A Board of Adjustment ruling that precludes Delta Holdings LLC from continuing to operate a concrete plant at 110 Seven Oaks Road in Boone has been appealed to the Watauga County Superior Court.

Delta Holdings, represented by attorney Nathan Miller, filed a petition for writ of certiorari with the court on Feb. 21, 22 days after the Board of Adjustment's decision was filed, according to court documents.

"The town's decision is wrong," said Miller. "Their notice of violation was erroneous."

The Boone Board of Adjustment voted Jan. 10 to uphold the town's notice of violation issued in March 2012 to Delta Holdings LLC, lessee of the Boone Ready-Mix concrete plant, for continued operation of a nonconforming situation after loss of a grandfathered use under the town's Unified Development Ordinance.

The plant was grandfathered in as a nonconforming use in a B-3 General Business zoning district when the parcel became part of Boone's ETJ in November 1998, along with the adjacent Seven Oaks neighborhood, zoned R1 Single-Family Residential. 

According to the UDO, "When a nonconforming use is discontinued for a period of 180 days, in any 12-month period, the property involved may thereafter be used only for conforming purposes."

Several Planning and Inspections Department staff members and a number of Seven Oaks neighborhood residents testified before the board that they had observed long periods of inactivity at the plant between 2010 and 2011.

Delta Holdings produced sales tax receipts, tax returns, Quickbooks records and other documents in an attempt to demonstrate that business was ongoing at the site during the period in question.

The board's administrative review of the violation notices lasted from July 2012 to January of this year, with multiple witnesses and more than 50 exhibits.

The petition to Watauga County Superior Court states that the town violated its own UDO by issuing a notice of violation to Delta Holdings without sufficient evidence that the ordinance had been violated.

It also states that the town improperly categorized a nonconforming use by limiting the use strictly to the operation of the cement batch plant and not the entirety of the operation, including other business activities such as billing and stockpiling of materials.

The petition calls the town's decision "arbitrary, capricious and unreasonable ... (and) not supported by competent, material and substantial evidence" and says the decision "violated the petitioner's federal and state constitutional rights of due process and equal protection under the law."

Discussion of the appeal was placed on the closed session agenda at the Feb. 21 Boone Town Council meeting.