Monday, March 4, 2024

Warning of the next Chemours, environmental groups rally for industrial code update three years after rule change

In 2017, New Hanover County reclassified 11 heavy industrial uses as light industry, placing them in a zoning district with looser regulations. Those industries included cement plants, like that now-abandoned Titan plant. (Port City Daily photo / Benjamin Schachtman)
In 2017 New Hanover County reclassified 11 heavy industrial uses as light industry, placing them in a zoning district with looser regulations. Those industries included cement plants, like the since-abandoned Titan plant. (Port City Daily photo/Benjamin Schachtman)

NEW HANOVER COUNTY — A host of environmental and civic groups is asking the county to revisit its industrial use rules, which currently lack the requirement that applicants hold community information meetings before earning approval to carry out their light manufacturing plans.

There’s a loaded history behind the request. Between 2015-2017, more than a dozen key stakeholder groups worked countlessly at several public meetings to help guide New Hanover County in rewriting its industrial use code in the Unified Development Ordinance (UDO) — comparable to time recently spent on the hospital sale.

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The exhaustive process produced a compromise. Endorsed by nearly all key parties — representing both environmental and business interests — the industrial use code rewrite wasn’t perfect, but it was something everyone could live with.

Commissioners approved the industrial code changes in March 2017 unanimously. Public statements by planning staff, commissioners, and planning board members at the time acknowledge the rule change as a “temporary bridge document,” to be revisited as the county continued to update its outdated UDO.

This promise assuaged environmental groups to sign off on the changes, believing they could fine-tune unfavorable aspects of the code they conceded to down the line.

Then and now, these parties asked for more transparency and community involvement when permitting industrial users and for a more stringent review process to ascertain potential adverse environmental effects.

Today, the UDO is nearly complete. There has been no public revisitation of the rules, and the groups say they’ve been stonewalled in trying to get any movement on the matter considered by the board of commissioners.

Keri Allen, an advocate for the Coastal Federation, said county staff has been excellent working with the groups to hear their concerns. “They can only work on what they’re directed to do,” she said.

Joined by the League of Women Voters Lower Cape Fear, New Hanover County NAACP, Cape Fear River Watch, Cape Fear Sierra Club, the Alliance for Cape Fear Trees, the Coastal Federation is hoping to make enough noise, “until we’re satisfied this topic has been openly broached by the county,” Allen said.

At the same time, business leaders will likely be hesitant to reopen the book on the topic.

Former Wilmington Chamber of Commerce chair, Henry “Hal” Kitchin, got involved in the process in 2013 and stuck with it voluntarily long after his tenure at the chamber ended.

“The time has been spent,” Kitchin said. “We invested heavily in a collaborative process for four years to get where it is today.”

The painstaking industrial UDO review process has already been examined ad nauseam, he explained.

“This is not to say people can’t take another look if they want to in this UDO process, but I can’t imagine that, here in our county, there have ever been two or three pages of text in a zoning ordinance that have been studied more, talked about more, analyzed more, with everybody — or at least everybody who was willing to participate — being around the table,” he said.

What changed?

The need to change the rules arose out of an industrial use code tweaked in response to Titan Cement, which dropped its plans in 2016 after eight years of public opposition. Titan planned to mine and manufacture cement on 3,000 acres along the Cape Fear River and would have been boosted by $4.2 million in county incentives.

Beginning in 2013, business advocates began voicing concerns over the industrial use process, which was confusing and deterring would-be applicants. Among their complaints, the pre-2017 code didn’t precisely define which uses did or didn’t require a special use permit, set how long an application could be processed for, or clearly describe what information an industrial applicant must submit.

In 2015 the North Carolina Coastal Federation hired its own consultant to help shape the new industrial code; by 2016 the county developed its own industrial use draft as part of its UDO project that was already underway, based on stakeholder input.

The rewrite was twofold: 1. It scrapped outdated and unclear processes, replacing them with a defined, step-by-step procedure; and 2. it specifically categorized each potential industrial use, matched with eligible zoning districts; in doing so, this reclassified 11 industrial uses previously considered “heavy industrial” to “light industrial.”

Before, applicants had to rely on the subjectivity of staff and elected officials to determine how exactly their proposed use would be categorized. The new table of permitted uses removed the definition-based classification system and replaced it with an industry-standard code-based guide, eliminating the possibility of improperly categorized uses.

When it was approved, this industrial reclassification was the major sticking point for those still in vocal opposition, who argued the supposed 11th-hour changes of 11 uses were made in the absence of an expert opinion.

Reclassified from heavy to light industry, the uses include:

  • Basic chemical manufacturing
  • Resin, synthetic rubber, artificial synthetic fibers, and filaments manufacturing
  • Paint, coating, and adhesive manufacturing
  • Soap, cleaning compound, and toilet preparation manufacturing
  • Plastics product manufacturing
  • Rubber product manufacturing
  • Clay product and refractory manufacturing
  • Glass and glass product manufacturing
  • Cement and concrete product manufacturing

LSL Planning, the county’s planning consultant, recommended the opposite on the 11 reclassified uses. These uses should only be permitted in the county’s heavy industrial zoning district (I-2) not in its light industrial zoning district (I-1), which is located closer to residential uses, according to the consultant’s memo.

David Weaver, the lone planning board member to vote against the change in Feb. 2017, explained his dissenting vote at the meeting: “[I]f nothing else, so that as we go down the bridge with this document for the next year or so, somebody might ask: ‘Well, why did that one guy on the planning board vote against it? And what were his problems with it?’ And it might jog some memories.”

Like others in opposition to the new table of permitted uses, Weaver was not confident in why long-considered heavy industrial were being reclassified as light, therefore subjecting them to less scrutiny.

“I can’t even argue about that because I’m not qualified enough,” he said. “I don’t think any of us have that expertise to compare the externalities of a plywood veneer plant to an automobile manufacturing company. And so our adjusting of the permitted uses from what it has been, and what has successfully worked for us for many years, is arbitrary. It really has very little foundation in fact to justify what we’ve done and suggested.”

Land use

Zoned in the ’70s, most remaining industrial land is located toward the northern end of the county. Growth has chipped away at available industrial acreage as residential developments creep farther north.

Behind residential R-15 zoning, heavy industrial (I-2) is the county’s second-largest zoning district, with about 20,000 acres, at 15% of the county’s landmass. The light industrial (I-1) zoning district is far smaller, at less than 1% of the county’s landmass.

Courtesy Coastal Federation. Click to enlarge

As of last week, 1,017 acres are zoned light industrial, including 674 undeveloped acres, according to data provided by the county.

This zoning district is of particular concern to environmental advocates, given its proximity to residential areas in Porters Neck and Ogden and the 11 reclassified uses that can take place there if a SUP is obtained.

Led by the Coastal Federation, the coalition of groups has three main requests.

First, the groups ask the county to require a community information meeting before any light, heavy, or airport industry application is submitted; these meetings are only required for heavy industrial uses and are optional for light uses.

Second, they ask the county require a “review of external effects” for intensive manufacturing uses — a requirement removed during the 2017 rewrite. This report would more clearly depict potential effects to air, ground, water, and other environmental impacts the applicant may impose; the current process requires the applicant to submit a list of permits it reasonably assumes it would need to operate.

Finally, the groups ask that the county hire a heavy manufacturing expert to perform an independent analysis to appropriately reclassify the table of permitted uses.

“We are not anti-development,” Allen said. “We are not anti-industry. We’re talking about a small number of heavy industries — I think it’s less than 2% of industrial uses — and these are the industries that are most likely to adversely affect our water, our air, as well as our economic health.”

Pointing to Chemours’ decades-long per- and polyfluoroalkyl (PFAS) discharges into the Cape Fear River, and contamination of groundwater surrounding its Fayetteville plant, Allen said the time to revisit the code is now — not after a known polluter submits an application that can’t be denied.

“I think it’s very urgent,” she said. “Our community has really experienced the consequences of industrial negligence on large scales.”

Dr. Robert Parr, who was deeply involved in the rewrite and is now advocating for an update, said it’s not unreasonable to conclude the next Chemours could set up shop in New Hanover County. Classified as “basic chemical manufacturing” under the same system the county’s code utilizes, Chemours’ Fayetteville Works facility would be allowed via a SUP in New Hanover County’s light industrial (I-1) zoning district.

In this hypothetical, Chemours would not be required to hold a community information meeting before submitting an application. Because SUPs are obtained through quasi-judicial hearings, the type of information presented to elected bodies and the public would be restricted by stringent evidentiary standards.

“Now the main issue with all of this is there’s just nobody in the process other than the citizens that have the freedom, the time, and the expertise, to do background information on these companies,” Parr explained. “So what happens if you don’t have a community information meeting, the vital third leg of planning in the community has been taken away.”

“Citizens can hire experts, but if citizens are going to get together and hire experts, then they transparent need information,” Parr added. “And there’s been no opportunity for that information to get out.”

Clark Henry, a professional planning consultant and Cape Fear Economic Development Council board member, said in a SUP process, the impassioned views of neighbors concerned about their air or water quality cannot be considered.

“None of that matters because it has been intentionally stricken,” Henry said. “When we organize as a local community to oppose something or to voice our concerns to something, and we’re not experts, so we won’t be heard. It’s up to us then, to hire engineers and lawyers and whatnot. . . . And that’s huge — that’s a huge burden.”

‘Solution in search of a problem’

Under the industrial SUP process, applicants must prove the following four conclusions:

  • The use will not materially endanger the public health or safety if located where proposed and approved.
  • The use meets all required conditions and specifications of the Zoning Ordinance
  • The use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity
  • The location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Land Use Plan for New Hanover County.

Each of these conclusions must be supported by “competent, substantial, and material evidence.”

Back in 2017, officials found the requirements already baked into the SUP process would protect the community from adverse environmental consequences.

Kitchin, who advocated for business interests in the rewrite, explained the additional requests for community information meetings and a review of external effects are not necessary; the guardrails to protect neighbors and the community are already in place, he said.

“To me, this seems like a solution in search of a problem,” he said. “I’m not sure I see a problem here, so I’m not sure why some people feel like we need to be working on a solution.”

If anything, Kitchin said the past few years of new industrial inactivity could even point to the conclusion that the current rules are already stringent enough.

“I’m not taking the position that the rules we’ve got now are too strict. But, if you just look at the county’s track record on special use permits since 2017, it certainly wouldn’t support an argument that the current rules are too lenient,” he said.

For Henry, the planning consultant, 20 years of cleaning up spoiled brownfields has led him to view industrial applicants with heightened scrutiny.

“When they leave, is that land viable?” Henry asked. Even permitted uses that check every box can leave a community with contaminated land, decades after the companies decide to leave, he explained.

“Some of these decisions, I think they’re made in the supposed name of economic development, and we need jobs. Of course, we need jobs. No one is saying we don’t need jobs or want jobs. But I think when we look at the assets that we have that attract employers, some of these policies are undermining those assets and therefore working contrary to economic development. 

“So not holding them to higher standards, we’re setting ourselves up to repeat errors of the past,” he said.

Environmental and civic groups ask NHC to revisit industrial UDO by Johanna Ferebee Still on Scribd

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