Madison County Needs Better Business than Biomass
Check out this article by Johnny Casey. https://www.citizen-times.com/story/news/madison/2022/07/22/madison-land-ordinance-changes-coming-residents-concerned/10107822002/
This is a tough video to watch! Unless we strengthen our zoning laws, Madison County is an easy target for global companies like this. This is happening in North Carolina!
Check out this FREE Video: https://vimeo.com/518884074
OPPOSING THE MADISON ASPHALT PLANT
A History
Background Info
MADISON COUNTY ZONING HISTORY
Back in the day, Madison County had wise forefathers. The County leadership was responsible for making Madison County the first county in Western North Carolina to have zoning rules. Their forward thinking enabled the regulations, laws, and rules that we use today to make a decision whether to allow Madison Asphalt, LLC, to build its plant in the Madison County Industrial Zone located at McCrary Stone Company
MADISON COUNTY BOARD OF ADJUSTMENT (BOA) and THE CONDITIONAL USE PERMIT (CUP)
In addition to being zoned a High Impact Land Use (HILU) industry located in an Industrial Zone, industries like the Madison Asphalt Plant must obtain a Conditional Use Permit. This is accomplished through a quasi-judicial that is decided by the Madison County Board of Adjustment (BOA). The BOA members are appointed by the Madison County Commissioners. After hearing arguments from both sides, the BOA discusses whether to approve or deny the permit in an open hearing.
Legal Actions:
BOARD OF ADJUSTMENT HEARING BACKGROUND:
Dec, 2018: Sustainable Madison is created to raise funds for the Citizens with Standing (CWS) who oppose the asphalt plant. (A CWS is a citizen who can prove that the plant will have more impact on them than on the average citizen).
Feb, 2019: Madison Asphalt, LLC files for a conditional use permit to build an asphalt plant at McCrary Stone Company located at 3807 Hwy 25/50, Marshall, NC 28753
- Madison Asphalt retains Albert Sneed of the Van Winkle Law Firm to represent it.
- The Citizens with Standing and Sustainable Madison retain Brian Gulden as attorney to oppose approval of the Conditional Use Permit (CUP)
JUNE 19, 2019: BOARD OF ADJUSTMENT DECISION
After 8 days of hearings over a 2 month period, The BOA votes unanimously 5–0 that Madison Asphalt did not make its case. The permit is denied.
SEPT 27, 2019 DECISION BY BOARD OF ADJUSTMENT ORDER
Madison County general attorney Donny Laws provided legal advice to the Board of Adjustment members led by Chairman Karen Kiehna.
Mr. Laws also wrote and signed an order to Superior Court explaining how the BOA arrived at its decision. Ms. Kiehna also signed the order on behalf of the other BOA members.
- The Order did not contain any of the witness testimony or evidence provided by Brian Gulden on behalf of the asphalt opposition.
- The reasoning behind this decision as we understand it is that even though the Board heard opposition witnesses and discussed opposition evidence during deliberations, just before voting, BOA members were asked whether Madison Asphalt made its case. At this time they were not specifically asked to weigh opposition evidence in making their decision.
- Attorney Brian Gulden counseled Sustainable Madison that there was no legal action that could be taken to mitigate the negative impact of this order once it was written. At this point, it is not clear whether this was sound legal advice.
OCT 25, 2019 MADISON ASPHALT, LLC APPEALS TO NORTH CAROLINA SUPERIOR COURT
Craig Justus of the Van Winkle Law Firm and Madison Asphalt, LLC appeal the BOA decision to North Carolina Superior Court.
Much of Madison Asphalt’s case rests on the BOA having inadequate evidence to deny the plant permit due to lack of evidence in The Order.
NOV 19, 2019: Madison County Commissioners vote to retain the Roberts and Stephens law firm to assist attorney Laws with ongoing legal action.
-Roberts and Stephens is still involved with litigation. It is unclear how much they have charged Madison County at this point and whether taxpayers are footing the bill.
April 1, 2020 EXIT BRIAN GULDEN: Attorney Brian Gulden announces he can no longer represent Sustainable Madison as he has accepted a position with Albert Sneed and Craig Justus at The Van Winkle Law Firm. We are told that “Chinese Walls” are in place to mitigate conflicts of interest. Mr. Gulden is not officially part of the Madison Asphalt case at Van Winkle.
APRIL 3, 2020 ENTER THE LAW FIRM OF ALLEN STAHL + KILBOURNE
- Derek Allen and the Allen Stahl + Kilbourne (ASK) Law Firm appeal the Board of Commissioners order to reverse the BOA decision and defend against the separate appeal by Madison Asphalt, LLC to reverse the BOA decision to deny the asphalt permit. Both cases were filed in North Carolina Superior Court.
JUNE 23, 2020: MADISON COUNTY COMMISSIONERS VOTE 3-2 TO A RELEASE AND SETTLE AGREEMENT WITH MADISON ASPHALT
- Far from backing their own BOA decision, Madison County Commissioners vote 3-2 to try and reverse their own Board of Adjustment decision.
- This order and settlement agreement were a result of Craig Justus and Madison Asphalt, LLC threatening to sue Madison County for legal expenses.
-Matt Wechtel, Mark Snelson and Wayne Brigman (since retired) voted for the agreement. Norris Gentry and Craig Goforth voted against the order.
- No public comment was allowed before the vote. The commissioners met in a closed session prior to the vote.
- The order passed by the Commissioners was based largely on the premise that the BOA lacked sufficient evidence to make their decision.
-At this point, Mr. Laws is working with Madison County to reverse the decision of the BOA that he advised during the BOA hearing.
SEPTEMBER 4, 2020: JUDGE GAVENUS RULES IN FAVOR OF MADISON ASPHALT
- Among other things, The Honorable Judge Gary Gavenus rules that the Madison County BOA lacked adequate evidence to make its decision to deny the plant application. One can reasonably assume that he relied on attorney Laws order explaining the BOA ruling to make this decision.
- Judge Gavenus reverses the BOA decision and orders the conditional use permit to issued.
- The NC Department of Air Quality issues an air quality permit (Coming soon- Episode II- Clear Sky Madison appeals air quality permit).
Nov 2, 2021:
- The NC Court of Appeals ruled in favor of Madison Asphalt based on rules and process. Clear Sky attorney James Kilbourne stated, ““We are very disappointed that the Court of Appeals was unwilling to consider the real issue in this case - the use of coercion of a threatened lawsuit and the collusion of a settlement agreement to overturn weeks of hearings and thoughtful consideration by independent and duly authorized Board of Adjustment.”
December, 2021
Petition and pre-hearing statement filed with to appeal NC Dept of Air Quality permit based on the fact that the DAQ used clearly erroneous meteorological data in order to grant the Air Quality Permit.
After working with Jim Conner of Calhoun, Bella and Sechrest law firm. our chances of beating a State Agency are estimated at 20% after considerable additional legal fees, and Clear Sky Madison withdrew it’s appeal.
