Greg Payne, then the city's economic development director, and members of the city/county planning staff got together to work on Robins' problem. After studying their laws and their maps, the staffers suggested Robins request a change to the law to reduce the 1,500 feet to 600 feet.
The plan seemed headed for success as it slid routinely through planning and zoning hearings last summer. It squeaked through Durham's one environmental review board, and the City Council planned to vote on it in September.
But one citizen watchdog sounded an alarm after learning of the proposal by accident. Days before the vote, neighborhood activist and NAACP leader John Schelp roused enough outcry to convince the council to delay the decision. Since then, Schelp has mobilized a diverse coalition of neighborhood activists, civil rights advocates, students and environmentalists.
The proposal would create 10 new sites for potential asphalt plants, which mix gravel, sand and rock with petroleum-based cement, emitting pollutants such as benzene and formaldehyde. Of those, eight are in East Durham, meaning less affluent, inner-city minority communities would bear the brunt of unsightly, odorous and potentially hazardous pollution from a smokestack industry feeding growth in the wealthy white suburbs.
A public debate is now raging over whether it's a good idea to put asphalt plants within two football fields of houses. But until Schelp rallied an unexpected but efficient revolt, the industry's unimpeded progress toward its goal was business as usual in Durham's planning process, where business interests influence the decisions that shape the landscape and affect citizens' everyday lives.
"Industry reps have insinuated themselves into every corner of policy-making, with a deleterious effect for citizens," says Lou Zeller, the research director and Clean Air Campaign organizer for the Blue Ridge Environmental Defense League. His group battles asphalt plants and other controversial industries all over the state. "If the law is inconvenient for the industry to do business, they change the law."
Those who stand to profit from policy decisions have several tactical advantages that begin long before residents have a chance to speak at a public hearing. They originate on the ground floor of City Hall, where the city/county planning staff jokes congenially with developers who come in to study the wall maps and chat about their plans. They continue upstairs, in the economic development office, where the staff's mission includes helping local businesses grow.
Developers and business owners pay consultants to spend hours lobbying and clearing the way for their plans--consultants who often have long-standing relationships with staffers. They provide reams of background information to the planning department, data that often becomes the basis for staff recommendations in their favor.
On the other side, citizens with less technical knowledge and familiarity with the planning process rely on the public process to alert them to what's happening in their neighborhoods. In the asphalt case, the hearing notice was 10 words long, buried in a page-long, inch-wide classified ad, and no letters went out to neighborhood groups.
And even when they do participate in the public process, citizens--and their elected leaders--often find themselves at a disadvantage, says County Commissioner Ellen Reckhow.
"We are not experts on these topics. But the industries come in with all this information and they can tell their side of the story really well," says Reckhow, who chairs the Joint City-County Planning Committee where the asphalt proposal first surfaced in March. A planner by training, Reckhow calls the overall process "lopsided."
City and county staffers are quick to say their job is to serve the entire public. Anyone can walk into the planning office, ask for a change to the zoning law and launch the same approval process the asphalt industry is now pursuing. Interim Planning Director Dick Hails remembers an example from the 1980s, when a group of neighborhood leaders sought to change the zoning of adjacent properties to preserve open space near their homes.
But most of the time, few people without a financial stake work the system.
"The person that's going to be the most aggressive, and is more likely to spend the time in the planning office pushing projects, are the people who are proposing development," says Mayor Bill Bell. "And they have the time to do it, as opposed to John Q."
In the asphalt case, the financial stakes are high: the N.C. Department of Transportation awarded $1.2 billion in state road contracts last year alone. David Rifenburg, of Rifenburg Construction, who eventually joined Robins' effort to change the law so he, too, could build a Durham asphalt plant, has won bids for major road projects across the state. Rifenburg built the Martin Luther King Jr. Parkway in Durham, a $7.6 million project, and two years ago resurfaced the city's roads with 22,000 tons of asphalt supplied by Carolina Sunrock Corporation. Carolina Sunrock, one of the two existing asphalt plants in Durham, just won a bid to provide asphalt to the city this year, a $147,028 contract.
The Carolina Asphalt Pavement Association (CAPA), the industry lobby in Raleigh, estimates that public road contracts make up only about half the asphalt market. Private projects such as shopping malls and housing developments make up the other half. Rifenburg's private clients include Duke University (football stadium improvements and hospital complex) and Beechwood subdivision in Chapel Hill.
Like other developers with profits at stake, both asphalt companies hired consultants to help work the deal. Asphalt Experts hired Durham attorney Will Anderson, and Rifenburg hired local land planner George Stanziale. Stanziale's friendly relationship with the Durham city/county planning staff dates back to 1984, when he successfully advocated for controversial rezonings that led to the development of tony Treyburn.
"From my point of view, they always try to be helpful," Stanziale says of the planning staff. "Their job is to protect and legislate the [zoning] ordinance. But when someone wants to get something done on a piece of property, and it doesn't meet the ordinance or a particular plan, say, a small-area plan, they're going to always work with us to see how we can get it done."
Stanziale does frequent business with the planning department, wearing several hats on behalf of his clients and his firm, Haden-Stanziale. He represented developers of car dealerships as part of the controversial Streets at Southpoint mall. He co-authored the Downtown Master Plan and is often tapped to serve on advisory committees, such as a 1998 group that recommended changes to Durham's natural resources protections. And he profits from city business, winning publicly funded contracts such as the $78,000 job designing West Chapel Hill Street Park in 2000. He is currently consulting on a rewrite of the city's development ordinance.
Stanziale has never lost a Durham rezoning case. He says that's partly because he chooses his projects carefully but also because he has "great relationships" with the planning staff and involves them early in his plans.
Those relationships are one factor that contribute to citizens feeling disenfranchised by the planning system, says one critic.
"They've been doing this so long, some of them don't see how they bend over backwards for the developers. Then they don't understand why people like me think this is outrageous," says Steve Bocckino, a citizen activist in southwest Durham who got involved in politics when he led his neighborhood's battle against the Streets at Southpoint mall at Fayetteville Road and Interstate 40. Bocckino now serves on the planning commission, where he is frequently outraged by staff recommendations that side with developers, often based on what he calls "tortured logic." "They see the developers all the time and the developers are their friends. And they see residents as contentious naysayers."
But while the planning staff plotted to help Doug Robins and David Rifenburg move asphalt plants closer to homes, there weren't any naysayers to contend with, because no one knew about the plan as it gathered steam behind the scenes.
After cooperating with the planning department to develop language that was acceptable to both the staff and the industry, Stanziale and Anderson took their proposal to the planning committee for review in April.
Zoning text amendments affect property across the county, rather than altering the rules for one particular piece of land the way a rezoning does. Text amendments also differ from rezonings in another crucial way: They require very little public notice. If a resident wants to change a house into an office, the city/county planning department sends a letter to nearby neighbors, with details of the request, an explanatory map, contact numbers for questions and dates and places of public hearings.
But if the asphalt industry--or anyone else--wants to amend the law, the government puts an advertisement in the local newspaper, back in the classified section, lumped in with a long list of other issues described in technical language.
In presenting the proposal to the planning committee, the industry reps argued several key reasons for the change: The 1,500-foot setback rendered it impossible to build a new plant; changes in asphalt technology and "tougher EPA air quality standards" have cut down dust and noise affecting surrounding properties; and "there is a need for more asphalt plants in Durham to meet local needs."
The planning staff backed them up, recommending approval based on the applicants' arguments and a few of their own. One point staffers cited was that the 1,500-foot setback had arisen out of a 1980s rewrite of zoning laws in the wake of a chemical explosion and a chemical fire in East Durham. During the revisions, asphalt plants were lumped into the same category as hazardous materials and explosives.
"We looked at the actual impacts, and reported to the commission that asphalt plants fall somewhere between concrete plants and hazardous waste," says Hails. Concrete plants require only 100 feet of buffer space, while hazardous waste facilities require the full 1,500 feet.
The planning staff also mentioned that Raleigh, Greensboro and Charlotte do not require any distance between asphalt plants and homes, a point that struck Lou Zeller of the Blue Ridge Environmental Defense League as ironic.
"If Durham is even considering changing their setbacks, that's just incredible to me," Zeller says. "They would be undoing a good measure that protects public health in order to 'dumb-down' to what other communities have."
The citizen coalition has since pointed out several examples of other cities, including Boston, that are expanding the buffers for asphalt plants based on environmental and health concerns.
Another reason the staff cited in its recommendation was Durham's growth, saying "major road improvements and development projects maintain a high demand, with much asphalt being trucked in."
"The rule of thumb is, if we are demanding it, we should take some responsibility for providing it," says Hails. "If there's a demand for something in the community, then you look at whether there's an appropriate site."
The planning committee recommended approval, but also asked the Environmental Affairs Board to review the plan before it went any further.
The EAB, a joint city-county advisory panel, is made up of local residents with professional credentials in a variety of fields. Elected officials created the board a decade ago to provide them with expertise when faced with decisions just like this one.
"The EAB is there because [Durham County Commissioner] Becky Heron thought if we're giving the Chamber of Commerce money, we should do something to balance the other side," says Bocckino. "It's sort of the environmental chamber of commerce."
The 11-member board has specific slots for individual disciplines such as solid waste, water quality, air quality and public health, with the city and county each appointing five members and one seat for a representative of the Soil and Water Conservation District Board.
The EAB discussed the asphalt measure several times, eventually voting 4-3 to approve it with some changes. The board recommended expanding the setback from 600 feet to 750 feet, and requiring a solid 8-foot perimeter wall. An eighth member who had to leave the meeting early has indicated he would have voted against the plan, meaning it narrowly missed a 4-4 tie. One of the points that swayed the supporters was the staff's argument that Durham's setback was so much larger than other North Carolina cities, says one EAB member, who has since been chagrined to hear--via the citizen effort-- that buffers in other states are much larger, and in some cases, expanding.
One of the three no votes was member Marian Johnson-Thompson, who holds the EAB's public health seat.
"It's a situation--again--where money and big business come in and, I shouldn't say have no regard for poor people, but they're not as sensitive as they should be," says Johnson-Thompson, whose profession is studying health disparities among different ethnicities. "As a member of the board, I was embarrassed about how this vote went down."
The EAB discussions focused primarily on noise and dust, despite Johnson-Thompson's concerns that the health and quality of life for Durham's less affluent communities of color were the real target. The industry reps produced a voluminous stack of supporting paperwork, including a report arguing that asphalt plant emissions were no more dangerous than those of an average bakery.
"We did a lot of homework for them," says Stanziale. "We felt like we answered all of their questions."
With approval from the planning committee and the EAB, the proposal went next to a public hearing at the zoning committee.
John Schelp was sitting in the City Council chambers that night, waiting for his turn to speak. As the president of the Old West Durham Neighborhood Association, Schelp was there to urge the zoning committee to require more open space in "mixed-use" developments.
When the asphalt industry representatives stepped forward, Schelp listened in disbelief as they outlined their proposal.
The industry reps repeated their arguments: the lack of eligible land under the current zoning law and the growing market demand for asphalt in Durham. They said recent technological advancements reduce the environmental impact and health hazards. Missing from the discussion, Schelp says, was any recognition that the residents most likely to be subjected to new asphalt plants within 600 feet of their houses were low-income minorities.
"I thought to myself, we can debate health effects all night, but the asphalt industry says they are only interested in the sites in East Durham," says Schelp. "There's no gray area there."
It was clear to him the proposal had coasted pretty far toward City Council approval with zero public debate, thanks in part to a 10-word-long public hearing notice "the size of a blade of grass."
"The asphalt industry had eight months to whisper 'facts' into the ears of officials while the neighborhoods sat in the dark," Schelp says.
Shocked by the environmental justice issue going unchallenged, and the one-sided nature of the discussion, Schelp began collecting a citizen coalition to shine a public spotlight on the plan.
He started with his position within the Durham NAACP. The only white member of its executive committee, Schelp had been working to build racial bridges for months. A former Peace Corps worker with a master's degree in public administration, six years in the Congo and a long record of neighborhood activism, Schelp had recently been asked to organize the NAACP's "community committee" to bring diverse Durhamites together to work on common initiatives. The five-member group agreed to take on the asphalt project, and the NAACP advanced the committee $50 for publicity.
When the measure was scheduled for a Sept. 16 vote before the City Council, Schelp mobilized letter-writers through an e-mail list-serv that began with the five people on his community committee. It now contains 300 members.
Schelp, two other NAACP leaders and the minister of Morehead Avenue Baptist Church co-authored a letter to the editor published in The Herald-Sun on Sept. 16, the day before the scheduled vote.
"It's bad enough that developers are forcing limited local resources to be shifted from less affluent in-town neighborhoods to newly-paved suburban developments," they wrote. "Must we now face the threat of hazardous exposures from the asphalt industry?"
Council members, beginning to receive protest e-mails and facing voters in an election just six weeks away, voted unanimously to table the proposal.
"No one was real excited about this issue once it turned into a hot potato," says Anderson, the attorney for Asphalt Experts.
The neophyte coalition celebrated the delayed vote and began in earnest to outline their next attack. They targeted three issues: the lack of public notice, the potential health hazards, and the disproportionate effect on low-income minority neighborhoods.
Neighborhood associations across the county and churches in East Durham began to spread the word through their memberships. Schelp called Duke University officials to alert them their rare books storage is next door to one of the potential asphalt plant sites. He asked the Eno River Association to look at water quality issues, since one of the potential sites sits along the Eno.
Local environmentalists compiled data about the effects of asphalt plant pollution, including the dangers of toxic emissions from benzene and other byproducts of hot asphalt mixing. Prompted by the protesters, leaders of Environmental Defense, a national advocacy group, wrote a letter to the mayor and city manager citing Durham's ranking among the "dirtiest counties" in the United States based on an average individual's added cancer risk from air pollution. In a letter signed by Director Jane Preyer, the group urged the council to kill the measure, saying more asphalt plants in Durham would raise the county's already dangerous levels of acrolein, a chemical emitted by asphalt plants.
According to the federal Occupational Safety and Health Administration, exposure to asphalt fumes can cause headaches, skin rashes, fatigue, reduced appetite, throat and eye irritation, and coughing. Asphalt paving workers, for example, have reported breathing problems, asthma, bronchitis, and skin irritation, according to OSHA, and studies have reported lung, stomach, and skin cancers following chronic exposures to asphalt fumes.
N.C. Central University professor Yolanda Anderson lent the group an intern and the campus student group, Central Environmental Action Student Effort (CEASE) got involved. CEASE printed a fact sheet and launched a public education campaign to spread the word to residents in the predominantly black neighborhoods around campus, where four of the potential sites lie. As they walked door-to-door, nine out of 10 residents they talked to had no idea they were living adjacent to a potential asphalt factory, with its burning petroleum smell and dump trucks trailing fumes down the street, says intern Melissa Lewis.
One Morehead Hills resident on the e-mail list eventually sent Schelp a $50 check, saying he was glad to double the group's budget.
When the industry reps said publicly they were seeking "independent data" from the state Division of Air Quality to counteract their critics, Schelp asked DAQ Director Alan Klimek to address the citizens' concerns as well. In a stock response the DAQ has given in similar controversies across the state, Klimek replied that the location of new asphalt plants is strictly "a local issue." Klimek wrote an op-ed piece last year echoing the same sentiments. CAPA, the industry lobby group, likes Klimek's argument so much it now includes his essay in the organization's public information packet.
The industry's influence is even more ingrained at the state level than it is locally, says Zeller, who attends DAQ advisory committee meetings where "The environmental groups don't show up but the industry shows up in droves."
In Durham, as letters from across town poured in to newspapers and City Hall, the local industry reps turned to their state association for backup. CAPA Executive Director Christie Barbee shot back at critics, writing a letter to local newspapers countering Schelp's first attack. She called the environmental injustice issue "baseless" and touted the industry's safety record and Durham's need for asphalt.
"I got a copy of [Schelp's] letter and there was a lot of misinformation about our industry," says Barbee. "No one in our industry strives to be controversial or to stir up trouble. But as city limits grow, you've got more and more area that needs pavement."
Having only two plants in Durham raises the cost of asphalt, says Barbee, citing cheaper prices in areas like Charlotte-Mecklenburg, where there are more than a dozen plants. "Durham is a good market," she says. "And Durham certainly could use the jobs that a plant would bring."
Asked how many employees a plant needs, Barbee estimated "six to eight," but added that the plants also generate related jobs for truck drivers and pavement workers.
As the grassroots organizers mounted their campaign, it was the accusations of environmental injustice that surprised the city staffers the most, including the interim planning director.
"I've heard of it in other places, but it's new for here," Hails says.
Actually, environmental justice issues in East Durham date back to the 1980s. A chemical company called Armageddon Recycling Co. on Peabody Street was cited repeatedly for leaking barrels that eventually exploded on March 10, 1983. A community group that formed to protest, Citizens for a Safer East Durham, pointed out in its flyers that the situation wouldn't have dragged on so long if the plant were "on the other side of town." Another chemical plant in the same vicinity, SouthChem Inc. on East Pettigrew Street, was the scene of a massive chemical fire on Sept. 3, 1986. Today, SouthChem is still in business and ranks as Durham County's third-largest polluter, according to Environmental Defense.
Overall, Durham's minority residents are four times more likely than whites to live near facilities emitting air pollutants, according to the Environmental Defense scorecard, while families below poverty are also four times more likely to live near polluting facilities than those above poverty.
"If you're poor and black, that's what you get," says Schelp.
The future of the asphalt proposal may be decided within the month. The Joint City/County Planning Committee discussed it again on Feb. 6 and asked for more input from the Environmental Affairs Board. This time around, the industry may have even one more vote, thanks to another behind-the-scenes move. On Oct. 15, the City Council appointed Asphalt Experts attorney Will Anderson to the attorney slot on the EAB. Anderson replaced outgoing member Jim Conner, an environmental activist and lawyer.
The council has scheduled a discussion for Feb. 21. Whether the plan will then be scheduled for a March 4 vote depends on the council, says City Manager Marcia Conner, while complaining about how much time her staff has had to spend responding to the "overwhelming number of e-mails."
Mayor Bell, whose inbox has also been flooded with protests, predicts the grassroots effort has accomplished its mission.
"I don't think this has a chance of going anywhere," he says. "Let me put it this way, I haven't had anybody write me saying we ought to be supporting this."
If they succeed in changing the zoning law, Asphalt Experts and Rifenburg Construction may build a plant together, according to Stanziale.
Schelp and his coalition want the setbacks for asphalt plants to stay at 1,500 feet. They want the planning staff to learn about environmental justice issues. And they want the rules for public notice of text amendments rewritten so they trigger letters to affected neighbors like rezonings do. On the last point, they already have support from the mayor.
"Given the amount of attention that's been given to that issue, I think the staff will look at a little different process," Bell says, though the staff is not so sure. Assistant planning director Bonnie Estes says with text amendments, "It's difficult to know who's impacted, so it would be difficult to know who to notify."
Bocckino and a fellow planning commission member have proposed another system reform: a new ethics policy requiring planning staff and commission members to disclose their personal financial interests.
County Commissioner Reckhow supports improvements to the public notice process and the ethics proposal. But in the bigger picture, she wants the government to balance the interests of people who live here and the people who profit.
"We recognize there's a gap and we're looking for ways to level the playing field," she says. "We need to do a much better job empowering our citizens."