State Fair exploits legal loopholes to clear-cut 19 acres of forest for a parking lot

By: - September 17, 2021 6:00 am

This photo was taken on May 30, less than two weeks after Westover neighborhood residents saw trees being cut on adjacent state-owned property. Nineteen acres of forest were timbered to make way for a State Fair parking lot. (Photo: Lisa Sorg)

There was scant transparency and public engagement for the $30 million land deal, which impinges on Raleigh’s Westover-Mt. Vernon neighborhood.

2,500 words, 11-minute read

The surveyors’ flags were the first warning.

The whine of chainsaws was the second.

On a sunny morning in mid-May, residents of the Westover-Mt. Vernon neighborhood awoke to hear the thud of trees toppling on adjacent land, which until that moment, had been a dense forest veined by streams and wetlands for decades.

The purpose of the mass timbering was not houses or offices or shops, but a 19-acre parking lot, owned and operated by the State Fair, a division of the NC Department of Agriculture. When finished, the lot at 5900 Chapel Hill Road will accommodate more than 2,400 vehicles.

A Policy Watch investigation found that, desperate for parking for the 2021 event, which runs Oct. 14-24, the State Fair fast-tracked the parking lot project, bulldozing the equivalent of nearly 15 football fields’ worth of pines and hardwoods in a sensitive part of the Neuse River watershed.

What the Fair did was legal, if disturbing. Because of a change in state law that favors government agencies, the Department of Agriculture could exempt its own projects, paid for by tax dollars, from stricter environmental rules. Even if 19 acres of pristine forest next to a 100-year-old neighborhood were at stake.

The clear-cutting also was allowable under Raleigh ordinances. Julia Milstead, a City of Raleigh spokeswoman, told Policy Watch that projects on state or municipal property aren’t subject to Raleigh’s tree conservation requirements unless a building is constructed on site.

Since no buildings are planned for the parking lot, “permission to clear the land is under the state’s jurisdiction for state-owned land,” Milstead said.

Nor was there a required comprehensive environmental review of the parking project or its cumulative impacts. And without that review, there was only one opportunity – poorly publicized – for public comment.

“The State Fair is a great event with a long history,” said Gillian Coats, who lives on Gary Street and can see the clearcutting from her home. “But the neighborhood has been here as long as the Fair and has a concurrent history. Does the Fair not have to follow a protocol?”

The parking lot was part of a $30 million land sale between Bandwidth, a publicly traded tech company, which bought state property at Edwards Mill and Reedy Creek roads for its headquarters. The State Fair had used that property for parking, so in return for eliminating those thousands of spaces, Bandwidth, via its developer, Athens Development Partners, agreed to improve “parking capacity and function” for the Fair, according to the purchase agreement.

Athens Development Partners is a collaboration between East West Partners and Capitol Broadcasting; they are paying for the parking lot.

Now Westover-Mt. Vernon is bordered on three sides by the State Fair, with only a thin row of trees to buffer the neighborhood. “They’re coming right at us,” neighborhood resident Tara Burgess told Policy Watch this summer. “This is a government agency abusing its power.”

The original State Fair parking lot would have been located more than two miles north of the neighborhood and in a commercial area, according to a 2020 purchase agreement. The site was moved earlier this year, according to the Department of Agriculture, because the City of Raleigh could extend Lake Boone Trail through that property, making the lot “not a viable long-term option.” (Base map: Wake County GIS, annotations Lisa Sorg)

As trees fall, neighbors have questions

It was early June, and the Carolina Hurricanes were trying to advance in the NHL playoffs. Dozens of fans clad in black-and-red Canes’ jerseys had ditched their cars on neighborhood streets and were parading on foot through Westover-Mt. Vernon toward PNC Arena.

This is nothing, Westover-Mt. Vernon residents said. You should see it during the Fair. People staggering through private yards, urinating, vomiting, yelling, littering. Because of the traffic on NC 54, it can take an hour to leave the neighborhood and twice as long to get back in.

Westover-Mt. Vernon is a close-knit area of modest homes, most of them built from the 1920s to the 1960s. The winding, narrow streets, gravel drives and copses of old trees imbue the neighborhood with a rural feel. On this evening, neighbors gathered in a yard – socially distanced and wearing masks – and shared tales of woe.

Clear-cutting for the new parking lot had been going on for more than two weeks, within 50 feet of people’s property lines. Noise from chainsaws and bulldozers started at 7 o’clock in the morning. Rain had washed silt and mud from the property into backyard streams, which neighbors had captured on video. Those living closest to the future parking lot no longer enjoyed a buffer of green trees. Now they could see orange snow fence and daylight.

Many neighbors felt stonewalled by State Fair officials, who had provided vague answers to their questions. On May 10, Coats emailed State Fair Manager Kent Yelverton, asking him what was planned for the property. On May 13, he responded, acknowledging that the surveyors’ flags she had noticed were related to a “potential location for auxiliary parking for the Fair, as well as some of our year-round events.”

“At this time, we do not have final site plans,” Yelverton wrote to Coats, “but did plan on sharing them with our neighbors in the Westover community prior to the start of the project. That is still our intention.”

Coats fired back an email: “I do believe you have a plan set for this project because it is currently in its third permitting review by the City of Raleigh. Add to that the staking … onsite and it actually appears that you are getting ready to start the project.”

Because the development is occurring on state-owned land, the City of Raleigh has limited authority over the project, primarily permitting the construction of stormwater systems.

It is true that certain aspects of the parking lot project had not been finalized in mid-May; the State Fair was still waiting for approval of two water quality permits. Andrea Ashby, spokeswoman for the Department of Agriculture, told Policy Watch via email that at that time there was still some uncertainty about whether the project would proceed. “We contacted the neighbors when we knew that construction would be starting,” Ashby said.

However, emails obtained under the Public Records Act show that aside from the timbering, construction of the lot was more imminent than the State Fair led neighbors to believe. It was scheduled to begin just three weeks from when residents began inquiring. As Westover-Mt. Vernon residents continued to pepper the Agriculture Department with questions, on May 19, Yelverton mailed notices to neighbors about the construction of the “potential” lot, scheduled to begin as early as June 1. Trees had already been felled.

While Yelverton was trying to placate Westover neighbors, behind the scenes, he and several Agriculture Department colleagues were working to expedite the project. The Fair had to get state and federal permission to cross, fill or otherwise disturb small portions of waterways on the property: Three wetlands totaling more than an acre, as well as five streams, accounting for over a linear mile. Two of those streams flow into Richland Creek, a tributary of Crabtree Creek, which flows into the Neuse River.

Permitting, though, can take time. And time, the State Fair did not have.

Parking lot on the fast track

The view from a neighbor’s back yard. A forest once stood behind the orange snow fence. (Photo: Lisa Sorg)

In mid-April, shortly after the water quality permit application was filed with the NC Department of Environmental Quality, Yelverton started pressuring high-ranking officials to expedite the decision so the lot could be built by opening day of the State Fair.

In a letter to DEQ Chief Deputy Secretary John Nicholson and legislative liaison Joy Hicks, Yelverton anticipated that the 2021 Fair could be one of the largest ever, considering that the 2020 event was canceled because of COVID-19.

“Of course, with large crowds parking is critical. [Bandwidth] has committed to having the new parking ready for the Fair, which opens on Oct 14. This is an aggressive schedule and is subject to weather and other impacts. I ask that DEQ give this project any priority you can in order to allow as much time as possible to construct the parking lot prior to the State Fair in October.”

DEQ approved the permit June 3. There is no public documented evidence that DEQ gave preferential treatment to the Fair. A 60-day turnaround for a permit of this type is not unusual.

Email discussions within the Department of Agriculture show that Yelverton was also concerned about complications regarding a second water quality permit from the US Army Corps of Engineers. State Fair officials wanted a nationwide permit, a type of general permit authorizing activities that have minimal individual and cumulative adverse effects on the environment.

Had the Corps required an individual permit, which is subject to public comment, that could have delayed or derailed the project

“Time is of the essence because construction is scheduled to begin June 1 so finding a means to fit under a nationwide permit is critical,” Yelverton wrote to several agriculture department colleagues. “The time required to receive an individual permit (if we can even get one) is not an acceptable solution. … A $30 million land sale and adequate parking for the 2021 State Fair is on the line for us figuring this out.”

After the State Fair adjusted some stream crossings, the Corps granted a nationwide permit on July 6. No public comment was required.

2015 change to state law gives government a pass

Dirt and mud ran off the cleared property and entered a nearby stream. The NC Department of Environmental Quality has not issued any notices of violation. (Photo: Lisa Sorg)

The lack of public engagement on the parking lot project is not surprising. Except for a purchase agreement, the paper trail did not lead directly to the State Fair, but instead was obscured by thickets of bureaucracy.

First, the title under which city, state and federal permit applications were filed — Project Athens, Area 4 – omits any mention of the State Fair.

“Project Athens” refers to the Bandwidth headquarters a mile north of the parking lot, presumably named after the development company. “Bandwidth Project” was also used in one document to describe the parking lot project, also known as “event parking.”

Only by reading the fine print, sometimes pages deep into a document, could someone know that the State Fair was behind the plan.

When the NC Department of Environmental Quality posted the State Fair’s application for a water quality permit, it did so under “Project Athens.” There was no mention of the State Fair in the public notice.

Spokeswomen for both DEQ and the Agriculture Department said their respective agencies don’t title the permits; they come from the applicant, in this case Bandwidth and Athens Development. There is nothing in the statute, though, that prevents agencies from adding clarity to permit names.

Yet the state’s water quality permit was the only formal opportunity for the public to comment. There were none submitted, according to DEQ. Nor did the Agriculture Department know that there was a public comment period, Ashby said.

State law also shielded the State Fair from scrutiny. Since 1971, the State Environmental Policy Act, or SEPA, has required state agencies to consider and report on the environmental impacts of actions involving the expenditure of public funds or the use of public land.

SEPA also requires an environmental assessment and a public comment period, like its federal counterpart, the National Environmental Policy Act, or NEPA.

Under the 1971 version of SEPA, all aspects of the State Fair parking lot’s environmental impact, not just the waterways, would have required a full assessment and public comment. But in 2015, the Republican-led General Assembly passed a bill titled “SEPA Reform.” Signed by then-Gov. Pat McCrory, it significantly changed North Carolina law to exempt state agencies from some requirements of SEPA.

Now, all but the largest state projects are exempt from SEPA.

Even so, the State Fair parking lot is significant enough to have been subject to even a diluted SEPA. The project is disturbing more than 10 acres of public lands “resulting in substantial, permanent changes in the natural cover or topography of those lands (or waters).”

And it could have a “potential detrimental environmental effect upon natural resources, public health and safety, natural beauty, or historical or cultural elements, of the state’s common inheritance.”

Nonetheless, the State Fair plowed through another legal loophole. The 2015 changes to state law also excluded any project — private or public — from SEPA if it requires a water quality permit.Since the State Fair parking lot required both state and federal water quality permits, it was further exempted from SEPA.

Neighbors: a pattern of disregard

Westover-Mt. Vernon residents were scheduled to meet with State Fair and Agriculture Department officials on the evening of June 3. Neighbors hoped they would finally get concrete answers about the parking lot project.

The neighbors invited several media outlets, including Policy Watch and ABC11, to cover the meeting. After ABC11 called agriculture officials about the upcoming event, they canceled it with just two hours’ notice. The department claimed that the cancellation was due to an unexpected scheduling conflict.

Ashby, the spokeswoman for the Agriculture Department, told Policy Watch that state officials did not reschedule the meeting because the neighbors had hired a lawyer who had referred to the neighbors as her clients and which referenced potential legal action.

“The only way we could get a meeting was to have an attorney from the neighborhood ask for one,” said Rebecca Evans, who until recently lived on Gary Street. She’s since moved to Colorado. “And then the department canceled the meeting because we [were bringing] an attorney.”

The Westover-Mt. Vernon neighborhood had always been part of the State Fair’s 2009 Master Plan, the Department of Agriculture says. However, the master plan map doesn’t show a parking lot on the Chapel Hill Road tract; it’s merely labeled “Western Property.”

The Master Plan is how a Fair campground wound up abutting the northwestern part of the neighborhood. In what neighbors say is a pattern, they said Fair officials did not fully address their concerns. Photos of the neighborhood before and after the campground was built in 2010 show yet another instance of clear-cutting at the dead end of Gary Street. “It was scorched earth to the edge,” Evans said. “They cut right up to the property line.”

Because of the construction, Gary Street no longer has a turnaround. Campers routinely take the wrong route, end up at the dead end but can’t turn around. Those wayward vehicles now have to back down a circuitous street that has neither curbs nor gutters.

The State Fair did modify parts of the campground plan to lessen the impact on the neighborhood. With the parking lot, Fair officials have increased the size of a buffer between the cleared area and the neighborhood; they also plan to erect a fence.

“But they do all the damage to the neighborhood first,” Evans said.

The State Fair’s opening day is less than a month away. This week, trucks were hauling in gravel and construction workers were trying to meet the deadline.

“People in the legislature should take notice that the Agriculture Dept is running roughshod over their constituents,” Evans said. “And you don’t think of the Agriculture Department as not on your side.”

Photos of Gary Street taken in 2010, after the State Fair built a campground nearby. Westover-Mt. Vernon neighbors say there has been a pattern of Fair officials failing to communicate with them. (Photo courtesy Rebecca Evans)

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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.