[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.