Big Stink Over Asphalt 

If anybody knows about the ups and downs of Optimist Park, it's June Lackey and Lillian Chance. The sisters have resided in the embattled neighborhood all their lives on land that has been in their family for three generations. During WWII, their grandfather opened a little neighborhood store called Keesler Grocery, which was taken over by the sisters' father in the 60s, and then their mother. The store was torn down in the late 70s, but Lackey, 77, and Chance, 79, are still there, living next door to each other in the houses in which they were born. Dogwood trees bloom in the front yard and nicely kept flower gardens grace their properties. And by next month, they'll have an excellent view of the asphalt plant that's being built across the street on N. Davidson just a few blocks from downtown."It shouldn't be put there," says Lackey, who suffers from sinus problems and migraines. "It's right in downtown, and it's going to be against people's health. I can't afford to move. Besides, I wouldn't want to move. This land belongs to my daddy's daddy. We've been here all our lives. No other place would be home."

"I think the whole thing's rotten," says Chance. "I don't have anything good to say about it. You just hate to have something like this coming in right under your nose. I've lived this long and had fairly good health. I don't need no problems like this at my age. I think our government officials have made a mess out of things."

Actually, that's a pretty astute assessment of the situation. The fact that an asphalt plant is scheduled to be built on a three-acre parcel of land which last year was targeted for retail and residential development demonstrates once again that backing up neighborhood plans with concrete action isn't exactly our city officials' forte.

Falling Through The Cracks
After nearly nine months of work and deliberation, the Optimist Park neighborhood plan was finally approved in March 2002. The plan was a collaborative effort between residents, business owners and the city's planning staff. At the time, a big ballyhoo was made of the new plan, which called for mixed-use development, designed to transform an area that has long struggled with drugs, crime and general neglect. Residents and city bigwigs hailed it as a new start for Optimist Park and, politically speaking, as a clear sign that this the would take care of its fragile inner city neighborhoods.

One little problem. The zoning for Optimist Park-which is largely industrial-was never changed to accommodate these ambitious new plans. This, it turns out, is quite common.

"When a neighborhood plan is created, it just puts forth zoning recommendations, it doesn't change anything," says Planning Commission vice-chairman David Hughes.

"When neighborhood plans are adopted, sometimes it comes with a downzoning (scaling back zoning from industrial to multi-family, for example) and sometimes it doesn't," says Planning Commission chairwoman Mary Hopper. "Getting the plans approved can be enough of a chore. I would hope people understand that any neighborhood plan is long-term."

In the case of Optimist Park, because of the large amount of industrial development already present, the city council decided not to rezone the property. The reasoning was that to change the zoning would have created a large number of non-conforming land uses, and would potentially limit property owners from improving their businesses. And this, of course, rendered the previously completed neighborhood plan utterly useless. Get it? We don't either.

Even in the bizarro world of city politics, it all seems a little loopy. Even some city council members say so.

"Historically, city council rarely goes back and changes zoning," says Councilman Malcolm Graham. "It's not like you adopt a neighborhood plan then go back and change the land use. That makes sense, but that has not been our practice in the past."

"In hindsight, had we simply enacted the zoning to match the neighborhood plan when we had the opportunity, this wouldn't be a problem at all," says city councilman John Tabor, who served on the Planning Commission for nearly a decade.

But, as Optimist Park residents and business owners will tell you, it is a problem.

"It seems like too many things fell through too many cracks," says Linda Williams, president of the Optimist Park Community Association, who is leading a campaign against the asphalt plant. "We don't want the city council saying, "Oh, this is just so bad, I feel sorry for you.' We want them to say, " feel sorry for what's happening, and we need to do something about it.' That's what our elected officials are for."

"This asphalt plant is completely opposite to the city council's plan for this community," says William J. Proctor, president of AFI, a distribution and fabrication business located across the street from the asphalt plant's proposed site. "It will have both short-term and long-term consequences. It will blunt any retail and residential development, decrease property value, and negatively impact the lives of the residents. What he's doing may be legal, but ethically and morally it is wrong."

"How can it be morally or ethically wrong to generate jobs and employ people and create a tax base for the city in an already industrialized area?" counters Chris Ferebee, president of the Ferebee Corporation, the company that plans to open the asphalt plant next month. "How is it morally wrong to want to run a business on land that you own and have paid taxes on for decades? In Charlotte, there are several other asphalt plants that have similar proximity to residential areas. So to say we're an abnormality is not true. I find it hard to take criticism from people who don't know what they're talking about. We've met repeatedly with them (Williams and other concerned Optimist Park residents) and tried to educate them, but for whatever reason they've chosen not to listen."

Ferebee points out that his company's asphalt plant meets all zoning as well as state and federal environmental requirements. It's his opponents, Ferebee says, whose plans contradict what's intended for the neighborhood.

"What the opposition is proposing is non-conforming use," he says. "What they want (residential and retail development) does not follow the zoning plans. People are making it sound like I'm putting an asphalt plant down in the middle of a neighborhood. That couldn't be farther from the truth."

Ferebee's view fly directly in the face of what city councilman James Mitchell, whose district includes Optimist Park, says he wants for the area, "Clearly, Optimist Park does not need an asphalt plant when it's already got so much industrial development," says Mitchell. "We're trying to reverse that trend."

A Hunk-a Hunk-a Burning Asphalt

North Carolina has about 78,000 miles of roads, and the second-largest state-maintained highway system in the United States. In addition, about 4,400 miles of roads are repaved each year. That's a lot of pavement; thus, the state has a lot of asphalt plants. According to the NC Department of Environment and Natural Resources (DENR), North Carolina has about 150 asphalt plants. On average, about five new facilities are permitted each year. There are 12 plants in Charlotte, spread throughout the city, including Westinghouse Blvd, Sam Newell Rd, Mallard Creek Church Rd, and one in Southend.

Contrary to what folks might think, most modern asphalt plants are not mammoth buildings with multiple towering smokestacks. In fact, many asphalt plants are portable so they can be moved to different locations based on needs for new highways and other construction projects. The plant slated for Optimist Park will consist of several different components that all fit together like a puzzle. Ferebee says most of his plant's components will stand less than eight feet off the ground, with the exception of one 44-foot silo. The plant will be located at the intersection of N. Davidson and 13th Streets, with ancillary development along N. Caldwell.

The asphalt mixing process goes like this: Bins containing an aggregate of gravel and sand will feed into dryers where the mixture will be heated to over 300 degrees. The material is then moved into drums where it "s mixed with liquid asphalt. The "hot mix" asphalt is then conveyed into storage silos, from where it "s poured into trucks, and delivered to construction sites. Hot mix asphalt plants normally are located close to construction sites since delivery trucks can travel only limited distances and still maintain the asphalt temperatures needed for paving.

Before a company can build, operate or modify an asphalt plant (or any other source of air pollution), it must first obtain an air quality permit. Locally, Mecklenburg County Air Quality (MCAQ) issues those permits. MCAQ is a regulatory agency certified by the North Carolina Environmental Management Commission to administer federal, state and local air quality regulations.

"When someone applies for an air-quality permit, they have to present us with sophisticated air quality modeling," says Alan Giles, communication coordinator for MCAQ. These models are created by taking emission figures which have been established across the country, and then inputting how much the facility (in this case an asphalt plant) will produce, to come up with an expected emissions rate. "The model must show that the operation of the plant is not going to have a negative affect on air quality and prove it will be below federal emission standards, which the Ferebee plant has done."

What is startling is that as long as they pass the air quality model test, there is no required buffer zone between asphalt plants and residential areas. This is not a statewide rule. NC allows each city to determine its own buffer requirements. In keeping with its longtime progressive stance on the environment, our city officials just opted not to have them.

This contrasts to cities like Durham, which require a 1,500-foot buffer. When developers last year proposed that Durham reduce the buffer to 750 feet, residents-led by the NAACP and with the help of Environmental Defense, a national nonprofit group-convinced the city council to reject the proposal.

"This rule change would have allowed a number of asphalt plants to have been built in Durham," says Kristen Thornburg, of the North Carolina chapter of Environmental Defense. "It would have exposed a large number of Durham residents to unhealthy levels of air pollutants, and could have resulted in numerous adverse impacts to public health and welfare."

The Gray Zone
The majority of air emissions from an asphalt plant come from the main stack (silo), and the process of heating the liquid asphalt cement and rock. These emissions include particulates (dust), sulfur dioxide, nitrogen oxides, carbon monoxide, volatile organic compounds, and toxic air pollutants such as benzene, formaldehyde, nickel, mercury and arsenic. The liquid asphalt also releases hydrogen sulfide, the compound responsible for the odor generally associated with "hot tar." Fumes from asphalt storage and loading areas, as well as the trucks, account for the remaining air emissions, collectively referred to as "fugitive emissions."

The NC Department of Environment and Natural Resources (DENR), says facilities are not allowed to emit pollutants that exceed any of the state's air toxic limits at or beyond their property lines. Thus, citizens should not be exposed to unhealthy levels of air pollution if they live near plants that meet the state's air toxic rules.

Several environmental groups, however, say asphalt plants pose serious environmental and health risks, including asthma, nausea, vile odors and reduced visibility. The Blue Ridge Environmental Defense League (BREDL) is one of the most active and outspoken critics of asphalt plants in North Carolina.

"Under the Clean Air Act, there are "major sources' of pollution, like power plants and paper mills, then there are minor sources, which don't have the potential to produce 100 tons per year of a given pollutant," says Louis Zeller of BREDL. "Asphalt plants are in that in-between, gray area. The plants are dirty enough to produce major pollution under the Clean Air Act, but they take on "operational limits.' They can mix asphalt for only so many hours a year, and produce a given amount of asphalt, which enables them to escape some of the regulatory constrictions and permits of a major source."

BREDL has waged several high-profile battles against asphalt plants, including one case in Pineola, in Avery County. Residents there had long complained that the Maymead Materials asphalt plant released noxious odors and adversely impacted their health and quality of life. BREDL released a study indicating that residents who lived near the plant suffered from asthma and other respiratory problems. According to the study, the plant also reduced the property values of nearby residences up to 56 percent. Avery County tax adjustment officials used distance from the plant and noxious odorous emissions as the bases for property value devaluation. The plant is still in operation.

BREDL was also involved with a 1997 case in Watauga County where residents were fighting a proposed asphalt plant in Boone. After much debate, the NC Division of Air Quality (DAQ) denied the company's application for an air permit.

"We delayed the permit for over a year, while we conducted a meteorological study of the area, and the EPA conducted their own study to re-examine the process for estimating the pollutants from asphalt plants," says DAQ information specialist Tom Mather. In addition, the Boone City Council enacted an eight-month moratorium to discuss new zoning regulations. In the end, the EPA elected not to require any special controls for asphalt plants, and the DAQ concluded the plant wouldn't pose any undue environmental threat as long as it met air quality regulations. However, during that time, the Boone city council enacted stricter zoning laws, which prevented developers from building the plant.

"We have no control over where a facility is located," says DAQ's Mather. "If they can meet the air regulations, they get a permit. Not to say there aren't problems associated with asphalt plants. They're just not very popular; you get a lot of truck traffic, and they do have a lot of emissions that can be smelly. It's not the kind of thing you'd want to live close to. But that's a zoning issue, and we're in the environmental business. However, we definitely support local government to take action to zone these things properly."

So What Now?
Charlotte attorney Anna Daly has agreed to provide pro bono service for the Optimist Park Community Association. Daly says that while they have not yet filed a lawsuit, she and concerned residents went before the county commission (after appealing to city council numerous times to no avail) and convinced them to ask Mecklenburg County Air Quality to review the issuance of Ferebee's permit. Daly says they intend to submit information in support of their position that an asphalt plant in Optimist Park would have adverse affects on the community and the city as a whole.

"We contend Ferebee didn't consider all of the various sources of emissions such as the hundreds of trucks that will be in and out of there everyday, and the overall impact that this will have on the neighborhood," Daly says. "Particularly when you look at the other facilities that are nearby. It's a spot where the air quality is poor to begin with. An asphalt plant will just cause further deterioration."

Daly says if the zoning board rules against Optimist Park, the next option will be to file a lawsuit in Superior Court. "We're hopeful the zoning board will determine that a permit should not have been issued."

The hearing before the zoning board is scheduled for May 27. Ferebee says he expects the plant to be up and running by the end of May.

Meanwhile, city council members, including Graham, Tabor and Mitchell, say they are exploring possible solutions to the problem. Most notably, they are trying to find an alternate site for the plant. But the clock is ticking.

"I have asked the Planning Commission to come up with all the vacant (industrial) land that's near the interstate and belt loop, and ask Ferebee if he would consider letting us swap property with him," says Tabor.

"What we're trying to do, and I've urged community residents to do the same, is put public pressure on Ferebee," says Graham. "An asphalt plant in the middle of Optimist Park does not meet anyone's standards. Businesses like an asphalt plant may have been appropriate 30 or 40 years ago, but as the city has grown and uptown has expanded, it's an inappropriate use. Nobody wants to live next door to an asphalt plant."

Mitchell says he has met with Ferebee several times to discuss the possibility of locating his asphalt plant elsewhere. "I've asked Ferebee point blank, "Name any aspiring city that has an asphalt plant uptown and five blocks from an arena? I appreciate from a business standpoint why he wants that site-it's accessible to the highway, and he's owned the property for 30 years. But I also told him that I couldn't sleep at night if I didn't fight for what I truly believe is the right land usage for that area. I think we do a disservice for our citizens and will lose a lot of credibility if that asphalt plant gets built."

Ferebee says, "We've owned that land for a long time, and as a property owner it is our right," he says. "It's fine if you want to disagree with me. It's hard to please everybody."

Contact Sam Boykin at (704) 944-3623 or sam.boykin@cln.com.

Lessons Learned?

Most of the city officials involved say that if any good comes from the whole Optimist Park/asphalt plant issue, it's that the case has brought to light some of the shortcomings in the city's overall planning/zoning system. And hopefully, it will help change the way things are done in the future. Of course, this doesn't do anything for the residents of Optimist Park, but that pretty much seems to be the bottom line."In the past, the city has not been very active in downzoning," says Mitchell. "But sometimes, and this is a prime example, we have to do what's best for the neighborhood. One lesson we've learned from all this is that when we vote on neighborhood plans, it behooves the city to change the zoning to match."

The discrepancy between council-approved neighborhood plans and a property owner's rights is a complicated and messy issue. While officials with the Planning Commission say they try to rezone land to match a neighborhood's plan, there is a balance that must be maintained, and that can be tricky.

While it is possible for the city to initiate "third-party rezoning," in which they change the zoning of an individual's property to match neighborhood plans, "obviously, a lot of property owners object to having their property rezoned," says assistant planning director Debra Campbell. "It's up to the city council to determine the appropriateness of each case, and whether the merits of it warrant a change in the zoning."

Campbell says that while they have initiated corrective rezoning in the past in order to synchronize with neighborhood plans, in most cases there has been a generalized land-use pattern already in place. The problem is that in the case of Optimist Park, the previous land-use pattern has been predominantly industrial; one of the reason such a big deal was made of the new neighborhood plan was that it would supposedly reverse that pattern. (According to the neighborhood plan, in terms of land-use by acreage, 65 percent is industrial, 12 percent is single-family, and three percent is multi-family; by zoning, 19 percent is multi-family, and 75 percent is industrial).

"Never in our wildest dreams did we think an asphalt plant would be located on that site," says Campbell. "However, what this has done is raised some issues that will not only impact Optimist Park, but the entire city in regards to uses that are now currently permitted in close proximity to residential areas. I think we need to go back and take a look at this. This isn't the first asphalt plant to be built in Charlotte close to residential areas. Of course that doesn't make it right, either."

-- Sam Boykin