Buncombe Commissioners: Concrete facts

• Commissioners update flood ordinances, pass sustainability plan
• County lays out limits of authority over CTS cleanup, promises push state, federal officials

It's been an eventful few years for Buncombe County on the legal front. The county has won battles with the city over water, but high-profile rulings on zoning and the sale of public parkland to a private developer have failed to go the county's way.

Now Buncombe County commissioners have admitted defeat again, announcing at their Nov. 3 meeting that they will not appeal a Superior Court ruling ordering the county to allow the construction of a concrete plant near Weaverville.

Yet the county can also claim a legal victory — of sorts. News came the same day that a three-judge panel of the state Court of Appeals had reversed a Superior Court ruling last year that found the county's 2007 sale of a piece of parkland in Pack Square to developer Stewart Coleman illegal. (See "Developer Prevails in Lawsuit over Public Land in Downtown Asheville" elsewhere in this issue.) The panel ruled that the land doesn't have to remain a publicly accessible park, and Coleman can use it as he wishes (though he has abandoned controversial plans for a condominium building). But after the Superior Court ruling last year, the county declined to join Coleman's appeal.

With the abundance of legal news, the commissioners took the rare step of going into closed session during the middle of their meeting. It was almost an hour and a half later before they emerged. They declared that they saw little point in continuing to block the concrete plant, but they remained silent on the Pack Square ruling.

"Blue Ridge Concrete was entitled to have to their rules reviewed under the laws at the time, which was: no zoning," County Attorney Michael Frue explained. "I would suggest to the board that we not file an appeal and go forward with a settlement."

In March an N.C. Court of Appeals judge had ruled that the county didn't follow proper procedures in approving zoning in 2007. That, in turn, means that those ordinances never legally existed, according to the Superior Court's ruling in the cement plant case, and the county's current work to reinstate zoning is irrelevant.

"To pursue this would just be spending more of the taxpayer's money," Gantt said. "We're not happy with it; we wish it wasn't this way; we know the people in Weaverville have fought a long time. But we lost and we're going to have to go forward and face the music."

Temperature (and water) rising

The board unanimously approved a sustainability plan aimed at cutting the county's energy expenditures and carbon footprint. The plan aims to embrace LEED standards whenever possible, as well as setting other energy efficiency guidelines for the county's facilities, vehicle fleet and services.

But it does not enumerate specific goals or bind the county to follow LEED standards on all new buildings.

Commissioner Holly Jones questioned that approach, saying she would like to see stronger commitments from the county.

"I'd like to see new construction be LEED certified, though it might range whether it's gold or silver LEED certified. Is that what this plan means?"

No, explained Greg Israel, the county's director of general services.

"Making a blanket statement will bite you," he told Jones. "We've got to look at it from a practical standpoint. If we can meet LEED certification, great. That's our desire, but if it comes to where it can't be done, we have to consider if it's worth the extra money."

As one example, he pointed to the life-safety tower the county will soon build onto the courthouse. Making such a building LEED certified would be exorbitantly expensive, he said.

Jones also encouraged the county to look at broadening its sustainability plan to incorporate greenways and other environmental issues.

"So much does come under our facilities, but there's a broader perspective as well," she noted.

Gantt asked Israel to come back in the next six months with a breakdown of the county's energy usage.

The board also unanimously passed a series of amendments bringing its flood ordinance up to date. In addition to updating the county's flood maps, the new ordinances ban construction of any homes or businesses in the floodway and adjust several other rules — including the requirement of higher foundations in homes near areas susceptible to flooding — to bring the county's ordinances in line with federal and state guidelines. Three percent of the county lies in areas that could be endangered in the event of extensive flooding.

During the public hearing, however, longtime activist Don Yelton encouraged the county to go further and make the information more widely available.

"You need to inform people about what the floodway and floodway fringe is," urged Yelton. "You need to look at how much development is going into the floodway fringe. You can still be legal, you can still meet the federal requirements and still have a problem."

"Simply not in the loop"

In a presentation to the board, Frue also laid out how federal and state law constrain the county's response to contamination at the former CTS of Asheville plant.

In recent years, residents of the area have blasted county, state and federal officials for what they see as delays in cleaning up groundwater contamination of tricholoroethylene, a suspected carcinogen. In 2008, the county did pay for municipal water for the Oaks subdivision to protect its residents after wells in that area were found to have high levels of TCE. But Frue said that recent calls to extend water lines to all the homes on Chapel Hill Church Road, where a well tested in August at 168 times the maximum level of TCE permitted by the EPA for drinking water, haven't met the county's guidelines.

"I don't think many answers have been given to [the residents'] satisfaction," Frue said. "There have been many emotional statements as to what the risks are, but the science has not developed to say that there's an imminent health risk there."

Frue said that while many felt that CTS and Mills Gap Road Associates — whom the federal Environmental Protection Agency and the state Department of Environment and Natural Resources have declared as the responsible parties — have not done enough, "they have followed all the legal steps," and thus the county has no standing to press a legal case.

"The county is simply not in the loop as a responsible party for this situation," he said. "Citizens could sue, but only if federal and state officials have not taken appropriate action. Again, the questions are many and the answers are few. The county has gone above and beyond what we're required to do, beyond what I've been legally comfortable with."

Under the law, DENR is responsible for all pollution under the ground, while the EPA oversees the aboveground contamination. Gantt and other commissioners have said that those laws can leave jurisdiction confusing and sharply limit the county's ability to play a role.

However, Mandy Stone, director of the department of social services, said that the county could have a clearer understanding of the situation if the EPA and DENR were more forthcoming with information from the studies they've conducted on potential health risks in the area.

"We've done repeated letters to federal and state officials," she said, listing off ways the county has tried to help the residents, including offering well testing. "I would ask that we draft letters. The first letter is to our state and federal officials, reminding them that they oversee the agencies responsible for this and asking them to establish a clear and consistent line of communication with the citizens as well as investigate if there's federal or state funds to get the residents water. The second letter would be to the state health director. Twice we've been promised with the public health assessment that 'the check's in the mail.' We still haven't seen it. We think it's critically important that the public has access to that information."

The board quickly agreed, voting to send the letters unanimously. Commissioner Bill Stanley snapped, "I move we instruct staff to get the letters in the mail to those scoundrels, excuse me, people."

David Forbes can be reached at 251-1333, ext. 137, or dforbes@mountainx.com.