrial. Did you understand the August 2022 determination from the town

[1:25:34] to be a determination that the use is in fact permitted by

[1:25:39] right under the town's UDL? I did. I did.

[1:25:52] All right. And finishing up here, if you could flip to page

[1:25:57] uh to tab nine, please um to the previously identified

[1:26:04] exhibit by Miss Stein, the November 15th email to Mr. Thomas. Have you seen this

[1:26:10] email before?

[1:26:14] Yes. Okay. And did you view this as a change from the August 2022 letter from

[1:26:20] the town? Yes.

[1:26:23] Okay. And how is this a change in your view?

[1:26:30] It seemed from the August 2022 zoning determination letter that we received

[1:26:35] that we were permitted by Wright to proceed with the design and development

[1:26:39] of the project and and this uh seemed to contradict that original determination.

[1:26:46] Okay. And had the use changed at all between August 2022 and November of

[1:26:52] 2023? No, it had not.

[1:27:00] That's all I have, Mr. Chairman. Thank you, your witness. Thank you.

[1:27:06] Um, Mr. Robinson, I think you stated that you're the site manager. Yes, sir.

[1:27:13] That that's your title? It is. And can you tell me what your job duties are?

[1:27:20] They involve a number of of different things including overseeing the the

[1:27:27] environmental health and safety program, overseeing the the production, the

[1:27:32] chemical production manufacturing that we do on site. Um managing all of the

[1:27:37] personnel, um the managers who report to me, and then those who who report down

[1:27:41] in the reporting structure. So as site manager are would it be fair

[1:27:47] to say that you're the person in charge of this plant here? Yes sir. In in

[1:27:53] charge of all P. Yes sir. So when you're speaking of the site we're talking about

[1:27:59] the whole 100 acre. That is correct. The entire property.

[1:28:05] So that would include the chemical manufacturing. That would include

[1:28:10] anything that goes on with reference to that business on that site. Yes, that's

[1:28:14] correct. They're in charge of Yes. And so so would you consider um um your dock

[1:28:23] to be accessory use to your chemical plant? I I do think it's an accessory

[1:28:29] use. Yes. So you would um you would say that you

[1:28:33] you that that could be permitted by right um on that site if you made a

[1:28:39] change to your your dock. It would not require a special use permit. That

[1:28:43] right? I I would review the zoning, but I mean and and maybe even ask the town

[1:28:49] for clarification, but I mean I would I would think that would be the case, but

[1:28:54] we would still ask the town for a determination to provide that.

[1:28:58] So, um what about the um the waste water that's in the lagoon? That's part of the

[1:29:05] of the chemical manufacturing process and what you do with your waste, is it

[1:29:11] not? Well, it's part of the wastewater treatment process that we have on site.

[1:29:15] Yes. So, wastewater treatment, you consider that a um accessory use? I do.

[1:29:21] Yes. So, anything that's not exactly the manufacturer of chemical that you would

[1:29:27] consider accessory use to a chemical manufactured plant. Is that what you're

[1:29:32] saying? Yes. And where do you find support for that

[1:29:36] in the in the ordinance? Uh, let me find

[1:29:44] the which exhibit is the definition? Uh, it's 10.

[1:29:50] Kevin, if that's the one you're looking for.

[1:29:55] Yeah. So, for accessory use, uh, means a subordinate use of a building or other

[1:30:01] structure or use of land which is conducted on the same lot as the

[1:30:05] principal use and clearly incidental to and customarily found in connection with

[1:30:09] such principal use. So, I think that pretty clearly defines that anything

[1:30:13] like that could be an accessory use. That's what you believe. That is

[1:30:17] correct. And um what is your background in

[1:30:20] dealing with zoning matters? Uh I have been not involved in a whole lot of

[1:30:26] zoning matters but a few here and there. Yes.

[1:30:32] So have you had any experience with interpreting zoning ordinances?

[1:30:40] I have since I've been here since November of 2022. October. Yes sir.

[1:30:47] Basically what you're talking about is this situation. That's that's correct.

[1:30:50] And so that's really been your first experience with having to interpret

[1:30:55] ordinances zoning or I had one previous but it was it's my second. Yes.

[1:31:14] You say that you well, excuse um did you start with Ventor in November 2022?

[1:31:23] October 2022. You've not been with with them prior to

[1:31:28] that or with chemical specialty? Correct. Uh did you ever once you took

[1:31:34] over do an investigation of of the zoning with reference to that property

[1:31:40] prior to this in uh matter involving uh this lagoon that you looked at

[1:31:47] specifically as part of this project? Yes. But if you if you're talking about

[1:31:52] outside of this project, no. Okay. Well, that's what I'm asking you about. It's

[1:31:56] outside of this project. No. Chemical plant's been there for a long time, has

[1:32:00] it not? Uh maybe 60 years.

[1:32:06] And are you aware of of any of the interactions between the town and and

[1:32:12] the occupier of that property with reference to zoning during that 60

[1:32:16] years? What had gone on prior to the time you became involved with the

[1:32:21] company? The only one that I'm familiar with is

[1:32:24] the one from when the tank farm was put in put in place with a um I'll forget it

[1:32:32] wasn't called a special use permit. It was the uh other definition back then,

[1:32:37] but but yeah, that one was conditional use permit. Thank you. And would that

[1:32:41] not be considered an accessory use of the property?

[1:32:46] Uh I'm not sure about that. It it sounds like from what you said the

[1:32:52] definition was from what you read in in the ordinance that that would be another

[1:32:57] use that's connected with the chemical manufacturing

[1:33:01] would be an accessory use but it required a special use permit right? Uh

[1:33:05] no I didn't say that. I'm saying do you not agree with me? Is that not the same

[1:33:10] thing as what you were talking about earlier? I don't think it is because the

[1:33:14] the storage tanks are actually part of the chemical process.

[1:33:24] So where is the chemical process stop and the accessory uses start in your

[1:33:29] opinion? I think it would be objection. He's not

[1:33:33] qualified to testify to how the ordinance would make a distinction

[1:33:37] between those two things. We've done a lot of testifying to it up to this

[1:33:41] point,

[1:33:44] but

[1:33:53] Objection overruled. Please answer. Can you repeat the question?

[1:34:02] I'm trying to determine whether um at what point something becomes an

[1:34:07] accessory use um under the ordinance um uh on this property. Um and you said

[1:34:16] that basically, you know, anything that was um that was connected with it that

[1:34:22] wasn't exactly chemical manufacturing would be an accessory use. But yet these

[1:34:28] storage tanks that deal, they're not part of the processing. They're part of

[1:34:34] the storage, are they not? Wouldn't that be an accessory use?

[1:34:39] Somebody might could interpret it that way. And it required a special use

[1:34:44] permit, didn't it? At the time, it required a conditional

[1:34:50] use permit. Well, conditional use permit, the statute just changed the the

[1:34:55] name of it to special use permit, but it's the same thing. Do you understand

[1:35:00] that? I have not seen the exact document that says that the conditional use

[1:35:06] permit was changed to special use permit. Well, it's in chapter 160D of

[1:35:12] the North Carolina general statutes, but you can ask your lawyer about that part.

[1:35:20] And what about um don't you all have a a rail spur? Yes, we do. And um didn't you

[1:35:28] also have a parking lot expansion um that as part of that special use

[1:35:34] permit? I'm not familiar with that piece of it. Well, that was in March of

[1:35:40] 2002. That was part of the special this conditional use permit at that time, was

[1:35:45] it not? I I don't know. I thought you I thought I understood that you said you

[1:35:50] went back and looked at this. I did, but I don't recall seeing anything regarding

[1:35:54] a parking lot.

[1:36:17] I think that's all the questions I have questions from the

[1:36:27] board. Going off of the uh accessory use string here,

[1:36:33] if the retention or the solid waste disposal was not on site, would that

[1:36:41] chemical production be able to take place? Would you have to come up with a

[1:36:44] different strategy for how to finish that

[1:36:50] process? If I'm just strictly speaking about the chemical process itself, no.

[1:36:58] uh we would just have to find alternate ways to handle the the waste.

[1:37:12] So, it could be done without adding this this P or this this

[1:37:24] dump. If I'm strictly answering the question if it could physically be done,

[1:37:30] the answer is yes.

[1:37:49] And you may know the answer to this. I think the proposed landfill is a

[1:37:53] concrete lined landfill. The existing one's just a sediment pond. Is there any

[1:37:58] reason in your professional experience that that new solid waste disposal site

[1:38:04] would have to be concrete lined? Uh it I would have to defer Janna as

[1:38:11] actually the person who knows the details so we can ask him when he's up

[1:38:15] here. Okay. Yeah, sure. Thank you.

[1:38:28] Thank you, Mr. Robinson.

[1:38:32] You have additional witnesses. I do, Mr. Chairman. I'll call Dave Wala to stand,

[1:38:37] please.

[1:38:45] You state your name and your address for the record, Mr. Michelle? Yeah. David

[1:38:48] Wella. I live at 317 Brexom Place, Fork Mill, South Carolina.

[1:38:54] Thank you, Miss Michelle. By whom are you employed? Erm, environmental

[1:38:58] resources management solid office. Sorry. And what are your

[1:39:04] responsibilities at ERM? Uh, serve as senior engineer and also technical

[1:39:08] advisor for primarily solid waste related projects. Have you been involved

[1:39:14] in Ventor's efforts to locate the on-site landfill that we're talking

[1:39:18] about tonight? Yes, I have. And what um and in what ways have you been involved,

[1:39:21] Mr. Rashella? Generally speaking, generally speaking, we started 2017 2018

[1:39:27] assisting Benur in number one evaluating the waste that we currently have on site

[1:39:32] and the best ways to to manage that waste. Uh we went through several

[1:39:37] different scenarios. We looked at transporting offsite. Uh, one candidate

[1:39:42] was Charlotte Motor Speedway landfill, which I I know everybody here is

[1:39:46] familiar with. Um, they were looking at it as a possibility of daily cover for

[1:39:52] their waste. We actually got DEEQ approval to run a pilot demonstration

[1:39:56] project. Uh, Republic ended up not wanting to use it as an alternate daily

[1:40:02] cover, so that option went away. We looked at dewatering and sediment tubes

[1:40:07] or geo tubes which you know you take the sediment and let it naturally dewater

[1:40:12] and then haul it off site. Uh that ended up not being very coste effective for us

[1:40:17] to manage. And then additionally other transport off sites were a lot of

[1:40:23] landfills in this area are going to be out of airspace you know within 10 to 15

[1:40:28] years. So it really wouldn't be a long-term solution to haul off site. So

[1:40:33] after we evaluated how the material or the sediments that we have on site

[1:40:37] behaved, the ability to manage it and be able to dry them out and dispose of it

[1:40:42] as a solid waste and do it onsite and manage our own destiny longterm on site

[1:40:49] and know it's done the right way was the appropriate way to go.

[1:40:55] And can you describe the proposed on-site landfill? Um, and specifically

[1:41:00] why we're putting this landfill on this property, why Ventor is putting this

[1:41:04] landfill on this property, and how it's going to function on the property in a

[1:41:09] little more detailed than than we've heard tonight, but but saving anything

[1:41:14] too detailed for a special use permit should that be necessary. I tell you

[1:41:18] what, I I'll cover it in general, and if you have any follow-up questions about

[1:41:21] the detail, feel free to ask afterwards. Um the on-site landfill is being number

[1:41:27] one located where it is because it is very close proximity to our existing

[1:41:33] Lagoon 5. Uh Lagoon 5 sits on, you know, very close proximity to the Rocky River.

[1:41:39] The landfill is essentially being developed because the bigger, you know,

[1:41:44] fish to fry on site is Lagoon 5, which has been in operation since sometimes in

[1:41:49] in the 70s and has functioned well and served its purpose. But you can imagine

[1:41:55] just a tiny bit of sediments over 50 years adds up. We're getting to the

[1:42:00] point of a capacity issue in the near-term future and we need to do

[1:42:06] something to clean the pond out. That initially started the need for the

[1:42:10] on-site landfill. How to manage those sediments we clean out and be able to

[1:42:15] manage them effectively. Number two is the existing lagoon is unlined. It it

[1:42:21] was built in the 70s. regulations. Um, let's just say not as

[1:42:26] stringent as today's. And we see an opportunity to install a liner system in

[1:42:32] the new Lagoon and still continue to use it as our wastewater treatment receiving

[1:42:37] lagoon for the facility, but install a highdensity polyethylene liner, same

[1:42:42] liner system you see in all your municipal solid waste landfills

[1:42:46] throughout the country. uh that is where it will have a concrete liner on top of

[1:42:51] that liner system for protection. Uh the industrial landfill that will initially

[1:42:56] receive and just to put it in perspective about 30,000 to 35,000 cubic

[1:43:01] yards of sediments out of the existing lagoon. So it it's a good chunk that has

[1:43:08] to be dealt with. It will have a liner system, you know, including a

[1:43:12] highdensity polyethylene liner as well. I didn't want to cut him off, but I am

[1:43:17] going to object. I don't think any of this testimony is relevant to the issue

[1:43:21] that's before this morning tonight. I think that's more in line

[1:43:26] with any hearing we may have on a special use permit and what the park

[1:43:31] project is about.

[1:43:56] Um, objection sustained.

[1:44:01] Okay. Mr. Mr. Roshell, have you worked on the

[1:44:05] design and construction of on-site landfills for other industrial uses?

[1:44:09] Yes, I have. Okay. And approximately how many ballpark? Uh

[1:44:16] ballpark probably 10 to 12 for different industries. Um

[1:44:23] uh battery manufacturers, fiberglass manufacturers

[1:44:27] and pulp and paper industry. Okay. And your and power industry of course. Power

[1:44:33] industry. In your experience, are on-site landfills like the one proposed

[1:44:38] customarily found in connection with industrial uses such as Venitrous

[1:44:42] Chemical Plant? Yes, they are quite common place and uh we see them

[1:44:47] throughout the Carolinas. I would say you can consider it to be common place

[1:44:51] even further because North Carolina has a separate set of regulations just for

[1:44:57] onsite industrial landfills that only receive waste generated on site. Okay.

[1:45:03] Um, can you turn to tab one very quickly, which is exhibit one?

[1:45:13] It's the June 2022 email from Miss Stein. Yes. Sent to the town staff and

[1:45:18] you're copied on that email. Is that correct?

[1:45:22] Yes. Okay.

[1:45:27] Um, in your experience working on on-site landfills and other

[1:45:32] jurisdictions, is zoning a part of um of the construction process or at least

[1:45:39] with regard to the development process of those on-site landfills? I would say

[1:45:43] it's more fair to say it's one of the first steps in the permitting process

[1:45:47] for the majority of the landfill types. Is that is that why you're on this

[1:45:53] email? because this is this is at the outset more or less of this process. I

[1:45:58] know you mentioned 2017, but is this is this part of that that zoning process

[1:46:05] that you mentioned with regard to on-site landfills? Yes, that would be

[1:46:09] correct. Okay. And it's your understanding that this email is sent

[1:46:13] because town codes can be confusing. They can be broad. They can

[1:46:18] overlap. And so a property owner or an engineer like

[1:46:24] yourself might want to seek confirmation from a jurisdiction as to how the zoning

[1:46:30] process is going to play out with regard to the proposed use.

[1:46:35] Yes, that is standard practice. Okay. And is this email in your view that's

[1:46:40] standard practice in written form? Yes, I would agree. Okay.

[1:46:47] I have nothing further, Mr. Chair. Thank you.

[1:46:56] Um I'm trying to make sure I pronounce your name correctly. Thank you. Thanks

[1:47:02] for having me. Um Mr. Marella, um dealing with this owning is not part of

[1:47:08] what your job means. No sir, not

[1:47:12] primarily. And did I understand you to say that that with reference to dealing

[1:47:18] with the waste on for this project or for this property and this chemical

[1:47:24] plant, you'd gone through several different ways to try to deal with it.

[1:47:28] Is that right? Different options were considered. And so this has been going

[1:47:32] on for a long time prior to 2020. Is that correct? Uh for evaluating

[1:47:40] the best ways to approach the project. Yes.

[1:47:43] And as you said, zoning becomes an issue at the very start with reference to what

[1:47:50] kind of project you're going going to propose, does it not? It does for site

[1:47:56] suitability requirements for a landfill. So if you were going to do something on

[1:48:02] site, you would have to consider the zoning. Is that correct? Uh depending on

[1:48:09] the activity chosen. Yes. So, so there had been quite a bit of of

[1:48:16] activity with reference to what ultimately became the project you

[1:48:20] settled on prior to this project being the one that you settled. Is that

[1:48:25] correct? Uh, yes. There was consideration of the other options, the

[1:48:30] ones that you described earlier. Yeah, those weren't all too. I was just given

[1:48:35] four. So, how long have you been working on this?

[1:48:39] Well, I believe we started 2017 2018 time frame.

[1:48:46] That's all the questions I have. That's all the questions I have. Okay.

[1:48:51] Questions from the board.

[1:48:57] So, the U vtor was given several options to pick from and this is the one they

[1:49:03] chose. Well, I I would rephrase that not to pick from. We were working with

[1:49:09] Ventor throughout the process. U kind of we worked with a corporate person out of

[1:49:17] England as well as the folks on site to because the people on site have to deal

[1:49:23] with the waste every day. So, it's only correct to have them involved in the

[1:49:26] process as well. So, you know, and just bounce ideas off of each other. We we

[1:49:32] coined the phrase optionering was what we were doing is we were trying to

[1:49:36] figure out the different avenues we could follow.

[1:49:40] And how much did cost come into the decision?

[1:49:45] uh cost. Actually, the one on the table wasn't the cheapest, but uh the one that

[1:49:51] we were really hoping for was that Charlotte Motor Speedway could use these

[1:49:56] sediments as alternative daily cover for their waste, but that also, like I said,

[1:50:02] we're starting with 30 to 35,000 cubic yards of material in the lagoon that

[1:50:07] needs to come out so we can reconstruct the lagoon. That would have put about

[1:50:12] three to 4 thousand trucks on the road leaving the facility and going to the

[1:50:17] landfill non-stop for three to four months, which nobody wanted either.

[1:50:30] Um, are you a a professional engineer in the state of North Carolina? Yes, and I

[1:50:35] am professional engineer licensed in North Carolina, South Carolina, and

[1:50:38] Arkansas. And were you hired by Benur to review the zoning and those

[1:50:46] items or just investigate the processing of the waste?

[1:50:51] Um my role is to review the state regulations for the permitting of the

[1:50:57] landfill. Part of that in the site suitability requirements is to receive a

[1:51:02] letter from that's why I advised Jon Stein to use that specific language from

[1:51:08] NCDEQ regulations to make sure we were meeting the requirements of the solid

[1:51:14] waste permit needed. So you so you were hired to review the

[1:51:19] applicability of the what what to advise not to advise. Yeah. Okay.

[1:51:26] Um it it seems like you are more since you are a PE and this is what you do

[1:51:31] that you would be more you would be the person to be

[1:51:35] answering this questions. Why was it decided for Miss Stein to submit the

[1:51:40] applications and generate all these emails if you were hired for that

[1:51:45] role for the clarification in the letter we needed from Harrisburg

[1:51:51] to submit our permit application? Yeah, that's why we were making the request.

[1:52:01] I'm a little confused. You were hired to review the zoning of the property to

[1:52:04] make sure it worked. No. Okay. I'm sorry. No. One of our application for

[1:52:12] permit requirements is to receive a letter from the town of Harrisburg since

[1:52:16] you're the local municipality government where the property is located. So I

[1:52:21] reach out to Janna and say we need to get this letter from town of Harrisburg.

[1:52:26] Okay. And this is the permit requirement or the regulation requirement we need to

[1:52:31] meet. So you did not independently evaluate the uses as per the attachment

[1:52:38] as as part of exhibit A. I reviewed it in the sense that I found

[1:52:43] out there was a UDO adopted not too long ago before we started this process and I

[1:52:50] did look at the different uses. Uh I was quite surprised that I'd never heard of

[1:52:56] employment center before. I do remember reading that part and finding a chemical

[1:53:01] manufacturing facility is employment center. I remember that seemed odd to

[1:53:06] me. So I I did review it. I mean this is you know, some time ago now. So, I'm

[1:53:13] trying to remember specifics, but I do remember asking Janna to get our

[1:53:17] specific language included in a letter from the town so we can meet the state

[1:53:23] requirements as part of the letter. As part of the letter. Okay. But you did

[1:53:27] not independently evaluate whether the zoning was permitted, for instance, by

[1:53:33] right or required a special use permit and didn't communicate that to Benur.

[1:53:37] I'm trying to understand your Oh, from what I read. Yes. Yeah. And I did review

[1:53:41] it, it it seemed it was permitted by right when I looked at permitting an

[1:53:47] industrial landfill on site and that was you communicated that to

[1:53:53] your client. Yes. But I enforced that we still needed the letter confirming that

[1:53:59] from the town of Harrison. So your goal was to achieve the letter and that was

[1:54:03] about it. Yes. I live in that permitting world.

[1:54:09] Okay. Other questions?

[1:54:14] Do you have any more witnesses? I do not, Mr. Chairman. Thank you. Um 5 to 8.

[1:54:20] Oh, sorry, sir. Thank you very much. Okay. Thank you. Um 5 to 8. Um I think

[1:54:25] what we'll do is take probably a 5 to 10 minute recess. Um, and then we'll come

[1:54:30] back and the staff will present and then they will have an opportunity to

[1:54:35] cross-examine staff. Um, any other witness testimony that's uh necessary.

[1:54:40] Um, obviously you both will have an opportunity for a rebuttal. Um, and then

[1:54:45] we'll basically turn it over. We'll close the evidentiary portion of the

[1:54:49] hearing and then the board will go through some finding of facts. Um, and

[1:54:53] then we'll get to the end of this thing. So, um, if there's a motion to take a

[1:54:57] short recess, I'd appreciate it. Motion. Second. Second. All in favor? 10

[1:55:04] minutes, everyone.

[1:55:21] I'm talking

[1:55:39] But you're right.

[1:56:00] I was reading it just so that he um that didn't show

[1:56:16] That's good.

[1:56:34] So that should have

[1:56:42] been this

[1:56:48] and for other people,

[1:57:03] right?

[1:57:24] If you don't

[1:57:40] understand the

[1:57:50] In our one of our training sessions, they talked

[1:57:53] about what we come up with.

[1:58:13] This doesn't break determin

[1:58:17] seems much But

[1:58:24] nobody

[1:58:35] that's what I would

[1:58:52] said public comments about the

[1:59:03] chest for varianiral damage. the after will be there.

[1:59:20] Yeah, they can talk

[1:59:31] about a good idea. Stand up.

[1:59:44] Stand up. [Music]

[1:59:55] Well, we want to just

[2:00:21] They've been all around the block. I'm gonna actually zero in

[2:00:39] on I think

[2:00:48] idle neighbors.

[2:01:14] Are you sir?

[2:01:25] Open up. Open up.

[2:01:30] Be sure and cover that. Yeah, just, you know, in in the final analysis, they've

[2:01:35] got to mention there was an error in

[2:01:46] termination. Exactly.

[2:02:13] Well, that's what we're doing.

[2:02:24] Yeah, you can go

[2:02:31] back

[2:02:44] to typically the administrator. Yeah, that's right.

[2:02:56] Usually the garage.

[2:03:13] There was some degree of

[2:03:18] Yeah. Yeah. Yeah. Yeah.

[2:03:38] Yeah. Exactly. And so you

[2:03:45] know that makes

[2:03:51] sense at some point

[2:04:06] That

[2:04:27] wax trace this park

[2:04:47] Uh, he put a battery in it. Okay.

[2:05:16] establish you can testify to

[2:05:22] your I'm not going to when you question them.

[2:05:38] Interesting. Well, you know, you certainly can do that.

[2:05:47] Will

[2:05:51] be good.

[2:06:08] [Music]

[2:06:16] Oh, cool. Cool. I was thinking just the opposite.

[2:06:24] Well, I was thinking that I've been

[2:06:47] told that was

[2:06:53] I see a lot of brown

[2:07:15] just enough make sure they

[2:07:23] But you but you need to make sure that you pick

[2:07:30] Yeah. So that [Music]

[2:07:34] a couple of highlighters. Ran out of ink. Ran out of ink.

[2:07:50] Um, are we recording? Yes, you're good. Okay, we'll reconvene.

[2:07:57] Um, at this time, the, uh, town staff will give their presentation.

[2:08:03] Good evening, uh, board members. My name is Zach Cordon. I'm the planning

[2:08:07] director for the town of Harrisburg, uh, since October of

[2:08:12] 2022. Uh prior to that I have 30 plus exp 30 plus years experience um in

[2:08:19] varying capacities including planning director for the town city of

[2:08:22] Canapapolis prior to Harrisburg.

[2:08:28] Um let me just run through this quickly. I want to I don't want to belabor the

[2:08:32] point. I want to get right to the to the fact of the matter.

[2:08:36] So, it's already been pointed out there was a conditional use permit granted um

[2:08:41] to by the town to chemical specialties for additional storage tanks, rail spur,

[2:08:46] and parking lot expansion. A lot of discussion about this being an accessory

[2:08:51] use. I'd like to just read from the order that was uh granted uh back in

[2:08:57] 2002. This was a unanimous vote. 50 conditional use permit granted. uh order

[2:09:03] was uh 25th day of March 2002. It is the board's conclusion that the proposed

[2:09:08] construction of the 1825,500galon storage tanks, a railroad

[2:09:13] spur to the proposed tank location and additional parking area will meet the

[2:09:17] requirements of the unified development ordinance that has been adopted by the

[2:09:22] town of Harrisburg. In addition, the conditions set forth by this board that

[2:09:25] did a study by the Cabaris County Planning Department concerning the needs

[2:09:29] for an access turn lane at chemical specialties on Farm Mill Road and the

[2:09:34] need for additional screening and or buffering. Um, and I won't get into the

[2:09:38] findings of fact, but um just to to point out that um this was a significant

[2:09:44] um addition um and I certainly would not characterize it as accessory. Uh

[2:09:50] accessory uses are typically those uses uh which are do not require the approval

[2:09:56] of either this board or legislative body but they are uh administrative in

[2:10:01] nature. Think of a garage or swimming pool or even a small uh cooler on the

[2:10:07] side of a restaurant. So, in spring 2022, uh there was a

[2:10:13] pre-application meeting which you've already heard about uh with Ventor for

[2:10:17] proposed industrial landfill on the site. Um you've heard about the letter

[2:10:22] August 19, 2022 from the uh code enforcement officer Tom Leser uh to Jon

[2:10:29] Stein um from with Ventor Chemicals uh regarding um and I will get into this a

[2:10:37] lot more uh the proposed uh use for the site. Um following the preapp meeting uh

[2:10:43] there was a follow-up meeting uh with the town that Ventor uh with Ventor to

[2:10:48] discuss the uh proposed um use and that is a um uh a use that we're still

[2:10:57] processing and I will point this out um well let me wait till my next slide um

[2:11:03] and so uh October uh we we did provide some additional guidance on site plan

[2:11:09] approval process um in November, November 2nd, there was

[2:11:14] a summary of a pre-application meeting and uh in that um pre-application

[2:11:19] summary um the findings were very clearly that a special use permit was

[2:11:25] required. Um that was very clear. Uh, November 15, uh, Shelley Deart,

[2:11:31] assistant plan director, sends an email to Michael Thomas reiterating the need

[2:11:36] for a special use permit for the proposed industrial landfill by Ventor

[2:11:41] Chemicals. Uh, November 15, um, yes, I'm sorry, that's a a repeat.

[2:11:49] Um December 1st, special use permit submitted uh by the applicant by Ventor

[2:11:57] for the proposed uh industrial landfill. December 15, uh Ventor submits

[2:12:04] an appeal of an administrative decision by town staff that the special use

[2:12:08] permit was required for the proposed industrial landfill. And that's why

[2:12:12] we're here.

[2:12:15] So, I'm going to focus on the appeal, and I'm going to focus on

[2:12:19] the allegations in the appeal. You've seen this uh visual. This is the site

[2:12:24] map. You can see the location of the proposed industrial landfill uh in the

[2:12:29] site. And you've heard uh testimony about the process for that. And I'm not

[2:12:34] going to go over that. I think that's um something that would be uh the the

[2:12:39] subject uh of a special use permit.

[2:12:45] So, let's get right to the application points of appeal. The August 19 zoning

[2:12:50] verification letter approves the landfill use. That essentially is what

[2:12:56] the representation in the application is stating.

[2:13:01] The appeal application states this quote zoning verification letter issued August

[2:13:06] 19, 2022 represents quote a final and binding interpretation of the town's

[2:13:11] laws that the proposed on-site industrial landfill is permitted as of

[2:13:15] right on the property and does not require a special use permit. A pretty

[2:13:20] definitive statement that from you or from that is from them.

[2:13:25] That is their application. uh that's drawn exact that's drawn from their

[2:13:29] their appeal application. That's their that's their

[2:13:33] representation. Our response is that the zoning verification letter does not

[2:13:37] indicate a special use permit is not required. You can read that letter over

[2:13:41] and over. You're not going to find anything in this letter that indicates a

[2:13:45] special use permit is not required. Number

[2:13:48] one, the letter does state any proposed use must secure all appropriate and

[2:13:54] necessary approval from all regulatory agencies for which the parcel is

[2:14:00] located. As noted, staff advised Benitor on November 2nd and November 15th of the

[2:14:07] need for a special use permit for the proposed industrial landfill.

[2:14:11] Letter further notes the property is governed by the rules and regulations of

[2:14:15] the Harrisburg Unified Development Ordinance. I think that's important to

[2:14:20] point

[2:14:26] out. Let me continue. Neither of these statements in

[2:14:31] the August 19 letter that that I just quoted from represent that a special use

[2:14:36] permit is not required. Statement in the letter that is made

[2:14:42] that the property conforms to all requirements of the Harrisburg Unified

[2:14:46] Development Ordinance refers to the current not the future use of the

[2:14:50] property as there were no final approvals granted by the town for site

[2:14:54] development. So that was a snapshot zoning verifications letter which this

[2:14:59] was essentially will tell you whether the proposed or the use that you have

[2:15:04] planned or will do uh is allowed. Um, and so the the statement in the letter

[2:15:13] that indicates the current zoning is an approved zoning class for the proposed

[2:15:17] on-site industrial landfill. That's a true statement subject to a special use

[2:15:22] permit. And as I already said, u there is a requirement that you meet all the

[2:15:26] rules and regulations for the town of Harrisburg per the UDO. In addition, I

[2:15:32] would just point out that an administrative officer is not empowered

[2:15:34] to wave a requirement in this case for a special use permit of the town's unified

[2:15:39] development ordinance. Doesn't have that

[2:15:44] right. The other representation uh that was made in the uh appeal application is

[2:15:51] that the November 15th email determination for a special use permit

[2:15:56] is erroneous. So, if you look up the word erroneous,

[2:16:01] that means wrong or an error. Very important. I want you to remember

[2:16:06] that the appeal application states the proposed on-site industrial landfill is

[2:16:12] not a heavy industrial use. That's a pretty definitive statement. Our

[2:16:18] response is that within the EC zoning district, every industrial uses within

[2:16:22] the EC zoning districts require a special use permit in accordance with

[2:16:26] section

[2:16:33] 140406D.

[2:16:37] Now, the applicants claim that the proposed industrial use is not heavy

[2:16:42] industrial. uh staff would refer the board to the definition for

[2:16:45] heavy-industrial found within the UDO. And I'm just going to read a portion of

[2:16:49] this. Heavy industrial means a use category containing uses engaged in the

[2:16:55] manufacturing, assembly, or processing of

[2:16:59] chemicals. Factory production in industrial yards are located here. I'm

[2:17:05] not going to go through the rest of the uses. The key word there is

[2:17:09] chemicals. Based on this definition, the proposed landfill is a heavy industrial

[2:17:13] use, which is why the determination was made that a special use permit is

[2:17:20] required. This is the U table of uses uh table 1402022

[2:17:27] uh permitted uses by non-residential mixeduse zoning district. And you can

[2:17:31] see that I've circled heavy industrial uses. You can see that for the EC zone

[2:17:35] is permitted by special use permit. and you see the reference to the uh

[2:17:41] applicable section of the um ordinance where you would process that special use

[2:17:50] permit. Second point that that I would make or that was

[2:17:55] made in the application is that the um follow up to the to to to what I just

[2:18:00] shared that the email determination uh is erroneous. Um and it goes on to say

[2:18:06] that the proposed industrial landfill is either a light industrial use or a waste

[2:18:14] related use both which are permitted by right. Okay. So my job as the planning

[2:18:22] director and our job as a staff for the town is to apply the zoning ordinance

[2:18:26] the UDO to interpret the ordinance to read the

[2:18:31] ordinance. So let's look at what light industrial says. Light industrial means

[2:18:36] a use category containing uses engaged in the manufacturing, assembly or

[2:18:40] processing of industrial business or consumer goods usually from basic

[2:18:44] finished input such as metal, stone, glass, plastic or rubber contractors and

[2:18:49] building maintenance services and similar uses. Perform services offsite.

[2:18:54] Few customers, especially the general public, come to the site. You'll notice

[2:18:58] that there's one word missing uh from this description and that is the word

[2:19:02] chemical or

[2:19:10] chemicals. Let's pick up the second part of the representation. Proposed on-site

[2:19:16] industrial landfill is either a light industrial use or a waste related use

[2:19:21] both of which are permuted by rights. So let's look at the waste related use. A

[2:19:25] lot of discussion about what a waste related use is. Let's look at what the

[2:19:30] ordinance says it is. Waste related use means a use category containing

[2:19:36] establishments that receive very important word that

[2:19:41] receives solid or liquid waste from others. Other is a very another

[2:19:46] important word for treatment or transfer to another location and uses that

[2:19:51] manufacture or produce goods or energy for the large scale composting of

[2:19:54] organic material by the uh testimony and

[2:19:59] representations of the u of the council for the applicant as as well as the uh

[2:20:05] um the witnesses. Um there is no receipt of solid or liquid waste from others and

[2:20:15] uh it is not being transferred anywhere else. It is staying on the site. So uh

[2:20:22] waste related use means the proposed industrial landfill would have to be

[2:20:28] receiving something from outside and that is not the case. Proposed

[2:20:32] industrial landfill would not qualify as a waste related use since it would not

[2:20:37] receive solid or liquid waste from others for treatment or transfer to

[2:20:42] another location. Ventor's appeal is based on two

[2:20:47] arguments that the August 19, 2022 letter from Tom Leser to Jon Stein

[2:20:52] approves the proposed landfill use. And second, the November 15, 2023 email um

[2:21:00] regarding industrial landfill use incorrectly or erroneously as the

[2:21:06] applicant's um application reads is classified as a heavy industrial use and

[2:21:12] that the use is allowed by right as either light industrial or a waste

[2:21:17] related use. And so again, in summary, our

[2:21:22] response is that the 8/1922 letter neither approved proposed industrial

[2:21:27] landfill use nor relieve the applicant from the requirement for heavy

[2:21:31] industrial use to obtain a special use permit. Second, an administrative

[2:21:37] officer for the town cannot unilaterally wave a UDL requirement. In this case,

[2:21:42] the requirement for a special use permit.

[2:21:45] With respect to the 11:15 uh 23 email, UDO definition clearly identifies the

[2:21:52] proposed industrial landfill as a quote heavy industrial

[2:21:56] use as it is involved in the processing of

[2:22:01] chemicals. The argument that the proposed industrial landfill is a use

[2:22:05] permitted by right because it is either light industrial or waste related use is

[2:22:09] also not supported by the definitions for these uses. And these are the

[2:22:14] definitions that we refer to for this use for any use that comes before

[2:22:20] us. In conclusion, based on the facts that we

[2:22:24] presented, town staff believes the termination of the requirement for a

[2:22:28] special use permit was properly made is consistent with the UDO and should

[2:22:32] therefore be upheld by the board of adjustment. I'm available for questions.

[2:22:44] Mr. Chairman, I'm not going to ask our staff member questions, but but yeah, he

[2:22:50] certainly he can be example. I don't have any questions on boss, Mr.

[2:22:53] Chairman.

[2:22:57] Okay. Does the board have any questions? I have one.

[2:23:04] Did I hear y'all say that Bentor did submit a special use permit in December?

[2:23:11] Yes.

[2:23:16] Okay. On that permit application, did they was there a space or did they

[2:23:21] indicate what the use was? The the Well, the use was for the for

[2:23:28] the prop the industrial land use. Um that was But did they have to

[2:23:33] indicate the zoning classification? In other words, light industrial waste,

[2:23:37] heavy I don't recall. You don't

[2:23:45] recall. This um property is currently under a special use permit that was

[2:23:51] previously known as a conditional use permit. Yes.

[2:23:55] on the original March, I think you said, of

[2:24:00] 2022, did that application indicate whether it was heavy industrial

[2:24:10] waste or

[2:24:15] otherwise. I'm just pulling it up right now.

[2:24:52] The application indicates only that the current zoning

[2:24:56] classification at the time was I1 which is light

[2:25:00] industrial. the existing land use is manufacturer of industrial inorganic

[2:25:05] chemicals. Okay. And that that was it. That's all that we we got. And then of

[2:25:10] course the storage tanks, the railroad spur, and the parking lot expansion were

[2:25:15] all part of that. And you were not the director at the time? No, that was 2010.

[2:25:21] And the UDO was rewritten and adopted when? August 2021.

[2:25:28] prior to any of this taking place. Correct. Okay.

[2:25:35] So, Tom Leser was an administrative officer. Tom Leser is a code enforcement

[2:25:42] officer for the for the town. So, at the time of the August 19th, 2022

[2:25:51] letter, he was authorized to write this letter.

[2:25:56] Tom will write zoning verification letters.

[2:26:02] Um, in looking at this zoning verification letter, again, I think that

[2:26:08] in at least to me, it's very clear that uh this is a fairly pro-formal letter.

[2:26:15] Um, it tells you who the owner is, the location, the zoning. It tells you, uh,

[2:26:21] whether the conditional use overlay, are there any special exemptions, not a

[2:26:26] special exception, um, are there any violations, is it located within the

[2:26:31] town's limits, what are the abuing uses, any violations, etc., etc. Um, again,

[2:26:38] this letter essentially is a snapshot of the site. This letter is not a uh an

[2:26:48] approval. Um it is in effect an administrative assessment of the of the

[2:26:53] use current. And at this point or or at that point um again I pointed out I

[2:27:01] think several mention uh references to compliance with rules and regulations of

[2:27:07] the town of Harrisburg. So the applicant is not absolved uh from those

[2:27:12] requirements and um again we are processing that application as we speak.

[2:27:19] I'm still having a hard time wrapping my head around the current zoning is an

[2:27:26] approved zoning class for proposed on-site industrial landfill. I mean if

[2:27:32] somebody tells me that I'm going to go build a landfill.

[2:27:38] Why? Why wouldn't I? Who Who was authorized to tell this

[2:27:43] company they can build this landfill? Yeah. And and again, in my in my mind,

[2:27:48] this statement, Kurd zoning is an approved zoning class for the proposed

[2:27:52] on-site industrial landfill. That's a true statement. However, there's also a

[2:27:57] requirement for a special use permit for a heavy industrial use. And that is the

[2:28:02] point that um I think is is critical. uh this there were no nothing in this

[2:28:08] letter which um said that a special use permit was not required and that the the

[2:28:14] use could proceed. As a matter of fact um this this um particular uh letter

[2:28:20] would have to be followed up by at least a site plan approval. You could do

[2:28:26] nothing without that. Um, I would also point out that um, to our knowledge,

[2:28:32] there still has not been any site suitability approval granted for this

[2:28:37] site. And I suspect that may be because the special use permit um is

[2:28:46] the piece of evidence that they require ultimately, not an administrative

[2:28:52] statement that is eligible for a use potentially. I'll object to that

[2:29:00] statement at the end, Mr. Chairman, as being um as being speculative.

[2:29:39] Um could we ask you to clarify what you meant

[2:29:42] by what DEEQ? Sure. So, um, DEEQ and again the

[2:29:52] letter references the U applicable code uh 15A

[2:29:58] NCAC13B 0504. Um, DEEQ requires the local

[2:30:05] government. It's somewhat of a chicken egg situation. They want to know that

[2:30:09] you're going to approve it before they approve it. um because they don't want

[2:30:12] to approve something that requires an approval that would if you don't grant

[2:30:16] it would be a moot point and they go through all their uh process.

[2:30:20] Um but at the outset what the state requires is uh and and they make this

[2:30:27] determination whether the site is suitable for the proposed use in this

[2:30:31] case an industrial landfill. Um, again, to my knowledge, that site suitability

[2:30:37] has not been granted, and I didn't hear anything tonight that says it has been

[2:30:40] granted. Uh, and without that sight suitability um um determination, there

[2:30:47] is no permit. That that that's a precursor to the granting of a permit

[2:30:53] for the use that's being proposed. That's it. So, it is a state

[2:31:00] process. So, how complete do you

[2:31:06] consider the August 19th letter of consistency that the town's code

[2:31:13] enforcement officer Tom Leser sent out? How complete do you consider that given

[2:31:19] that you've stated that that that line on the top of

[2:31:25] second page the current zoning is an approved zoning class for the proposed

[2:31:29] on-site industrial landfill and you stated subject

[2:31:33] to an SUP. How complete is is this letter? Is it misleading?

[2:31:42] So the the statement that it's an approved

[2:31:46] zoning class would mean that the EC zone would

[2:31:53] be a zoning class for which you could conduct a certain use. Um, again,

[2:32:01] it it is it is in my mind uh conspicuous by its absence that

[2:32:09] there's no mention about a need for a special use permit or no need for a

[2:32:14] special use permit. And

[2:32:17] so this is why we've been processing this again since November. We let the

[2:32:23] applicant know that. We made the determination. They submitted an

[2:32:26] application. Um and uh we're proceeding with the review of the special use

[2:32:32] permit and we're that's underway uh as we speak. Um but the um as far as the

[2:32:39] the zone um again I think the um the the the representation was that uh this

[2:32:46] letter was uh in part uh crafted uh by the applicant and and I would say that

[2:32:52] um it was probably inartfully done um because that is not a

[2:32:58] um this statement should not be you should not read into this statement that

[2:33:04] anything you wanted to do then would be admiss permissible under that uh in that

[2:33:09] statement. That's a pretty broad statement. Uh certainly not um a um an

[2:33:14] accessory use that would involve uh the placement of a industrial landfill on a

[2:33:20] site. So is that is it safe to say that a landfill is a permitted use but

[2:33:27] requires a special use permit in order to be constructed?

[2:33:31] That that's basically what you're explaining, right? So that's what that's

[2:33:34] what table 1402-2 describes is that it is a

[2:33:40] permitted use. It's not a prohibited use. It's not prohibited or permitted

[2:33:44] with limitations, but it does require a special use permit in order to be

[2:33:47] constructed. Yes. Okay. Before we get too far away, you had an objection and

[2:33:52] we need to make sure we deal with that. So your objection to his statement about

[2:33:56] the restatement of the answer cleaned up the issue about which I was objecting

[2:34:02] which is the speculation about why the state has not approved the site's

[2:34:08] suitability. Okay. So you're satisfied with the clarification. I'm cl I'm

[2:34:11] sorry. Yes. Yes. With the clarification. The first answer no. But yes. Thank you.

[2:34:17] So can I put a hypothetical out there to try to distill this a little bit? Um,

[2:34:22] let's say someone came to you and said, "Um, I want to build a

[2:34:29] uh a house on my property." And you went and looked at the table and you said,

[2:34:34] "Um, well, it's zoned residential." Um, and you and they said,

[2:34:41] "Well, I need a letter from my bank saying before they'll loan me money for

[2:34:45] this property that I can put a house on this property." Right. And if they asked

[2:34:50] you for that letter, you would produce a similar letter to

[2:34:53] this, I would expect. Yes, we we would produce a similar letter. Um, obviously

[2:35:00] the the facts would be different, but um yes, we would we would make a a a

[2:35:07] determination and address the uh either approval or it not being uh approved or

[2:35:16] appropriate for that zone. And I think it would be

[2:35:22] unreasonable to say, however, you can't build right up to the property line. It

[2:35:27] can't be 10 stories tall. It has to have egress openings in every bedroom on down

[2:35:33] the line for everything that the code requires. Just that a house can be built

[2:35:38] on that property, you must follow everything

[2:35:42] else. Yes. So the the the permit would be issued uh by us and all our permits

[2:35:50] specifically for homes would then be subject to the regulations of the

[2:35:54] Cabaris County Building Department which would then be um managed by them at that

[2:36:04] point. But there's a process

[2:36:16] Is it standard operating procedure for staff

[2:36:21] to request that applicants or their representatives dictate what they want

[2:36:26] to see in a letter in terms of an approval or such situation as we have

[2:36:32] here with the uh former employee for the town. So, let me address that this way.

[2:36:40] Um, I became playing director in October of

[2:36:45] 2022. The letter that you're referring to August 19 was prior to my becoming

[2:36:56] the full-time planning director for the town.

[2:36:59] Um, there was an interim period. Uh during that interim period I was a uh an

[2:37:06] employee of another firm and I was providing services to the town. Um in

[2:37:11] that capacity um it was primarily maintenance and making sure that

[2:37:18] everything was being processed accordingly. Um when I became planning

[2:37:23] director, um the process and the procedures uh were reviewed and I can

[2:37:30] tell you that at this point in time, we would not request guidance from an

[2:37:36] applicant as to how we should write our zoning clearance letter.

[2:37:56] other questions. Is is there a standard format

[2:38:01] when you from your perspective of course when you're making a final determination

[2:38:08] as far as zoning is there is there a standard letter other than this letter

[2:38:12] consistency that we're looking at that's like okay I'm director this is it this

[2:38:18] is the final ruling this is my final interpretation is there a standard

[2:38:22] letter of some sort well other than this consistency type and I don't I don't

[2:38:28] have a standard form, but we we do use a standard form letter U that would insert

[2:38:34] you as appropriate whatever um the uh what whatever would be the appropriate

[2:38:40] um um approval or language for that use. Um and um again the these letters are

[2:38:48] issued for everything from u mortgage companies, title searches,

[2:38:54] um you know, someone who is uh perhaps doing a due diligence search of a

[2:39:00] property, want to know if there's any violations,

[2:39:03] um confirming zoning. Uh so this is a fairly routine uh matter, but yeah,

[2:39:10] every letter can be different. Um there's, you know, that there's there's

[2:39:13] really not uh uh not not too many that are exactly the same. They're all

[2:39:18] different. So, and when you receive a

[2:39:22] pre-application meeting um such as exhibit three, which I believe the uh

[2:39:32] applicant completes and it was mentioned

[2:39:36] that conditional use permit was not checked. The box was not checked, right?

[2:39:46] Um, do you expect this document to be like pristine and thorough with every

[2:39:52] box checked and it's just uh almost like a final product or is

[2:39:58] this something that's somewhat breathing and living

[2:40:01] and you you guys meet together, you make changes as

[2:40:06] necessary or do you take in consideration there may be an oversight

[2:40:10] something left off that maybe should have been there or maybe the applicant

[2:40:13] didn't know what how do you expect to see this pre-application meeting summary

[2:40:17] in terms of its completeness accuracy right so um again I'm speaking

[2:40:25] from my tenure uh as planning director um we do review these uh we make sure

[2:40:35] that they're correct and appropriate um and um that is uh our our procedure and

[2:40:43] that's our process. So um I will say this that um the process has been going

[2:40:50] on now for 18 months 15 months um and uh ultimately uh we got to the right

[2:40:59] decision. Um I would say that it as a contributing factor there was a

[2:41:07] transition period and there could have been some um some

[2:41:13] gaps. So uh you know I would say that we we landed uh where we should have landed

[2:41:19] and that's what matters. um and the ordinance is upheld and we're not going

[2:41:25] to approve something that requires a special use permit um unless a a special

[2:41:31] use permit is

[2:41:45] acquired. Um are there any other witnesses?

[2:41:50] Um Mr. chairman. Yes. I don't know if if Mr. Thelen has any more questions for

[2:41:55] I'll give him an opportunity in just a second, but uh what we had planned to do

[2:41:59] was was have the planning director testify from the from the staff report,

[2:42:05] which pretty much covers um the evidence from from the town's perspective. Um and

[2:42:11] then we we have um um Mr. Leser and Mr. Deart that are available. They're here

[2:42:18] in the in the room in the back. uh a as witnesses uh if if anyone wanted to to

[2:42:25] um ask them questions, but but our our intention was not to separately call

[2:42:30] them because I think the most of what what they could testify

[2:42:34] to maybe all what they could testify to has already come into evidence. They

[2:42:39] came in through the staff report. Well, certainly they're available to be called

[2:42:43] on. Yes, I Yeah, I think the board understands understands. So we So I

[2:42:48] don't have any questions of them. You don't have any? I don't plan to call

[2:42:51] them as witness. So you have no additional witness? No

[2:42:56] additional witness. Okay. Understood. Sorry for the long- winded answer.

[2:43:01] Understood. Would you like to provide a rebuttal to his presentation? Thank you,

[2:43:06] Mr. Chairman. We do we did discuss though uh the notion of closing. I would

[2:43:12] have a just a brief closing maybe five seven minutes at the end of all the

[2:43:16] testimony and before you deliberate Mr. Chairman I think that's reasonable we

[2:43:20] can give and that's where I'd come in is I'm going to do the closing for the town

[2:43:25] yes but okay um I would also move for the admission

[2:43:30] of all of my exhibits sorry Mr. Chairman, I I I neglected to do so at

[2:43:34] the close of our case. I'd move for the admission of our exhibits 1 through 12

[2:43:38] in the binder into the record. Any objection? No objection. And I do the

[2:43:43] same for this staff report. Any objections?

[2:43:47] No, you said your um

[2:43:52] yeah, same. Okay. So, so both the staff report and your materials will be

[2:43:58] admitted into the evidence.

[2:44:02] Yeah.

[2:44:05] Um I did have one final question for Benur. Um probably Miss um

[2:44:16] Stein. Stein, could you come up to the podium briefly, please?

[2:44:24] Could I ask why Ventor submitted a special use

[2:44:28] permit if you do not believe that it's required?

[2:44:33] I think we were advised by council to submit the special use permit. I think

[2:44:37] that's the way that happened. Is that the way you remember

[2:44:42] it? Yeah. We were we were trying to go through uh so we're on some regulatory

[2:44:48] deadlines for this project. We have bats in the area. We have only certain time

[2:44:54] periods to cut trees. And so we were trying to expedite the uh process so we

[2:44:59] can meet the deadlines of the project. And I think we were trying to work a

[2:45:03] parallel path with appeal and a special permit. And the town came back and said,

[2:45:08] let's deal with the appeal and then if we need to, we'll deal with the special

[2:45:11] use permit. Okay. Mr. Robinson, did you want to add something? You is that the

[2:45:16] way you remember it? Can you come up to the microphone, please?

[2:45:20] That's correct. Yeah, that's exactly what I was going to say is that as part

[2:45:25] of trying our our thought was to try to keep our options open and work both

[2:45:29] paths in parallel. However, I think an unintended consequence of that is that

[2:45:33] the town decided, well, let's proceed with just the appeal and then decide

[2:45:37] whether or not um we we would then need to proceed to a special use permit

[2:45:43] hearing. Um, and and like Janna mentioned, the consideration was there's

[2:45:48] a a specific time window during the year. There's ariccolored bat in the

[2:45:52] area, and so you can't cut or grub trees um during their nesting period, which I

[2:45:59] think is from April 1 to like November 15, somewhere around in there. So, so

[2:46:04] we're pushing up against that. So, we were trying to work both of those pads

[2:46:08] in parallel. That was the reason that the special use permit application was

[2:46:12] submitted.

[2:46:25] If there are no more questions, we'd let you do your closing remarks.

[2:46:31] Second slide seven. Thank you.

[2:46:49] While the PowerPoint is loading, I did I did want to make one point of

[2:46:52] clarification. The conditional use permit that's being talked about was

[2:46:55] issued in 2002, not 2022. I think there have been some typos, so it's appeared

[2:47:01] here and there, but it's 2002 was the conditional use permit. The UDO was

[2:47:06] newly adopted as noted by Mr. Gard in 2021. So, um yeah, the terminology

[2:47:14] changed, but the whole law changed. That's why you heard the property

[2:47:16] referred to as light industrial under the prior UDEO

[2:47:21] um or the UDO that was in effect in 2002. Now, it's EC employment center.

[2:47:26] Entirely different set of laws um which I'll get to in a second. Um thank you

[2:47:33] again for your time. I'll keep this quick.

[2:47:37] Um I think it's important um there's been a lot of discussion about what this

[2:47:41] use is and what it is not. Um and that's important to the extent that um the

[2:47:47] issue really from our perspective is is the interpretation given in our view is

[2:47:53] interpretation given that it's permitted as of right um and we think the

[2:47:57] interpretation given that it's a waste related use is that reasonable is that

[2:48:02] is that defensible um and that's important because going

[2:48:07] back to to Miss Stein's email from June is is that she's giving her analysis and

[2:48:12] saying this is the use that we're describing. Remember, excuse me, she had

[2:48:17] attached um you know the site plan, a preliminary

[2:48:21] site plan and um the site submitt and she sends the email where she says this

[2:48:29] is what I think this use is. Um now I do this all the time. There's been a lot of

[2:48:33] talk about these interpretation requests. I do this all the time. And

[2:48:37] when you're developing a project, I always go and I say this is what I'm

[2:48:40] developing. this is the use that I'm going to develop. You don't get into

[2:48:43] site plans. You don't get into measurements. But you might have a

[2:48:46] question about measurement. You say, "But I can't quite tell how your

[2:48:49] ordinance treats this particular thing, this particular use, this particular

[2:48:54] setback. Is it measured from the wall? Is it measured from the parapet? Those

[2:48:58] sorts of things. And you ask for a clarification and interpretation from

[2:49:02] the town as to how the town interprets its ordinance and how it would apply the

[2:49:07] ordinance to your particular question. So, this is not an email saying, "Can I

[2:49:12] just go ahead and build my landfill?" It's saying, "We think our landfill, as

[2:49:15] we've described it, including these attachments." Pardon me, I keep going

[2:49:19] the wrong way. So, there's some description here. It's not just in a

[2:49:22] vacuum. It's pretty descriptive. It's saying, "We think that we are in all

[2:49:26] other waste related services use permitted within EC zoning." She's

[2:49:30] asking that question. And the letter can't just be viewed. The August 2022

[2:49:35] letter cannot be viewed simply within the context of the letter itself.

[2:49:39] um it needs to be viewed within the context of the question that was asked

[2:49:42] and the question is this is what I think we are can you provide clarification on

[2:49:48] this issue that's what she's asking that's what ventor is asking of the town

[2:49:53] yeah keep going the wrong way I apologize so and then also the town as

[2:49:59] part of this again after the email takes the pre-application form and to the

[2:50:04] question from board member long about is this a living document ment it may be a

[2:50:10] living document but if you again you'll see on the first page on the second page

[2:50:14] the notion of conditional use permit is blank because that is what ventor

[2:50:19] thought consistent with its June 6th email that third page though is that

[2:50:23] it's showing look at the top it says accepted Mr. Thomas and the town

[2:50:28] engineer accept it. So now Ventor is understanding all right this is now G

[2:50:32] going in the same direction. Again the question that's been asked the use has

[2:50:37] been described is our use a waste related use and the town could have told

[2:50:41] him it was something else. The town did not do so.

[2:50:45] Instead the town says well give me some draft language. Ventor didn't send

[2:50:49] language and say here's a letter sign this letter. It said can you confirm

[2:50:53] this use? The town then asks Ventor, "Well, send

[2:50:57] us the language you want." And it comes from Miss Stein again. Miss Stein asked

[2:51:01] the June question and then she provides the language. If

[2:51:05] someone asks me a question and then I say, "Well, give me the answer that you

[2:51:11] think it is." And that question, by the way, has the answer within it. She

[2:51:14] doesn't say, "What use am I?" and then gives them this language. She says, "I

[2:51:18] think I'm an other waste related services use permitted by right." And

[2:51:22] the town says, "Give us some language." And the town puts that language into its

[2:51:26] letter verbatim. And this is this is

[2:51:31] not this is just what Ventor understood. This is not trying to say that someone

[2:51:35] did something wrong. In fact, we don't think the town did anything wrong. In

[2:51:38] fact, we think the town did something defensible. We think the town answered a

[2:51:43] question specifically that was asked and gave us an answer that we thought was

[2:51:46] right, that Venetra thought was right, that Miss Stein thought was right and

[2:51:49] confirmed it. And again, this is a common practice in the zoning world to

[2:51:54] ask for an interpretation of the ordinance to accept that interpretation

[2:51:57] and either appeal it and we'd be here saying maybe the town says you need a

[2:52:01] special use permit and Ventor disagrees with that and Ventor says we don't think

[2:52:05] we're that we'd appeal that determination. But frankly, well, I

[2:52:09] don't know. It's speculation, but Ventor would have said, "Fine, we'll go with a

[2:52:11] special use permit." But I got this interpretation in August that it was per

[2:52:15] permitted by Wright and all this time passes. So the question asked is the

[2:52:21] question answered. That's the point here. And I know that's clear at this

[2:52:25] point, but it's not just what the letter said. It's what the letter said within

[2:52:30] the context of the question that was asked. And Mr. Gordon is right. The

[2:52:33] letter does not say a special use permit is not required, but it doesn't say one

[2:52:37] is required. Doesn't say anything with

[2:52:40] regard to special use permit. And that's part of the problem within the context

[2:52:43] of the question that is asked. There's the language from Miss Stein's email and

[2:52:48] there's the language, the operative language from the August letter that

[2:52:51] we're talking about. Then again, there's a submission in November. And this is

[2:52:55] not trying to point fingers. This is simply to say this is all consistent

[2:52:59] with what Ventor thought. So Ventor still thinks in November of of 23 that

[2:53:05] it doesn't need a special use permit. It submits a pre-application summary form

[2:53:09] as you see on the right there. And again, it leaves it blank. There's no

[2:53:12] special use permit

[2:53:15] required. Ventor is trying to figure out, well, now it now it believes that

[2:53:20] the town has interpreted, but but Ventor back in June of 22 is trying to figure

[2:53:24] out what the town's laws are. It's not trying to tell the town what the laws

[2:53:27] are, trying to do something outside the town laws. It's trying to dot its eyes

[2:53:31] and cross its tees. And it thought it was doing so. And again, the town is

[2:53:35] specifically I don't have the ordinance provision here in a slide, but the town

[2:53:39] is specifically authorized, you saw it at the at at the outset, that that state

[2:53:45] law and town law authorize town staff to issue these kinds of determinations and

[2:53:50] authorizes specific people and it's broad. It's it's any design of

[2:53:56] staff. And so the emails went to Craig Thomas. Tom Leser sent the letter back,

[2:54:00] but no one said, "Yeah, but he's not authorized." And I'm not sure about

[2:54:03] that, frankly, if that would work anyway that a town could say, 'Well, you asked

[2:54:06] me, but he wrote the letter. It's on town letterhead. Town knew about it.

[2:54:10] It's signed by the town. Town never appealed it. Town never cancelceled it

[2:54:14] or withdrew

[2:54:16] it. So then in response to that November 1st application is that

[2:54:24] the ventor gets this memo the next day back from the town. And it does say in

[2:54:28] there that can't quite read it, but at the

[2:54:31] bottom there on the left on your left is that it does say that yeah, the land use

[2:54:37] requires a special use permit. Okay. And you also heard the testimony that Ventor

[2:54:42] understood that to be yeah, if there's an expansion of the chemical plant,

[2:54:45] that's a that's a special use per. But if you go higher with a proposed use,

[2:54:49] this memo is saying the proposed use is a landfill and that's what's being

[2:54:54] talked about here. And then next to that it says waste related services permitted

[2:54:59] by right. And no one's pointing a finger again. It's just saying this is just

[2:55:03] consistently telling Ventor what it thought it knew in June or August,

[2:55:09] excuse me, in 2022. And this is

[2:55:12] consistent. And it's not whether it's the only correct answer, whether it's

[2:55:17] absolutely correct. This is waste related services and nothing else. It

[2:55:21] can't be heavy industrial. It's just whether it's defensible. and looking at

[2:55:25] the definition of waste related services you heard Mr. Gordon talk about how it

[2:55:30] can't be that because it does not doesn't does not receive from other

[2:55:34] sites. No, but it also says at the end or any other use that the director

[2:55:38] determines it shall be also to that point is that's why they sought the

[2:55:44] interpretation. These definitions are hard to get your hands around. They're

[2:55:48] hard to understand and they're constantly interpreted by town staff and

[2:55:52] they're constantly interpreted in a way that can sometimes be helpful, sometimes

[2:55:56] be disagreeable, and then the applicant, the property owner has rights in that

[2:56:02] regard. If you send a letter saying, "Can I build a house on this property?"

[2:56:07] And the town writes back, "Your h your property is properly zoned." And then

[2:56:11] you build a house and they say, "No, no, no, no, no. That's not what we meant.

[2:56:16] That's say We didn't say that it has to be a house like this or has to be a blue

[2:56:20] house or something to that effect. Okay. But that's a question asked and a

[2:56:24] question answered in Ventor's mind. Ventor is not the zoning expert. There's

[2:56:27] been a lot of question. Are you a zoning expert? You have this understanding.

[2:56:30] They're not the zoning experts. I was not involved in these interpretations.

[2:56:33] They didn't have a lawyer at that point in time, but that's why they're asking

[2:56:35] these questions is they're trying to get an interpretation to get confirmation

[2:56:39] from the town as to how it's going to interpret its laws. Then we get the

[2:56:43] email at the end. All of this comes into and there's a

[2:56:48] definitive case and we submitted point briefing on this and I'll keep this

[2:56:54] quick and fast. Um, but the definitive case on use interpretations is St.

[2:56:59] Wooten and the facts there do match up to the facts here and I'll conclude on

[2:57:05] this that the facts at St. Wooten. So the facts on your left are St. Woot and

[2:57:09] the facts on the right are what we've done here and these are quotes from St.

[2:57:13] Wooten. It's a court of appeals case from 2011 here in North Carolina. The

[2:57:17] petitioner of the land owner specifically requested the plan director

[2:57:20] interpret the ordinance and determine whether asphalt plant was permitted

[2:57:24] use. That's what happened. Ventor requested clarification with the propos

[2:57:28] proposed use is quote all other waste related services and permitted within

[2:57:31] the EC zoning. So Ventor gets an interpretation

[2:57:36] that adopts a ventor's own proposed language. was trying to get the

[2:57:39] interpretation that the property owner was seeking in

[2:57:42] Wooten. The interpretation in Wooten and this is an important part

[2:57:47] because there was some talk about the the language in the August letter about

[2:57:52] how other regulations apply permits need to be sought that didn't matter in the

[2:57:57] context of Wen and you see there specifically at the end the fact that

[2:58:00] Mr. Franos Mr. Frangus was the plan director for the town of Zebulon. In

[2:58:04] this case, letter mentioned that a building permit would be needed before a

[2:58:07] petitioner could begin construction does not convert his unequivocal zoning

[2:58:12] interpretation into advisory opinion. The town argued that understandably so

[2:58:16] said, "Yeah, but we said you got to get other permits. You got to get site

[2:58:19] plan." Ventor knows that. Ventors knows that it has to get site plan approval.

[2:58:25] It doesn't just get to walk out of here if you all find that the August letter

[2:58:29] was was a binding determination. This is permitted as of right. Ventor still has

[2:58:34] to go through a site plan process at the town. It just does not have to go

[2:58:37] through the special use permit process at the town. It doesn't have to come

[2:58:40] back here and go through an evidentiary hearing. It will if it has to, but

[2:58:45] that's there is still a site plan process. There are still state

[2:58:49] regulations that apply. This is not a way out of regulation. is just a way

[2:58:53] through straight to sight plan process between Ventor and the administrative

[2:58:58] staff at the town. Then just like in Wooten and just

[2:59:03] like here, there were confirmations in Wooten. So it wasn't

[2:59:08] just that that the letter was written, it was that that interpretation was

[2:59:12] confirmed. And you heard us talk here about the pre-application summary that

[2:59:18] said no conditional use permit was being sought and that was accepted and signed

[2:59:24] by town staff in July of 22. And then you also saw the November 23 memorandum

[2:59:29] where it said proposed use landfill waste related services permitted by

[2:59:35] right. So just like in Wooten here we had

[2:59:39] confirmation again in Wooten and here you heard Ventor talk about how they

[2:59:42] relied on the interpretation. It wasn't like the interpretation was given on a

[2:59:45] Monday and then they appealed it on a Friday or they got a different one on a

[2:59:51] Friday and then appealed it on a Monday. They got the interpretation in August of

[2:59:55] 22, relied on it. It was confirmed. Did a bunch of stuff and then it was

[3:00:01] upended his ventor's position. was reversed in November of 23. They may

[3:00:06] have gotten it right as Mr. Gordon said eventually, but that's not how it works.

[3:00:08] You can't just get it right eventually. That's not how the law works,

[3:00:12] unfortunately, is that if you render the interpretation, if it's defensible, and

[3:00:16] which by the way, we would posit that it was, which is why the town gave it, as

[3:00:20] we would say, the town, unless it appeals its own interpretation, and it

[3:00:24] can do that. Towns do that all the time. Unless they do that, they are

[3:00:30] bound just as we're bound if we don't appeal. They have rights. We have

[3:00:33] rights. They don't get a way out of those rights. And we would have been

[3:00:37] stuck if we hadn't appealed it. And then in the end, just like in Wooten, just

[3:00:41] like here, the language in Wooten, and it's weird, is that neither of the town

[3:00:46] have the authority to render a contrary decision or collaterally attack the 2001

[3:00:50] interpretation. We would say that here. There was no authority to issue the

[3:00:54] November 15th, 23 email that says you got to get a special use because they

[3:00:59] already rendered their binding and final interpretation that the use was

[3:01:02] permitted as of right. And so we're not asking you essentially to reverse the

[3:01:06] November 15th, 23 email from Mr. Hart. We're asking you to uphold the August

[3:01:13] 2022 interpretation that was confirmed over

[3:01:17] time that the use is permitted as of right. the on-site landfill as described

[3:01:23] and as shown in June is permitted as of right on the

[3:01:27] property. And that's our conclusion. So with that, thank you very

[3:01:32] much for your time. I'm happy to answer any questions. I know it's been a lot.

[3:01:36] So, so we appreciate the time and attention.

[3:01:40] Thank you. Thank you. Mr. Chairman, can I stay right here instead of going? Yes,

[3:01:46] sir. Thank you. Um, I think one thing that we need to

[3:01:52] look at to start out uh with what I want to say is that when they get into this

[3:01:58] discussion about accessory uses and and um uh waste other waste disposal, um

[3:02:06] they're trying to pull out this 3.6 acre parcel from the entire 100 acres of

[3:02:13] that. That's one parcel that has a chemical plant on it. Um, this parcel

[3:02:19] had been developed as a chemical plant and part of the area that had previously

[3:02:25] been developed as as part of the chemical plant was the area for diso

[3:02:30] disposal of their waste. We you've heard a lot of discussion about that and

[3:02:35] they've got the lagoon out there that they're going to change as part of this

[3:02:39] project. Um but that's all part of the the chem chemical plant. Um and it's not

[3:02:44] an accessory use. It's not a light industrial use. If you read the def

[3:02:50] definitions under the um UDO, uh chemical plants are heavy industrial

[3:02:56] uses. And this part of the of the property is part of the of the chemical

[3:03:01] plant operation because they have to do something with their waste. And so to

[3:03:06] say that it's some sort of a accessory use and you could pull this 3.6 acres

[3:03:12] out and treat it differently from the way you treat all the rest of the

[3:03:15] property is just is not what is occurring here. It's it's one parcel.

[3:03:22] It's it's one uh project and it's a it's just a another thing that they're going

[3:03:27] to do on this property that's related to the chemical plant.

[3:03:33] Um, now you've heard a lot about the some of

[3:03:38] the history and I thought it was interesting when you listen to the the

[3:03:41] witnesses for Ventor that that really no one looked at the history of this

[3:03:48] property and and its relationship to the town as it related to its zoning. And I

[3:03:53] think that that because of that uh now they want to to look at the present

[3:04:00] situation differently from what it's always been which was as a special use

[3:04:05] situation a chemical plant. Everybody here knows where it is and it's been

[3:04:10] there for 60 years as you heard. Um and um um they didn't look into that to see

[3:04:17] what the relationship was. It's almost what I've got out of all this evidence

[3:04:22] uh is that they didn't want to look at that. They were looking for a way to to

[3:04:27] to do this project without having to get a special use permit and to deal with it

[3:04:32] as a matter of right. So they wouldn't have to um um go through the procedures

[3:04:38] that require a public hearing um on on on this new way they want to treat their

[3:04:45] waste. I think that's what's really what it came down to. and they were hoping to

[3:04:49] avoid a special use. And that's why we get into all this back and forth about

[3:04:54] about the letter and what needs to go into it. I'm not saying that they were

[3:04:58] disingenuous about it. I'm just saying that that they didn't want to have to do

[3:05:03] a special use and they were hoping to avoid the public hearing and and that

[3:05:08] part of of of of what would occur with a special use permit and just be able to

[3:05:13] take care of this change that they want to make as something that that no one

[3:05:18] basically outside of them and maybe some of the town officials would know about.

[3:05:24] And I think that's really what we're dealing with here. um when they um look

[3:05:28] at just part of the property and and and then consider say that it's this

[3:05:33] accessory use that they can do by right instead of looking at the totality of

[3:05:38] what's going on here. Um, and I think that was basically shown

[3:05:44] by by the testimony of the witnesses that they're looking for a different way

[3:05:48] to look at this as accessory use or a waste related matter instead of that

[3:05:54] we're dealing with a a chemical plant and part of the of the processes of that

[3:06:00] chemical plant which includes dealing with their own waste uh that comes from

[3:06:04] the process. So,

[3:06:10] um, if they done their research, they would have known that they would have

[3:06:13] needed a special youth permit. We wouldn't have gone through all this, you

[3:06:17] know, back and forth about the letter and what needed to go in the letter.

[3:06:22] Um, so I think that has been shown by the

[3:06:27] evidence and I would point out that that the burden of proof in these hearings um

[3:06:32] these types of hearings is on the applicant is on Benitors to prove to you

[3:06:37] that um that um this was a matter um of right uh under under the ordinance. Now,

[3:06:53] um I want to talk about the the Wooten case as well. Mr. Thielen has given you

[3:07:01] his um um interpretation of it and I've got a copy of it right here. Um it's

[3:07:07] it's court of appeals case from 2011 and it does have some similarities to to the

[3:07:14] um u to this situation but it is not on all all fours which means that that it's

[3:07:21] it's not precedent that that basically has the same sax facts as as as the u

[3:07:28] that as this case. Um, and I'm going to point out to you some of the big

[3:07:33] differences um, uh, between the decision in Wooten and and um, this situation

[3:07:39] here. Um, and because it's not on all all floors, it really isn't precedent

[3:07:45] for for how you make your decision in this case.

[3:07:50] Um now in in Wooten, the planning director wrote a couple of letters um in

[3:07:57] which he clearly stated that the the asphalt plant that they were asking for

[3:08:01] in Wooten fell within the definition uh of

[3:08:07] the zoning for Wooten's property. It was they were operating a concrete plant on

[3:08:13] that property at that time and they wanted to expand into asphalt and uh

[3:08:18] under and this is the town of Ze Zebulon so it's not Harrisburg it's a different

[3:08:23] town different ordinance but that um um but the definitions under their

[3:08:29] ordinance said that that that um asphalt would be a related type of

[3:08:36] use because it was in an heavy industrial zoning district and his

[3:08:42] letters uh that he wrote to them were directly to them um and and were very um

[3:08:50] directly um um dealing with with that issue. It wasn't like um uh Mr. Leser's

[3:08:57] letter which was ambiguous and didn't cover all the things that maybe it it it

[3:09:03] could have covered. Um but in in Wooten it it said that the um that

[3:09:10] um an asphalt plant would be permitted by right um um and and and basically was

[3:09:18] just straight out that that you could do it in that way. Um you didn't need any

[3:09:24] special use permit or anything. Um so um in that situation um

[3:09:33] um when I say there was no amb no ambiguity it was it was very clear um

[3:09:39] and then here's what happened in the Wooten case after that and that was

[3:09:43] written in 2001 um um uh that those letters were written

[3:09:49] in in Wooten the company um um started using the property as asphalt plant in

[3:09:56] 200 2009. Um and received a zoning permit from the from the town uh that

[3:10:02] year. Um it was not until after the zoning permit was um issued in 2009 um

[3:10:09] and after the plant had opened and they were operating it that that the town

[3:10:14] notified them that they would have to have a special use permit. So So that

[3:10:18] was basically eight years after the issue. Um not not 15 months as here. It

[3:10:25] was a long time and and the plant was actually up and operating. It wasn't

[3:10:29] just uh something that that they're still thinking about doing because as I

[3:10:34] think it was pointed out the the um the project hasn't started on the ground

[3:10:40] here at all. So um um so that was a huge difference in the Wooten case. um the

[3:10:48] eight years and the fact that the plant was already up and oper operating. Um

[3:10:54] um wound also um divided the the property into two parts. Uh so the

[3:11:01] concrete plant be on one side and the asphalt plant on the other. And um um I

[3:11:06] say it was it was up and operating. In that eight years they had spent over

[3:11:11] $300,000. This is all in the opinion um um on on putting the asphalt plant in

[3:11:18] and it obtained all the state and local permits that they needed to operate it.

[3:11:23] Um and that's not the case here either. um court of appeals um in the in the

[3:11:32] opinion makes a distinction between authoritative opinions in zoning letters

[3:11:37] and one in which the official is just expressing a view or opinion or belief.

[3:11:44] Um so um um it wouldn't the opinion was that of the planning director um who

[3:11:51] clearly had the authority to issue the permit and the or issue the letter and

[3:11:55] the letter was clear. Um um um I say in this situation of course Mr. Lester,

[3:12:03] who's the zoning um enforcement officer, issued the letter, but as was pointed

[3:12:09] out in our staff report, there are some ambiguities in it, and it certainly

[3:12:14] doesn't uh say anything about the conditional use permit one way or the

[3:12:19] other. Um so, um that's another distinction. Um

[3:12:26] there's a line of cases that are cited in in this opinion uh that basically um

[3:12:32] are come to a different result from from the Wooten case. And I'm not going to go

[3:12:38] into all that, but just say that there that in that line of cases, um there's a

[3:12:44] they recite a a provision in North Carolina law that says that a town or or

[3:12:52] local government cannot be stopped from enforcing a zoning ordinance against a

[3:12:57] violator uh due to the conduct of the zoning officer and encouraging or

[3:13:03] permitting the violation. And basically what that says is that if you issue um a

[3:13:08] a a letter like this in error um you you can go back and and and correct it. The

[3:13:15] town has not stopped u under the law from going back and and and um and

[3:13:22] requiring a of a provision of the ordinance that's in there uh that it

[3:13:28] didn't require in the in the letter. So, so like I say, under the law and under

[3:13:35] Ruben, there's some significant differences between our situation here

[3:13:40] and and the facts in that case, which I would contend make it not precedent for

[3:13:46] this situation. I think what's more precedent is that out of the line of

[3:13:50] cases that says that the town could not be stopped or or prevented from

[3:13:55] enforcing the ordinance that it has on the books which is which is pretty clear

[3:14:00] that our um UDO require would require a special use permit in this situation as

[3:14:07] as Miss Deal Deart wrote in her in her memo. Um, so that's that's how the we

[3:14:15] contend the law shapes up and it's not in favor of of of Ventor. It actually is

[3:14:21] in favor of the town and that we have the ability to to correct what may look

[3:14:27] like an error earlier or in as it really in some ways not an error. it it the

[3:14:36] letter just is ambiguous and is not something that they that they could have

[3:14:40] relied on as they say they did. Um I would also point out that there's been a

[3:14:45] little bit talk about what they've done about this project, but nothing is in in

[3:14:49] evidence to this board that they've spent all this money and relied on that

[3:14:54] letter in some way like Wooten did in in in their situation. Um like I say, the

[3:15:02] projects have not started yet. there's nothing on the ground out there that's

[3:15:06] changed from what the situation was. So, it's just not the same um as as the

[3:15:12] Wooten case. And I think that this board has the ability um under the law of

[3:15:18] North Carolina to um to require that they um um have a special use permit in

[3:15:26] this case. Your decision actually here would be that you would uphold the

[3:15:31] staff's determination um and and um deny the appeal. Uh that's what the town

[3:15:37] would ask for and and in this in this um uh hearing and so we

[3:15:43] um we would ask that you do that.

[3:15:50] Um that's all I have. Okay.

[3:15:57] Um

[3:16:00] yeah yeah welcome to ask questions either. So it is a law that you can go

[3:16:05] back three years later and say we screwed up and approved something and

[3:16:09] now we can change that approval. That that's what that line of cases says

[3:16:14] and that that's only if it's in your ordinance. You you're always entitled to

[3:16:18] enforce your ordinance. Um, and you can't have um either a mistake or maybe

[3:16:24] in some cases even a um um situation where the responsible official just kind

[3:16:32] of looks the other other way and doesn't really uphold the ordinance. In either

[3:16:36] situation, um you if you find that that you made a mistake, you can go back and

[3:16:42] and correct it and require that that the property owner uh comply with with the

[3:16:46] ordinance. That's that's what we contend the law says. And there's a whole line

[3:16:51] of cases. Uh actually the case that I cited that from I didn't give you the

[3:16:56] name of it. It's Winston Salem versus Concrete

[3:16:59] Company. That was another court of appeals case. So three or four times

[3:17:04] somebody can say yes, yes, yes, and then three years later you can say no. Well,

[3:17:09] it it it creates a um it creates a tough situation. Um it really does. And I

[3:17:16] understand where you're headed with that, but that's why I pointed out that

[3:17:20] despite what's been, you know, some of the testimony, there's been nothing to

[3:17:24] show you that there really has been um some sort of um detrimental reliance on

[3:17:31] on on that letter. Um the project hasn't started. There may have been some

[3:17:36] designs drawn up, but that can be dealt with through the special use of of part

[3:17:42] of of any matter. Um, but there it's not like the project was built and they were

[3:17:47] operating it. Then all of a sudden we came back after they spent all this

[3:17:51] money and and done like in Wooten and the and the town said, "Oh, no. You

[3:17:55] can't have a a asphalt plan even though you got one out there that we approved

[3:18:00] and you've got all your permits and it's been up and operated." That's that's the

[3:18:04] that's the the fact situation in Wen and that's not the fact situation before

[3:18:09] you.

[3:18:14] Thank you.

[3:18:18] Any other questions either for the town or the

[3:18:57] Can I just add a point of clarification, Mr. Chair?

[3:19:00] Um, in response to board member Brandham's question, I would um I would

[3:19:05] answer it differently in that um this notion of being a stop is that if

[3:19:10] somebody went if had gone to the town and said, "We believe this to be a

[3:19:15] daycare center when everybody knows it's a landfill and they get an

[3:19:18] interpretation that it says it's a daycare center because there's some

[3:19:21] rogue staff member and everybody knows that's a clearly erroneous

[3:19:25] interpretation." then Ventor cannot go and rely on that interpretation that is

[3:19:30] clearly erroneous which is part of part of what we're articulating here is that

[3:19:34] no one really knew what the use was. We don't think it is part of the chemical

[3:19:37] plant. We don't think it's a heavy industrial use. We think it's a a waste

[3:19:41] related use. Um if you look at the definition, does it fit squarely? No.

[3:19:44] Does it fit squarely into heavy industrial? No. It's not engaged in the

[3:19:48] manufacturer. Um it's just on the property and in fact it it is not

[3:19:52] accepting waste from the chemical plant directly. It's from the lagoon. Um and

[3:19:57] and and we understand that that is open to interpretation, but that is a

[3:20:01] reasonable interpretation. Um just as a heavy

[3:20:05] industrial interpretation is a reasonable interpretation. But in terms

[3:20:08] of the town not being stopped in that line of case law, it's that if you're

[3:20:13] told yes, yes, yes, and it's something that's clearly wrong because some rogue

[3:20:18] staff member, the town then cannot be bound by what is clearly an erroneous

[3:20:22] interpretation. The common example would be um in the context of notices of

[3:20:27] violation. If someone is doing something clearly in violation of an ordinance and

[3:20:31] it is abided, the code enforcement department never picks up. It it never

[3:20:36] picks up. It cannot be then said by the property owner, well, you never enforce

[3:20:40] it against me. So now you can't enforce it against me now. I've relied on your

[3:20:44] lack of enforcement. Well, it's clearly a violation. That's not the dispute. The

[3:20:48] dispute is whether the passage of time, the lack of enforcement. The issue is

[3:20:52] not whether the interpretation is good or bad. It's just well, you gave me one

[3:20:56] and I got it and I relied on it. This was a reasonable interpretation for the

[3:21:01] town to have given in 22 and for Ventor to have relied upon and that is the

[3:21:06] essence of our position. But what we're saying in behalf of the

[3:21:11] town in response to what Mr. said is that there's no evidence before you of

[3:21:18] really any reliance and if you're relying on on Wooten as as a statement

[3:21:23] of the law, it's it's so much different from the situation here. Um, plus that's

[3:21:29] where this part about the history comes in of of the property that it's it's

[3:21:34] been subject to conditional use throughout its history. and and that's

[3:21:39] something which in in asking them questions they really didn't look into

[3:21:45] and so they should have known uh what the what the um zoning was. Um I mean

[3:21:50] the zone there the UDO was in some places was changed from what it was and

[3:21:57] we didn't even have a UDO if I recall back in in 2002. I think that came along

[3:22:03] later, but it basically there was a a zoning ordinance and it basically said

[3:22:08] that that for that type of property, heavy industrial in that location, um

[3:22:13] that it required special use for any changes that were made to it. Um I mean

[3:22:19] look, you can see like I say you all know what's out there and what's around

[3:22:23] it. Um and um and so that that's why there are certain restrictions on what

[3:22:29] you can do on on heavy industrial property is so that you know it doesn't

[3:22:34] the zoning or the changes to the property don't impact the neighboring

[3:22:39] properties in any um adverse way. And so that's why that's been that way. You

[3:22:46] know, I can't say 60 years. I've only been doing work for the town for 30

[3:22:50] years, but we I've been involved in some of the past stuff um that was um

[3:22:56] involved in that property, but you you you uh heard from um from um um the

[3:23:03] planning director that you know it wasn't just some tanks, which they tried

[3:23:09] to say was just part of the chemical manufacturing

[3:23:14] um process, but it actually involved a rail spur.

[3:23:18] and changes to the parking lot and some other things. And those kind of changes

[3:23:24] like changes to how you deal with your waste on site, you know, have to be

[3:23:29] looked at um and and and need to be passed on um you know, through a public

[3:23:36] hearing, which is what this the special use requires. So that's where the town

[3:23:41] that how the town would answer what Mr. Theland has had to say.

[3:23:48] Yeah. Okay. So, um I think we've been through all the process here. Uh the

[3:23:53] board may have some clar clarifying questions um for you all. Um so, we'll

[3:23:58] leave that uh sort of open for now. Um but the board attorney, Mr. Benoff, here

[3:24:03] is going to give um the board a little direction on um a a finding of facts,

[3:24:09] which is our next order of business. Um, so if you wouldn't mind, sir, kind of

[3:24:14] helping the board navigate that item. Is that right? Yeah. Okay. Uh, thank you,

[3:24:21] uh, Mr. Patrick. Uh, before I do that, let me say that talk talk to the parties

[3:24:29] and their council about their record for a minute.

[3:24:33] Um, I would consider anything presented tonight shown to the board, uh, like the

[3:24:41] powerpoints, um, from both parties as part of the

[3:24:46] record. The UDO is certainly part of the record.

[3:24:51] Uh, the staff report is was moved into evidence.

[3:24:56] There was discussion of the 2002 permit uh which is not in the record because it

[3:25:02] has not been presented to the board tonight. So it it anything else any of

[3:25:12] you want to want to submit into the record?

[3:25:20] There's nothing from Ventor. Well, I'm not sure I heard the last part of what

[3:25:24] you said, Mr. M Ben man Ben man Ben man

[3:25:26] Ben man Ben man Ben man Ben man Ben man Ben man Ben man Bench are you saying

[3:25:26] that the the prior um special use permit was not put in the rest record? There

[3:25:33] was certainly testimony about it. We had testimony about it but but if you know

[3:25:38] if Mr. Gordon would like to to hand it up well it can be part of the record.

[3:25:43] We'll go ahead and make it part of the record.

[3:25:46] Um please without objection

[3:25:53] I would also move for the admission then of the UDO as it existed at the time of

[3:25:57] 2002

[3:26:00] if one can be located. Yeah I I I I think that's reasonable. No no objection

[3:26:06] both of them can can come in okay as part of the record. We'll admit then the

[3:26:11] original application and the uh used UDO as it existed at the time. And just to

[3:26:16] tie it up in a nice little bow u the index of record documents appeal

[3:26:22] administration decision uh provided to the board date February 6,

[3:26:29] 2024. That was the full package that we separate from the uh staff report and

[3:26:37] attachments. I I'm sorry. There's another set of

[3:26:42] documents. You have those as opposed to the PowerPoint presentation. Right.

[3:26:47] Right. Yeah, we have this, but it doesn't

[3:26:50] have the It was part of this of the uh agenda package. Just want to make sure

[3:26:56] that that's it's part of the agenda package. Okay. I'm I'm sorry. I don't I

[3:27:01] don't have I don't have the agenda package in front of me. um that that

[3:27:08] record that we agreed on was circulated prior to the agenda and I

[3:27:13] think everybody received it. Okay, we did. So, all right. All right then. And

[3:27:18] that's what he's talking about. That's separate. But the but the special use

[3:27:22] permit from back in 2002 was not in there. It's not in that packet. Correct.

[3:27:28] So, that's what we need to put in now. Yes. Um, so we're putting in the 2002

[3:27:34] special use permit and the UDO as it existed at the time without objection by

[3:27:38] either. Yes. Thank you. You may want to hand that up. Okay. Anything else?

[3:27:46] No. Not about the record. Uh, okay. It's the board's task now

[3:27:54] having heard the evidence and the testimony and considering what the sworn

[3:27:59] witnesses said and the documents submitted to make findings of fact

[3:28:06] uh that support your conclusions of law. Unlike your your typical cases for

[3:28:12] variance, for example, uh where there are four conclusions of

[3:28:18] law listed in the statute that you must find

[3:28:22] for an appeal of an admin of an administrative

[3:28:28] decision. There are

[3:28:31] no uh criteria except those listed in this section of the

[3:28:41] UDO

[3:28:46] 145.04.04 subsection D. And if you will see those

[3:28:54] um they're very conclusory. The first one is the administrative decision was

[3:28:59] appropriate considering the written record of the case and the evidence

[3:29:03] presented and the decision reflects the requirements contained in this UDO.

[3:29:10] Uh, I believe it's the board's job

[3:29:15] to determine what is a fact from the testimony that you heard with

[3:29:22] particular attention given to making sure that the

[3:29:28] facts support your ultimate conclusion about the

[3:29:33] appeals. And it may be that there will be several

[3:29:40] several sessions of making of finding facts as you clarify

[3:29:47] uh you know as as you clarify your thinking and

[3:29:52] and uh and give it some consideration. I I would also say and

[3:29:59] that it is within the board's power to stop the meeting at this point

[3:30:06] or at any point. uh and make findings of fact conclusions of law

[3:30:14] at another at another session if you wish.

[3:30:21] Put another way, you're not you're not required to stay here indefinitely until

[3:30:25] you're finished.

[3:30:33] Is that Yeah. Thank you, sir. Okay. Um so yeah, you have the um processes for

[3:30:39] the this review in front of you. Um happy to open it up to the to the board

[3:30:44] for any discussion. We can take them point by point if you'd like or um but

[3:30:49] really remember we're here because it's a they've

[3:30:54] um they're appealing the decision and the decision that was made by the town

[3:30:59] was that they required a special use permit. So that's the umbrella that

[3:31:02] we're operating under. There are other facts that we may want to make clear.

[3:31:09] Um, but that's sort of the the umbrella that we're under.

[3:31:16] So thoughts? It seems um to be a fact that the

[3:31:23] subject is a heavy industrial use based upon the

[3:31:29] definition of heavy industrial from as part of the UDO which

[3:31:37] includes the phrase processing of chemicals.

[3:31:44] And down further in the definition again use in this category

[3:31:50] includes establishment that manufacture or process asphalt, coal on and on and

[3:31:59] chemicals that to me is a fact. The way I'm

[3:32:05] reading this

[3:32:09] information I think I would tend to agree with you.

[3:32:13] So to clarify, are you saying that the that the proposed um solid waste

[3:32:20] landfill is a heavy industrial use? I am. Okay. Yeah.

[3:32:30] I piggy back off that you can say according to the UDO and that table

[3:32:34] heavy industrial use requires permit in EC which is what that property has been

[3:32:42] clarified as multi

[3:32:46] I agree I don't think there's been

[3:32:51] question but I think the question is

[3:32:57] Did they get do they need a special program based on the email

[3:33:07] from already approved

[3:33:17] without knowing any of the things we were presenting did that say peritted

[3:33:22] Bible said permitted the scream We've been told it

[3:33:27] says permitted by right because that was the

[3:33:29] interpretation to review these. I looked through the letters that are in this

[3:33:33] package and the others. It doesn't say permitted by right. It just says it's a

[3:33:37] permit use which coincides with what the table and the uses are in the UO. It is

[3:33:43] a permitted use. It just requires a special use permit in order to enact

[3:33:46] that constructibility. In the email from finer, it also said

[3:33:52] any proposes must secure all approvals which in this case would be a special

[3:34:01] use. And and to keep in mind part of this chapter 145 specific review

[3:34:07] criteria for us is D2, which is the decision reflects the

[3:34:12] requirements contained in this UDO. It's a specific requirement this board

[3:34:18] must take under

[3:34:22] consideration as this quasi judicial

[3:34:31] process. So I I don't again I don't think there's any question that this is

[3:34:36] a heavy industrial use property. I agree.

[3:34:44] um based on the definition of water related which I'm trying to find that

[3:34:51] water related and other and use related uses

[3:34:56] you need waste do you have that definition can anybody find that

[3:35:01] definition which one waste related the waste related use it mentioned that the

[3:35:07] waste would come from others that's correct So there's not any waste coming

[3:35:14] from others. The waste would be coming from

[3:35:19] the subject going into the proposed landfield.

[3:35:27] So find it for you. See if I can find it.

[3:36:01] waste related use. There it is. Finally, um means a use category containing

[3:36:07] establishments that receive solid or liquid waste from others

[3:36:14] for treatment or transfer to another location and uses that manufacture or

[3:36:21] produce goods or energy from the large-scale composting of organic

[3:36:28] material. And it goes on to say uh and other uses meeting the definition of

[3:36:33] waste related use according to the director. So based based on this

[3:36:44] definition it does not appear to me or sound as if the proposed use is a waste

[3:36:51] related use as defined in the ordinance.

[3:37:03] And it seems as if uh the officer, Mr. Tom

[3:37:12] Leser, seems as if that that that letter of consistency just wasn't

[3:37:19] complete. It wasn't fully complete.

[3:37:26] So then the director who has the authority to

[3:37:32] interpret I would add the final authority to interpret

[3:37:38] interpret the UDO in has made an interpretation in in

[3:37:44] his letter any proposed use must secure all

[3:37:49] appropriate necessary approval from all regulatory agencies for which as far as

[3:37:53] it is would in my opinion include special use permit as their reason.

[3:38:02] That sounds reasonable to me.

[3:38:08] Sure. All right.

[3:38:14] Regulations further down that

[3:38:19] letter or over. No, there is no special district. No special exemptions, no

[3:38:28] legal nonconforming history

[3:38:33] on no outstanding zone violations the conditional or

[3:38:43] yes. Yeah, sorry. That would be a that would

[3:38:47] be a district that would have something that would be conditioned per the town

[3:38:54] that would apply to multiple parcels that wouldn't necessarily be parcel

[3:38:57] specific. That conditional special use zoner overlay.

[3:39:04] Mr. Shaner, what's the date of that letter? There's a lot of letters. August

[3:39:07] 19th, 2022. I would imagine if this came in exact

[3:39:13] shop this week, there'd be there'd be no question. Special use permit done deal,

[3:39:20] right? I think so. But it didn't come into Zach's shop this week. It came in

[3:39:26] long time ago. It was before Zach came in.

[3:39:30] So, we're here to determine if they need it, if if they can get by

[3:39:38] with what was submitted then or it has to go back through this whole process.

[3:39:45] Is that correct?

[3:39:51] Yes, I think that's I think that's correct that if they if the you if the

[3:39:57] board finds that Shelley Deart's letter of November 15th, 2023, and I'm saying

[3:40:04] the date from memory uh is not in error, then a special use

[3:40:11] permit would be required.

[3:40:15] And the UDO that's current based on what we heard

[3:40:19] was August 9th, 2021. That letter from Mr. Leser is

[3:40:25] August 19th, 2022, which means it would be in that ordinance that we've been

[3:40:30] referring to. And as such, as an EC employment center, as it's listed on Mr.

[3:40:35] Leser's letter from August 19th, 2022 would require per the table a special

[3:40:42] use permit. That's that's how I interpreted

[3:40:45] it. Yeah. And again, I I want to add that I think the August 19th letter of

[3:40:52] consistency lacks some completeness. Don't disagree. Okay. However, however,

[3:40:59] that second sentence, any proposed use, and I think you said this, Kevin, must

[3:41:02] secure all appropriate and necessary approval from all regulatory agencies

[3:41:06] for which the parcel is located. And then the last sentence on the paragraph

[3:41:10] on the first page, last paragraph, the property is governed by the rules and

[3:41:14] regulations of the Harrisburg UDO.

[3:41:19] So incomplete but uh mentions the other requirements.

[3:41:26] There are other requirements in addition to this letter that was um issued by

[3:41:32] someone who was not the director of planning and did not have the full I

[3:41:36] don't think latitude to make a final decision.

[3:41:40] At the same time, go going off of what Chairman Patrick said earlier, if they

[3:41:44] were to list everything in the UDO that they have to abide by, it would be a

[3:41:48] very lengthy document for review. And it's not on the town necessarily to do

[3:41:53] that for every inquiry such as this. It's on the applicant to make sure that

[3:41:57] all UDO, town, county, state regulations are in accordance when they going to

[3:42:04] these things. Agree.

[3:42:25] Um, so I think I mean I think we item number two, the UDO requirements. The

[3:42:31] decision reflects the requirements contained in the UDO. So let's button

[3:42:35] that up. We all agree that it's heavy industrial and he every industrial

[3:42:41] requires a special use permit. Correct. Correct.

[3:42:46] Um then the then the question becomes um again item one there record and evidence

[3:42:51] the administrative decision was appropriate considering the written

[3:42:54] record of the case and the evidence presented. So that's kind of

[3:43:02] it's it's a sticky point for you. So can't build that 10story house next to

[3:43:09] you. Can't build the 10story house. But you should have known you can't build

[3:43:13] 10story house. U clearly says you can't build the 10tory. You can't build a

[3:43:17] 10story house next to the property next to the property. Did you know did you

[3:43:23] know did the town have an incomplete letter

[3:43:27] perhaps? Did

[3:43:31] Ventor hire someone that was competent and capable and understood zoning to

[3:43:35] make sure that everything was on the up and up before they did this? Perhaps

[3:43:40] not based on what I've heard. Did they review their existing

[3:43:45] land records and realize that they were under a special use permit already?

[3:43:51] And our Harrisburg UDO says that if you want to

[3:43:57] make a change to any of your special use that you're under, go for it. You've got

[3:44:02] to come back for a modification. Well, they did. They did. There was a special

[3:44:06] use application, correct? And they've done it once. There was a recent What

[3:44:10] was the date on that? Was that 200? No, you mean the 2002? No, not 2002. I

[3:44:17] understood there was a recent. Yeah. Well, they were going to do a parallel

[3:44:23] track. So, they did complete that special use permit at sort of after

[3:44:27] process after the fact the letter of consistency, but nonetheless, it was

[3:44:31] submitted was

[3:44:37] I guess I was referring to the original, right? You're just 2002 when the

[3:44:42] property's current. The property is currently under special use, which used

[3:44:47] to be called conditional use. And the UDO says if you make changes to

[3:44:51] anything, you got to come back.

[3:44:58] I think you hit a key point there, too, is that it applies to the entire parcel.

[3:45:02] It's not just one activity. It's it's specific to the whole thing. So, if this

[3:45:06] were to go without a special use permit, any anything could be done out there by

[3:45:12] right that wouldn't normally be allowed. Yeah. I mean that's I mean cuz I didn't

[3:45:17] see any evidence that said no, we just want to talk about this little piece,

[3:45:22] right? Or anything in any of the letters that said no, we're just talking about

[3:45:25] this little piece. It's all everything was this is our site. The letter the

[3:45:30] town sent was this is the parcel number. It was never this little piece of this

[3:45:35] parcel or anything like that. It was this parcel and that's how Mr.

[3:45:40] would interpret that as well as an inquiry to the pl providing the

[3:45:44] information of the parcel specific 100 acres every time.

[3:45:53] Yep.

[3:45:59] Other

[3:46:03] discussion any points that we that we need to make sure that we get in here?

[3:46:10] Uh, Mr. Gordon or Mr. Theland, do do you have a copy of the appeal application? I

[3:46:17] could take a look at it for a second. I do not. Okay. Mr. jobs.

[3:46:24] I have it electronically. That would be helpful. Let's see.

[3:46:31] He's checking BNC all the way. Yeah.

[3:46:40] Probably

[3:46:43] should see it here.

[3:46:58] electronic. Yeah, I think it's I don't think I

[3:47:01] printed out.

[3:47:15] Hold on my hair. your question here. Maybe

[3:47:23] you pull it out of there. I've got it, Al. I've got it in.

[3:47:32] Yeah, I did print it out. Well, this is good to know. I couldn't figure out

[3:47:38] interior. So, for future reference, this is all we looked at.

[3:47:42] This section right here for the Was it is that all of it? Yes, there were some

[3:47:47] tests. I don't know if you need

[3:48:02] based on

[3:48:07] this stuff I

[3:48:13] did based on evidence that go down back Yeah, I want to make sure that you

[3:48:20] answer the question. That was my gave me that

[3:48:24] actually since you didn't use it, you can put it under that clip. Yeah, we

[3:48:27] didn't get the application. Well, you got everything else.

[3:48:32] You said those clips are hard. I'm ready.

[3:48:38] Uh I want to make sure that that you consider and answer the questions that

[3:48:43] were asked in the appeal. And there are two

[3:48:49] uh the first one is is the August 19,

[3:48:55] 2022 letter of final and binding interpretation of the town's

[3:49:02] laws that the proposed on-site industrial land anfill is permitted as

[3:49:06] of

[3:49:09] right. That's that that's that's the first

[3:49:13] question. Yes.

[3:49:17] Would you repeat it again, sir? Sure. I'm sure it's um is the August 19, 2022

[3:49:26] letter. Uh, and that's the consistency

[3:49:32] letter. A final and binding interpretation of the town's

[3:49:38] ordinances that the proposed on-site industrial landfill is a permitted is

[3:49:43] permitted as of right. Is that a statement? That was the

[3:49:48] question that's in the appeal. Oh well,

[3:49:54] so in other words, is the town bound by the August 19, 2020 two letter? And then

[3:50:00] the other question is, is Shelley Deart's letter of November 15,

[3:50:06] 2023 in error or is that correct? And they're and they're related.

[3:50:12] So, I don't the first question I'm not sure I buy the

[3:50:16] framing because it says is the August 19th, 2022 letter correct that it's

[3:50:22] permitted by right? But nowhere in the letter does it say permitted by right?

[3:50:27] So, I I take issue with the question to begin with. Is the town bound? Let's

[3:50:32] just say we set that aside for a second. Is the town bound by it? No, I don't

[3:50:37] believe so because the UDO is about as crystal clear as it can be that it's

[3:50:41] heavy industrial and heavy industrial requires a special use. That's correct.

[3:50:46] I agree. And the second question was, is is Mr. Hart's letter of November

[3:50:56] 1523 correct or is it in error? In other words, is a special use permit

[3:51:04] required? Based on the logic Lean Lean just described, I would say it is

[3:51:09] correct. And just to be clear, it was a November

[3:51:14] 15th

[3:51:19] email. Email. It was an email. It was It was an email, not a letter.

[3:51:57] That's it. Okay. So, I think the board's um requirement then is to either

[3:52:03] um approve or deny the appeal at this point. Um so, if there's a motion for

[3:52:11] that or any other discussion, we can get into that.

[3:52:18] Make a motion to deny the appeal. Okay. Do I have a second? I'll second.

[3:52:25] All in favor? I I I Any opposed? One

[3:52:32] opposed. Simple majority. The motion passes and the appeal is denied. Um, one

[3:52:40] thing I would ask of the of the board is to um adoption adopt a motion allow

[3:52:46] motion allowing the board attorney um to prepare the written order and that uh

[3:52:51] the chair may sign the order outside of session so we don't have to come back to

[3:52:55] another session to approve the order that he's going to write up for us. Um,

[3:53:01] and so we'll need um we'll need a motion to approve that um

[3:53:07] uh process. A motion for the chair to be able to sign the order outside of

[3:53:12] session and and directing me to to prepare an order based on and that the

[3:53:17] attorney the findings of fact that that I heard you make and and try to write

[3:53:22] down. Yeah,

[3:53:26] I have a motion on the floor. I'll second it. Second. All in favor? I I Any

[3:53:32] opposed? Motion

[3:53:36] carries. Okay, back to our agenda. Um, we have no old business. We have no new

[3:53:43] business. Last item on the agenda is adjournment. Can I have a motion for

[3:53:47] that? Motion to adjurnn. Is there a second? Second. All in favor?

[3:53:54] I opposed. We're ajourned. And we sang the

[3:53:58] spoonfuls.

Harrisburg Board of Adjustment - February 2024

Transcript