Court hears biodiesel appeal

A lawyer representing a group of neighbors who sued the McLain family and Iredell County in an effort to prevent the McLains from operating a biodiesel-manufacturing facility on their farm took the group's case to the N.C. Court of Appeals on Wednesday.

Kurt Lindquist, who represents Iredell Neighbors for Rural life, argued that lower courts erred by ruling the biodiesel facility meets the requirements for bona fide farm use set forth by a state statute.
He also contended his clients weren't given enough time to prepare for the original hearing and Superior Court Judge Kim Taylor's ruling that the group did not have legal standing to sue was flawed.

"My clients have been denied their fundamental right to protest a biodiesel refinery in their backyard," Lindquist said.

Lawyers representing the McLain family and Iredell County countered those claims during oral arguments before a three-judge panel.

The Court of Appeals will decide whether the proposed biodiesel facility on Snow Creek Road is a bona fide farm use or a conditional use heavy manufacturing site.

The Iredell Neighbors for Rural Life is also seeking to reverse Superior Court Judge John Holshouser Jr.'s decision to deny an injunction that would prevent brothers Phil and Mike McLain from constructing a biodiesel manufacturing facility on their family's 216-acre farm in North Iredell.

The group is also seeking to reverse Iredell Superior Court Judge Kimberly Taylor's summary judgment that the production of less than 500,000 gallons of biodiesel fuel for farming activities is a bona fide farm use activity.

There is no case law defining biodiesel as a bona fide farm use, said the McLains' lawyer, Bill McMillan.
The case has the potential to undermine the county's authority to regulate hazardous activities and protect its citizens, he said.

"This case is going to be looked at by counties around the country," he said.

Responding to Lindquist's claims that defense attorneys dumped legal documents on the plaintiff's trial attorney at the last minute and Judge Taylor did not give the neighbors group time to prepare, McMillan and County Attorney Bill Pope said they sent the motions for summary judgment 10 days before the Jan. 7 hearing.

Pope said the plaintiffs had an opportunity during the original hearing to request a continuance, but did not.

The original lawsuit was filed on Sept. 5, 2007, after Iredell County commissioners voted to rezone eight acres from single-family residential to heavy manufacturing.

Most of the individual plaintiffs named in the case are the McLains' neighbors, who became upset at the thought of a refinery being placed in the middle of an area that is primarily zoned single-family residential.

McMillan, who represented the McLains, said the McLains operate an industrial farm, which spans around 5,000 acres, both leased and owned, in several counties.

He said biodiesel production would not be the farm's main purpose, but rather a means to end the McLains' dependence on petroleum-based diesel fuel. The McLains started looking into developing a biodiesel plant after Hurricane Katrina threatened the farm's diesel supply.

The judges questioned the size of the operation.

"This is not a situation where you are selling melons by the side of the road," Judge Bob Hunter said.
The site in the middle of a residential area was selected not to be a nuisance, McMillan said, but out of convenience. The McLains have several large silos and supporting infrastructure in that location.

"My clients' business is not making diesel," McMillan said. "My clients' business is tilling the soil."
Lindquist said the 500,000-gallon amount was arbitrary, and his clients would have proven the chemical process using methanol and sodium potassium was not a farm use if they'd gone to trial.
"This might be one of those areas where technology has gotten ahead of the statutes," Hunter said.
Lindquist disagreed.

This isn't a dairy farmer making ice cream, he said.

"That chemical process is complicated and highly flammable," Lindquist said.