Tired of fighting opponents of a proposed mine and asphalt plants, Carolina Sunrock decides to sue

By: - April 15, 2021 6:00 am

Court filings allege the site for a proposed asphalt plant in southern Caswell County has been “developed.” However, as of this week, only metal and gravel are visible on the property. (Photo: Lisa Sorg)

Fifty-eight defendants named in legal complaint filed in Caswell County

Opponents of two asphalt plants and a 426-acre mine proposed for Caswell County have been so successful in stymieing the projects that the company behind the proposals is now taking the residents to court.

Carolina Sunrock filed a lawsuit last week in Caswell County Superior Court against 58 residents: those who have fought a proposed asphalt plant in Anderson Township, a predominantly Black neighborhood on the Alamance-Caswell County line; and opponents of a second asphalt plant and mine in Prospect Hill in southern Caswell.

The company is asking the court to declare that it has “vested rights” to build these projects despite a county-wide moratorium on polluting industries. The one-year moratorium expired in January for most of Caswell County, but commissioners extended it until early July for four townships where the mine and plants would be built.

Carolina Sunrock is requesting a jury trial, and that the defendants pay the legals costs of the action.

The residents are concerned about air pollution, truck traffic and the potential harm to the quantity and quality of the groundwater, which serves as the drinking water supply for these rural areas. The Prospect Hill mine would be built near Roxboro Lake, the drinking water supply for the City of Roxboro.

The company filed the complaint after several residents appealed a watershed protection permit it had been granted. The Caswell County Watershed Administrator approved the permit in January, despite a prohibition on development approvals during the moratorium extension. However, a separate county document known as a “zoning determination” indicates  that Carolina Sunrock does have vested rights and the projects can continue.

The residents’ appeal now goes to the county’s Watershed Review Board. The company alleges the board would have to weigh the issue of vested rights, yet has no authority to do so.

The subtext of the lawsuit is that these appeals have further thwarted the asphalt and mining projects. By filing with the court, Carolina Sunrock is trying to expedite matters and bypass the citizen appeal process.

Without the court’s intervention, “Sunrock faces a continued and potentially perpetual risk of having to litigate and relitigate the issue of vested rights” even though the county has already recognized their existence, court documents read.

“Keep in my mind, they’re coming to us,” said the Rev. Bryon Shoffner, who lives in Anderson Township. Shoffner is not a defendant in the legal complaint. “They want us to suck it up and deal with it. But the Anderson community is dealing with cumulative impacts. We want them to respect what community wants.”

Carolina Sunrock’s lawyer, Bill Brian of Durham, argues in the court filing that the projects should be exempt from the moratorium because the moratorium states that it “does not apply to development for which substantial expenditures have been already made in good faith reliance on a prior valid administrative or quasi-judicial permit or approval.” 

The company says it has spent $1.1 million on land purchases, permitting fees, air modeling, wetlands assessments and other permit requirements at the proposed sites. 

“We have vested rights, too,” said Anita Foust, a resident of the Anderson community, on the Alamance side of the county line. She is not a defendant in the case. She had planned to build a wellness retreat on her farm. “I can’t do that across from an asphalt plant. I want people to come before profits and pollution.”

(Court filings state that Sunrock has developed the site for the Prospect Hill asphalt plant, but that appears to be a questionable claim. As of this week, there is no plant, just a junkyard of parts and metal debris at the corner of Wrenn Road and NC Highway 49.)

The company has received some, but not all, of the required state and county permits for the projects. Some of the permits are comparatively minor — for a commercial driveway and monitoring well construction — and others, such as a wastewater discharge permits, are more substantial. 

However, the NC Department of Environmental Quality dealt the company a setback when it denied key air quality permits for both asphalt plants last summer. Carolina Sunrock could have appealed that decision, but instead announced it would resubmit the application.

Ed Dougherty, who is named as a defendant with his wife, Dawn Leith-Dougherty, called the minor permits “toeholds” — bureaucratic requirements that are easily secured and that allow a company to invoke claims of vested rights or “grandfathering” in order to avoid new regulations or moratoria.

Further confusing matters is a legal opinion from attorney Tom Terrell, who often represents mining and landfill interests. Last summer Caswell County hired Terrell to evaluate the moratorium and its effect on Sunrock’s vested rights. He advised the county that he “agreed with Sunrock’s position” that the moratorium didn’t apply and it had vested rights.

Carolina Sunrock’s projects are in a legal morass in part because Caswell County has no county-wide zoning. Last fall, a referendum on the issue failed after a full-court press by conservative groups which inaccurately warned voters their property rights would be all but eliminated.

The lawsuit inaccurately claims a “clear majority of voters rejected the idea,” when the referendum was defeated by just 512 votes of 11,000 cast.

To assuage the residents of precincts where the referendum passed, county commissioners proposed allowing district zoning in those areas. This included Anderson Township and those encompassing Prospect Hill. 

But last week, one commissioner, Rick McVey, changed his stance and voted against district zoning, removing another roadblock for Sunrock to build its projects.

The appeal hearing for the watershed permit is scheduled for Tuesday, April 27 at 1 p.m., in person at the Caswell County Courthouse, 144 Court Square, Yanceyville.

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.