state of north carolina in the general court of...

STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

COUNTY OF BRUNSWICK

11-CVS-1301

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN, DENNIS MCMILLIAN, and MARK HARDY,

Plaintiffs, V.

BRUNSWICK COUNTY,

Defendant

NOW COMES Defendant Brunswick County, ("the County"), through its counsel, and

hereby moves pursuant to Rules 26 and 37 of the North Carolina Rules of Civil Procedure, to

compel Plaintiffs to fully respond to certain of the County's discovery requests as outlined

below. In support of its motion, the County submits as follows:

1. This case involves Plaintiffs' assertion that the County intentionally discriminated

against them on the basis of race by proposing to expand the County's existing construction and

debris landfill onto two parcels of County-owned land, and by failing to provide County water

and sewer infrastructure to a geographic area described as Royal Oak. Plaintiffs assert that these

acts and omissions, in conjunction with other unwanted land uses in Royal Oak, constituted

discrimination against the area's mainly African-American residents.

2. The County vigorously denies Plaintiffs' allegations.

3. Plaintiffs' Third Amended Complaint alleged four (4) causes of action:

• A claim for declaratory judgment as to the validity of the County's

rezoning of the two parcels of land from Rural Residential to Industrial

General.

® An equal protection claim under the North Carolina Constitution.

® A claim for violation of the North Carolina Fair Housing Act .

® A claim pursuant to N.C. Gen. Stat. § 153A-136(c) .

4. Plaintiffs seek to enjoin the rezoning decision and the expansion of the landfill,

and seek compensatory damages, punitive damages and attorneys' fees. The Honorable Thomas

H. Lock dismissed Plaintiffs' equal protection claim in August, 2012.

5. The parties have exchanged multiple sets of discovery requests and responses

since the litigation began in 2011. The County submits that Plaintiffs' responses to the following

discovery requests below remain incomplete or deficient. Defendant has made multiple attempts

to resolve the issues addressed herein, but despite these good faith efforts, the parties have been

unable to agree on what information is subject to disclosure.

As part of this lawsuit, Plaintiffs maintain that they were treated differently by the

County than those "similarly situated" to Plaintiffs. The County has asked Plaintiffs for the

names and geographic areas of areas or communities similarly situated as well as the methods,

measures or variables Plaintiffs are using to determine whether a geographic area or group of

people are similarly situated to the Plaintiffs, and, and all supporting documentation.

In response, Plaintiffs stated vaguely that "majority white neighborhoods" in the County

and "any white resident or property owner" are similarly situated to Plaintiffs. (Exh. A.)

Plaintiffs have declined to supplement this response, stating that the information requested is

expert or legal analysis. Defendant submits that Plaintiffs' response falls far short of a

meaningful response as contemplated by the discovery rules, and fails to provide even a basic

' The County is referencing the interrogatories and discovery requests consecutively, as opposed to by set and number therein, as Plaintiffs have intermittently adopted this method in responding to the requests. The discovery request(s) in issue will be marked flagged in the attached exhibits to avoid confusion.

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level of factual support for the assertion that Plaintiffs have been treated differently than other

citizens in the County.

7. Interrogatory 14: Dates of CCA Membership: Plaintiff ROCCA is an

unincorporated neighborhood association. Defendant requested through an interrogatory the

dates that ROCCA members joined the organization. (Exh. B.) Plaintiffs previously objected to

the disclosure of ROCCA members identities on privacy and associational grounds, and the

County was forced to move to compel the information. Judge Gary Trawick ordered the

members' names and addresses be disclosed to counsel subject to a protective order. (Exh. C.)

All parties continue to abide by the order, and the requested information does not implicate any

of privacy concerns the protective order sought to address. The Order also allows the County to

seek additional information regarding ROCCA members by first asking Plaintiffs' counsel, and

if refused, follow up with the Court. Id.

Plaintiffs do not object to the request on the grounds it implicates the privacy concerns

addressed by the protective order, but rather that the request is "unreasonably burdensome"

because they do not have the requested information (their own membership information). They

claim further that counsel can ask ROCCA's president about this matter at his deposition.

Indeed, Plaintiffs have no substantive concern associated with this information, yet, somewhat

inexplicably, they still will not agree to try to compile and provide it. The County submits that if

this basic information does not already exist in compiled form, it should be easily obtained by

ROCCA. To that end, the County cannot obtain this information any other way than from the

Plaintiffs.

8. RPD 54: Privilege Log Pursuant t® Rule 26(b)(5) : The County requested all

documents from Cedar Grove Institute for Sustainable Communities, and clarified the request to

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include information and all correspondence and emails from its president, Ann Moss Joyner. 2

(Exh. D.) This is because Plaintiffs' Complaint expressly cites to, and relies on, work performed

by Ms. Joyner to establish the County's alleged discrimination against the Plaintiffs. (3 1 (1 Am

Cmplt, ¶ 109.) In addition to providing allegations in the Complaint, Ms. Joyner has previously:

*Testified as Plaintiffs' expert in the related hearing to block permitting of the property for use as a landfill expansion; (Exh. E, pp. 1-12)

*Studied the Brunswick County landfill independently; (Exh. E, pp. 13-16)

*Published publicly available reports on the landfill's proposed expansion; Id.;

*Assisted a class at UNC in Fall 2011 with researching and preparing a presentation on the Royal Oak community and landfill; (Exh. E, pp. pp. 17-20)

*Corresponded with and provided case information to a media reporter who was writing a disparaging story on the County/landfill expansion in fall of 2011. (Exh. E, pp. 21-23.)

However, Plaintiffs claim that Ms. Joyner is solely a consulting expert for this litigation,

and therefore declined to provide this information on the basis that it is work product. Defendant

thereafter requested Plaintiffs provide a privilege log pursuant to Rule 26(b)(5) , which requires a

party to log information that is withheld on the basis of privilege or trial-preparation materials.

Plaintiffs have to date declined to produce such a log or information to establish the scope and

dates of Ms. Joyner's allegedly privileged consultation.

The County asks the Court to order Plaintiffs to provide information establishing the

privilege with Ms. Joyner, the dates and scope of the privilege, and a log documenting the

allegedly privileged information so that it may properly consider Plaintiffs' claims of privilege.

In the alternative, the County asks the Court conduct an in camera review of the alleged

privileged materials.

2 The County also requested all e-mails and correspondence or records of correspondence or communication sent to or from third parties relating in any way to the events and allegations in the Complaint, except for privileged materials. A privilege log was requested for information responsive but not produced. (Exh. G, p. 13.)

M

• ' 1 fli TITI11I hii iriiJ 1 1

Plaintiffs claim that their property has been significantly devalued by the presence of the

landfill and absence of water and sewer infrastructure in Royal Oak. (3 rd Am. Cmplt ¶ 138.)

The County thereafter sought discovery on this specific allegation, and also asked for

documents establishing this allegation, including any attempted sales and rentals of any

property in Royal Oak by Plaintiffs. (Exh. F, pp. 2, 10, 4-5.) Plaintiffs responded that a Royal

Oak resident named Thelma Vereen had lost a renter at her trailer park due to the landfill,

although no supporting documentation accompanied this allegation. (Exh. F, p. 5.) At Ms.

Vereen's deposition, Ms. Vereen indicated her belief that documentation existed regarding her

rentals over the past 15 years, such as rental agreements, invoices and receipts, including

documentation regarding the renter who allegedly moved out (Mary Jones) due to the landfill.

(Depo. Transcript, Thelma Vereen.)

Although the allegations regarding Ms. Vereen's renter appear to be a primary basis for

Plaintiffs' claim of property devaluation, Plaintiffs have not provided any of this information to

date. Plaintiffs have stated that the information may not technically be in Ms. Vereen's

possession, but that they will look for it. The County respectfully submits that the information is

within Ms. Vereen's control, and that it should be provided within a reasonable period of time

from an order compelling its production.

I '1 1 , 1. 1 1. urnintr

Defendant requested all statements and affidavits received from third parties that relate to

the allegations in the Complaint. (Exh. G, p. 12.) It is unclear whether Plaintiffs have responsive

information that has not been disclosed, as they have provided certain affidavits, but have also

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maintained an objection that they have provided everything to the County that is "not

privileged." The County has clarified that it does not seek privileged information, but rather

statements that were given by third parties that involve the facts regarding the litigation. Such

statements are not work product, but rather facts possessed and known to a witness.

Accordingly, the County requested a privilege log from Plaintiffs, which Plaintiffs have

to date declined to provide. The County asks that Plaintiffs be ordered to provide any responsive

statements or affidavits by third parties, and in accordance with Rule 26, to provide a privilege

log for documents that Plaintiffs maintain are responsive but protected by privilege.

WHEREFORE, based on the foregoing, Brunswick County respectfully asks the Court to

enter an Order compelling Plaintiffs' to provide the information requested above, to include

appropriate privilege logs setting forth documents not previously disclosed on the basis of

privilege.

Respectfully submitted this the 28th day of January, 2013.

WOMBLE CARLYLE SAN GE & RICE A Limited Liability Partnership

Jacqueline Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville St., Suite 2100 P. O. Box 831 Raleigh, NC 27602 Telephone: (919) 755-2169 Fax: (919) 755-6176 Email: [email protected] Attorneys for Defendant Brunswick County

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I hereby certify that on January 28, 2013, I served a copy of the foregoing document entitled DEFENDANT BRUNWICK COUNTY'S MOTION TO COMPEL PLAINTIFFS TO SUPPLEMENT DISCOVERY RESPONSES AND PROVIDE PRIVILEGE LOG upon all parties to this action by depositing the same with the United States Postal Service, postage prepaid, properly addressed to their attorneys of record as follows:

Elizabeth McLaughlin Haddix, Esquire Bethan Eynon, Esquire UNC Center for Civil Rights 323 West Barbee Chapel Road Chapel Hill, NC 27517

Raymond E. Owens, Jr., Esquire Higgins & Owens, PLLC 5925 Carnegie Blvd., Suite 530 Charlotte, NC 278209

Jack Holtzman, Esquire North Carolina Fair Housing

Project, Legal Aid of NC Post Office Box 28068 Raleigh, NC 27611

Attorneys for Plaintiffs

Jacqueli Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, PLLC 150 Fayetteville Street, Ste. 2100 P.O. Box 831 Raleigh, NC 27602 Telephone: (919) 755-2169 Fax: (919) 755-6176 Email: [email protected] Attorneys for Defendant Brunswick County

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WCSR 743D264v1



COUNTY OF BRUNSWICK

11-CvS-1301

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

v.

BRUNSWICK COUNTY,

Defendant.

Fourth Interrogatory 1 (D's 29th Interrogatory): A claim for equal protection requires a plaintiff to show that he has been treated differently than those "similarly situated" to him. Please describe, with specificity, what method, measures or variables Plaintiffs are using to determine whether:

a. An area is "similarly situated" to Royal Oak; or, if Plaintiffs are not using the geographic area in their analysis; b. A person (or group of persons) is "similarly situated" to the Plaintiffs. (ex: Geographic areas consisting of X square miles, with X-number of residents, with X-percent of its residents being African-American)

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Fourth Interrogatory 2 (D's 30th Interrogatory): Identify the areas and/or persons (or groups) in Brunswick County that you contend are "similarly situated" to Royal Oak, or, to the Plaintiffs, as applicable. Your answer should include the name of the area, if one exists, and its geographic borders.

Fourth RFPD 1 (D's 52d RFPD): Produce all documents and other items or materials that support your Answer to Interrogatory 1 above.

RESPONSE: Without waiving the objection asserted in above Answer to Fourth Interrogatory 1, Plaintiffs direct Defendant to P Responses to D First RFPD 000325-327, Plaintiffs First Supplemental Response 000001-27 and Responses to First RFPD 000325, 004074-004100.

Fourth RFPD 2 (D's 53rd RFPD): Produce all documents and other items or materials that support your Answer to Interrogatory 2 above.

1Ii

This 31st day of August, 2012.

UNC CENTER FOR CIVIL RIGHTS

Elizabeth Haddix NC State Bar # 25818 E-mail: [email protected] Telephone: (919) 843-9807 Peter Gilbert NC State Bar # 40415 E-mail: pgilbertemaiI.uncedu Telephone: (919) 843-8197 Facsimile: (919) 843-8784 101 East Weaver Street, Campus Box 3382

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Carrboro, NC 27510

HIGGINS & OWENS, PLLC Raymond E. Owens, Jr. NC State Bar # 8439 Email: [email protected] Telephone: (704) 295-4509 5925 Carnegie Blvd Ste 530 Charlotte, NC 28209

FAIR HOUSING PROJECT, LEGAL AID OF NC Jack Holtzman NC State Bar # 13548 E-mail: iackinciustice.org P.O. Box 28068 Raleigh, NC 27611

Attorneys for Plaint tiffs

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The undersigned hereby certifies that the foregoing Plaintiffs' Answers to Defendant's Fourth Set of Interrogatories and Requests for Documents were served by prior agreement of counsel by electronic mail to Defendant's counsel of record at the following address:

This the 31st day of August, 2012.

Lu t 1


COUNTY OF BRUNSWICK


Plaintiffs,


11-CvS-1301

PLAINTIFFS' SIXTH SUPPLEMENTAL RESPONSES TO DEFENDANT'S

DISCOVERY REQUESTS

V.

BRUNSWICK COUNTY,

Defendant.

Plaintiffs supplement their answers and responses to Defendant's discovery requests as follows:

Ii 4I Y II acke1I PII a SJJ hi N 1 .I.!ii (s] i i aci

1. Identify by name and address the members of Royal Oak Community Concerned Citizens Association, (hereinafter "ROCCA"), and the month and year they joined the organization.

Supplemental Response: Plaintiffs direct Defendant to the attached list, Bates-stamped "Pis Sixth Supp Resp 000017-000020," pursuant to the Protective Order issued regarding Defendant Brunswick County's Motion to Compel on November 14, 2012.

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24. Produce all written or recorded statements obtained from or given by third parties that relate in any way to or tend to support the allegations in the Amended Complaint. If you claim that such statements are work product, please include the statements in a privilege log.

Supplemental Response: Plaintiffs object to this Request to the extent it is vague, overbroad and unduly burdensome, and seeks privileged information, including attorney work product, and also seeks information not reasonably calculated to lead to the discovery

of admissible evidence. Without waiving this objection, Plaintiffs direct Defendant to the attached document, Bates-stamped "Pis Sixth Supp Resp 000001-000016."

1 1. . 1 i "1 a[I1IIa1' UhIW I 1o)D1 1,

10. Produce a copy of all testing and/or analysis of the water supply conducted by you or anyone at your request of any of the properties contained within the Royal Oak community.

Supplemental Response: Plaintiffs direct Defendant to the attached document, Bates - stamped "Pis Sixth Supp Resp 000001-000016."

This the 7a' day of January, 2013.

UNC CENTER FOR CIVIL GHTS

Elizabeth Haddix, NC State Bar # 25818 E-mail: [email protected] Telephone: (919) 445-0176 Bethan Eynon, NC State Bar # 44372 E-mail: [email protected] Facsimile: (919) 445-0163 Campus Box 3382 Chapel Hill, NC 27599-3382

HIGGINS OWENS, PLLC Raymond E Owens, Jr., NC State Bar # 8439 E-mail: [email protected] Telephone: (704) 295-4509 Facsimile: (704) 749-9451 5925 Carnegie Blvd Ste 530 Charlotte, NC 28209

FAIR HOUSING PROJECT, LEGAL AID OF NC Jack Holtzman, NC State Bar # 13548 E-mail: jack@ncjustice. org Telephone: (919) 856-2165 Facsimile: (919) 856-2175 P.O. Box 28068 Raleigh, NC 27611

A ttorneys for Plaintiff

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ii [WiU1(I &Ii'4 (

The undersigned hereby certifies that a copy of the foregoing Sixth Supplemental Responses was served on Defendant by electronic and U.S. Mail, and a compact disc containing copies of documents produced were served on Defendant by U.S. Mail, to:

150 Fayetteville Street Suite 2100 Raleigh, 27601

This the 7th day of January, 2013.

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EXHIBIT


COUNTY OF BRUNSWICK

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN, Plaintiffs,


11-CVS-1301

S

BRUNSWICK COUNTY, Defendant.

THIS MATTER comes before the Court on Defendant's Motion to Compel Disclosure

Plaintiff Royal Oak Concerned Citizens Association's (ROCCA) membership list pursuant to

Rules 26 and 37 of the North Carolina Rules of Civil Procedure. After hearing arguments and

reviewing the parties' briefs, the undersigned GRANTS Defendant's motion with the following

restrictions:

Plaintiffs' counsel shall provide to Defendant's counsel within one week's time a

list of the names and physical addresses of all ROCCA members as of the date

the Complaint was filed;

2. Defendant's counsel shall not disclose the list except to attorneys working on the

case including the county's attorneys office and their consultants, all of whom

shall maintain the confidentiality of the list;

3. Defendant may not pursue discovery regarding the listed individuals, or otherwise

communicate with them, other than individuals named in the Complaint or in

Plaintiffs' discovery responses, without first informing Plaintiffs' counsel as to

the reason for such discovery and obtaining permission from Plaintiffs' counsel;

and

4. Should defendant wish to pursue discovery of any person on the list over

Plaintiffs' objection, such discovery may be had only by court order

ie 6(th day of November, 2012,

L 7-71

The Honor Gary Trawick

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Superior Court Judge

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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

11-CvS-1301


Plaintiffs,

V.

RE, SPONSES TO DEFENDANT IS

FIFTH SET OF d iiim)-b-1141 SkI

BRUNSWICK COUNTY,

Defendant.

Pursuant to Rules 26 and 34 of the North Carolina Rules of Civil Procedure, Plaintiffs respond to Defendant's Fifth Set of Requests for Production of Documents (RPD Nos 54 and 55) as follows:

L(54 th RPD) Produce all documents and other items or materials in your file received from the Cedar Grove Institute for Sustainable Communities ("Cedar Grove") which relate in any manner to the allegations made by Plaintiffs in this lawsuit.

AhiBIT

1

2. (55 th RPD) Produce a copy of any and all statements, affidavits and/or recordings that you have received from any third party which is in any way related to the facts contained in the Third Amended Complaint.


UNC CENTER FOR CIVIL RIGHTS

Elizabeth Haddix, NCSB &o. 25818 Email: [email protected] Telephone: (919) 445-0176 Bethan Eynon, NCSB No. 44372 Email: [email protected] 323 W. Barbee Chapel Road Chapel Hill, NC 27517-7513

HIGGINS & OWENS, PLLC Raymond E. Owens, Jr. NC State Bar # 8439 Email: rowens@higginsowens . com Telephone: (704) 295-4509 5925 Carnegie Blvd Ste 530 Charlotte, NC 28209

Attorneys for Plaintiffs

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oJi

The undersigned hereby certifie that the foregoing Plaintiffs' Answers to Defendant's Fifth Set of Requests for Documents and compact disc containing the documen production were served by TJ.S. Mail to Defenthnt' s counsel of record at the following address:

Raleigh, NC 27601


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1'.XHIBIT FI

0"

1 have trash trucks come early, but they do not come into the 1 2 landfill prior to 8:00. 2 3 MR. CANDLER Waste Industries does handle 3 4 some C&D for you? 4 5 MS. LEWIS: Waste Industries does not. If 5 6 you're a business or construction company they may provide 6 7 you with a roll out and that gets brought to the landfill, 7 8 MR DUNHAM: I appreciate it. I will ask you 8 9 this question. I will tell you why I ask you this 9

10 question, because I live at Ocean Ridge and my house is 10 11 just between two hundred acres of spray fields from Ocean 11 12 Isle Beach and the sewage treatment plant I live within. a 12 13 drive and a Nine Iron from each one of those. I can go 13 14 either way. What year did you build your house? The house 14 15 that you're currently living in? 15 16 A I moved there in'95. 16 17 MR DUNHAM: I appreciate it thanks. 17 18 MR LONG: Well just recess at this time and 18 19 I understand we'll come back and this should take no more 19 20 than about an hour, and hopefully we can pick back up at 20 21 8:00 and go ahead and finalize. 21 22 MR GILBERT: I have two more expert 22 23 witnesses and five more community members. 23

Page 252

a copy as well. It's the same one. Ms. Joyner, if you would, look at the document you have been handed and identify it, please.

A This is an affidavit that I wrote and there's my signature dated 10/29 — I'rn sorry, October 10, 2011.

Q And your CV and a list of references is also attached, correct?

A That's correct Q Is That list of references, explain if you could,

what that is. A It's a list of documents that I consulted in the

fulfillment of my assessment. Q And were going to start just by explaining a

little bit about what you do at Cedar Grove Institute. Tell us about that organization.

A We are a small nonprofit and we provide technical assistance to small community based organizations, to attorneys in civil rights cases, and to other organizations that require such work, such as sometimes counties and towns and foundations.

Q When you say technical assistance, what do you mean?

A We do a lot of social science research and health

Pave 251 Page 253

1 MR DUNHAM: Are your expert witnesses from I environmental research. We use a lot of geographical 2 out of town? 2 information systems, GIS. We do a lot of demographic 3 MR GILBERT: Yes. 3 analysis. We do some economic analysis. A fairly wide 4 (Recess taken from 6:55 p.m. through 8:30 p.m.) 4 range of skills. 5 MS. HADDIX: Our next witness is Ann Moss 5 Q When you use these technical resource and skills 6 Joyner. 6 what are you — what are you asked to do in these 7 WHEREUPON, 7 occasions? You said you provide assistance to some 8 ANN MOSS JOYNER 8 counties, some towns, civil rights groups, communities, 9 was called for examination by Counsel and, having been duly 9 other organizations. What typically is Cedar Grove asked

10 sworn, was examined and testified as follows: 10 to do? 11 DIRECT EXAMINATION 11 A We are usually asked to provide empirical 12 MS. HADDIX: 12 evidence of whether a situation involves environmental 13 Q Ms. Joyner, if you would please state your name, 13 justice, which means whether there is potential harm to a 14 for the record 14 poor or minority or both, community. 15 A Ann Moss Joyner. 15 And often as well what kind of information can be 16 Q Where do you live, Ms. Joyner? 16 brought to bear to illustrate that and to provide 17 A Orange County, North Carolina 17 opportunities or advise on what to do about it. In the 18 Q Have you ever testified in court before or before 18 cases we're advising a foundation or a county or a city and 19 a planning board? 19 they want to know, well, in terms of sustainable 20 A Both_ 20 development, if we didn't do this, what would we do. 21 Q All right, well, I am going to first handyou 21 Q Now, you have also agreed to give your opinion as 22 your affidavit, and you all should have already a copy of 22 a land use consultant. Tell us a little bit about your 23 Ms. Joyner's affidavit that we submitted and you all have 23 experience with land use.

IMO: Brunswick County Planning

I

1 A I was a developer for over a decade. I developed .1 2 a couple thousand acres in the Research Triangle area, 2 3 including a parcel adjacent to a landfill. 3 4 MR. CANDLER Residential or commercial? 4 5 A Residential primarily, but did buy a parcel next 5 6 to a landfill for multiuse purposes and we also put 6 7 together parcels, collected, if you will, for later 7 8 development at Buckhorn and I40, I85, which you're probably 8 9 familiar with, which is also economic development. So that 9

10 would be mixed use, commercial industrial. 10 11 Q What were you asked to do in this matter? 11 12 A I was asked to say whether the proposed landfill 12 13 would be injurious or in harmony with the community. 13 14 Q So when you say injurious, were you asked to look 14 15 at whether it would adversely affect the real estate 15 16 properties nearby? 16 17 A That was part of it. 17 18 Q And by harmonious, how do you understand that to 18 19 be in harmony with? What did you understand you were 19 20 looking at there? 20 21 A Well, my definition of in harmony with is in 21 22 terms of use and the other uses in the area. So I think my 22 23 definition is broader than what you have heard to this 23

Page 255

1 point_ What I understood the previous experts to testify 1 2 to was primarily whether it was in harmony with the zoning. 2 3 Of course the County changed the zoning, so of course its 3 4 in harmony with the zoning. I don't think you would ask 4 5 that question, and that's not howl interpret the question 5 6 to be asked. 6 7 Q When you say you haven't changed the zoning, you 7 8 mean you haven't changed the zoning with respect to these 8 9 parcels that are being considered for this — 9

10 A To industrial so that this use could be 10 11 appropriate. 11 12 Q What did you look at when you were considering 12 13 whether this proposed landfill would be in harmony with the 13 14 surrounding area? 14 15 A Well, I looked at the other locally unwanted land 15 16 uses, the lu-has as we call it, and I looked at the 16 17 residences, and I looked at the hospital and the school 17 18 across the street, the community college and the assisted 18 19 living facilities, you know, just all of the uses within 19 20 about a three mile radius. 20 21 Q Let's take the first one. First, when you say 21 22 locally unwanted land uses, what you call Lu lns, how do 22 23 you define that? 23

Page 256

A It means anything that you would not invite into your community. It would include a hospital because hospitals tend to grow and they bring a lot of traffic. So although they're not a noxious use, most residential communities would not want one in their community. Obviously it includes the waste water treatment plant, hog farm, a landfill, you know, the sand mine, things like that. Some people even consider schools to be lu-lus_

Q And in your list of references and in your affidavit itself you refer to EPA guidelines and regulations and other federal and state regulations and guidelines. Why did you look at those in giving your opinion about — in this matter?

A Because the federal government has vast resources at its disposal to look at all these things, and they have looked at all these things; and so they've done studies of C&D landfill issues. They've done studies of water contamination by C&D landfills. They've said These are the things that we have to worry about. These are the contaminants we have to worry about. These are what those contaminants come from. So I personally don't see the need to reinvent the wheel, I looked at what the EPA had done, especially what it had done fairly recently in light of the

Page 257

evolving nature of our knowledge of toxins and took my opinion from that.

Q Now, you have been here since the be ginning of this hearing process, haven't you? You were here in October?

A Yes. Q You were here on the second day of the hearing in

January? A By Sk pe. Q You were By Skype? A Part of that. Q You heard some of the testimony on January 9th?

You have to answer audibly. A I'm sorry. Yes, I did Q And, again, just looking at this proposed

landfill now, I know we just talked about other unwanted land uses, but we're focusing on this proposed landfill for now. And what, if anything, did you learn from the other experts who have testified concerning whether this proposed landfill is in harmony with or substantially injurious or met the other criteria that they were asked to look at?

A Well, I expect Mr. Weber's going to jump all over me for this, but actually I didn't learn a lot because they

65 (Pages 254 to 257)


M

Page 260

1 seem to rely on mostly on a process that hasn't happened 1 effect if you don't have any comparison. You've got to 2 yet_ And since the State has not yet reviewed this 2 have some data point within the one mile to compare it to 3 situation and the potential contamination from it, I doTft 3 to say that there's no effect 4 think we can rely on that I mean, when you're a public 4 Because as you have been told tonight, the -- when 5 body and you have asked -- been asked to rule on something, 5 there is an effect, whether its a small landfill or large 6 you're being entrusted to use your own judgment and not 6 landfill, when there is an effect it drops off fairly 7 pass that onto the next body. So it seems to be imperative 7 quickly in terms of miles. So you have got what you call a 8 that the expert testimony being given should reflect on 8 stigma area of one mile and then less so and less so and 9 something other than trust me, it's going to be ruled on 9 less so the further you get away from it

10 later. 10 So the fact that it goes — then the other thing he 11 Q You read --you say in your affidavit that you 11 said was, that he judged that there wasn't a lot of effect 12 read the affidavits of Chris Brown and Mr. Mashburn. Were 12 financially, economically. Well I don't know what he 13 there any other affidavits or records that you looked at in 13 considers to be a lot. If somebody took an action that 14 forming your opinion? And I mean, since your-- since you 14 decreased the value of my home by eight percent. I would 15 have written your affidavit Because you talk in your 15 consider that to be a lot So I really didn't think that 16 affidavit about what you looked at at that time. Is there 16 he was consistent in his appraisal or his assessment, I'm 17 anything else that you have looked at since that affidavit 17 sorry. 18 to form your opinion? 18 Q Ms. Joyner, what about you said that you reviewed 19 A I understand I read the transcript of 19 the transcript of the testimony of Dr. Teefe. What, if 20 Mr. Mashburn and I read transcripts of Keith-- and I can't 20 anything, did you come away with from that testimony? 21 remember how to pronounce the man's name -- sounds like 21 A Tm sorry but I get confused the names of who did y' 22 Balzak but it's not 22 what 23 Q Dr. Barlaz? 23 Q Dr. Teefe was the toxicologist who testified at

Page 259 Page 26l

1 A Barlaz, yes. 1 the end of the hearing on January 9th. 2 Q That was the sound engineer? 2 A I'm blank. 3 A Yes. 3 Q That's fine. We can move on. I wanted to ask 4 Q And what, if anything, did you learn from the 4 you, you had been to this community before You were 5 testimony of Mr. Mashburn? 5 retained by the Center for Civil Rights, correct? 6 A I thought Mr. Mashburn, he said he relied on the 6 A That's correct_ 7 ring theory, what he called ring theory or ring type of 7 Q Tell us what brought you to the community and 8 assessment because it used the census; and he felt like 8 when that was, if you would. 9 that was the most reliable information. But — and he 9 A Last spring and Mr. Dozier called me and said

10 quoted the census data in Brunswick County, but his 10 that he heard -- I don't know how — about what we do and 11 conclusions did not relate to that at all; because if you 11 would we be willing to come down and talk to them about 12 look at the census data from --that he quoted that was the 12 evidenced based advocacy. And so I did and I suggested 13 meeting income change between the one mile and four mile 13 that they urge them to get baseline water studies done. 14 and seven mile of the ring there was an eight percent 14 Get their water tested in every house that they possibly 15 change increase in the mean value of homes from the one 15 could so that there would be some empirical evidence over 16 mile to the four mile and then a six percent from the four 16 time, and that was primarily what I did. 17 mile to the seven mile, which you would kind of expect in 17 Q Did you also tour the area at that time? 18 terms of common sense. But then he said there was no 18 A Yes, I did. 19 effect That doesn't make any sense to me. 19 Q And did you go by the existing landfill? Did you 20 Then he said he used the other method of looking at 20 drive by where the current landfill is? 21 comparables and yet you can't really look at comparables if 21 A No. We drove by the water treatment plant, 22 you don't have a base. Right? And there were no sales 22 hospital, the homes, community college, the assisted living 23 within the one mile limit. So how can you say there's no 23 operations, the entrance to the landfill. I did not go

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1 into it. 1 2 Q Did you go on — well — 2 3 A I went Middle River Road and around Royal Oaks in 3 4 that loop road, sort of a loop road. 4 5 Q What were your observations from looking at the 5 6 community nearest the landfill area, if any? 6 7 A It was very rural. It's relatively low income. 7 8 A lot of a lot of very small for what you would think you 8 9 could have a well on. And I know this because it seemed to 9

10 me at the time when I would see two proximate houses, so I 10 11 checked it in the GIS on the County's website, and I also 11 12 checked it on the tax data to see how many parcels were 12 13 smaller than 40,000 square feet, because that's what's 13 14 safe, considered across the state to be safe to have a 14 15 septic field on. And in Brunswick County you can do 20,000 15 16 which is really not good. Especially on the kind of soil 16 17 that we have. 17 18 Q Did you have a chance to also look at census data 18 19 and determine the demographics in the area of Brunswick 19 20 County, to determine the demographics of the entire county 20 21 and the area in particular of this landfill? 21 22 A Yes, and I noticed that the county is eleven 22 23 percent minority which is very small percent for eastern 23

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1 North Carolina, and that Royal Oaks is ninety-eight percent 1 2 minority within, I think its one mile of the landfill. 2 3 Which is extremely high for a county that's eleven percent 3 4 minority. 4 5 Q Now, I am looking at your affidavit and I want to 5 6 talk with you about a couple of paragraphs there in your 6 7 affidavit You — paragraph 11 you say that landfills 7 8 including construction and demolition landfills typically 8 9 depress the value of real property located nearby four 9

10 percent to ten percent or more. Then you talk about water, 10 11 What — why did you include the information there about 11 12 water in this affidavit? 12 13 A Because the water table here is so high and the 13 14 wells are so shallow. So they're very likely to be 14 15 contaminated. If a contaminant does get into the water 15 16 then it's very likely to contaminate the wells. And as it 16 17 says, you know, if a home's water source is contaminated 17 18 and you're on a well and you have no recourse to public 18 19 water your home is devalued up to ninety percent 19 20 Q Now, would your opinion about the impact of this 20 21 landfill on the nearby community be different if the nearby 21 22 community had access and was on public water? 22 23 A It would be a lot better and a lot safer but it 23

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wouldn't really address the issue of the stigma and the potential problems from hydrogensulfide odor and potential health problems from hydrogensulfide, because in the k inds of soils that you have there really discontinues. So what can happen, especially once it's capped, is the gas can't come up, so then instead of having the odor that was smelled by the previous witnesses on site, it can go down and follow the water path and come up through, for instance, cracks in a masonry foundation into a house. And since this is a relatively low income area you're more likely to have that kind of situation. So it doesn't solve everything. There's still issues.

Q I am sure that the Applicant is going to come up just after I sit down and say you're not a hydrogeologist, are you, Ms. Joyner?

A I am not Q You're not a toxicologist, are you? A No, I am not. Q Soon what do you base the information that you

just shared with the planning board about hydrogensulfide and travel of contaminants?

A Well, in ray deposition I gave the source for every piece of information. For instance, whether it came

Page 265

from FEMA or whether it came from the EPA and then if you want to cross reference it you can go to the back and see what document I was referring to. So its FEMA or the EPA or the USGS or North Carolina Department of Natural Resources or the ATDSR, the Toxic Disease Registry, US Wildlife. There's a lot of different ones, but I tried to show who I was referencing each time.

Q And I guess these are references that you have consulted in your work in other communities in dete rmining whether or not there's likely to be an adverse impact from other land uses in other cases, correct?

A That's correct A lot of my information and methodology for this came from several sources. I was an investigative reporter many decades ago and when I got my MBA at Carolina I got in public health. So I had to learn to do research in that kind of arena_ As well as the usual business curriculum at that time.

Q Now, I am going to let the rest of your affidavit speak for itself but I do want to ask you, because you do talk in your affidavit about, you refer to sink holes and you reference this map. Do you not? That I have not got on the screen. And if you could just identify this map and —

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1 A This map came from the County's website and then 1 2 I went from there to the reference that they gave_ And as 2 3 a matter of fact, it was done, as you can see, put out by 3 4 the US Department of Commerce and the EPA, but it was done 4 5 by the USGS; and what it shows is -- it actually shows two 5 6 things. It shows sinkholes but its based on Karst 6 7 terrain. So it gives you two pieces of information at 7 8 once, and both -- all of the red dots that circle Royal 8 9 Oaks and circle the area where the landfill is — 9

10 Q Am I accurately outlining it with this pointer? 10 11 A You are. Right. Y'all have that in front of 11 12 you? So, what you can see there is the sinkholes that have 12 13 been identified and the Karst terrain that has been 13 14 identified and sinkholes can be manmade by changes in water 14 15 pressure, by making a pond like all the ponds that have 15 16 been made for the sand mines, and by changing the weight in 16 17 a substantial weight of anything on top of the earth. So 17 18 for instance if you make 150 foot landfill on top of Karst 18 19 terrain, its not unlikely that you would have what's 19 20 happened in Florida in 2010 which was the 60 by 100 foot 20 21 sinkhole under the landfill. Or just down the road from 21 22 it. Doesn't have to be right there. It can occur, you 22 23 know, somewhere nearby 23

Page 268 a

the Army Corps of Engineers, but the County has a map, a wetland map and if you look at that, it plainly says the entire landfill is a pecosin. Another name for a pecosin is a palstream wetland_ So every square inch, as far as I can tell from the map of those two parcels is a wetland.

Q Thank you, that's all I have for you. CROSS EXA.lMfiNATION

MR. WEBER: Q Pm afraid I can't let your affidavit speak for

itself I am a little bit confused because I wrote down all of the things that you purport to be an expert in. I wrote down property value, soil science, toxicology, Karst terrain, groundwater, wetlands. You purport to be an

expert in all of those things? A Sir, you're mischaracterizing my report. I

report to the expert opinion of the EPA and ATF and FEMA on that. I did not purport to be an expert on that.

Q You're not an expert in any of those things? A I'm a pretty good developer. Q You're not an expert in soil science? A Actually, I'm pretty good at that, too, because I

have dug the holes for the soils in every block that I did. Q Tell me what training you have had in soil

Page 267 Page 269

1 Q And why should we be concerned about that? 1 science. 2 A Because you already got the making, its already 2 A Just going with the soil scientist for two 3 happening. So to think its not going to happen is sort 3 thousand acres of property development, that's all. 4 of-- 4 Q You went with the soil scientist but you're not a 5 Q Why should we be concerned about a sinkhole? 5 soil scientist? 6 What sort of threat does a sinkhole pose to the public 6 A No, I was asking questions all the time. 7 health and safety of the folks in Brunswick County? 7 Q You said that you've -- the basis of your opinion 8 A It sucks all the contaminants — earlier they 8 here is the ATSDR article, is that right? 9 were saying how are those toxins going to get into water 9 A And FEMA and EPA and USGS.

10 supply. That would be how. That would be one way really 10 Q Can you look at your references? 11 quickly to get down in there, and water table's right there 11 A Yes, sir. Go ahead, 12 anyway. Also, sinkholes have a real high correlation with 12 Q Your top two references are ATSDR, is that 13 high water tables and your water table is like one to five 13 right? 14 feet. 14 A That's correct. 15 Especially because the landfills are pecosin. A 15 Q What is ATSDR? 16 pecosin is a wetland; it's an upper wetland. I know it 16 A Agency for Toxic Substances Disease Registry, I 17 doesn't make any sense but that's what it is. The entire 17 think. The D I am not sure about. 18 landfill is a wetland. There's a map from in the Dewberry 18 Q All right, and then on down you have four 19 Davis report, I think it's Number 10, that shows the 19 references to EPA issues dealing with landfills, is that 20 wetlands and the way that it's drawn it shows the wetlands 20 right? 21 border as being the border of the floodplain. That's 21 A Yes. 22 misleading because the floodplain obviously is a wetland + 22 Q All right, and you say that these articles from 23 Maybe they're just talking about some definition by 123 these agencies are the basis for your opinion, is that

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1 right? 1 2 A For the opinions that I gave that would list that 2 3 would reference the EPA. 3 4 Q And you said because the government has vast 4 5 resources and they can bring all resources to bear to 5 6 create these reports and information, is that right? 6 7 A That's correct. 7 8 Q Now, do you recall in this case hearing who 8 9 actually advised the ATSDR and EPA on landfills? 9

10 A I do. That's one of their many people. What I 10 11 have is the consensus of those very many people. 11 12 Q Dr. Teefe actually advised ATSDR and EPA drafting 12 13 the landfill regulations, is that right? 13 14 A He did and if he had done his homework he could 14 15 have given you very good information. 15 16 Q You think Dr. Teefe with 30 years toxicological 16 17 experience didn't do his homework? 17 18 A I think he relied on having the State do it for 18 19 him. 19 20 Q And did he rely on his 30 years of experience? 20 21 A I couldn't see evidence of it, no_ 21 22 Q Really? 22 23 A Really. 23

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1 Q Did you see that he reviewed the 2010 and 2008 1 2 studies? 2 3 A That he reviewed them? 3 4 Q Yes. 4 5 A In what way? 5 6 Q Did you hear the testimony that he reviewed them 6 7 prior to giving his opinion? 7 8 A I guess it depends on the definition of review. 8 9 Just there there was a nuance between review and I can't 9

10 remember what the other word was ; but— do you remember? 10 11 Q I don't remember. I am asking you if you 11 12 remember? 12 13 A He said— he would not acknowledge that he 13 14 had — I can't remember the exact word that was used but it 14 15 was just stepping-- one step away from taking ownership of 15 16 the document. 16 17 Q Okay. You're not an engineer, correct? 17 18 A Correct. 18 19 Q Well, let's go back Do you have a Bachelor of 19 20 Arts in liberal arts, is that correct? 20 21 A That's correct. 21 22 Q And you have a Masters in public 22 23 administration? 23

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A No, MBA. Q MBA in public administration. So no science

degrees, correct? A That's correct. Q No engineering degree? A That's correct. Q No toxicology degree? A That's correct. Q You're not an expert in Karst terrain? A No. Q Not an expert in groundwater? A No. Q Wetlands? A No. Q Not a chemist? A No. Q Air quality expert? A No, sir. Q Odor expert? A I believe you read my resume. Q I'm just asking you. Odor expert? A No. Q Noise expert?

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A No. Q Traffic expert? A No. Q Have you worked with Ms_ Haddix or Mr. Gilbert

before? A I have. Q How many times? A Well, let's see. I worked with them, I think,

twice and for them once. Q I take it you have never testified that a

landfill — you have never supported a landfill in your testimony, is that right?

A I have never been asked to. I have never been asked not to, either, prior to this.

Q I notice that the bio on your website lists Racial Justice Collaborative and Center for Civil Rights, UNC Law School as clients, is that right?

A Mm-hmm. Q That are some of your clients? A You just asked me. Q Are these folks in Racial Justice

Collaborative? A No, they're the Center for Civil Rights.

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Page 276

1 Q The Racial Justice Collaborative also your 1 Q You told me that you consider a lu-lu. What is 2 client? 2 lulu? 3 A They were. That was a foundation, G. Smith 3 A Locally unwanted land use. 4 Reynolds and one other foundation work together and they 4 Q You're telling the Board that the 107 million 5 call themselves the Racial Justice Collaborative for the 5 dollar hospital is an unwanted use in this area? 6 purposes of that collaboration. 6 A To residents hospitals are quite often considered 7 Q I noticed on your website, too, that your website 7 lulu. 8 mentioned Dr. Marsh, is that right? 8 Q Okay? 9 A That's correct. 9 A To have as nextdoor. For instance, in the same 1

10 Q Now, remember Dr. Marsh is the individual who 10 way that a gentleman wrote a letter to the editor recently 11 never visited the landfill but testified here. Were you 11 in Chapel Hill complaining about the potential location of 12 here when he testified to that? 12 a soccer park nearby because he didn't want the cars parked

{

13 A I was. 13 there. He didn't want the children there. He didn't want 14 Q He says on your website that he's a GIS 14 the lights there. You know, everybody else would consider 15 consultant 15 an amenity he didn't want in his backyard. 16 A He is. He does our mapping. 16 Q We talking about soccer here? 17 Q He's a GIS guy? 17 A It's a lu-lu. So a hospital is a lu-lu in that 18 A That's one of the things he does. That's what he 18 same sense. 19 does for us. 19 Q Now, this landfill that you testified that you 20 Q So the government has these vast resources to 20 developed property around, that was a municipal solid waste 21 come up with these articles that you talk about Using 21 landfill, correct? 22 those vast resources they hire the likes of Dr. Barlaz and 22 A It's both. 23 Dr. Teefe to advise them, correct? 23 Q And if I can--

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1 A Okay. 1 A very similar to this one, actually. It had 2 Q rm sorry? 2 municipal solid waste, it had C&D, then it became a 3 A Apparently. 3 transfer station and C&D.

4 Q Trying to get through quickly because I know 4 Q But now, if I can show you the 2008 or 2009, 2010 5 we're short on time. 5 information regarding that landfill? 6 A We are. 6 A Yes, rm sorry, go ahead. 7 Q Now, have you ever had -- are you an appraiser? 7 Q Tell me what percentage of municipal solid waste 8 A I am not. I have had courses in it but as a 8 was accepted at that landfill. 2009, 2010. 9 developer you're better off just to learn the stuff. 9 A Eighty-five percent

10 Q Better off to hire an appraiser if you're looking 10 Q So 85 percent of the property or the landfill 11 for property value, correct? 11 around which you developed property was municipal solid 12 A Well, didn't actually do that no. I wouldn't 12 waste, correct? 13 say that 13 A no, sir I bought the land in 1987 so this is not 14 Q What would you say? 14 really germane. 15 A You're better off to know how to do it. 15 Q Well, its certainly accepted municipal solid 16 Q And wouldn't -- if you were tying to sell 16 waste in 1987, didn't it? 17 property or buy property or refinance your house, the 17 A It did_ 18 bank's going to want an appraiser to value that property? 18 Q You understand that the landfill in this case is 19 A They do and they hire them. 19 not going to accept any municipal solid waste, correct? 20 Q Usually it's a MAI appraiser, correct? 20 (Pause) 21 A I have no idea 21 Q Now, you're from Chapel Hill, right? You live in 22 Q You don't know what a MAI appraiser is? 22 Chapel Hill? 23 A Other than what I heard tonight 23 A No, I live in Orange County.

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1 Q You understand that the landfill in this case is I 2 not going to accept municipal solid waste, correct? 2 3 A Yes, I understand. 3 4 Q You heard Dr. Barlaz testify this evening, didn`t 4 5 you? 5 6 A I did. 6 7 Q You think he is a well-respected individual in 7 8 his field? 8 9 A I have no doubt. 9

10 Q You wouldn't hold yourself out as more of an 10 11 expert on landfill performance than Dr. Barlaz, would 11 12 you? 12 13 A No, but I think I did my homework better. 13 14 Q There are differing opinions on that but I 14 15 understand your testimony. You heard about the literature 15 16 this evening on landfill property values? 16 17 A I did And I actually had referred to a couple of 17 18 the same documents and what didn't get mentioned in the 18 19 Ready documents it was the meda study, was that the 19

120 definition of a small versus a large landfill for some the 20 21 reason they just cut it off. Its not a sliding scale. 21 22 It's not a small, medium or large. They just say Smaller 22 23 than 500 tons and larger than 500 tons, but also in the 23

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1 footnotes says 25 truck loads a day. This landfill is 25 1 2 truck loads a day. So I think its right on the border of 2 3 small and large, if you can make the differentiation. It 3 4 also said that — what was it, 22 to — I will say it 4 5 wrong. Just one second, rm sorry. It gave the 5 6 information in terms of the percentage of landfills that do 6 7 not have a negative effect on property, but I would say in 7 8 this case, since we're really more concerned with whether 8 9 it will have a negative effect but the important statistic 9

10 to look at is just in the inverse which is that 72 to 80 10 11 percent of landfills have a negative effect on property 11 12 values. And it didn't say small, it didn't say large. 12 13 That's just it, 72 to 80 percent do have it And if you 13 14 look at the 25 trucks a day situation and you are right on 14 15 the border, plus to say its a small or large landfill, if 15 16 you're living next to it, its a large landfill and it's 16 17 the only landfill in this county. So, you know, it's the 17 18 only landfill y'all are looking at whether to place in the 18 19 neighborhood that already had a landfill for 30 years. Now 19 20 they're going to have it for another 100 years. 20 21 Q That's a good point All we're looking at is this 21 22 landfill, correct? 22 23 A That's correct 23

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Q You say in paragraph 11 of your affidavit that generally landfills next to residences and such can be four to ten percent property decrease, is that correct?

A That's correct Q That's generally. You don't say that's this one,

correct? A Correct. Q But we need to look at this landfill, don't we? A Yes. If we could, that would be great but we

have the same problem that your expert has, which that there are no sales to look at within the one mile stigma area So you can look at the census information, which he also did, that showed there's an 8 percent change — increase in value as you get away to the four mile range. I'm perfectly happy to accept that information.

Q Now, your or the opponent's appraisal expert had the information when he decided that he couldn't render an opinion. Did you hear that testimony tonight?

A I didn't understand him say that. I didn't characterize him to say that, but I don't think that's what he said. What he said was, that that information showed him that there was not enough — there weren't enough sales within the one mile to say — to make a comparison. That's

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all the information in the County. I could have printed it out, too, but it means nothing.

Q This is what I asked Mr. Day. A Yes. Q You don't have a report to give us, do you;

answer, no. You didn't do enough analysis to render a full opinion; answer, no. You don't do any commercial appraisals now, do you; no.

A Can you backup to the second question? Q You didn't do enough analysis to render a full

opinion, did you; he said, no, I am not characterizing his testimony. He testified to that.

A No, you did characterize; you didn't do enough analysis. He did enough analysis to say what he had said earlier; that there wasn't -- there weren't sufficient sales to make the comparison. So you have to go to another methodology; like the census information.

Q I will let his testimony stand, opposed to how you characterize it You haven't valued any property in Brunswick County, have you?

A I'm sorry? Q You haven't valued any property in Brunswick

County, have you?

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1 A I have looked at some just for my own edification 1 RE-DIRECT EXAMINATION 2 because we vacation here, but other than that, no. I do it 2 MS. HADDIX: 3 every year just sort of as a hobby. You're into land and 3 Q Just looking at the last document that Mr. Weber 4 that's kind of addictive. 4 shared with you, the section 3.3.8 of the UDO? 5 Q Were not talking about valuing vacation homes, 5 A Yes. 6 are we? 6 Q I'm sorry 3.3.9 of the UDO. The first criteria, 7 A We are not. 7 in harmony with the area, there's two clauses there in 8 Q I want to give you a document. I will see if 1 8 harmony with the area. In your opinion is the proposed 9 have other copies of it. You looked at section 3.3 of the 9 landfill in harmony with the area?

10 unified development ordinance in connection with this case, 10 A No, it is not. 11 didn't you? 11 Q And, in your opinion is the proposed landfill not 12 A Some months ago I did. I vaguely remember. 12 substantially injurious to the value of the property in the 13 Q Do you understand this to be the portion of the 13 general vicinity? 14 UNIFIED development ordinance at issue in this case? 14 A Is it not? You put roe in a double negative 15 A I do. 15 here. 16 Q Now, take all the time you need, refresh your 16 Q The requirements of the Applicant in this case is 17 memory on it and I want you to point out to the Board where 17 to prove that this landfill is not substantially injurious 18 in this section that's applicable in this case the word 18 to the value of real property in the vicinity. 19 race is mentioned. Take all the time you need. 19 A I don't think you can prove that You can 20 A The word race? 20 marshall [evidencelevident] that it's unlikely to, but I 21 Q Yes, ma'am Then we're going to ask you about 21 don't think they have done that, either. 22 minority communities after that 22 Q Now, Mr. Weber just asked you about race, the 23 (Pause) 23 presence of race and ethnicity in this section of the UDO.

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1 A My knowledge it isn't. 1 How does race or economic status relate to harmony, in 2 Q What about ethnicity? 2 harmony with, if at all, in terms of this provision of the 3 A To my knowledge it isn't. But still it's federal 3 UDO? How would race or ethnicity relate to the in harmony 4 law. 4 with requirements? 5 Q Are these individuals deciding federal law 5 A Well, what tends to happen is if you look at in 6 today? 6 harmony with and you look at the uses that are currently A 7 A No. Federal law is decided. 7 there, if there are no residents then it's not an issue, 8 Q Are they applying the federal law here? Are they 8 obviously. If there are residents and they happen to be 9 applying the four factors at issue in this case? 9 minority, what tends to happen is there was a lulu placed

10 A They're hopefully applying the four factors in 10 there sometime in the past when it might have been placed I 11 this case but they still have to do it within the federal 11 there because of racial discrimination; and then if you're 12 law. 12 required to say whether something is in harmony with it and 13 Q They are applying the four factors in this case, 13 you look at whether there's already a lu-lu there you say, 14 correct? 14 well, its in harmony with it let's place another one. 15 A Yes. 15 Especially if you don't look at any other locations. So, 16 Q And the four factors in this case don't mention 16 yeah, its in harmony with it if there's already a waste 17 race, ethnicity for a minority community, do they? 17 water treatment plant there, and there's already sand mines 18 A No, sir. 18 there, and there's already irrigation fields there. So 19 Q And had the drafters wanted to mention that 19 what it tends to do is perpetuate historic discrimination 9 20 single word, race, they could have in the unified 20 in order to be in harmony with. But, good planning and 21 development ordinance, couldn't they? 21 sustainable planning, sustainable development says that you 22 A Yes. 22 try to disperse lu-lus so that you spread the burden across 23 Q That's all I have. Thank you. 23 all the residents who are getting the advantages of the

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1 amenity_ 1 2 Q Thank you, that's all I have. .2 3 MR LONG: Does the Board have anything? 3 4 EXAMINATION 4 5 Na DUNHAM: You made a point about small lot 5 6 sizes for well and septic; 40,000 square feet 'that's 200 6 7 by 200 lots, give or take? 7 8 A It's just about an acre. 8 9 MR. DUNHAM: Just about an acre? 9

10 A 42,560. 10 11 MR. CANDLER- 43,560. 11 12 MR. DUNHAM: So this is where people have a 12 13 septic system within 200 feet of their well? 13 14 A All over the county. 14 15 MR DUNHAM: What's the chance that the 15 16 problems they're having from their wells is coming from 16 17 their own septic as opposed to this thing that's more than 17 18 a thousand feet away? 18 19 A If it's coming from their well, from the septic, 19 20 it's going to be E. coli and that will be an entirely 20 21 different situation_ And you would probably — you would 21 22 probably know it from other things. For instance, because 22 23 of the water table it's likely that when you have flooding 23

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1 events the septic tank would float up a little bit and it 1 2 would smell different. There's a lot of different things 2 3 that would occur that wouldn't let you mistake one for the 3 4 other- 4 5 MR DUNHAM: You also, I think, mentioned 5 6 that -- did you mention that you smelled hydrogensulfide 6 7 there or that there was hydrogensulfide? 7 8 A I said that some of the other people that 8 9 testified said they had smelled it, both residents and 9

10 experts. 10 11 MR DUNHAM: Did that come from the C&D 11 12 portion or municipal solid waste? 12 13. A They didn't say. I have no idea. It tends to be 13 14 from the gypsum as much as anything. So that would 14 15 indicate the C&D portion for that particular smell, the 15 16 rotten egg smell. 16 17 MR CANDLER: H'i. 17 18 A Hi. 18 19 MR CANDLER: Where do you vacation at? 19 20 Holden Beach, Ocean Isle Beach, Bald Head Island? 20 21 A Oak Island Long Beach is what we used to call 21 22 it 22 23 MR CANDLER: Is what it used to be, back in 23

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the day. So, Iet's just, you know, either Oak Island or Ocean Isle Beach or Holden Beach, if we just had a tendency to apply those same concentric circles as far as what was done before; mile, the three mile and the five mile; in your experience in driving around Brunswick County do you think that those percentages be pretty relevant if we went out from each of those municipalities?

A I don't understand your question, but first of all they're linear so that kind of messes that up.

MR CANDLER If you did the concentric circles out even though they would only be partial and we took the value of the property, from Ocean Isle Beach and went all the way out, one mile, three miles, five mile sand we did Bald Head Island and did Holden Beach and Oak Island, do you think that those percentages of value and property would drop, okay, similarly to the one that was presented to us with the mile, three miles and five miles?

A You mean if you took Oak Island and then you looked at the marsh between there and what's the gay community that's in town now? I was just there the other day.

MR. CANDLER: If that's a mile, then went

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three miles, then you went five miles, how do you think the value of the property would be from each of those?

A I think that particular system wouldn't work at all for that method of assessing that because you have very linear development patterns because of the way the islands are, and because you only have two exits and on some islands only one exit. So it doesn't really lend itself to that type of analysis.

MR.CANDLER So you don't think the property value drops the further you get away from the coast?

A I do think they do but they're not going to drop with any kind of rationale because —

MR CANDLER They're not? A No.

MR CANDLER Lack of water isn't a rationale?

A They're going to drop precipitously. They're not going to drop just a little bit the further away you get.

MR CANDLER: Saint James doesn't have the some value as Oak Island, does it not?

A The land between Saint James and Oak Island does not.

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1 MR CANDLER: Does not because its not near I 2 the water? 2

3 A Right. 3

4 MR CANDLER: Okay. A lulu, okay, that you 4

5 explained that I understand that and all the things; but a 5

6 lulu can be, as you said, anything, right? Like, if I 6

7 have 20 acres and somebody wants to put a subdivision, you 7 8 know, outside of my 20 acres, I can consider that a lulu, 8

9 right? But the people that were moving there consider that 9

10 the best thing since white bread. That's possible, 10

11 right? 11 12 A Thats possible. 12

13 MR CANDLER: So -- 13 14 A But not many people think a landfill is the best 14

15 thing since sliced bread. 15

16 MR. CANDLER: Or a hospital, right? I can 16

17 imagine helicopters, ambulances and all sorts of stuff. 17

18 A You can imagine right 18

19 MR. CANDLER: My analogy with lu-lus are the 19

20 same as weeds. Some people consider dandylions a great 20

21 salad. Okay? In my yard I consider it a weed. So what 21

22 one person sees as a lu-lu and/or a weed is the analogy 22 23 that I use for lu-lu because Tin like you; anything could 23

Page 291

1 be out of place if you don't want it there. Isn't that 1 2 basically what you were saying, right? 2

3 A That's right. 3

4 MR. CANDLER: And, do you truly believe that 4

5 your federal government knows all about everything? 5 6 A I didn't say that_ I didn't say that at all. 6

7 MR. CANDLER: But you have a lot of faith in 7 8 some of them, right? That's correct the EPA — 8

9 A I actually — I think I tend to think that they 9

10 are very conservative in their analysis ofharm and their 10

11 analysis of toxins and they tend to be ten, fifteen years 11 12 behind the times and tend to be about ten years behind what 12

13 Canada, for example, thinks is a safe level of various 13

14 things including arsenic, which was just found in the water 14

15 at the landfrll_ So because ofthat — 15

16 MR CANDLER They're thorough but slow? 16

17 A Yeah. So that means I really do believe them 17

18 when they say something is bad for you because it's 18

19 probably worse for you_ 19

20 MR. CANDLER: I understand. Thank you. 20

21 MS. HENRY: I have got a question about what 21

22 you said about sinkholes, and could you flip the — touch 22

23 the screen so that will come back up. It may be a question 23

Page 292

for you, maybe somebody else, but I just didn't understand. Is this an inferred sinkhole?

A What they did was, this is from what I read about

the methodology and the article that this was in because it doesn't say on the map itself but it says what they did was they used infrared to locate the Karst terrain because

the limestone shows up differently from the satellites using infrared, and then they verified that using two other

things, one of which was local validation.

MS. HENRY: This was on the Brunswick County

website you said? A The map part was on the Brunswick County website,

but it was in an article that was published in a USGS publication.

MR. CANDLER: You're saying its a layer?

It's a layer? A No, a PDF map. Back when I got it off last, like,

September, October. I don't know if its still there. MR. CANDLER: Have you ever seen the

Lockwoods Folly River? A Yeah, I have canoed it.

MR CANDLER: I have never heard it called that before. Lockwoods Folly.

Page 293

A You mean with the S?

MR. CANDLER: I was just wondering which one

it was.

MS. HENRY: I think that's it. MR. JORDAN: This map, to me, is just

amazing because I've had a business here for 12 years and

part of what I do is provide civil engineering sitework for projects; and I just have to admit to you, I have never

seen a sinkhole in Brunswick County, never. And I have been all over this County. So I find this map to be-- and

it says per -- when I see some of these, they look like ponds. You know, could they be ponds?

A It occurred to me they could be sand mines

because of the Karst terrain, but I dont know. I mean, I

haven't been to them. MR JORDAN: I should say that with the

exception of Boiling Springs Lake area There are some sinkholes in that area

A Yeah and there are some sinkholes around Sunny

Point and there are some other sinkholes that I have seen discussed in the hazard mitigation plans and the county

hazard mitigation plans. I know there are sinkholes in the County. And what they're saying here is that, you know,

74 (Pages 290 to 293)


1l

Page 296

1 there's a probability of sinkholes in these areas. I MR LONG: One other thing we talked about, 2 MR JORDAN: What does the word 2 and you were talking about how far the well needs to be 3 substantially mean to you? Substantially adverse property 3 from the septic tank The North Carolina Health Department 4 values? 4 says its only 150. 5 A Pm sorry? 5 A It's a setback along there. 6 MR JORDAN: What does the word 6 MR LONG: The State requirements suggest 7 substantially -- what is your interpretation of 7 from the well to the septic tank. I heard what you have to 8 substantially? 8 say and everything . You're not a licensed planning -- you 9 A That' s an interesting question. If you're 9 said there were land use consultant , you're not licensed

10 talking about money , and I wouldn 't say a percentage so 10 anywhere? 11 much because if you ask me substantial part of a dollar and 11 A They don't license land use consultants_ There's 12 it's 8 cents , no, that's not substantial . Its 8 percent . 12 no licensure for them. 13 If you ask me if it substantially devaluates my home, if 13 MR LONG: Some of the professional engineers 14 it's eight percent, yes that 's substantial. So it's not to 14 are land use consultants? 15 the percentage so much as how it affects my financial 15 A They maybe, but they're professional engineers. 16 situation, and substantial — so eight. percent of my home 16 There's licenses for that. 'There is no license for being 17 that would be substantial. Eight percent of a dollar in my 17 a — well never mind, I'm sorry. 18 pocket, no. I am not trying to be flip, I ant just telling 18 MR. LONG: One other thing. That you -- i ~

19 you I can't give a percent. 19 say, you said that the landfill is an upland pecosin. Do 20 MR JORDAN: Its just something that this 20 you know what type soils are the Army Corps of engineers 21 case has been going on for several months now and at some 21 identify pecosin to be?

22 point in time each one of us has probably got to look at 22 A What type of soils? No. 23 that word, substantial, and decide you know, because 23 MR LONG: Just asking.

Page 295 Page 297

1 there 's no — there ' s nothing that tells us as members of I A Okay. 2 this planning board what that word means. We do have to 2 MR. LONG: I have looked at this type of soil 3 look We can take inference from a professional appraiser 3 that we have at the landfill , and I have never seen a 4 who says it's not substantial, but I asked him what it 4 sinkhole in the area There may be one, I have just never 5 meant and he didn't want to answer me. So I thought 1 5 seen one. 6 would ask you as well, that's all. 6 A Well, there are some. 7 A Well, eight percent to me would be substantial 7 MR. LONG: And I will tell you-- 8 for my home . 8 A I have seen them along north of 211 there are a 9 MR CANDLER: One percent on Bald Head would 9 lot of sand mines, that's an area that has a lot of sand

10 be substantial for them . 10 and there are a lot of sand mines in that area 11 A Yeah. 11 MR CANDLER: There is an upper pecosin sits 12 MR CANDLER_ Right? You know, five and a 12 6235 feet because I have been there and seen it up in Ash 13 half million dollars, one percent of that is a lot of 13 on top of the hill there is pecosin at 6200 feet I can 14 money. So one percent could be, like you say, that's only 14 tell you_ 15 a penny but it's of the figure to make a lot. 15 MR. LONG: Anybody else have anything else? 16 A Then, again, if you're only asked that as your 16 If not, you 're excused. 17 home, which a lot of people in Royal Oaks its true, then, 17 MS. HADDIX: We'll call Steve Wing.

18 three percent is substantial because you can't afford it. 18 WHEREUPON, 19 MR CANDLER: That same federal government 19 STEVE WING 20 you trust is really hurting the housing. 20 was called for examination by Counsel and, having been duly 21 A I didn't say I trust them 21 sworn, was examined and testified as follows: 22 MR CANDLER That's another story for 22 DIRECT EXAMINATION 23 another day, you and I can have that conversation. 23 MS. HADDIX

75 (Pages 294 to 297)

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Gilbert, Peter

From: - Rebekah Cowell [rebekah.cowell@gmaitcam] Sent: Thursday, October 13, 2011 10.50 AM To: Ann Moss Joyner Gc. Gilbert, Peter Subject: Re: Exclusion and Cedar Grove

Ann, Yes. This is the article that helped me connect the dots:) The author Reed Colfax, has an email at the end: rcolfaxC)relmanlaw.com - is that the same one you have? Also - is Dr. Allen Parnell still with the Institute? And could you pass along his information? And finally;) Once I read your affidavit - my question might be answered - but, sinceI'm drawing a correlation between both cases • and the Institute's work with - both, could you tell me how specifically, the Institute and yourself, have assisted in the Royal Oaks' case thus far? Thank you so much, Ann! Rebekah

On Wed, Oct 12, 2011 at 3.08 FM, Ann Moss Joyner > wrote:

On Wed, Oct 12, 2011 at 252 FM, Rebekah Cowell < rebekah_eowell@gnaIl-com> wrote: Dear Ann, I was thrilled to have a face to put to your name and emails : } And I have a few questions -- I know you are working to identify via GIs excluded communities, and the last -I talked to Peter, I believe the number was around 28? I'm going over the "Report to the North Carolina General Assembly on the Inactive Hazardous Sites Program" httD://Dortal.ncdenr.orQ/c/document library/aet fle?uuid=4d94f7ed-d742-44ed-a3b3- 545b79f76ae9&qroupId=38361 which is from Oct. 2010 (hoping the 2011 report is release soon!), and here's a bit of data I'm curious to know if you've looked at.

3VTT-=:GT?:.Tl CAW •..BITE T_ _=

According to this report there are 667 unlined, pre-regulatory landfills in NC (no shocker) - BUT "77 percent have a house, school, day care, church or drinking water source on or within 1,000 feet of the landfill." And that comes to 513 communities? Obviously, there are still hundreds of unidentified communities, and I wanted to ask, you if you had updated the list you're compiling on excluded or underbourtded communities.

CCR HAS SUB vIII : i EO APP TO ZS-]K— US TO DO THIS T 1NK:-I HAVEWf SEEN , BF7 K T3 T i?R UP'S CH ' ' G. -NEED TO FOtt0W UP:)

Second item! Peter had shared with me the Ohio community's success in using the Fair Housing Act - and to and behold, the Cedar Grove Institute helped with mapping!!! I'm working on

2124 LTR-000036

-this rather massive article, and one of the areas I'm working hardest on is that of presenting the Ohio case as a comparison to Royal Oaks, in the usage of the Fair Housing Act, and to give the article a broad/national scope. Do you have any contacts with this case that might be helpful for me to speak with and gather more information from?

ACI03'D:E L FOR TIEAtTHOR,1E= - =-

Also --- any dots or info on how your Institute assisted in this case?

I`m going back through the Karst/FEMA fire safety info you sent me months ago, after Monday night's hearing, I saw more of the big picture.._and I do appreciate so much all of your help in gathering data and documents. I`m copy Peter here - because I wanted to ask if I might read and gain insight from your affidavit you didn't get to present on monday night... and of course, since this is legal - I don't want to step on any toes,`and we'll let Peter - hello, Peter;) - weigh in on whether or not that affidavit could be shared with rne. I appreciate your time and hope you can answer my questions!

Y4 REAR BEN'S FF Q' V3T . 3D STEVE IT(YS TO

Take care, Rebekah

Ann f ss*Joyner 919-563-5899

2

2/24 LTR-000037

From : Rebekah Cowell [rebekah . [email protected]] Sent: Monday, Rloventber 07, 2011 1:24 PM To: Ann Moss Joyner Cc: Gilbert, Peter Subject: Re : Royal Oak-- public health studies?

Thank you, Ann!

On Mon, Nov 7, 2011 at 11:30 AM, Ann Moss Joyner < [email protected]> wrote: I know of no such studies. The scale is too small for epidemiological studies of just the neighborhood/community. Steve Wing is the best one to ask/quote about this.

On Mon, Nov 7, 2011 at 10:07 AM, Rebekah Cowell < rebekah.cowell(a~gmail.com> wrote: Dear Peter and Ann:

I wanted to double check and see if you have any studies or info on the public health impacts of the landfill and waste on the Royal Oak community - from my research , it appears that the county has not conducted any actual studies on public health issues ( miscarriages , cancers, early deaths, etc .), but with the epidemiologists warnings, I want to double check that such data does or does not exist!

Also - again , it seems that until ROCCA filed the lawsuit , no actual research has been done on the environmental and public health risks - but to be safe and ensure I have all the information, are there any "official " studies that refute or under-cut both of your research findings? Correct me if I'm wrong - but it appears, from all my reading and research , that the county has no actual reports or studies other than the Dewberry evaluations and site studies , which are woefully lacking in any real data as to environment and public health...

Thank you so very much , as always a pleasure to work with you both :)

Take care, Rebekah

Rebekah L. Cowell

Fellow, Schuster Institute for Investigative Journalism, Brandeis University Freelance Writer (Underwritten by a George Polk Grant for Investigative Reporting) 80 Fearrington Post Pittsboro, NC 27312 919-260-1183

Ann Moss Joyner 919-563-5899

li2ATtiD1 J:

G1


IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK

I I-CvS-1301

THE ROYAL OAK CONCERNED

CITIZENS ASSOCIATION, CURTIS

MCMILLIAN and DENNIS

MCMILLIAN,

Plaintiffs,

V.

BRUNSWICK COUNTY, )

Defendant. )

P S' OBJECTIONS AND

ANSWERS TO DEFENDANT'S

SECOND SET OF

INTERROGATORIES AND REQUESTS FOR PRODUCTION OF

DOCUMENTS

Pursuant to Rules 26 33 and 34 of the North Carolina Rules of Civil Procedure Plaintiffs respond to Defendant's Second Set of Interrogatories and Regnests for

Production of Documents as follows:

SECOND SET OF INTERROGATORIES (Interrogatories #14-26)

Identify by name and address the members of Royal Oak Community Concerned Citizens Association, (hereinafter "ROCCA"), and the month and year they joined the organization.

ANSWER: Plaintiffs object to this Interrogatory on the grounds that it is not reasonably calculated to lead to the discovery of admissible evidence.

2. Identify by name and address all of the residents who live in the Royal Oak community as defined by the Plaintiffs in their Amended Complaint_

ANSWER: Objection on the grounds that this Interrogatory is obtainable from Defendant's own records, review of which by Defendant is more convenient, less burdensome, and less costly. In addition, to the extent those residents are represented by ROCCA, Plaintiffs object to this Interrogatory on the grounds that it is not reasonably calculated to lead to the discovery of admissible evidence.

3. Identify each Plaintiff who filed a written petition with Brunswick County specifically requesting water and/or sewer service to their residences or property in Royal Oak

ANSWER: Upon information and belief, none of the Plaintiffs have "filed a written petition specifically requesting water and/or sewer service to their residences or property in Royal Oak."

4. Identify when the odds ratio testing was conducted as referenced in paragraph 112 of the Amended Complaint; who conducted this testing and what conclusions were reached..

ANSWER: The odds ratio analysis was conducted before this action was filed, in preparation for litigation. Plaintiffs contracted with the Ceder Grove Institute for Sustainable Communities in Mebane, North Carolina to conduct the analysis. The "LULUS" included in that analysis consisted of state and/or federally regulated facilities in the County with significant potential impact on the surrounding environment beyond the limits of the facility, specifically, Superfund sites, Waste Water Treatment PIants, solid waste landfills, brownfields hazardous enforcement, Air Major sites, concrete mines, asphalt plants, sand and gravel mines, animal related operations, munitions facilities, nuclear facilities, correctional facilities, and sewage land applications_ The conclusion reached was that African Americans in Brunswick County have almost doable the odds relative to whites of living within a half mile of a LULU in Brunswick. County.

5. Describe in detail the property, by address and owner of every attempted rental and/or sale including the rental and sales price sought, for every dwelling which was affected by Defendant's alleged discriminatory practices as alleged in paragraph 153 of Plaintiffs' Amended Complaint.

ANSWER: Curtis McMillian, 401 Smith Road (63 acres and two houses), inherited from Plaintiff McMillian's father, Floyd Green. About a year ago, Plaintiff McMillian sought the value per. acre comparable to other comparable real property not located near the landfill, Waste Water Treatment Plant and Waste Transfer Station, but was told that his property would be worth much less because of the new C &D landfill. Thelma Vereen owns a rental property at 510 Smith Road, which had rental income of around $350/month until last year, when the renters moved out due to the noise and disturbance to quality of life caused by the current C& I3 landfill and Waste Transfer Station. She has not been able to rent that property since those renters left. Plaintiffs reserve the right to supplement their-answer.

-2-

6. Identify by location and name, each and every locally unwanted land use in the Royal Oak community that was caused to be placed in that location by Defendant, as referenced throughout Plaintiffs' Amended Complaint

ANSWER: Objection insofar as Defendant has better access to location, i.e., address, information for facilities it either owns and operates or has permitted. Without waiving that abjection, Plaintiffs answer as follows: the county animal shelter, the sand mines identified in the attached document, the Waste Water Treatment Plant, the Waste Transfer Station, the closed MSW landfill which is underneath and beside the only current/active C & D landfill operated by Defendant, and the current/active C & D landfill.

7. Identify all environmental hazards in the Royal Oak community that were caused to be placed by the Defendant as referenced throughout Plaintiffs' Amended Complaint

ANSWER: Water, air and soil pollution, including noise, traffic, dust, odor, and contamination of groundwater.

8. Identify all health hazards in. the Royal Oak community that were caused to be placed by the Defendant as referenced in Plaintiffs' Amended Complaint_

ANSWER: See above answers to Second Interrogatories 6 and 7. Plaintiffs also answer that the complained-of race discrimination constitutes a health hazard insofar as that discrimination causes PIaintiffs to suffer emotional and mental distress, humiliation, and a loss of quality of life.

9. Identify all persons contacted by Plaintiffs' counsel or someone acting on behalf of counsel: (1) in the preparation for the filing of the Complaint; and (2) during the litigation.

ANSWER: Objection on the grounds this Interrogatory seeks privileged information, work product, is vague, overbroad and unduly burdensome, and is not reasonably calculated to lead to the discovery of admissible evidence_

10. Identify by owner and address, the names of all individuals residing in Royal Oaks who have attempted to sell any property and/or rent any property in the Royal Oak community, and _- identify the requested sales price and bow long said property has been on the market

ANSWER: See above answer to Second Interrogatory 5. Plaintiffs will supplement their Answer as discovery continues.

-3-

1L _ Provide the name and address of all residents of the Royal Oak community who moved into the community after the C&D landfill had opened_

A.NS'WTR: Objection on the grounds this Interrogatory seeks privileged information and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving that objection, Plaintiffs answer that, upon information and belief, they do not know of any Royal Oak residents who moved into the community after the current C & D landfill opened.

12. Provide the name and address of all residents of the Royal Oak community who moved into the community after the animal shelter opened.

ANSWER: Objection on the grounds this Interrogatory seeks privileged information and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving that objection, Plaintiffs answer that, upon information and belief, they 'do not know of any Royal Oak residents who moved into the community after the animal shelter opened in its current location_

SECOND REQUESTS FOR PRODUCTION OF DOCUMENTS (Requests ## 32-46)-

1. Provide a copy of the conclusions and analysis of the odds ratio testing and all underlying

data used to support said analysis as referenced in paragraph 112 of the Amended

Complaint

ANSWER: See attached documents.

2_ Produce all documentation supporting your allegation that the Plaintiffs properties have

been "siificantly devalued" as alleged in paragraph 141 of Plaintiffs' Amended

Complains.

ANSWER: See attached documents, and affidavits of Curtis McMillian and Thelma Vereen, provided previously. All other responsive documents (if any) shall be produced.

3_ if Plaintiffs deny any of the Defendants' Requests to Admit, provide all documents which

support your denial of said Request to Admit.

ANSWER: See attached documents. All other responsive documents (if any) shall _be

produced.

-4-

4. Produce a copy of all documents p ertaining to the sale or attempted sales of any property

in the Royal Oak community, including any sales agreements and contracts with the real

estate agents.

ANSWER:' See attached docnrneats. All other responsive documents (if any) shall he

produced. .

5. Produce a copy of all rental agreements and documentation showing any attempted rental

of any property in the Royal Oak community, including any contracts with real estate agents.

ANSWER: See attached documents. All other responsive documents (if any) shall be -

produced,

6. Produce all mission statements, bylaws and/or any other organizational guidelines and/or documents which provide the framework for the operation of the Royal Oak Community

Concerned Citizens Association.

ANSWER: See documents already provided to Defendant on January 13 and 18, 2012_

7. Produce a copy of each and every written petition authored by any Plaintiff or any

individual member of ROCCA, and sent to the Defendant as referenced in Interrogatory

No. 3. L

ANSWER: N/A

8. Produce a copy of all documents prepared and/or distributed by you or your attorneys,

and having anything to do with this case, as part of any public speech, blog, seminar,

continuing legal education class, and/or articles that have been written or are scheduled to

be written about this matter.

ANSWER: Objection to the extent this Request is not reasonably calculated to lead to

the discovery of admissible evidence. Without waiving their objection, Plaintiffs direct

Defendant to copies of documents they provided to Defendant in response to prior discovery requests in January 2012. Defendant can access Center for Civil Rights newsletter, articles and blog at http://www.Iaw. une- edu/centers/eivitriahts/default.aspx.

-5-

9. Produce a copy of all groundwater testing and/or analysis conducted by you or anyone at your request of any of the properties contained within the Royal Oak community.

ANSWER: See attached.

10_ Produce a copy of all testing and/or analysis of the water supply conducted by you or anyone at your request of any of the properties contained within the Royal Oak

community.


11. Produce a copy of all testing and/or analysis of the noise Ievels of the area in or adjacent to the C&D la.idfill, conducted by you or anyone at your request of any of the properties

contained within the Royal Oak community,

ANSWER: None exist.

12. Produce a copy of any and all testing and/or analysis of the health hazards of any person residing in the Royal Oak community conducted by you or anyone at your request

ANSWER: None exist.

13 . Produce a copy of all of the documents that were shown to the Rebekah Cowell,

including the binder referred to in the September 30, 2011 email between Ms. Cowell and

Peter Gilbert that was previously produced by the Plaintiffs.

ANSWER: See documents already provided to Defendant on March 1, 2012, specifically,

the Special Exception Permit application submitted by Defendant's Operation Services and other attached documents prepared by Dewberry & Davis. . .

14. Produce a copy of all test results referred to the June 3, 2011 email from Peter Gilbert to

Rebekah Cowell.


15. Produce a copy of all documents exchanged between Ann Moss Joyner and Rebekah

Cowell as identified in the email dated October 12, 2011.


-6-

This 4th day of April, 2012_

UNC CENTER FOR Cf IL RIGHTS

Elizabeth Haddix

NC State Bar # 25818 E-mail: embaddix@unc,edu Telephone: (919) 843-9807 Peter Gilbert NC State Bar # 40415 E-mail - pgilbert(aemail.Unc:edti Telephone: (919) 843-8 197 Facsimile: (919) 843-8784

101 East Weaver Street Campus Box 3382 Carborio, NC 27510

GGI NS OWENS, PLLC

Raymond E. Owens, Jr. NC State Bar # 8439 Email: [email protected] Telephone: (704) 295-4509

5925 Carnegie BIvd Ste 530

Charlotte, NC 28209

FAIR HOUSING PROJECT, LEGAL AID OF NC Jack Holtzman NC State Bar # 13548 E-mail: jack@ncjustice_ora P.O. Box 28068 Raleigh, NC 27611

Attorneys for Plaint jfs

-7-

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Plaintiffs' Answers to Defendant's

Second Set of Interrogatories and Requests for Documents were served by prior agreement of

counsel by electronic mail to Defendant's counsel of record at the following address:

Julie B. Bradburn & Jacqueline Hughes

Womble Carlyle Sandridge & Rice, PLLC

150 Fayetteville Street Suite 2100 Raleigh, NC 27601

j bradbnrn(iwcsrconi-

j [email protected]

This the 4th day of April, 2012,

1043 i A



COUNTY OF BRUNSWICK

11-CvS-1301

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, JAMES HARDY, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

V.

BRUNSWICK COUNTY,

Defendant.

iITI Plaintiffs respond to Defendant's First Set of Interrogatories and Requests for

Production of Documents as follows:

hi I 1tIIIJ tI) u I QI1

1. Provide the factual basis for the definition of Royal Oak set forth in Paragraph 8 of the Amended Complaint. Your answer should explain how you determined the geographic borders as set forth in Paragraph 8.

Plaintiffs object to this Interrogatory to the extent that it seeks information protected by attorney-client privilege.

Without waiving that objection, Plaintiffs answer that the geographic boundaries set forth in the Complaint are at least known to the residents of this historical African American community, which include Plaintiffs.

Response:

22. Produce all written or recorded statements or representations made by Defendant or its former or current officials, employees or agents that relate to, or tend to establish in any way, the allegations in the Amended Complaint.

Response:

See Responses and Objections to RPD # 14 and 15. All other responsive documents (if any) shall be produced.

23. Produce all documents, records, statements, recordings, or other tangible items that establish the truth of, show, or otherwise support the contention that the animal shelter has caused contamination of ground water.

24. Produce all written or recorded statements obtained from or given by third parties that relate in any way to or tend to support the allegations in the Amended Complaint. If you _-__----- claim that such statements are work product, please include the statements in a privilege log.

Plaintiffs object to this Request to the extent it is vague, overbroad and unduly burdensome, and seeks privileged information, including attorney work product, and also seeks information not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, see attached documents. All other responsive documents (if any) shall be produced.

25. Produce all affidavits obtained from any person that relate in any way to or tend to support the allegations in the Amended Complaint.

-12-

Response:

Plaintiffs object to this Request to the extent it is vague, overbroad and unduly burdensome, and seeks privileged information. Without waiving this objection, Plaintiffs direct Defendant to the attached documents. All other responsive documents (if any) shall be produced.

26. Provide all documents, records, statements, recordings, or other tangible items that support your response to Interrogatory 10 (damages/relief sought).

Response:

Defendant's Interrogatory 10 does not concern "damages/releief sought." See Answer and Objection to Interrogatory 11. All other responsive documents (if any) shall be produced.

27. Produce any e-mails, letters, or records of other correspondence or communication sent to or from third parties relating in any way to the events and allegations in the Amended

• .• • .• • Complaint (except for privileged emails between Plaintiff(s) and their lawyers). *Communications between counsel and third parties, however, such as media or other organizations, are included in this request and should be logged as privileged if not produced.

Response:

See above Objection and Response to RPD #24. All other responsive documents (if any) shall be produced.

28. Provide all minutes, agendas, memoranda, notes, recordings, or other tangible items referring to events; actions, or discussions occurring at-meetings of ROCCA since ROCCA's alleged formation.

Response:

Plaintiffs object to this Request to the extent it is vague, overbroad and unduly burdensome, and seeks privileged information. Without waiving this objection, Plaintiffs direct Defendant to the attached documents. All other responsive documents (if any) shall be produced.

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This 22nd day of December, 2011.

UNC CENTER FOR CIVIl RIGHTS

Elizabeth McLaughlin Haddix NC State Bar # 25818 E-mail: [email protected] Telephone: (919) 843-9807

Peter Gilbert NC State Bar. # 40415 E-mail: [email protected] Telephone: (919) 843-8197 Facsimile: (919) 843-8784

101 East Weaver Street Campus Box 3382 Carborro, NC 27510

K&L GATES LLP Raymond E Owens, Jr. NC State Bar # 843 9 E-mail: ray.owens(a).klgates.com Telephone: (704) 331-7496 Facsimile: (704) 353-3196 Hearst Tower, 47 th Floor 214 North Tryon Street Charlotte, NC 28202

NORTH CAROLINA FAIR HOUSING PROJECT, LEGAL OF NC Jack Holtzman NC State Bar # 13548 E-mail: hack a,nciustice.org P.O, Box 28068 Raleigh, NC 27611

Attorneys fog° Plaintiffs

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The undersigned hereby certifies that the foregoing Plaintiffs' Revised Discovery Requests were served by prior agreement of counsel by electronic mail to Defendant's counsel of record at the following address:

Julie B. Bradburn Womble Carlyle Sandridge & Rice, PLLC 150 Fayetteville Street Suite 2100 Raleigh, NC 27601 jbradburnwcsr.com

This the 22nd day of December, 2011.

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