Courts & the Law, COVID-19, News

Governor’s office will appeal judge’s ruling on opening bowling alleys

Judge James Gale – Image:

Governor Roy Cooper’s office announced this afternoon that it will file an appeal of a state judge’s ruling granting a preliminary injunction in favor of bowling alley owners who had sued to be allowed to reopen facilities that had been ordered closed to help limit the spread of COVID-19.

In his 33-page ruling, Senior Business Court Judge James Gale found that the Governor’s office had failed to offer a rational basis for distinguishing between bowling establishments and other businesses such as restaurants that have been permitted to reopen under restricted circumstances and that the bowling businesses are likely to suffer irreparable harm if not allowed to reopen right away.

Gale’s ruling then went on to provide and endorse a list of 14 very specific requirements developed by the bowling industry with which alley operators must comply in order to be protected by the injunction. Among the requirements: the presence of at least one empty lane between bowling parties and no sharing of bowling balls, except by members of the same family.

Late this afternoon, a spokesperson for the governor issued the following statement in response to the judge’s ruling:

“Hospitalizations and positive cases are reaching record highs while the Governor works to get schools open and prevent the state from going backward on restrictions. The Governor will immediately appeal this ruling that harms both of these efforts.”

Raleigh’s News & Observer reported earlier today that “COVID-19 hospitalizations in North Carolina set a new record, rising to at least 989.”

Click here to read Judge Gale’s ruling.


Low enrollment, financial trouble forces Winston-Salem charter school to close

B.L.U.E. – G.R.E.E.N. Academy (BGA), a Winston-Salem charter school, is going out of business after one year because it could not enroll the minimum 80 students needed by Tuesday to remain open.

The school, founded to improve academic outcomes for low-income students in underserved communities, is also without a home after St. Peter’s Outreach Church did not renew its lease.

The school still owes the church $86,000. State charter school officials said BGA leaders plan to meet Tuesday to figure out how to pay the debt.

Policy Watch was unable to reach BGA leaders for comment.

The Charter School Advisory Board (CSAB) unanimously approved the school closure during a called meeting Tuesday. The State Board of Education will consider the matter during its meeting this week.

CSAB member Sherry Reeves recalled how excited the founders were when they first discussed opening the school with the board.

“I hope that in the future, they can regroup and come back stronger,” Reeves said. “I appreciate the fact that they understand they are going under and that this is the best move for their students.”

BGA specialized in leadership, entrepreneurship, cultural awareness and development of the whole child.

It enrolled only 37 students in Grades 5-6 at the end of last school year.

BGA leaders had hoped to meet the state’s 80-student minimum by adding Grades 7-8. By late June, the school had only enrolled 48 students.

BGA board Chairwoman Sheryl Ragland explained in a June 30 letter to Dave Machado, director of the Office of Charters Schools, that marketing efforts to boost enrollment fell short because of the COVID-19 pandemic.

“The pandemic has had a consequential impact on the board’s ability to increase enrollment and to fundraise,” Ragland wrote in the letter also signed by Dave Brake, the school’s director and principal.

She said BGA staff and families have been notified of the decision to close the school.

“The academy has facilitated school transitions into the local public school system for each student where he/she resides,” Ragland said. “Recommendations for other charter schools in the county were also provided.”

The minutes from the BGA Board of Directors June 25 emergency meeting shows school leaders worried about being forced to close by CSAB, which would render the founders unable to reapply for a charter.

They also show that leaders reached out to other schools to inquire about sharing space but was unable to find one willing to do so.

And Ragland expressed doubts about enrolling 80 or more students because parents are reluctant to change due to COVID-19 and the uncertainty around school reopening.


Wake Stone’s proposal to mine next to Umstead State Park faces more opposition — and support from a lawmaker

A bridge spans a creek in Umstead State Park. Opponents of a proposal for adjacent mine say the operation will harm waterways leading to and within the park. (Photo: NC Parks)

Two public hearings, six-plus hours and hundreds of people: The controversy over a proposed the quarry on 225 acres of prime wildlife habitat next to Umstead State Park continued this morning as concerned citizens spoke about the effects of the project on a treasured property, as well as on park-goers and neighbors.

Most of the 200 individuals who spoke at the virtual public hearings hosted by the NC Department of Environmental Quality opposed the Wake Stone proposal for an amended mining permit, citing blasting noise, air pollution, destruction of wildlife habitat and harm to water resources, including Crabtree Creek.

Holly Neal worked for two years as a seasonal office administrator at the park’s visitor center. She told DEQ that sediment runoff from Wake Stone’s nearby existing mine already flows into the park, streams and eventually Crabtree Creek. “I’ve seen this myself,” Neal said. “Even with no rain, the stream was very cloudy white.”

David Humphrey, an engineer, said there is “a very strong potential for Crabtree Creek water to discharge into groundwater as a result of quarry dewatering and thereby result in violations of groundwater standards.”

Upstream runoff from the Ward Transformer Superfund site has already contaminated Crabtree Creek with cancer-causing PCBs.

Liz Adams, a research associate at the UNC Institute for the Environment in the field of air quality, monitors levels of PM 2.5 on her bike rides around the park. PM 2.5 is short for particulate matter that is 2.5 microns in size, less than the width of a human hair. Particulate matter this small can burrow deep into the lungs and cause or worsen respiratory and heart disease.

This illustration of the proposed Wake Stone mine expansion shows Interstate 40 to the south and Old Reedy Creek Road to the west. Old Reedy Creek Road leads to Umstead State Park, and is a main entrance off the greenway system. A popular destination for scouting trips, Foxcroft Lake, to the northeast, would span both the mining boundary and the park. (Map: DEQ)

Adams said that she mounted a Plume Flow sensor on her bike to track PM 2.5 levels for one year. On some days, she said, the concentration at the existing quarry entrance of 200 micrograms per cubic meter. The EPA has determined that concentration is unhealthy — or Code Red — and that everyone exposed to that level in the air could suffer health effects. At a level of 201 to 300 micrograms per cubic meter, the air is considered very unhealthy by the EPA.

The land in question, known as the Oddfellows Tract, is technically owned by Wake and Durham counties and Raleigh and Durham, but the Raleigh-Durham Airport Authority manages it. Last year the Airport Authority board leased the tract to Wake Stone for $2 million a move that opponents are challenging in court.

At the time, the Airport Authority board reasoned that RDU needed the money for its expansion plans. However, last month the board significantly scaled back those plans, cut its budget by nearly half and deferred major capital projects because of the COVID-19 pandemic.

Raleigh City Councilman David Cox told DEQ that the Airport Authority “didn’t get Raleigh’s permission to lease the tract. We haven’t abdicated our authority or our jurisdiction.”

Former Morrisville Mayor Mark Stohlman also opposed the project because of its potential harm to the park’s trail users.

“The towns of Morrisville and Cary has invested tens of millions of dollars in greenway systems and facilities, including Black Creek, Hatcher Creek and Crabtree Creek trails,” Stohlman said. “All these trails lead directly to Umstead State Park and the Old Reedy Creek Road area, and the thousands of regular trail users will be adversely impacted by the increased noise, dust and truck traffic.”

Supporters included State Rep. Darren Jackson, a Democrat who lives in Knightdale, where Wake Stone operates another quarry; Knightdale Mayor James Roberson and Knightdale Town Manager Bill Summers.

The company donated a $2.5 million park adjacent to the quarry, Jackson said. However, it is common for companies to give money to public projects to help deflect opposition. Wake Stone has also promised to restore some land around the Oddfellows Tract for future trails after the quarry rock is exhausted.

Jackson received a total of $7,500 in campaign contributions from three top Wake Stone officials — Sam Bratton, Theodore Bratton and Tom Oxholm — last October, according to the State Board of Elections.

In 2018 Jackson received  $750 from Wake Stone. And in 2017, Wake Stone contributed $4,000 to Jackson’s campaign.

They said they have received no complaints about Wake Stone’s operations in Knightdale. “They’ve been good partner and neighbor and a key stakeholder in our community,” Roberson said.

Wake Stone received a mining permit in 1981 to operate on nearby land off Harrison Avenue and I-40. The company, which runs several quarries in central North Carolina, claims that its current proposal, a 300-foot deep mine, is merely an expansion.

And since the project is an expansion, Wake Stone believes it should be subject to the original mining permit from 1981. The permit contains a “sunset clause” whose original language required the company to offer the land to the state after mining operations ceased or 50 years, whichever is sooner.

If held to the original wording, Wake Stone would have no interest in the current mining land — or the Oddfellows Tract for the expansion — after 2031.

But in 2011 and again in March 2018, when Wake Stone was working on its expansion proposal, the company asked DEQ to change the permit to say “later,” rather than “sooner.” The company said the wording was a typographical error and should align with the original language in a Mining Commission document. That document does say “later.”

The Mining Commission has not met since 2015. However, a bill in the legislature today would consider the governor’s appointment of Sam Bratton of Wake Stone to the commission.

In response to Wake Stone’s request, DEQ changed the permit wording, but did not hold a public hearing or notify local city or county governments. DEQ had deemed that the change was not substantial, even though the effect was to allow mining to proceed for an indefinite period of time.

DEQ’s decision, combined with a 2017 state law that allows mining companies to have “life-of-site permits” rather than periodic renewals, opened a loophole for Wake Stone.

Stohlman said the expansion would not even be possible “without the sunset clause being changed, unbeknownst to the municipalities that invested in all these trail systems.”

Joseph Huberman was suspicious of the claim that the original sunset clause wording was merely an error. “This paragraph is clear and obvious, being located on the signature page,” Huberman said. ” This permit, with the Sunset Clause intact, was reviewed and modified eight times over 36 years. It is incomprehensible that the purpose of this paragraph went unnoticed when the permit was issued, as well as the many times it was modified.”

Attorney Mark Springfield told DEQ that it must deny Wake Stone’s request, based on legal language that it will have an “significant adverse effect on the purpose of the park.”

“A key purpose of the park is to protect an area in a rapidly growing region,” Springfield said, and for an urban population to enjoy a natural setting.”

COVID-19, News

As state Treasurer seeks to rescind moratorium on utility cutoffs, NC Auditor raises another red flag

Treasurer Dale Folwell

State Treasurer Dale Folwell pressed members of the NC Council of State Tuesday to rescind Governor Roy Cooper’s Executive Order that extended a prohibition of utility shut-offs and implemented a moratorium on evictions.

Folwell said the order was placing a huge financial burden on cities and municipalities as citizens have refrained from paying their utilities during the COVID-19 pandemic.

Folwell offered his own resolution to rescind the executive order, and return the decision-making power of utility shut-offs to local governments.

“My comments do not apply to stockholder-owned utilities. This resolution only applies to citizen-owned utilities,” Folwell explained. “If we don’t do this, I believe we are signing a death certificate for many rural North Carolina communities, especially those in the East.”

Folwell said local officials were better suited to know the financial hardships of residents, and provide compassion if a utility bill could not be paid on time.

Attorney General Josh Stein acknowledged that Elizabeth City recently received a waiver to the executive order, but extending it to others town at this time could be a problem.

Auditor Beth Wood

“People are struggling,” said Attorney Josh Stein in voicing continued support for the prohibition on utility shut-offs put in place during the pandemic.

Auditor Beth Wood called a continuation of the utility protections ‘unsustainable’ but added that many local governments are in no better position to manage the economic crisis caused by COVID-19.

“We have so many cities and counties that are not going to run well, and to say that they have the ability to make the right decisions is not a true statement,” advised Wood.

“I am investigating the goings-on in several cities right now, who have absolutely no financial controls in place. I will tell you in my investigation of the City of Rocky Mount, they have written off a million dollars a year in electric bills and the city council says they were never aware. A million a year for 20 years. That’s $20 million.”

Wood warned once the executive order expires, the state could not afford to simply walk away without offering some financial structure.

“We’ve got 150 local governments on a financial watch list, not because they can’t pay their bills, but because they are not being run well. We have finance officers who don’t have a clue what they are doing, city managers who don’t have a clue what they are doing.”

Wood said local governments need alternatives and guidance before the power to regulate utility shutoffs and delinquent bills is turned over to them.

“I see this month after month after month.I know exactly what I’m talking about when I say that many elected officials can’t run their local governments.”

(Click below to hear Auditor Beth Wood discuss the issue.)

Governor Cooper said his office would be willing to talk with the state auditor’s office after July 31st for additional recommendations for municipalities managing their utilities.

Cooper stressed the current order, which expires at the end of July, did not offer debt forgiveness.

Customers will still be responsible for the utilities that they used, and will have extended repayment plans of at least six months.

While no vote was taken on Folwell’s resolution on Tuesday, Governor Cooper and members of the Council of State expressed reservations that the utility shutoff moratorium would be extended beyond this month.

Commentary, News

Anti-gun violence advocates: Cooper veto of gun bill should be sustained

In case you missed it, one of the vetoes issued by Gov. Cooper in recent days addressed the subject of gun violence. House Bill 652 is a bill that originally dealt with vehicle registration fees and penalties when it passed the House back in 2019, but a week prior to the end of the 2020 short session, it was converted into a bill to make it easier to carry concealed weapons into sensitive locations and dubbed the “Second Amendment Protection Act.”

The governor’s veto message was short and sweet: “This bill allows guns on school property which threatens the safety of students and teachers. Therefore, I veto the bill.”

The NRA says the governor was in error and that all the bill does is allow law abiding citizens to carry guns when attending religious services in buildings that are both a school and a place or worship.

Advocates North Carolinians Against Gun Violence disagree and distributed the following memo yesterday explaining their assessment of the measure:

North Carolinians Against Gun Violence applauds Governor Cooper for supporting gun violence prevention by vetoing H652, the Second Amendment Protection Act. We call on all lawmakers to vote to sustain Governor Cooper’s veto for the safety of school children, teachers and for people in emergency situations.The bill would legalize the carrying of concealed firearms at places of worship associated with schools, weaken our concealed carry weapons permitting system and allow EMS personnel to concealed carry when on the job with police.

To protect children, current state law prohibits concealed firearms at places of worship that have an associated school. This belief remains sound public policy. Removing this protection puts school children at increased risk regardless of whether the firearms are allowed during curricular and extracurricular activities.   Read more