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The asphalt company owner seeking a rezoning to allow an asphalt plant in East Flat Rock has withdrawn the application.

"I received the official letter (withdrawing the request) this afternoon," Henderson County Planning Director Autumn Radcliff said.

Michelle Tennant, a neighbor of the plant and leader of the Friends of East Flat Rock, received the news from her attorney that Brian Gulden, the attorney for Southeastern Asphalt Co. owner Jeff Shipman, that Shipman had withdrawn the application.

"I really want to thank Jeff Shipman and his team for listening to the citizens' wishes and doing what’s right for the citizens of Henderson County," she said, adding that she hopes that people will learn from the experience that only an engaged community can find progress. "That’s what it takes for the community to grow, is to find that common ground."

The proposed plant had set off a broad-based opposition campaign from neighbors, environmental activists, summer camp owners and others, saying that the plant would cause air pollution and water pollution, hurt property values and undercut the area's appeal to new residents and tourists. Shipman had argued that the plant would meet all environmental regulations, would be hidden from view by a tree buffer and would provide good-paying jobs.

"We received a letter from the applicant’s attorney indicating he was withdrawing that and that concludes the process on the county's side," said John Mitchell, the county's director of business and community development. "There’s no open application."

Could the zoning application be refiled? "It could be," Mitchell said. "Property owners in the county are entitled to petition for the use of their property and Mr. Shipman could certainly file for that use or some other use at a date in the future."

In his letter to County Attorney Russ Burrell and the planning staff, Gulden said that the Henderson County commissioners had rejected his efforts to have a  toxicologist from out of state testify about the effects the plant's emissions would have, first by refusing to delay a hearing set for this coming Thursday night and next by refusing to allow the toxicologist to testify remotely. As a result, Gulden said, Shipman had no choice but to withdraw the application "at this time."

It was unclear whether Shipman had plans to resubmit the application. The asphalt plant owner did not immediately return a phone call seeking comment. Under the county's land-use ordinance, he could refile after six months.

Henderson County commissioners did deny Gulden's request to delay the public hearing and allow a virtual testimony by the applicant's toxicologist.

"True, but that only tells part of the story," County Attorney Russ Burrell said. Both the applicants and the opponents, who also were represented by an attorney, had been notified that "this is the date and time and they agreed and now they wanted to postpone. I polled our commissioners and they said, 'Well, they agreed to it, didn't they?'"

Allowing the toxicologist to testify and answer questions remotely "would have given them an advantage that the other side didn't get," Burrell said.

Here is the full text of Gulden's letter:

"As part of the Conditional Zoning application, my client desired to address the many concerns expressed by surrounding property owners related to noise, smell, property value, visual appearance, emissions and the like. In addition, several Commissioners have asked that we have an expert prepared to address what effects, if any, the emissions may have on those individuals living and working in the area of the proposed plant.
"To that end, my client sought the assistance of a toxicologist from out of state. In light of the pandemic that still grips this nation, this expert would have to self-quarantine for two weeks upon return from North Carolina. She is unable to comply with that mandate and, unfortunately, is not able to attend the hearing set for October 1, 2020.
"I have requested, through the County Attorney, that the Commissioners delay the hearing until such time as the toxicologist could appear. This request was denied. Thereafter, it was asked that the toxicologist be allowed to appear virtually to give her testimony and respond to questions, if any. This, too, was denied. The only option presented was to provide a prerecorded statement of this expert. It goes without saying that this is an extremely ineffective way to address a significant area of concern for the community.
"Because it is critically important to have the testimony of our toxicologist presented live and there is currently no option for that, my client will need to withdraw the above-referenced application at this time. Please advise of any additional paperwork that would need to be filed with the County to have this application removed from consideration by the Commissioners at their scheduled October 1, 2020 hearing.