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HomeMy WebLinkAboutAgenda - 12-15-2009 - Information Item 1Z,-~-~or(Y1G~"i~n ~~'E'-tYl ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT Craig N. Benedict, AICP, Director ~auntP o! ®~ Current Planning ,~~` * ~ °P 306E Revere Road (919) 245-2575 ~T ~ P O Box 8181 (919) 644-3002 (FAx) ~, Hillsborough, www.co.orange.nc.us '~°!!h ~a~~~~°° North Carolina, 27278 ,'- MEMOF~ANDUM TO: Orange County Board of Commissioners Frank Clifton, County Manager Craig Benedict, Planning Director FROM: Michael D. Harvey AICP, CZO -Planner III DATE: December 15, 2009 RE: REVIEW of development issues associated with Hanson Aggregate Quarry operation along Highway 57 within the Little River Township Please accept this memorandum as a review of the permit history, and zoning issues, and staff's recent efforts to restrict the location of a asphalt plant at the Hanson Aggregate granite rock quarry operation east of NC Highway 57 within the Little River Township. The quarry is located within both Orange and Durham counties, with the majority of the actual quarry operations being conducted within Durham County. The Orange County portion of the quarry contains some two hundred fifty-eight (258) acres of leased lands and lands owned in fee simple. At present sixteen (16) acres of this area is actively quarried and another sixty-four (64) acres are bonded for future quarry pit expansion. The ultimate quarry pit area, according to the permit on file with NC DENR, is eighty (80) acres in Orange County. This memorandum was originally submitted in March and November of 2007, but is presented here with additional information to address questions from the County Commissioners. EXECUTIVE SUMMARY: As of November 30, 2009, planning staff has been informed by representatives of the North Carolina Department of Environment and Natural Resources Division of Air Quality (NCDENR) that they have rescinded Air Quality Permit #07023R07 allowing for the development of an asphalt hatching plant at the Hanson Aggregates Southeast, Inc. quarry. While this rescission does not affect the rest of the Hanson's quarry operations, according to NCDENR staff, it does prohibit the location and operation of an asphalt plant at the quarry property. According to NCDENR personnel, the quarry operation is on-going under an extended operations permit. The asphalt plant was a very `hot' discussion topic during the NC 57 Speedway Area Small Area Plan meetings. An asphalt hatching plant had been operating off of NC Highway 57 on the west side of the Hanson Aggregate quarry property, which spans the Orange/Durham county line. It had ceased operation several years ago; but as recently as 2008, representatives from Hanson Aggregates had petitioned the State of North Carolina to renew the air quality permit for the asphalt plant. BACKGROUND -TIMELINE: Based on information from the State, and from our own files, the following is a timeline and sequence of events concerning the operation of the quarry within Orange County as staff has been able to ascertain: July 2, 1987 The Nello Teer Company submits a mining permit application to the North Carolina Department of Natural Resources and Community Development (precursor to the North Carolina Department of Environment and Natural Resources (NC DENR)) proposing the development of a granite quarry operation along NC Highway 57. The quarry operation was proposed to be located within the Little River Township of Orange County and on adjoining property within Durham County. It should be noted that the Little River Township was not zoned when the application was submitted to the State for review. July 8, 1987: A letter addressed to Mr. Kenneth R. Thompson, listed as the County Manager, from J. Thomas Gould, the Vice President of the Nello Teer Company, was received providing official notice that an application had been submitted to the State requesting permission to: `mine materials for crushed aggregate in Orange County'. July 16, 1987: Mr. Collins meets with Mr. Kittrell and authors a memorandum, distributed to Mr. Gene Bell and Mr. Greg Szymik of the Planning Department, outlining the steps that the County should take to review this matter. Ultimately it is decided that a PUBLIC HEARING should be held to review and respond to the request. August 17, 1987: Mr. Collins completes a Action Agenda Item Abstract for review by the Orange County Planning Board. August 31, 1987: A PUBLIC HEARING is held at the Orange County Court House on Margaret Lane to review the application. February 5, 1998: The State issued mining permits, specifically numbers 68-06 (Orange County) and 32-07 (Durham County), to a Mr. James Sprinkle of the Nello Teer Company authorizing mining activities. August 22, 1988: A telephone log from the Department of Natural Resources and Community Development -Land Resources Division, shows that Mr. Jerry Kelly, the Director of the Durham County Planning Department, called to inquire as to: `whether or nor Teer has approval to start their quarry operations on the Orange County Site'. The staff person taking the call indicates within his/her notes that he/she told Mr. Kelly that as Orange County has no zoning within the area, no local approvals are necessary and that Teer can commence mining operations so long as they notify the Department prior to any land disturbing activities. The notes go on to indicate that the mining permit does not supersede local zoning authority and that there is not time frame that Teer is held to under the permit to commence mining operations. August 22, 1988: A telephone log from the Department of Natural Resources and Community Development -Land Resources Division, shows that Mr. James Sprinkle of Nello Teer called to discuss concerns expressed by Durham County over the commencement of operations within Orange County. According to the phone log, Nello Teer was in the process of appearing before the Durham County Board of Commissioners to obtain a permit to authorize mining operations in Durham County. June 14, 1989: A memo was sent to Tracy Davis of the Land Quality Section asking if both the Durham and Prange County permits could be combined into one (1) uniform permit. Staff Note: There is no evidence that the request was processed as the permits were never recombined. July 28, 1989: A letter is sent to Mr. John Holley of the Department of Natural Resources and Community Development informing him that `construction activities shall commence at the Rougemont site immediately'. April 15, 1991: The State receives a Air Quality Permit request from Nello Teer to allow for the construction and operation on an asphalt plant at the Highway 57 quarry site. June 6, 1991: A copy of a `Memo' note indicates that Warren Faircloth, the Orange County Erosion Control Supervisor, had called indicating that representatives from Nello Teer had inquired about obtaining a Soil Erosion Control plan approved by the County so they could get a building permit for an asphalt plant they are locating on the property. According to the note, Mr. Faircloth was informed that the State was unsure if the activity (i.e. the asphalt plat) would be covered under the mining permit. If it was covered under the mining permit, then Nello Teer would not have to get an Erosion Control Permit through Orange County and they could get their building permit. June 11, 1991: Telephone log from the Department of Natural Resources and Community Development indicating that Nello Teer intended to construct an asphalt plant on the property on portions of property covered under the mining permit. June 12, 1991: Date of a letter sent to Mr. Tracy Davis, of the Department of Natural Resources and Community Development, from a representative of the Nello Teer corporation informing him that the company had decided to construct an asphalt plant on the .property referenced within previously approved mining permit, specifically numbers 68-06 (Orange County) and 32-07 (Durham County). The letter indicates that the plant will be constructed: ` in the area shown on the plans as the plant process and stockpile area of the new site'. June 24, 1991: On a copy of a `Speed Letter' from John Holley to Tracy Davis, Mr. Holley indicates that he aggress that: `no formal modification would be needed' (i.e. no modification to the existing mining permit allowing for the asphalt plant operation to commence). Fall 1991: The State issues an Air Quality Permit, number 07023R07, allowing for the operation of an asphalt plant at the quarry site. January 1, 1994: Orange County extends zoning authority to the Little River Township. The majority of the property within the area is zoned Agricultural Residential (AR) January 1, 1994: As of this date there is an active, bonded mining permit on approximately one hundred forty-seven (147) acres of property covered under the State mining permits. Apri121, 1995: The mining permit was modified to change the corporate name from Nello L. Teer Company to Benchmark Carolina Aggregates, Inc. No other changes to the mining permits were noted. April 1997: The State receives the last quarterly air quality report from Benchmark Carolina Aggregates concerning the operation of the asphalt plant. These quarterly reports are mandated for submission in order to guarantee the continued viability of the air quality permit. Late 1997: Based on the above information, and local resident accounts, staff has determined that sometime during the fall of 1997, the asphalt plant burns down and was not re-built. February 1998: The State renews the mining permits allowing the Highway 57 mining operation to continue. March 21, 1999: The mining permit was modified to change the corporate name from Benchmark Carolina Aggregates, Inc. to Hanson Carolina Aggregates, Inc. No other changes to the mining permits were noted. March 19, 2002: The mining permit was modified to change the corporate name from Hanson Aggregates Carolina, Inc. to Hanson Aggregates Southeast, Inc. No other changes to the mining permits were noted. May 25, 2004: A letter was drafted by Hanson Aggregates Inc. and sent to Ms. Judy Wehner, of NC DENR, concerning a permit modification. Within this letter, Hanson Aggregate officials provide copies of certified mail receipts indicating who had received notification of the proposed modification. It should be noted that a letter was sent to Mr. John Link, Orange County Manager, and signed for by Mr. Travis Stevens. The proposed modification called for the increasing of land area encumbered under the previously approved mining permits as well as allowing for the location of a sediment pond on the property. Staff Note: In reviewing this matter with the County Manager's office, there is no record of this request on file anywhere in Mr. Link's files. August 27, 2004: The State approves the proposed modifications to the mining permit to increase the mining area referenced under the previously approved permits from approximately one hundred forty-seven (147) acres to approximately one hundred ninety-four (194) acres. November 29, 2006: Representatives of Hanson Aggregates visited with planning staff to review issues associated with the continued operation of the rock quarry plant in conjunction with the Highway 57 Speedway Area Small Area Plan. During this meeting, Hanson Aggregate staff made reference to re- establishing the asphalt plant on the property. Representatives continued to make reference to a 1991 letter, authored by Mary Scearbo, indicating that the County considered asphalt plants to be customary accessory uses to quarry operations Staff refused to discuss the issue in depth as no formal plan had been submitted. January 31, 2007: The Orange County Planning Department received a request for a Zoning Consistency Determination concerning the location of a three hundred twenty (320) ton per hour drum mix asphalt plant at 1423 Bacon Road. A negative Zoning Consistency Determination is made and referenced with a letter, dated February 8, 2007, sent to the following individuals: 1. North Carolina Environmental Management Commission -Lois Thomas, 2. Hanson Aggregates -James Sprinkle, 3. NC Division of Air Quality -Ernie Fuller, and 4. ESNR -Cathy Hawk March 14, 2007: In a phone call to Mr. David Miller of NC DENHR -Air Quality Division, Mr. Glenn Bowles was informed that in 1999 there was a Notice of Violation issued by DEHNR to Hanson Aggregates concerning the operation of the asphalt plant. Specifically, the violation was issued because the required quarterly reports on the asphalt plant, documenting the operation of the plant, had not been submitted as required. No further action was taken to correct this violation, as the asphalt plant was no longer operating on the property. Mr. Bowles was also informed that EPA is requiring that all air quality and mining permits have to be combined where operations, covered under the individual permits, are on the same parcel(s) of the land. ZONING COMPLIANCE -QUARRY OPERATION: Orange County extended its zoning authority to the Little River Township in 1994. The area in and around the quarry is denoted as "Agricultural Residential" within the Land Use Element of the Comprehensive Plan and on the Land Use Element Map and is zoned AR (Agricultural Residential) in accordance with the provisions of the Orange County Zoning Ordinance. Quarry operations are currently allowed within the AR zoning district with the review and approval of a Class "A" Special Use Permit as Extraction of Earth Product operations. In accordance with Section 11.6 of the Zoning Ordinance, the quarry operation is deemed to have a Special Use Permit making the operation a conforming use of property. The Section goes on to say that: `enlargement, replacement, or modification of such a use shall require a Special Use Permit as though it were a new use'. The expansion of the site in 2004 should have triggered the Special Use Permit process to review the proposed `enlargement' of the quarry operation. Unfortunately, the information was not acted upon at the appropriate time. Any future enlargement, expansion, or modification of the existing quarry site will necessitate the filling of a Class A Special Use Permit application in accordance with Section 11.6 and Article Eight (8) of the Zoning Ordinance. ZONING COMPLIANCE -ASPHALT PLANT OPERATION: As you are already well aware, staff had been informed that Hanson Aggregates is applying to NC DENR requesting a revised air quality permit that will supersede permit the original permit, number (07023R07), seeking to re-establish the asphalt plant on a parcel of property within Orange County. The County issued a negative Zoning Consistency Determination on the proposed request for several reasons, including the following contained within a February 8, 20071etter: ` The application is deficient in that it does not contain sufficient information, or the appropriate information, for Staff to determine the actual location of the proposed facility. Specifically, the application makes reference to an existing asphalt plant being located at 1423 Bacon Road outside of Rougemont, North Carolina. The deficiencies with regard to this information are as follows: i. There is no property with the address of 1423 Bacon Road within Orange County, according to County tax records. ii. There is no tax parcel identification number or parcel identification tax number contained in the application that can be utilized by staff to verify the location of the proposed asphalt plant. While Form A-1 does contain a longitude and latitude coordinates for the proposed facility, the Planning Department does not have GPS units to make use of these coordinates to find the property where the asphalt plant is to be located. iii. The application contains no other information that could be utilized by Orange County Planning staff to verify the location of the proposed asphalt plant. iv. The application does not meet any of the submission requirements as outlined within Article Fourteen (14) Site Plan Approval Procedures of the Orange County Zoning Ordinance, which is attached for your review.' As with the quarry, the asphalt plant was built prior to County zoning authority. According to our records, the asphalt plant burned down sometime in 1997 and was never re-established. In reviewing the Zoning Ordinance, specifically Section 11.9 Nonconforming Uses of Major Structures, or Structures and Premises in Combination, staff has discovered the following: 1. Such uses may not be enlarged, extended, altered or replaced, except for a change to a use permitted in the district in which it is located, and 2. If a nonconforming use ceases for more than one hundred eighty (180) days in any two (2) year period, subsequent use shall conform to the regulations of the district in which located. Asphalt plants are not specifically listed in the Permitted Use Table (Section 4.3) as a permitted or special use of property within the AR zoning district. The only district where asphalt plants are considered to be permitted uses of property is the Industrial One (I-1), Industrial Two (I-2) or Industrial Three (I-3) zoning districts as a Manufacturing and Processing Operation. It should be noted that the location of a manufacturing and processing plant within one (1) of these three (3) zoning districts depends on the potential for adverse impacts to be experienced beyond the boundaries of the lot where the operation is housed. CONCLUSIONS: In reviewing the timeline of events of the Highway 57 quarry operation, and addressing issues concerning the possible operation of an asphalt plant from the property, staff has reached the following conclusions: QUARRY OPERATION: That the quarry operation has a `de-facto' Special Use Permit issued in accordance with Article Eleven (11) Nonconformities, specifically Section 11.6, of the Orange County Zoning Ordinance, 2. That the expansion of the quarry operation in 2004 constituted a `modification' to the Special Use Permit in accordance with Article Eight (8) Special Use Permits, specifically Section 8.7, of the Orange County Zoning Ordinance, 3. This modification would have been reviewed by the Orange County Board of Commissioners as a request to modify an existing Class A Special Use Permit, 4. Hanson Aggregates claims that the County was notified of the proposed modification through a certified letter sent to Mr. John Link, former County Manager, and signed for by Mr. Travis Stevens. Staff has been unable to ascertain what happened to this letter or verify what information it contained. ASPHALT PLANT: 1. Staff has determined that an asphalt plant is not a customary accessory use to a quarry operation. Staff arrived at this interpretation based on the following: a. The quarry operation is classified as an `Extraction of Earth Products' under Section 4.3 Table of Permitted Uses of the Orange County Zoning Ordinance, b. The definition Extraction of Earth Products in Article Twenty-two (22) of the Zoning Ordinance reads as follows: The process of removal of natural deposits of mineral ores, soils or other solids, liquid or gaseous matter from their original location. It does not include any processing of such material, beyond incidental mechanical consolidation or sorting to facilitate transportation to the site of use or location of further processing. c. By definition, `Extraction of Earth Products' does not include the processing of extracted material on-site. As a result, manufacturing and processing operations are not permitted to occur on such development sites. 2. As previously indicated, the quarry owners point to a letter written in July 1991 by Mary Scarbo of the Orange County Current Planning staff, which stated that an asphalt plant could be an acceptable accessory use associated with a quarry operation as justification that an asphalt plan can be re-located at the quarry site. In staff s opinion this letter is being misinterpreted by Hanson Aggregate officials. Staff arrived at this determination based on the following: a. The interpretation is inconsistent with the definition of `Extraction of Earth- Products' contained within Article Twenty-two (22) of the Zoning Ordinance. This was the same definition that appeared within the Zoning Ordinance in affect in 1991, when the letter was authored, b. The letter in question was written with regard to questions about the American Stone Quarry operation along Highway 54 within the Bingham Township, not about the Highway 57 operation, c. The letter indicates that the proposed asphalt plant at this site: `may be considered an accessory use, provided the development of the asphalt plant is carried out in accord with the attached August 21, 1991 memorandum from Everett Billingsley of Orange Water and Sewer Authority' . It is apparent to staff that the asphalt plant was being considered for location at the American Stone site as a result of this specific proposal. As this proposal was indicative of this site, this `approval letter' cannot be utilized to construe that the County was making the formal interpretation that asphalt plants were customary accessory uses to all quarry operations throughout the County, d. The letter goes on to illustrate this point in the third paragraph where Ms. Scarbo writes: `The asphalt plant, if developed in accord with the proposal referred to above, would satisfy the definition of `accessory use' ...'. Staff contends that this letter was never intended to serve as a formal policy position but to address a specific development proposal on a specific parcel of property, e. Section 4.3 of the Zoning Ordinance establishes a specific location for manufacturing and processing operations, specifically within Industrial zoning districts. Staff contends that the manufacturing operations were never intended to development outside of these areas, f. Staff contends that the opinion contained within the 1991 letter, authored by Ms. Mary Scarbo, was in conflict with the standards and regulations of the Orange County Zoning Ordinance enforced at that time given the definition of Extraction of Earth Products contained in Article Twenty-two (22). Staff is not bound to honor an interpretation made in error by a former staff person.