News

County attorney instructs Planning Board not to reject emails on asphalt plant

Aerial photo shows site of a proposed asphalt plant at the corner of Spartanburg Highway and the westbound off ramp of the U.S. 25 connector. [Photo courtesy of AerialPhotoPros.com]

By Lightning Reports, Published: June 25, 2020

Rebecca Grounsell wrote an impassioned email to members of the Henderson County Planning Board on June 10 imploring them to reject an asphalt plant near her home on Candlestick Drive, where she lives with her husband, Lee, 6-year-old daughter Alice and rescue dogs Griz and Gunny.

“We love the neighborhood, we love the fresh air, and we love the accessibility to the Village of Flat Rock, the Green River and the Green River Game Lands,” she said. “Now, we are at risk of losing everything. The proposed asphalt plant would be located less than a mile (as the crow flies) from our home.”
The response from one Planning Board member, Baird Blake, stunned her.
“Direct communications with a Planning Board member is wholly inappropriate,” wrote Blake. “Please see the attached notice for the appropriate way to voice your concerns.”

Blake, who developed the Reserve at Heron Pond in Cummings Cove, sent the same response to others who had been bombarding Planning Board members, county commissioners and the county planning staff with emails imploring officials to reject the asphalt plant, which Southeastern Asphalt Co. owner Jeff Shipman wants to build on a six-acre tract of wooded land at the northwest corner of the Spartanburg Highway-U.S. 25 connector.

“I would assume it would be OK for us to do that,” Grounsell, a children’s services social worker in the Spartanburg area, said. “I would not have known any reason why not. It would make sense that those are the people that need our input as they go about making those decisions.”
After asking commenters not to contact him, Blake told Planning Director Autumn Radcliff that the emails were “wholly inappropriate.”
“It is clearly not the forum for public comment. The actual meeting is the where public comment is supposed to be made,” he said. “I just wanted to register my displeasure with this practice and I intend to address it during the meeting.”

Blake never got the chance to present his complaint because he was roundly pushed back.
His emails created a kerfuffle that caused an attorney for the asphalt plant opponents to write to Radcliff demanding that she let Planning Board members know they must receive the emails.
County Attorney Russ Burrell agreed. Responding to a public records request from the attorney, John Noor, Burrell directed Planning Board members to send him all the correspondence they had received about the rezoning case.
The asphalt plant “has become an issue of tremendous public concern due to the environmental, health, and economic impacts the proposed plant would have on surrounding neighbors, marginalized populations, and the Flat Rock community,” said Noor, who represents homeowners opposing the rezoning. "When they reached out to the Planning Board, the homeowners received the response that their input was wholly inappropriate.
“Additionally, this same Board member stated to another member of the public that her decision to email the board member ‘could do more harm to your cause than good.’ These responses are very concerning,” Noor said in his letter to Radcliff.
He cited the people’s right to petition the government under the First Amendment to the U.S. Constitution and articles of the North Carolina Constitution plus Planning Board rules ensuring the public the opportunity to comment on rezoning cases.
“I hope that the above-quoted statements by the Planning Board member were unintentional misstatements,” he said. “These responses could be construed as attempts to dissuade the public from exercising their right to contact Planning Board members and insinuate that retaliatory action might be taken against those who provide direct input or that Board members might hold some prejudice against those who exercise their right to petition.”
He called on Radcliff and the planning office to “provide each Board member with clarification on their obligation to accept input from the public as part of their review of the application and remind them that they are legally prohibited from retaliating or acting adversely to anyone based on the public’s decision to provide feedback on the pending application.”
County Attorney Russ Burrell agreed with Noor that people are entitled to write directly to Planning Board members. He forwarded Noor’s public records request to Planning Board members and directed them to comply.
“Note that the ownership of any email account you may use does not change whether or not the items requested are public records, under Chapter 132 of the North Carolina General Statutes,” he said. “This includes emails between any of you, or with or from any other person. … Board members can often expect to be lobbied on an issue. And responses to such lobbying are permitted. All such communications are public records.”
Blake said in an interview that he wanted “in the worst way” to tell about what happened and why he responded as he did “but I have to say no comment.”
At the tail end Thursday’s Planning Board meeting, John Mitchell, the county’s director of community and business development, reminded board members that the rezoning case had been postponed at the applicant’s request until Aug. 20. Mitchell also told people watching the meeting via Zoom, “Planning staff remains available to answer any questions you have and we do encourage public comment.”
Planning Board Chair Steve Dozier reminded the advisory board that public input is one of the things they signed up for when they agreed to serve.
“We are a public board and that’s one of the joys of serving on a public board,” he said. “I’ve received probably 10-12 calls. I've taken a neutral stand on each one of them, telling them we have not had a ton of time to review it.”
In an interview, Mitchell said the county is making sure people can engage with the planning department, Planning Board and Board of Commissioners.
“Clearly as part of the process, we as county staff encourage all people to exercise their ability to comment,” he said. “In fact, that’s what this process is all about. We actually have been encouraging people (to comment). We’ve got links on our web page, they can call our offices, email any of the people listed on the website. It’s interesting to note the Planning Board won’t be making the final determination on this. Their role in this is to advise the board of commissioners.”
Noor, the attorney for the asphalt plant opponents, asked a Technical Review Committee last week to force the applicants to refile the rezoning application because they had not listed conditions they planned to set on the operations. The committee said no, and sent the request on to the Planning Board along with comments about issues around water runoff, traffic and other factors.
Grounsell, the Candlestick Drive homeowner who sent the email about the proposed plant, listed numerous factors the Planning Board should consider.
“We have so many concerns about pollution, air quality, health problems, and property values,” she said. “Not to mention the concerns about how this would impact our tourism industry. People come from all over to enjoy this area for the clean water, clean air, outdoor experiences, and to escape their concrete jungles...not to step outside and take a big, deep breath of polluted and foul-smelling air from the asphalt plant just down the road from their vacation rental. I don't care how many precautions the plant says they will take. If I were a tourist looking for a place to go on vacation, tube down a river, hike, etc., I would not choose anywhere that is close to an industrial plant, and neither would anyone else that I know.”