Tuesday, March 31, 2015

TDOT Petitioned to Lift Pipeline Permit

By Walter F. Roche Jr.

Two Greene County families are petitioning the Tennessee Department of Transportation to suspend  the permit that has allowed US Nitrogen to install part of a 10 mile double barreled 10-mile pipeline along their properties.
The petition comes as the Bible and Renner families have publicly charged that the pipeline is being installed on their respective properties without permission and in violation of a court order.
In the petition filed by Nashville attorney Elizabeth L. Murphy, the Renners and Bibles charge that the permit issued by TDOT violated state law and never should have been issued in the first place.
A US Nitrogen spokeswoman denied that the pipeline work and the pipeline itself infringed on private property.
"The Industrial Development Board and US Nitrogen have deployed a registered land surveyor conducting field verifications to ensure that construction occurs only in the TDOT-established rights-of-way or on property owned by US Nitrogen and the IDB," company spokewoman Amanda Jennings wrote in an email response to question.
She said that the pipeline was being installed "within the boundary of all other utilities, thereby ensuring construction is contained in the state right-of-way."
The Renner and Bible petition filed with TDOT, charges that US Nitrogen has taken "a take-now, pay-later" approach that is causing "irreparable harm" to the properties.
"The Renner and Bible families took all reasonable steps to avoid this," the petition states, adding that "TDOT had no authority to issue the permits."
Affidavits from  Don Bible and the Renner family were attached to the petition.
The petition parallels claims in a pending lawsuit in Davidson Chancery Court which concludes that TDOT cannot issue a right of way permit for the benefit of a private company that is not a public utility.
In a surprise development in that court case Tuesday, Chancellor Russell T. Perkins, who has been presiding over the case for more than a month, suddenly recused himself citing his friendship with the general counsel for TDOT.
Perkins' abrupt exit came before considering an emergency motion filed by Murphy that, if granted, could have brought an immediate halt to the ongoing pipeline construction.
In the motion Murphy charged that US Nitrogen was rapidly proceeding with the construction despite a court approved agreement not to trespass on private property.
"The history of events shows a contemptuousness for the court rarely displayed so publicly and intentionally," the motion states.
A hearing in a parallel Greene County suit could come later this week.
The petition filed with TDOT states that work on property owned by the Renners has been going on since March 18 despite pleas by the family that the workers with Sheriff's deputies looking on, are trespassing on private property.
The TDOT filing is just one of several ongoing legal challenges to the US Nitrogen project which will be used to bring more than a million gallons of water a day to the nearly completed Greene County US Nitrogen ammonium nitrate manufacturing facility.

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Thursday, March 26, 2015

Judge Rules US Nitrogen Rezoning was Legal

By Walter F. Roche Jr.

A Greene County Chancery Judge has thrown out claims by a group of local residents that the rezoning of a 400 acre tract for US Nitrogen was done in violation of state law.
In a brief but decisive four-page decision Chancellor Douglas T. Jenkins concluded that the actions by the regional planning commission and county commissioners were in compliance with public notice and open meeting law requirements.
Citing the testimony of local officials, Jenkins wrote, "Any public notice requirements were given for the Feb. 8, 2011 Regional Planning Commission meeting when the decision to recommend was made."
He ruled that the planning commission "did not act outside the scope of its authority," adding that he did not believe that "the Open Meeting Act was violated in this particular case."
The suit named as defendants the regional planning board, county commissioners and the county itself. The county commission approved the rezoning following the planning commission's recommendation.
While Jenkins rejected many of the plaintiffs' claims, he stopped short of acting on a motion for summary judgment filed by the defendants. He ordered the defendants to make additional filings before acting on that request,
The suit had charged that there was a lack of adequate public disclosure about the actual beneficiary of the rezoning and that the meetings violated the open meeting act on several counts.
Jenkins, however, concluded that the notice requirements were not violated simply because the applicant for the rezoning, Tom Ferguson, was not the owner of the property.
The plaintiffs also charged that the open meeting statute was violated when commission members met one-by-one in secret with US Nitrogen and other officials prior to the vote.
US Nitrogen, a subsidiary of an Ohio based explosives maker, plans to produce millions of gallons of ammonium nitrate at the facility now nearing completion in Greene County.
The suit is one of several legal challenges to the US Nitrogen project now pending in courts from Greene County to Nashville.
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Thursday, March 12, 2015

Court Testimony: US Nitrogen Site Picked By Local Leaders

By Walter F. Roche Jr.

The controversial site of the new US Nitrogen plant was not picked by company officials but by local development officials who came up with an alternative to the firm's original plan.
The site selection, according to a 44-page deposition filed this week in court, was made by officials of the Greene County Partnership along with local officials and business leaders, according to testimony by Thomas R. Ferguson who heads the non-profit partnership, that played a key part in assembling the project properties.
A transcript of the deposition was one of several documents filed this week in Greene County Chancery Court following a recent hearing in a suit brought by local landowners opposed to the project.
In addition to the deposition, the local residents filed a motion for Chancery Judge Douglas T. Jenkins to amend orders he issued following a Monday hearing in his courtroom.
Setting the stage for a likely appeal, Greeneville attorney Herbert Moncier laid out a series of charges by the local opponents including that local officials "withheld material facts" from the Greene County Planners Committee prior to a favorable vote on the project.
He also repeated charges that the public was not given adequate notice of key details of the project, including the identity of the company, US Nitrogen.
Citing conflicting testimony between Ferguson and state and county planners, the new filings charge that actions were taken in violation of state open meetings statutes. Moncier also charged that the partnership violated state real estate law by negotiating options with landowners even though neither it or Ferguson had a real estate license.
He also asked the judge to allow him to enter into evidence a series of documents he had previously submitted prior to this week's hearings but were rejected because of a missed deadline.
The Ferguson deposition, which was taken on Feb. 9, 2012, details the original contacts between local officials and US Nitrogen representatives.
Under questioning, Ferguson said that the company, through a representative named Allen Wood, presented a proposed site in Greene County in July of 2010. Details on the location of that original site were not disclosed.
"Ironically, the property that Allen (Wood) sent...wasn't the property that's in question today," Ferguson said. "I told Allen, I said we've got another site that might be more suitable."
He said that US Nitrogen officials "liked the idea of owning a large piece of property. They just, they just like to have their privacy."
Ferguson stated that eventually an agency agreement was reached under which the partnership itself would purchase options on the designated parcels without disclosing the ultimate owner. Asked if there was ever any public record of the agreement between US Nitrogen and the partnership, Ferguson said there wasn't.
Ferguson testified that a key meeting between local officials and US Nitrogen representatives occurred on Oct. 26, 2010. By that time, he said, the partnership already had options on two key parcels. According to Ferguson, local businessman Jerry Fortner became involved at that meeting because of his "tremendous knowledge about who the property owners were. One of then was, as a matter of fact, the guy that owns his company (C & C Millwright)."
By mid-November of 2010, Ferguson continued, the partnership had obtained options on all the properties. That was three months before the first public disclosure of US Nitrogen's identity.
Asked why there was no public disclosure, Ferguson said,"I mean the whole process, the business we're in on economic development requires a tremendous amount of confidentiality. Many times we have to sign confidentiality agreements just to have a phone conversation."
Later he testified that a similar process was used  earlier when a Wal-Mart facility was considering locating in the county. The effort was successful.
Attorneys for the US Nitrogen project opponents also questioned Ferguson closely about what information he provided to state and local planning officials about the US Nitrogen proposal.
"I totally revealed everything to her and the state planner, so they knew exactly what we were talking about," he said.
Moncier has contested that assertion and had requested to depose Ferguson again based on other deposition testimony, but the request was denied.
 Ferguson also was questioned about the involvement in the project of state government officials including Gov. Bill Haslam, who was on hand for the first public announcement that US Nitrogen was coming to Greene County.
Ferguson said local businessman Scott Niswonger contacted the governor and that US Nitrogen's attorneys from the Nashville firm of Waller Lansden "worked directly" with then Commissioner William Haggerty, head of the state Department of Economic and Community Development.

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Tuesday, March 10, 2015

Nolichucky Landowners Seek Immediate Relief From TDOT

By Walter F. Roche Jr.

A group of landowners who live on or near the Nolichucky River have filed a petition with the Tennessee Department of Transportation calling on the agency to revoke a permit granted for a 12-mile pipeline along the rights of way of two state highways.
The 23-page petition repeats legal challenges to the permit granted by the state agency for the pipeline being built for the new US Nitrogen plant in Greene County.
The petition was filed in response to claims by the state Attorney General that the opponents of the pipeline had failed to exhaust administrative appeals prior to filing a suit in Davidson Chancery Court.
"Currently petitioners seek an injunction enjoining the use of the unlawfully issued right-of-way permit," the petition states, adding that it wants the agency to respond within two weeks.
The filing comes in one of several legal challenges both to the pipeline and the ammonium nitrate manufacturing facility it will serve.
Earlier this week a Greene County chancery court judge turned down a series of petitions filed in another challenge to the project, but deferred action for two weeks on motions to dismiss the suit altogether.
That suit challenges the legality of actions by local officials who gave their approval to the US Nitrogen project.
In the petition filed with the state by Nashville attorney Elizabeth Murphy, the landowners repeated charges that the permit issued by the state was in violation of state law which limits the use of rights of way to utilities.
"The legislature made no provision for the public right of way to be used by any entity that does not meet the definition of a utility," according to the petition.
The petition states that construction of the pipeline has been halted because of the objections of two landowners who contend that the project will trespass on their properties.
"There is not adequate space remaining for the installation of the pipelines without encroaching on private property owned by one or more of the petitioners, specifically Don Bible and Jack Renner," the petition states.
The petition includes a picture of the roadway as it passes the Bible property, including a marking of the location of an existing telecommunication cable.
"There is about a two-foot space between the white line on the pavement and the Bible property fence," the petition notes.
Charging that TDOT exceeded its authority by issuing the permit in the first place, the landowners contend the agency should have stuck by its original decision to deny the permit.
The petition states that while the state agency does not have the legal authority to review its own decisions, the submission is being made solely because the state Attorney General "has argued for TDOT to have an opportunity for an administrative hearing.
"TDOT must respond with urgency and has been well advised this request was coming," it concludes.
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Thursday, March 5, 2015

Secret Meetings on US Nitrogen Project Detailed

By Walter F. Roche Jr.

In court filings just before a key hearing, the attorney for local opponents of a major industrial development project has charged that a series of secret meetings and private discussions preceded by months any public announcement of that  project.
The filings in Greene County Chancery Court come as opponents of the project make one more effort to have a judge declare that the Greene County Partnership should be treated as a public agency subject to meeting requirements and public disclosure of its actions.
A hearing in the suit is scheduled for 9 a.m. Monday before Chancery Judge Douglas T. Jenkins. Jenkins, in a separate suit already concluded the partnership was not a public agency. He now must rule on a summary judgment motion filed by the development group.
Attorneys for the partnership vehemently deny that it is a public agency.
The new filing by attorney Herbert Moncier states that then Mayor Alan Broyles was first approached by a representative of US Nitrogen in June or July of 2010. That representative, Allen Wood,  told the mayor, the filing states, that the company would be investing some $110 million and would employ 80 to 100 persons.
Broyles, according to the filing, then contacted Tom Ferguson, and subsequently the partnership "secretly created a project team that included Alan Broyles."
According to the court papers, Ferguson then acted in behalf of US Nitrogen in obtaining options on the properties the company had earmarked for the construction of an ammonium nitrate manufacturing facility.
Charging that Ferguson "acted unlawfully," the filing charges that a nominee agreement between the partnership and US Nitrogen also was "unlawful." Ferguson, the filing continues, "had a (under seal) interest in the US Nitrogen project being successful."
The partnership, court papers states, "secretly opened a bank account" financed by US Nitrogen to facilitate the purchase of those options.
The filing also challenges the membership of the Greene County Regional Planning Commission which acted on a series of rezoning requests at a February 2011 session. According to the filing, the panel is by statute limited to 8 members. Nonetheless 13 members were listed for the disputed Feb. 8, 2011 meeting.
But for the extra members, the filing charges, there would not have been sufficient affirmative votes at the meeting called to consider the rezoning.
The filing also challenges the legality of a series of meetings between US Nitrogen officials and members of the Greene County Commission prior to a crucial Feb. 21, 2011 commission meeting.
Attached to the filing are a series of affidavits from local residents challenging the adequacy of public notices for meetings on the project .
A filing by Junior Belcher describes a chaotic scene at one key meeting where those in attendance were told that the reasons for the rezoning or who it would benefit was not public.