Plant loses grandfathered status in ETJ
by Anna Oakes
A concrete plant in Boone's extraterritorial jurisdiction has lost its grandfathered status in a General Business zoning district because the town said it was inactive for 180 days sometime between 2010 and 2011.
The Boone Board of Adjustment voted in the early hours Thursday to uphold a town staff notice of violation issued in March 2012 to Delta Holdings LLC, lessee of the Boone Ready-Mix concrete plant, for continued operation of a non-conforming situation after loss of a grandfathered use.
"It's unfortunate in this economic situation that the town would want businesses shut down, but that's where we're at," said Nathan Miller, attorney for Delta Holdings. "We'll probably go try our hand in Superior Court," noting his client is considering an appeal of the board's decision.
The plant, located at 110 Seven Oaks Road, was grandfathered in as a non-conforming use in a B-3 General Business 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.
The BOA's quasi-judicial administrative review of the violation notices issued to Delta Holdings began in July 2012 and proceeded like a trial, with multiple witnesses and more than 50 exhibits.
In the end, the board attached greater weight to eyewitness testimony by Seven Oaks residents who said activities had ceased at the plant than to sales tax, tax returns, QuickBooks records and other documents produced by Delta Holdings and the owners of the property, Michael and Geraldine Perry.
Multiple residents of the Seven Oaks neighborhood testified that they did not observe any activity at the plant for varying periods of time beginning around fall 2010 and continuing throughout 2011, including no movement of equipment and no change in piles of materials.
In addition, multiple Planning and Inspections Department staff members visited the property beginning in summer 2011 and said they observed no activity at the site.
But when pressed by Miller to say without a doubt that activities had ceased for at least 180 days, all but one Seven Oaks resident said they could not.
"All you've had is testimony -- no documents," said Miller. "Ms. (Pamela) Gantt was the only one who said she could say unequivocally that it was 180 days."
Delta Holdings and the Perrys provided sales tax records for 2010 and 2011, but town attorney Sam Furgiuele argued there was no proof the goods sold were produced at the Seven Oaks location. Furgiuele and BOA members also expressed doubt about the authenticity of some documents, including QuickBooks records.
"A lot of the financial records were within the complete control of the appellant and Mr. Perry," Furgiuele said.
Miller shot back as part of his closing statement: "Mr. Furgiuele has offered no evidence that any of this has been altered."
Three Seven Oaks residents -- Lee Stroupe, Catherine Fountain and Doris Isaacs -- were granted intervener status in the hearing, allowing them to call and cross-examine witnesses.
"All of us who live in the neighborhood are pretty comfortable with our observations," Fountain said in closing. "I think it's ... odd that Mr. Miller has called absolutely no employees from either (Delta Holdings' or the Perrys' companies) to testify. To me it's quite telling that we've had absolutely no employees other than owners."
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."
Once the BOA's decision is filed, Delta Holdings has 30 days to file an appeal with Watauga County Superior Court.