HomeMy WebLinkAbout60Q_PIedmontGradingLCID_ZoningApprovalEmail_DIN27354_201702011
Sugg, William P
From:Bradley Priest <bpriest@huntersville.org>
Sent:Wednesday, February 01, 2017 9:56 AM
To:Sugg, William P
Cc:Bob Blythe; Jack Simoneau
Subject:FW: Everette Keith LCID Landfill - Updated Closure Date
Hey Perry,
Thank you for giving me a call this morning. As discussed, here’s the attorney’s agreement that the Permit
Extension Act approved by the State of North Carolina applies to the landfill on Everette Keith in this
instance. Therefore the town will allow the landfill to continue operation until March 3, 2018. At which time
they will have had to successfully apply to change the zoning laws in the zoning ordinance or cease operation.
According to our conversation this morning, you will thus issue their state permit reflecting that date as the date
of expiration. A 5 year permit will not be issued. Sometime in the near future we will write a letter to the
landfill updating them on this determination and reminding them of the cease operation date. If you have any
questions, please let me know. Thanks.
Bradley D. Priest
Senior Planner
Town of Huntersville
(704) 766-2214
105 Gilead Road - Third Floor
Huntersville, NC 28070
www.huntersville.org
From: Bob Blythe
Sent: Tuesday, December 13, 2016 4:37 PM
To: Susan Irvin
Cc: Jack Simoneau; Greg Ferguson; Bradley Priest
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60-Q-
LCID
Susan,
I am willing to concede that the Permit Extension Act probably would be construed as extending the permit to March 3,
2018 by virtue of the 2009 permit being an extension of the 2004 permit and both being within the time frame of the
Extension Act. This then brings up the question of whether the language of 9.23.9 which is basically an amortization of a
right to operate to cease on the Dec., 2016 date. Your position is that this would be a local ordinance over‐riding a state
law. While I believe that a good case could be made that this is not over riding the Extension Act, nevertheless I can see
the logic of your position. Perhaps we will never know from a legal standpoint. That said, since we are only talking
about an approximate 15 month difference, we will accept your interpretation as it applies to this one matter.
Let me know if you need to discuss further.
Best regards and have a good holiday.
Bob
Robert B. Blythe
Town Attorney
2
Town of Huntersville
P.O. Box 664
Huntersville, NC 28070
Direct Line: 704‐766‐2239
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Wednesday, December 07, 2016 3:52 PM
To: Bob Blythe <bblythe@huntersville.org>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
Bob, I hope you are doing well. Just checking to see if you were able to meet with Jack and Greg. I have held off on
filing an application for text amendment/rezoning pending the decision on the Permit Extension Act. Please let me
know at your convenience. Thanks,
SUSAN K. IRVIN
IRVIN LAW, PLLC
P.O. BOX 2376, DAVIDSON, NORTH CAROLINA 28036
OFFICE: 19726 ZION AVENUE, CORNELIUS, NORTH CAROLINA 28031
704.896.0820 TEL.
704.896.0875 FAX
WWW.IRVINLAWPLLC.COM
THIS ELECTRONIC MESSAGE CONTAINS INFORMATION FROM SUSAN K. IRVIN, ESQ. THE CONTENTS MAY BE PRIVILEGED AND CONFIDENTIAL AND ARE INTENDED FOR THE USE OF THE
INTENDED ADDRESSEE(S) ONLY. IF YOU ARE NOT AN INTENDED ADDRESSEE, NOTE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE OF THE CONTENTS OF THIS MESSAGE IS
PROHIBITED. IF YOU HAVE RECEIVED THIS E‐MAIL IN ERROR, PLEASE CONTACT ME AT SUSAN@SKIRVINLAW.COM. IRS CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH
REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY
ATTACHMENTS) IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (A) AVOIDING PENALITES UNDER THE INTERNAL REVENUE CODE, OR (B) PROMOTING,
MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN.
From: Bob Blythe [mailto:bblythe@huntersville.org]
Sent: Monday, November 14, 2016 3:28 PM
To: Susan Irvin <Susan@skirvinlaw.com>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
2:00 will be good.
Bob
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Monday, November 14, 2016 3:25 PM
To: Bob Blythe <bblythe@huntersville.org>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
Bob, that would be great. Do you mind doing it closer to 2:00? I need to leave for a meeting a little before 3 for a
meeting. Let me know and I’ll put it on the calendar. Thanks,
3
SUSAN K. IRVIN
IRVIN LAW, PLLC
P.O. BOX 2376, DAVIDSON, NORTH CAROLINA 28036
OFFICE: 19726 ZION AVENUE, CORNELIUS, NORTH CAROLINA 28031
704.896.0820 TEL.
704.896.0875 FAX
WWW.IRVINLAWPLLC.COM
THIS ELECTRONIC MESSAGE CONTAINS INFORMATION FROM SUSAN K. IRVIN, ESQ. THE CONTENTS MAY BE PRIVILEGED AND CONFIDENTIAL AND ARE INTENDED FOR THE USE OF THE
INTENDED ADDRESSEE(S) ONLY. IF YOU ARE NOT AN INTENDED ADDRESSEE, NOTE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE OF THE CONTENTS OF THIS MESSAGE IS
PROHIBITED. IF YOU HAVE RECEIVED THIS E‐MAIL IN ERROR, PLEASE CONTACT ME AT SUSAN@SKIRVINLAW.COM. IRS CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH
REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY
ATTACHMENTS) IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (A) AVOIDING PENALITES UNDER THE INTERNAL REVENUE CODE, OR (B) PROMOTING,
MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN.
From: Bob Blythe [mailto:bblythe@huntersville.org]
Sent: Monday, November 14, 2016 2:39 PM
To: Susan Irvin <Susan@skirvinlaw.com>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
Susan, how about making the call in the afternoon, say after 2:00. Thanks
Bob
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Friday, November 11, 2016 12:43 AM
To: Bob Blythe <bblythe@huntersville.org>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
Bob, thank you for your email. I will put it on my calendar to call you Tuesday. I believe we did touch on this in our first
meeting. I do not think that the local ordinance can override the state statute. If the statute had not been in effect, the
permit, with the 2009 extension, would have expired in 2014. The Anti‐Tolling Statute adds 4 years to that original
expiration date and I don’t think the provisions of 9.23.9 can change that.
It would be one thing if the permit actually expired by its own terms in 2018. If that had been the case, I agree that
9.23.9 would limit the time of the permit to the December 2016 date. However, the only reason it does not expire is
because of the statute, so essentially cutting off 1.25 years of the 4 year tolling period would be undermining (or
overriding) the statute. That is how I see it. I appreciate your response and look forward to talking with you Tuesday. I
hope you enjoy the Veteran’s Day holiday and weekend. I am down in Texas checking on my Dad and Uncle – twins who
served together in the Korean war. They are real characters, let me tell you. Take care,
SUSAN K. IRVIN
IRVIN LAW, PLLC
P.O. BOX 2376, DAVIDSON, NORTH CAROLINA 28036
4
OFFICE: 19726 ZION AVENUE, CORNELIUS, NORTH CAROLINA 28031
704.896.0820 TEL.
704.896.0875 FAX
WWW.IRVINLAWPLLC.COM
THIS ELECTRONIC MESSAGE CONTAINS INFORMATION FROM SUSAN K. IRVIN, ESQ. THE CONTENTS MAY BE PRIVILEGED AND CONFIDENTIAL AND ARE INTENDED FOR THE USE OF THE
INTENDED ADDRESSEE(S) ONLY. IF YOU ARE NOT AN INTENDED ADDRESSEE, NOTE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE OF THE CONTENTS OF THIS MESSAGE IS
PROHIBITED. IF YOU HAVE RECEIVED THIS E‐MAIL IN ERROR, PLEASE CONTACT ME AT SUSAN@SKIRVINLAW.COM. IRS CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH
REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY
ATTACHMENTS) IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (A) AVOIDING PENALITES UNDER THE INTERNAL REVENUE CODE, OR (B) PROMOTING,
MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN.
From: Bob Blythe [mailto:bblythe@huntersville.org]
Sent: Thursday, November 10, 2016 5:54 PM
To: Susan Irvin <Susan@skirvinlaw.com>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
Susan,
I said I would be back first of week. I’m late, and this is not a full response. Further, I have not talked to Jack or anyone
else lately about it, but thought I should go ahead and give you my thoughts/problems, and invite your reaction.
As I see it, this landfill is operating under Section 9.23.9 of the zoning ordinance. This provides that certain pre‐existing
landfills would not be required to be brought into compliance under certain provisions, one being that the landfill has a
valid permit from the State or County (9.23.9(b). I understand your argument that the 2009 permit was simply a
renewal of the 2004 permit, which continued to March 3, 2009 and that this permit tolled from Jan. 1, 2008 to Dec. 31,
2011, and that the 2009 permit was a renewal which, because of the extension legislation, tolled until after the
extended 2004 permit. I think an argument can be validly made that the 2009 permit began to run on Jan. 1, 2013 and
run concurrently with the balance of the 2004 permit. However, conceding (for these purposes) that your calculation is
correct, we are faced with 9.23.9(d) which reads “In no event shall the landfill operate under a LCID or demolition landfill
permit later than December 4, 2016 . . . .” This clearly indicates a final closure even though a valid permit is in place at
that date and is not dependent upon how the permit arises. Frankly, in our earlier discussions, I had failed to focus on
this provision but initially it appears to be controlling. How would you suggest it be addressed.
Understand that I am not trying to put up road blocks, but I am having difficulties seeing another route.
We are closed tomorrow (Veterans Day) and I will probably be out of town on Monday. Perhaps we can talk on Tuesday
if you have some thoughts.
Bob
Robert B. Blythe
Town Attorney
Town of Huntersville
P.O. Box 664
Huntersville, NC 28070
Direct Line: 704‐766‐2239
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Thursday, November 03, 2016 2:44 PM
To: Bob Blythe <bblythe@huntersville.org>
5
Subject: Re: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC; Permit No. 60‐Q‐
LCID
Thank you, Bob, for your response. I understand and I hope you have a nice weekend.
Susan K. Irvin | Irvin Law, PLLC | P.O. Box 2376| Davidson, North Carolina 28036 | 704.896.0820 tel.
| 704.896.0875 fax
On Nov 3, 2016, at 2:43 PM, Bob Blythe <bblythe@huntersville.org> wrote:
Susan, I promise you that I am not ignoring you, just haven’t been able to digest. Was out yesterday and
will also be out tomorrow. Promise I will get back to you first of the week.
Bob
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Wednesday, November 02, 2016 10:03 AM
To: Bob Blythe <bblythe@huntersville.org>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC;
Permit No. 60‐Q‐LCID
Hi, Bob, I wanted to give you an update on the below email from 10/27. I spoke with Perry Sugg of the
Solid Waste Program of the NC DEQ this morning. Mr. Sugg has been my contact with the State on this
case and he confirmed that the permit is an ongoing permit and that the March 3, 2009 permit was an
amendment of the permit to extend the permit expiration date for an additional 5 years. Per the below,
the permit on January 1, 2008 (that would have expired on March 3, 2009) would have been extended
for 4 years to March 3, 2013 and the 5 year amendment would extend the expiration date to March 3,
2018.
Please let me know your thoughts when you have a minute. Many thanks,
On Thursday, October 27, 2016, Susan Irvin wrote:
Hi, Bob, I hope you are doing well. I have given this some more thought since our last
conversation. Even though the LCID permit we discussed was renewed on March 3, 2009, that permit
(that was renewed) was current and valid on January 1, 2008, so the statute applies to that March 3,
2004 permit: “For any development approval that is current and valid at any point during the period
beginning January 1, 2008 and ending December 31, 2011, the running of the period for development
approval … is suspended during the period beginning January 1, 2008 and ending December 31, 2011.”
The permit had an effective date of March 3, 2004 and an expiration date of March 3, 2009. So, that 5
year permit period did not run from January 1, 2008 to December 31, 2011. On December 31, 2011,
that permit had an additional 1 year and 3 months to run, so it expired on March 3 of 2013. The
subsequent 5 year renewal would then be effective to March 3, 2018.
Please let me know your thoughts. This has been on my mind because I felt like I missed something
when we talked before. I would like to get your thoughts on this and to let Wayne know that he may be
able to close up his landfill in 2018 without having to get further approvals. Thanks,
6
SUSAN K. IRVIN
IRVIN LAW, PLLC
P.O. BOX 2376, DAVIDSON, NORTH CAROLINA 28036
OFFICE: 19726 ZION AVENUE, CORNELIUS, NORTH CAROLINA 28031
704.896.0820 TEL.
704.896.0875 FAX
WWW.IRVINLAWPLLC.COM
THIS ELECTRONIC MESSAGE CONTAINS INFORMATION FROM SUSAN K. IRVIN, ESQ. THE CONTENTS MAY BE PRIVILEGED AND CONFIDENTIAL AND ARE INTENDED
FOR THE USE OF THE INTENDED ADDRESSEE(S) ONLY. IF YOU ARE NOT AN INTENDED ADDRESSEE, NOTE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE
OF THE CONTENTS OF THIS MESSAGE IS PROHIBITED. IF YOU HAVE RECEIVED THIS E‐MAIL IN ERROR, PLEASE CONTACT ME AT SUSAN@SKIRVINLAW.COM. IRS
CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, WE INFORM YOU THAT ANY U.S.
FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE
PURPOSE OF (A) AVOIDING PENALITES UNDER THE INTERNAL REVENUE CODE, OR (B) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY
TRANSACTION OR MATTER ADDRESSED HEREIN.
From: Bob Blythe [mailto:bblythe@huntersville.org]
Sent: Monday, September 12, 2016 4:20 PM
To: Susan Irvin <Susan@skirvinlaw.com>
Subject: RE: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC;
Permit No. 60‐Q‐LCID
Susan,
Following up on our telephone conversation, I do agree that the solid waste permit issued by the County
on March 3, 2009 is subject to the Permit Extension Act of 2009, as amended and extended in
2010. However, I do disagree with your calculation of the effect of the Act. The permit was issued on
March 3, 2009 and was effective on that date for a period of 5 years. Therefore, it would have expired
on March 3, 2014 but for the effect of the Act. The Act (as amended) provides that the running period
of the approval is suspended during the period ending December 31, 2011. The five year period then
begins to run on January 1, 2012 so that it would end on December 31, 2016. In other words, it is a
tolling calculation, so that period left on the permit only begins to run when the tolling period ends.
At least that is the way I read it. If you are on the “Coates Cannons” list from the School of Government,
there is a blog by David Owens dated Aug 28, 2009 in which he opines that this would be the most likely
interpretations.. However, if you would like to discuss this further I would be happy to do so.
Bob
Robert B. Blythe
Town Attorney
Town of Huntersville
P.O. Box 664
Huntersville, NC 28070
Direct Line: 704‐766‐2239
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Wednesday, September 07, 2016 8:49 PM
To: Bob Blythe <bblythe@huntersville.org>
7
Subject: Demolition and Vegetation landfill located at 11898 Everette Keith Road, Huntersville, NC;
Permit No. 60‐Q‐LCID
Bob, I hope you are doing well. I am checking in with you on the above matter. Do you have any
questions or comments about my calculation of the expiration date as March 3, 2018. Please let me
know when you have a chance. Thanks,
SUSAN K. IRVIN
IRVIN LAW, PLLC
P.O. BOX 2376
DAVIDSON, NORTH CAROLINA 28036
704.896.0820 TEL.
704.896.0875 FAX
WWW.IRVINLAWPLLC.COM
THIS ELECTRONIC MESSAGE CONTAINS INFORMATION FROM SUSAN K. IRVIN, ESQ. THE CONTENTS MAY BE PRIVILEGED AND CONFIDENTIAL AND ARE INTENDED
FOR THE USE OF THE INTENDED ADDRESSEE(S) ONLY. IF YOU ARE NOT AN INTENDED ADDRESSEE, NOTE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE
OF THE CONTENTS OF THIS MESSAGE IS PROHIBITED. IF YOU HAVE RECEIVED THIS E‐MAIL IN ERROR, PLEASE CONTACT ME AT SUSAN@SKIRVINLAW.COM. IRS
CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, WE INFORM YOU THAT ANY U.S.
FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE
PURPOSE OF (A) AVOIDING PENALITES UNDER THE INTERNAL REVENUE CODE, OR (B) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY
TRANSACTION OR MATTER ADDRESSED HEREIN.
From: Bob Blythe [mailto:bblythe@huntersville.org]
Sent: Monday, July 11, 2016 2:47 PM
To: Susan Irvin <Susan@skirvinlaw.com>
Subject: RE: Cato; REZ R16‐02
Susan,
I have no problem with you discussing this with staff/commissioners and also referring them to me if
they have any questions. However, in reviewing your letter to me and the power point, I am
uncomfortable with it being referred to as a condition of approval. Staff takes the position that this is a
recommendation of what it would prefer a petitioner to voluntarily agree to, but acknowledges that
under the statute it can only be voluntary on the petitioners part. What I was not aware of when we
talked was that part of the problem arose because your client had originally submitted with a 10’ build
to line but which did not account for the requirement of a 20’ parking area between sidewalk and
garage door. This has subsequently been rectified by changing the build‐to line to 20’, so I think that
everything is apparently in compliance. Because of the wording in the letter referring to a condition, I
think it best that I not send it to the Board but you can contact them directly and I will be glad to give
them my opinion if they wish to contact me. If you want to discuss this further, give me a call.
Bob
Robert B. Blythe
Town Attorney
Town of Huntersville
P.O. Box 664
Huntersville, NC 28070
Direct Line: 704‐766‐2239
8
From: Susan Irvin [mailto:Susan@skirvinlaw.com]
Sent: Monday, July 11, 2016 1:38 PM
To: Bob Blythe <bblythe@huntersville.org>
Subject: Cato; REZ R16‐02
Bob, enclosed is the letter we discussed last Thursday. Per our conversation, I have not discussed this
legal matter with Planning Staff. Please let me know whether you would like me to refer Planning Staff
and Commissioners to you if the topic comes up or if you are comfortable with my discussing it with
them. Thanks for your consideration.
SUSAN K. IRVIN
IRVIN LAW, PLLC
P.O. BOX 2376
DAVIDSON, NORTH CAROLINA 28036
704.896.0820 TEL.
704.896.0875 FAX
WWW.IRVINLAWPLLC.COM
THIS ELECTRONIC MESSAGE CONTAINS INFORMATION FROM SUSAN K. IRVIN, ESQ. THE CONTENTS MAY BE PRIVILEGED AND CONFIDENTIAL AND ARE INTENDED
FOR THE USE OF THE INTENDED ADDRESSEE(S) ONLY. IF YOU ARE NOT AN INTENDED ADDRESSEE, NOTE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE
OF THE CONTENTS OF THIS MESSAGE IS PROHIBITED. IF YOU HAVE RECEIVED THIS E‐MAIL IN ERROR, PLEASE CONTACT ME AT SUSAN@SKIRVINLAW.COM. IRS
CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, WE INFORM YOU THAT ANY U.S.
FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE
PURPOSE OF (A) AVOIDING PENALITES UNDER THE INTERNAL REVENUE CODE, OR (B) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY
TRANSACTION OR MATTER ADDRESSED HEREIN.