Agenda - Planning Commission - 06/02/1998

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Z.B. May 25, 1998 -- Page 7 Environmental Issues - County allows soil remediation site in residential/ agricultural district Citation: Ball v. Randolph County Board of A djustment, Court of Appeals of North Carolbza, No. COA97-721 (1998) The Bails owned property zoned residential/agricultural in Randolph County, N.C. In 1996, the state granted the BaHs' neighbor a permit allowing the remediation of petroleum-contaminated soil ("land farming"). The remediation process involved trucking in contaminated soil from petroleum storage facilities and gas stations. Once the soil reached the facility, it was treated chemically by applying nutrients that stimulated microbes in the soil to consume contaminants. The process required the turning or tilling of the soil to stimulate the microbes. The Balls sought from the county zoning director a determination that the neighbor's activity shouldn't be allowed because it wasn't listed as a permitted use under the county zoning ordinance. The director responded that the county zoning ordinance didn't regulate the location of remediation sites because soil remediation was regulated by the state. The Balls hppealed to the county board of adjustment. At the board's hear- ing, the director told the board that most counties in the state didn't regulate soil remediation because it was regulated by a comprehensive state permitting scheme. The director also said the process was appropriate in a residential/ agricultural district because it involved the agricultural process of soil tilling and required the type of open land found in agricultural areas. The Balls argued soil remediation shouldn't be allowed because it wasn't a permitted use. They also claimed soil remediation wasn't agricultural, but rather industrial in nature because it was a waste treatment process. The board denied the Balls' appeal, finding the county zoning ordinance didn't regulate soil remediation. According to the board, the neighbor's remediation site was agricultural in nature because it involved the use of open land and soil tilling. The Bails appealed to court. The court found the board should have deter- mined that the neighbor couldn't operate a remediation site in a residential/ agricultural district. The county board appealed, arguing it had no authority to .regulate soil remediation sites because soil remediation was regulated by the state. DECISION: Affirmed. Although soil remediation was regulated by the state, this didn't prohibit the county from using its zoning authority to decide where such activity could be located within the county. The board should have found soil remediation was a nonconforming use in the district. Contrary to the board's belief, soil remediation wasn't agricultural in nature. It was a waste treatment process that was regulated by the state for reasons of public and environmental health. Soil remediation did involve tilling soil, but