Judge allows lawsuit over county’s rezoning to proceed

ROCKINGHAM — Judge Dawn Layton this week issued a ruling in the challenge against the Richmond County government’s rezoning of a property on Marks Creek Church Road to Heavy Industrial last fall, granting two victories to the county but allowing one of the plaintiffs claims to proceed.

Hamlet, Dobbins Heights, and the Gardner and Norton families filed a complaint against the county in December 2020 arguing that the county did not fulfill its legal obligations with regard to its rezoning. The plaintiffs argue that the county failed to comply with North Carolina General Statute 153A-341(b) which requires that the Board of Commissioners describe why the rezoning is or is not consistent with the county’s land use plan and explain why it’s in the public interest before they approve or reject a rezoning request.

The complaint cited the Board of Commissioners’ consistency statement which states that the Board “does find that this action is reasonable and in the public interest due to its consistency with strategic land use plans and policies …”

Their second argument for voiding the rezoning is that the county failed to consider all of the permissible uses allowed in the Heavy Industrial zoning district, as required by law. They allege that CSX requested this rezoning in summer 2020 “on the sole basis that the property would be used for a biochar production facility, and upon information and belief, the (Board) relied on this representation when it rezoned the property” and further that International Tie Disposal’s (ITD) plant “is the only use that the (Board) considered when it approved the rezoning.”

In February, Hal Kitchin, a partner with McGuireWoods who is representing the county, motioned to dismiss the plaintiffs’ claims on the basis that neither municipality had any standing in the matter because of their distance from the site in question, which is on county land, that the county’s consistency statement complied with state law, and that the commissioners considered all the possible uses for the property.

Superior Court Judge Dawn Layton granted the county’s motion to dismiss Dobbins Heights for lack of standing in the case, which the town last week voted to appeal, at no cost to the town. Mayor Antonio Blue confirmed this week that the City of Hamlet is paying the town’s legal fees in this matter. It’s unclear if the town has filed this motion to appeal as of Friday evening.

Hamlet, in Layton’s view, has standing in the case, along with the Gardners and Nortons, who live adjacent to the property in question. Hamlet’s water supply, Marks Creek, is less than 2,500 feet from the site and serves more than 10,000 residents, including those in Dobbins Heights, according to the plaintiffs’ complaint. The concern from the residents and from the town is the future ITD plant will be handling carcinogenic materials, namely creosote-treated railroad ties which it will convert into biochar using a process called pyrolysis.

Layton also granted the county’s motion to dismiss the plaintiffs’ claim that their consistency statement was insufficient.

“The Court finds that the consistency statement adopted by the Richmond County Board of Commissioners is sufficient under N.C. Gen. Stat. 153A-341(b) and is, therefore, not subject to further review by the court,” read Layton’s ruling.

Along with Hamlet having its standing in the case affirmed, Layton denied the county’s motion to dismiss the plaintiff’s claim that the county only considered one use for the property in question. T.C. Morphis, Jr. of the Brough Law Firm, who is also the city attorney for Hamlet and who is representing the plaintiffs in this case, argued before Layton last month that the only way to know for sure whether only one use was considered for the rezoning was if the case was allowed to proceed to discovery.