20210825_J-Wheelock_County-zoning

From: Wheelock, Jennv
To: Parr, Adam; Smith, Mike M
Cc: Jack Cline; sstevensCa caldwellcountync,org
Subject: [External] Hoods Creek Mine application -- City of Lenoir comments
Date: Wednesday, August 25, 2021 10:51:52 AM
Attachments: HoodsCreekSoils ETJ zonina.odf
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an
attachment to Report Spam.
Mr. Parr,
Hope this email finds you well. I wanted to reach out to you about the above referenced application,
because the subject property is partially located within the City of Lenoir's extra -territorial
jurisdiction (ETJ). I'm attaching a map that shows the specific area, but it basically includes the entire
frontage of the property adjacent to Hoods Creek and Bryant Rd (-39 acres). The land is zoned Rural -
Residential, which wouldn't allow for mining, and it's unlikely we'd up -zone property in this area,
given the range of intense uses that could be established in the future, in an area with no planned
expansion of City services. Mr. Hoffman is aware of these constraints, but his application shows
activity occurring within this area. I will contact him directly, but since this is still under review, I
wanted to also make you aware that additional plan changes might be coming.
I'm concerned about the amount of dirt -moving that's already occurred on the site. I reported it this
summer to the County and the NCDOT, and had every intention of reporting it to you, too, but
Sharon Bryant beat me to it (not sure if she's told you this, but she is the ETJ representative on the
City's Planning Board, so she is someone with whom I've had a positive working relationship with for
years). Thank you for stopping the work — if I had jurisdiction over the entire property, I would have
done a stop work myself as a general work without permits violation, but given all the other entities
with jurisdiction, I didn't think it would be very effective.
Some key issues/concerns from my perspective:
-The applicant initially requested a re -zoning and special use permit for a mine from Caldwell
County, and during the Planning Board meeting, several questions came up related to where the
access to site would be and one member of the Planning Board asked him if he'd considered just
doing a borrow pit instead of the full mining permit. The board tabled the application to allow the
applicant to approach DEQ and NCDOT about what would be allowed/required and to come back to
the board with more information. At least that's how I understood it, from being there.
-In the application materials, the applicant implies that he has approval for industrial uses from the
County, and in emails implies the Planning Board told him to apply for a borrow pit, and I don't think
this is an accurate representation. Work started on this site despite the applicant being well aware
that he had no approvals from DEQ the City of Lenoir, or Caldwell County — and he opened two
driveway connections when he only had permits/approval for one.
-Most of the concerns about access, from the community, from me, and from NCDOT, related to
placing a driveway connection on Bryant Rd. The applicant did not request any approval for a Bryant

Rd connection, and when the application for the driveway off Hood's Creek came through, there was
no mention of the additional connection. However, almost immediately after receiving approval
from the NCDOT for the Hood's Creek Rd driveway connection, the connection to Bryant Rd was re-
opened. The applicant told NCDOT it was just to get equipment on site, and to do some soil tests,
implying that the use of the connection was very temporary. But from my field observations, the
activity occurring and the use of this driveway far exceeded what he represented — especially since
this connection is shown on the plans submitted with the mining permit and the site work seems to
follow the plans pretty closely (and encroaches into the R-R zoned portion of the site, which I've
documented in written comments to the applicant wouldn't be allowed).
-During the NCDOT's review of the driveway permit application for the connection to Hood's Creek
Rd, Carson Fisher reached out to me to see if I had any concerns, as is standard practice for any
driveway connection he reviews within my jurisdiction. Given the proximity to Greasy Creek, I made
him aware of the 50 ft. stream buffer rules, although at that time I expected DEQ to have had an
opportunity to review and comment on the plans prior to any work starting. Earlier this week, Mr.
Fisher informed me that the connection to Hood's Creek was not installed in the location shown on
the approved plans — contractors made the decision in the field to shift the driveway closer to
Greasy Creek. Since I doubt this change is reflected on the plans you're reviewing, and the shift likely
impacts the stream buffer, I wanted you to be aware of this field change (copying Mike Smith, too,
and Jack Cline, who is the City's stormwater administrator and normally coordinates questions on
stream buffers and stormwater permits on behalf of the City).
Maybe none of this is relevant to DEQ's review, and I'm not trying to "kill" his application, but I think
this will require some diligence from all of us since there's a demonstrated pattern of asking
"forgiveness rather than permission." I'm happy to discuss anything with your further if you feel it
would be helpful. I also have some questions that I'm hopeful you can answer. Email response is
great, or you can reach me at 828-850-0620 (cell) or 828-757-2168 (office).
My questions for you:
1. Is the applicant currently under a formal stop work order from DEQ? I saw the emails
between you and the applicant, but wondered if a formal notice was sent or if it was just a
verbal order? If there is a stop work order in place, what would be the resolution? An
approved mining or S&EC permit?
2. Has a determination been made about whether or not this site would be eligible for approval
as a single -use borrow pit for under 5 acres?
3. When I searched the statutes for laws related to "borrow pits," the only definition I found
defined a borrow pit as something exclusive to NCDOT (believe this is in the Mining Act
statutes). From the emails I read, it seems clear that DEQ does review and approve borrow
sites that aren't for the DOT, so I was just curious about the interpretation.
4. If this project moves forward under a S&EC permit for a borrow pit, and the applicant
withdraws the mining permit application, would he be able to ask for additional permits for
similar activities on this same site in the future? Either as additional clay borrow permits, or as
a full-blown mining permit?
5. Related to the above question, does the 2018 S&EC permit have any impact on the current
request? Any statute of limitations on renewing/reactivating that permit? I thought I'd read

that borrow pit activity had to occur within a single 12-month period. But some of the email
exchanges I reviewed seemed to contemplate a renewal of this previous request rather than a
new application. Would a change of ownership allow a new borrow permit, even though this
site already has been used once in that capacity?
Thanks so much for your time, and for any additional information/clarity that you might provide to
help me understand these laws a little better. Martin Marietta pre -dates my time in Lenoir, and so
this is my first exposure to the Mining Act and some of these terms/approvals (like "borrow pit" was
a new one for me). Please let me know if there's anything I can assist you with.
Sincerely,
Jenny
Jenny L. Wheelock, AICP, CZO
Planning Director
City of Lenoir
www.cityoflenoir.com/planning
828-610-8442 — Planner on Call
828-757-2168 — office

•CITY AFLENAIA Hoods Creek Soils ZoningMap.*. t".
NORTH CAAOLINA Created by the Lenoir Planning
Department on 6/5/2020
i1 A�
a�
fq�
b'
i\
Q
A
y,A
.�25, Rural RI
Caldi
Industrii
Legend
Subject Property
Caldwell Proposed Industrial Rezoning: -45 AC
ETJ Acreage on Proposed Active Quarry Area: -15 AC
Total Acreage of Subject Property in Lenoir ETJ: -39 AC
Streams
04 — Lenoir Extra Territorial Jurisdiction
Lenoir Rural Residential Zoning
50' Stream Buffer
N
A
1 inch = 302 feet
0 75 150 300
Feet
A
i