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.
wfrochejr999@gmail.com
Tuesday, March 10, 2015
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.
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.
Tuesday, February 3, 2015
Dismissal Denied in US Nitrogen Suit
By Walter F. Roche Jr.
A chancery court judge in Nashville has turned down a motion filed by US Nitrogen and a Greene County board to dismiss a suit filed by landowners opposed to construction of a 12-mile pipeline to the Nolichucky River.
The decision means the suit filed by residents who live near or along the river can go forward. The suit charges that the Tennessee Department of Transportation did not have the legal authority to grant a permit for the pipeline construction.
The dismissal motion had been filed by lawyers for the state agency. A hearing was held on the suit last month before Chancery Judge Russell T. Perkins.
Ann Calfee, one of the plaintiffs in the case, said she learned of the judge's decision today.
The suit is one of several challenging the pipeline and other actions by state and local officials to accommodate US Nitrogen, which is building a more than $200 million ammonium nitrate manufacturing facility in Greene County.
The suit charges that the state agency lacked the authority to grant the local board permission to use the right of way along two state highways for the pipeline.
In another suit challenging the US Nitrogen project, a Greene County Chancery judge ruled recently that the case challenging the actions of the development board can go to trial.
In both cases, however, the judges have declined to issue orders halting further work on the pipeline. Completion is expected next month.
US Nitrogen plans to take millions of gallons of water per week from the Nolichucky which will be used in the manufacturing process.
wfrochejr999@gmail.com
A chancery court judge in Nashville has turned down a motion filed by US Nitrogen and a Greene County board to dismiss a suit filed by landowners opposed to construction of a 12-mile pipeline to the Nolichucky River.
The decision means the suit filed by residents who live near or along the river can go forward. The suit charges that the Tennessee Department of Transportation did not have the legal authority to grant a permit for the pipeline construction.
The dismissal motion had been filed by lawyers for the state agency. A hearing was held on the suit last month before Chancery Judge Russell T. Perkins.
Ann Calfee, one of the plaintiffs in the case, said she learned of the judge's decision today.
The suit is one of several challenging the pipeline and other actions by state and local officials to accommodate US Nitrogen, which is building a more than $200 million ammonium nitrate manufacturing facility in Greene County.
The suit charges that the state agency lacked the authority to grant the local board permission to use the right of way along two state highways for the pipeline.
In another suit challenging the US Nitrogen project, a Greene County Chancery judge ruled recently that the case challenging the actions of the development board can go to trial.
In both cases, however, the judges have declined to issue orders halting further work on the pipeline. Completion is expected next month.
US Nitrogen plans to take millions of gallons of water per week from the Nolichucky which will be used in the manufacturing process.
wfrochejr999@gmail.com
Thursday, January 22, 2015
Chancery Judge Won't Halt Pipeline Construction
By Walter F. Roche Jr.
Residents seeking an immediate halt to the construction of a 12-mile pipeline from Mosheim to the Nolichucky River were turned back Thursday during a lengthy hearing before a Greene County judge.
Chancellor Douglas Jenkins ruled that the citizens group did not provide sufficient evidence that the continuation of construction on the US Nitrogen pipeline would cause irreparable harm.
Ruling from the bench after a lengthy hearing in Greeneville, Jenkins denied the motion for a temporary injunction.
The ruling came in a suit filed by area residents who oppose the more than $200 million project. US Nitrogen, a subsidiary of Ohio explosives manufacturer Austin Powder, plans to open an ammonium nitrate manufacturing facility this Spring.
Jenkins also rejected claims that the development board lacked the legal authority to enter into the agreement with US Nitrogen.
But Jenkins stopped short of dismissing the suit altogether and the litigation will continue albeit on narrower grounds.
He ruled that the plaintiffs can go forward with their claim that the Industrial Development Board of Greeneville and Greene County violated the state Open Meeting Law during the July 18 session at which the pipeline plan was approved.
If they succeed, the agreement between the IDB and US Nitrogen could be nullified.
In a statement released after the court hearing, Justin Freeark, plant manager for US Nitrogen, stated that work on the pipeline will continue.
"US Nitrogen remains committed to the pipeline project, and our contractors will continue construction, which began last October," he said.
wfrochejr999@gmail.com
Residents seeking an immediate halt to the construction of a 12-mile pipeline from Mosheim to the Nolichucky River were turned back Thursday during a lengthy hearing before a Greene County judge.
Chancellor Douglas Jenkins ruled that the citizens group did not provide sufficient evidence that the continuation of construction on the US Nitrogen pipeline would cause irreparable harm.
Ruling from the bench after a lengthy hearing in Greeneville, Jenkins denied the motion for a temporary injunction.
The ruling came in a suit filed by area residents who oppose the more than $200 million project. US Nitrogen, a subsidiary of Ohio explosives manufacturer Austin Powder, plans to open an ammonium nitrate manufacturing facility this Spring.
Jenkins also rejected claims that the development board lacked the legal authority to enter into the agreement with US Nitrogen.
But Jenkins stopped short of dismissing the suit altogether and the litigation will continue albeit on narrower grounds.
He ruled that the plaintiffs can go forward with their claim that the Industrial Development Board of Greeneville and Greene County violated the state Open Meeting Law during the July 18 session at which the pipeline plan was approved.
If they succeed, the agreement between the IDB and US Nitrogen could be nullified.
"It's a big win in that we can now take depositions of those involved. We want to prove that this violation was intentional," said April Bryant, one of the plaintiffs.
The suit charges that the law was violated because citizens attending the meeting could not hear the discussion prior to the favorable vote. In fact one resident, Eddie Overholt, was arrested when he complained about the muffled discussion.
Charges against Overholt were later dropped.
Bryant said the judge also agreed to move forward quickly with the suit and schedule an expedited trial date.
US Nitrogen has stated that the pipeline will be completed this spring along with the manufacturing facility that will produce ammonium nitrate. Water piped from the Nolichucky will be used in the manufacturing process.Bryant said the judge also agreed to move forward quickly with the suit and schedule an expedited trial date.
In a statement released after the court hearing, Justin Freeark, plant manager for US Nitrogen, stated that work on the pipeline will continue.
"US Nitrogen remains committed to the pipeline project, and our contractors will continue construction, which began last October," he said.
wfrochejr999@gmail.com
Wednesday, January 21, 2015
Open Government Lawyer to Appear at US Nitrogen Hearing
By Walter F. Roche Jr.
By agreement of all parties, an attorney for a coalition favoring open government will be allowed to address the court tomorrow at a hearing on a suit aimed at blocking a proposed 12-mile pipeline from the Nolichucky River to a new industrial facility.
The agreement to allow Rick Hollow, the lawyer for the Tennessee Coalition for Open Government to appear was announced on the eve of the hearing in the suit against US Nitrogen and the Industrial Development Board of Greeneville and Greene County.
The coalition had requested approval to present arguments on whether citizens attending a meeting of a public body have a right not only to attend meetings but also to hear the discussions of board members.
The issue arose in the suit brought by a group of area residents who have challenged the legality of the development board's July vote to approve the pipeline plan. The challenge is based in part on the fact that residents attending the meeting were not able to hear the deliberations preceding the favorable vote.
Lawyers for the board and US Nitrogen have argued in court papers that the state Open Meeting Law does not mandate that citizens be able to hear the deliberations.
Also at Thursday's hearing Scott Hurley, the lawyer for the plaintiffs, will present arguments to Chancellor Douglas Jenkins in favor of the issuance of a temporary injunction to halt the ongoing construction of the pipeline. Both the pipeline and the $200 million US Nitrogen ammonia nitrate manufacturing facility are slated for completion this spring.
Lawyers for the board and US Nitrogen will be arguing for their motion to have the suit dismissed.
The hearing will be held at 9 a.m. Thursday in the Greene County courthouse.
wfrochejr999@gmail.com
By agreement of all parties, an attorney for a coalition favoring open government will be allowed to address the court tomorrow at a hearing on a suit aimed at blocking a proposed 12-mile pipeline from the Nolichucky River to a new industrial facility.
The agreement to allow Rick Hollow, the lawyer for the Tennessee Coalition for Open Government to appear was announced on the eve of the hearing in the suit against US Nitrogen and the Industrial Development Board of Greeneville and Greene County.
The coalition had requested approval to present arguments on whether citizens attending a meeting of a public body have a right not only to attend meetings but also to hear the discussions of board members.
The issue arose in the suit brought by a group of area residents who have challenged the legality of the development board's July vote to approve the pipeline plan. The challenge is based in part on the fact that residents attending the meeting were not able to hear the deliberations preceding the favorable vote.
Lawyers for the board and US Nitrogen have argued in court papers that the state Open Meeting Law does not mandate that citizens be able to hear the deliberations.
Also at Thursday's hearing Scott Hurley, the lawyer for the plaintiffs, will present arguments to Chancellor Douglas Jenkins in favor of the issuance of a temporary injunction to halt the ongoing construction of the pipeline. Both the pipeline and the $200 million US Nitrogen ammonia nitrate manufacturing facility are slated for completion this spring.
Lawyers for the board and US Nitrogen will be arguing for their motion to have the suit dismissed.
The hearing will be held at 9 a.m. Thursday in the Greene County courthouse.
wfrochejr999@gmail.com
Tuesday, January 20, 2015
Large Turnout Likely for US Nitrogen Hearing
By Walter F. Roche Jr.
A large turnout is anticipated for a key court hearing Thursday in a case filed by local residents seeking to block plans for a 12-mile pipeline from a new Greene County industrial facility to the
Nolichucky River.
The 9 a.m. hearing before Chancellor Douglas Jenkins will include arguments for an order to halt the pipeline construction immediately and a motion by US Nitrogen and the county industrial development board to have the suit thrown out.
The plaintiffs in the suit include dozens of local landowners along the path of the pipeline, which is already well under construction.
On its web site, Save the Nolichucky has posted details about the time and location of the hearing and encouragements for high attendance. "Stand up for your river," reads the title of a recent posting.
The suit charges that the development board acted improperly in approving the pipeline last year and cites the arrest of local resident Eddie Overholt, when he complained that those in attendance at the session could not hear the discussion.
Lawyers for the IDB and US Nitrogen countered with the claim that the state Open Meeting Law does not give residents the right to hear the proceedings.
It was that claim that prompted the Tennessee Coalition for Open Government to file a motion seeking to join in on the suit. That motion will also be up for consideration Thursday.
wfrochejr999@gmail.com
A large turnout is anticipated for a key court hearing Thursday in a case filed by local residents seeking to block plans for a 12-mile pipeline from a new Greene County industrial facility to the
Nolichucky River.
The 9 a.m. hearing before Chancellor Douglas Jenkins will include arguments for an order to halt the pipeline construction immediately and a motion by US Nitrogen and the county industrial development board to have the suit thrown out.
The plaintiffs in the suit include dozens of local landowners along the path of the pipeline, which is already well under construction.
On its web site, Save the Nolichucky has posted details about the time and location of the hearing and encouragements for high attendance. "Stand up for your river," reads the title of a recent posting.
The suit charges that the development board acted improperly in approving the pipeline last year and cites the arrest of local resident Eddie Overholt, when he complained that those in attendance at the session could not hear the discussion.
Lawyers for the IDB and US Nitrogen countered with the claim that the state Open Meeting Law does not give residents the right to hear the proceedings.
It was that claim that prompted the Tennessee Coalition for Open Government to file a motion seeking to join in on the suit. That motion will also be up for consideration Thursday.
wfrochejr999@gmail.com
Tuesday, January 13, 2015
Open Government Group Moves to Intervene In US Nitrogen Suit
By Walter F. Roche Jr.
An advocacy group for open government has moved to intervene in a pending suit challenging the legality of actions taken by Greene County officials on a controversial industrial development project.
In a filing with the Greene County Chancery Court, the Tennessee Coalition for Open Government is charging that the assertions of Greene County officials about the interpretation of the state Open Meeting Law are "clearly wrong."
The action comes in a suit filed by area residents opposed to the placement of a 12 mile long double barreled pipeline from the Nolichucky River to the site of a new US Nitrogen manufacturing facility.
The Nashville based non-profit is challenging the claim by lawyers for the Industrial Development Board of Greeneville and Greene County that the state Open Meeting Law does not give citizens the right to hear the proceedings of a public body.
Calling that assertion "in error and contrary to the spirit and intent of the legislation," the coalition is asking the court not to base a decision in the case on that claim.
The filing states that the coalition is not taking a position on the underlying issues in the lawsuit.
The suit is one of several challenging the legality of various aspects of the $220 million US Nitrogen project.
The audibility of public proceedings became an issue after a local resident was arrested during a development board meeting when he complained that board members couldn't be heard. The charges were later dropped.
The new facility is slated to become operational later this year and will produce ammonium nitrate.
wfrochejr999@gmail.com
An advocacy group for open government has moved to intervene in a pending suit challenging the legality of actions taken by Greene County officials on a controversial industrial development project.
In a filing with the Greene County Chancery Court, the Tennessee Coalition for Open Government is charging that the assertions of Greene County officials about the interpretation of the state Open Meeting Law are "clearly wrong."
The action comes in a suit filed by area residents opposed to the placement of a 12 mile long double barreled pipeline from the Nolichucky River to the site of a new US Nitrogen manufacturing facility.
The Nashville based non-profit is challenging the claim by lawyers for the Industrial Development Board of Greeneville and Greene County that the state Open Meeting Law does not give citizens the right to hear the proceedings of a public body.
Calling that assertion "in error and contrary to the spirit and intent of the legislation," the coalition is asking the court not to base a decision in the case on that claim.
The filing states that the coalition is not taking a position on the underlying issues in the lawsuit.
The suit is one of several challenging the legality of various aspects of the $220 million US Nitrogen project.
The audibility of public proceedings became an issue after a local resident was arrested during a development board meeting when he complained that board members couldn't be heard. The charges were later dropped.
The new facility is slated to become operational later this year and will produce ammonium nitrate.
wfrochejr999@gmail.com
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