Harvey Fertilizer & Gas Co. v. Pitt County
| Decision Date | 17 September 2002 |
| Docket Number | No. COA01-1330.,COA01-1330. |
| Citation | 153 NC App. 81,568 S.E.2d 923 |
| Court | North Carolina Court of Appeals |
| Parties | HARVEY FERTILIZER AND GAS CO., Plaintiff, v. PITT COUNTY and The Pitt County Board of Commissioners, Defendants, v. Roger McIntyre, Judith Hunt, Joseph Kelly, Barbara Kelly, Wayne Clift, Hazel Clift, James A. Manning, Clemon A. Thomas, Brenda Thomas, George M. Worsley, Patricia A. Worsley, Floyd Sneed, Emma Sneed, Frances Whitfield, A.J. Thomas, Annie Thomas, Mary Hines and Mary Bunns, Intervenor-Defendants. |
Ward and Smith, P.A., by Lance P. Martin and A. Charles Ellis, Greenville, for plaintiff-appellee.
Charles L. McLawhorn, Jr.; and Land Loss Prevention Project, by Marcus Jimison and Katherine Carpenter, Greenville, for intervenor-defendants. McGEE, Judge.
Harvey Fertilizer and Gas Co. (plaintiff) filed a complaint on 16 May 2001 seeking a declaratory judgment that plaintiff had a vested right to complete its cotton gin project and a permanent injunction enjoining Pitt County and the Pitt County Board of Commissioners (Board of Commissioners) from enforcing a zoning ordinance and moratorium affecting the completion of the project. Plaintiff also requested a temporary restraining order and preliminary injunction. The trial court granted plaintiff's request for a temporary restraining order on 17 May 2001. Intervenor-defendants filed a motion to intervene in this action on 23 May 2001. The trial court held a hearing on both plaintiff's motion for preliminary injunction and intervenor-defendants' motion to intervene. In an order filed 29 May 2001 the trial court granted plaintiff's motion for preliminary injunction. Two days later the trial court granted intervenor-defendants' motion to intervene.
A hearing was held on 20 July 2001 on plaintiff's motion for summary judgment and an order was entered on 3 August 2001 granting plaintiff's summary judgment motion. The order declared that plaintiff had a vested right to complete its cotton gin project in Pitt County, and therefore Pitt County, its agents, and affiliated governmental units were permanently enjoined from enforcing the amended moratorium and zoning ordinance in a way that would prevent the completion or operation of the cotton gin project. Intervenor-defendants appeal from that order. In a cross-assignment of error, plaintiff appeals from the order granting the intervenor-defendants' motion to intervene.
Plaintiff, an Eastern North Carolina agribusiness corporation, began searching in January 2001 for a location to build a cotton gin in Pitt County. Plaintiff looked at a site off of Manning Road (Manning site), west of Bethel, North Carolina. The Board of Commissioners enacted a zoning ordinance on 22 January 2001 that would in effect make a cotton gin a non-conforming use at the Manning site upon the effective date of the ordinance, 1 July 2001. The Board of Commissioners enacted a moratorium on 5 February 2001 which prohibited the establishment of certain conditional and special uses from that date until 1 July 2001, the effective date of the January 22 zoning ordinance. However, this moratorium did not specifically list cotton gins as a prohibited use.
Despite enactment of the zoning ordinance, plaintiff entered into a contract on 10 February 2001 for the purchase of the Manning site from Frances Carson (Carson) for the amount of $250,167.24, with a closing and payment date in April 2001. Plaintiff alleges in its complaint that two days later, the North Carolina Agricultural Finance Authority entered into an "inducement agreement" with plaintiff for the issuance of $4,500,000.00 in agriculture revenue bonds to finance the cotton gin project.
The first in a series of assurances by Pitt County officials that the cotton gin project would not be hindered by the January 22 zoning ordinance or the February 5 moratorium occurred on 15 February 2001, when a planning technician with the Pitt County Planning Office advised Carson's surveyor that the February 5 moratorium and the January 22 zoning ordinance would not affect the cotton gin project if plaintiff obtained the necessary building permits by 1 July 2001. Carson shared this information with plaintiff. Plaintiff entered into a contract for construction of a cotton gin with Consolidated Gin Co. on 16 February 2001. The contract price was $2,220,000.00 and plaintiff made a $550,000.00 down payment on the gin. Plaintiff entered into a contract with Crustbuster/Speed King on 22 February 2001 for the construction of a module feeder for the cotton gin project. The contract price was $163,350.00 and plaintiff made a down payment of $40,837.50 on 1 March 2001. Plaintiff alleges in its complaint that the estimated delivery dates for both the cotton gin and the module feeder were in June 2001.
The second instance of assurances by Pitt County officials occurred on 5 March 2001, when plaintiff's president spoke with the Pitt County Director of Planning. The Director of Planning assured plaintiff that the February 5 moratorium and the January 22 zoning ordinance would have no effect on the cotton gin project as long as plaintiff obtained a building permit for the site by 1 July 2001. In response to a request from the Director of Planning, plaintiff sent a letter to the Pitt County Planning Office that same day giving general information about the cotton gin project and a preliminary site plan. Plaintiff purchased three tractors for use at the gin for a price of $51,516.21 on 9 March 2001. Later that month, plaintiff agreed to pay approximately $180,000.00 for the conversion of three other tractors for use at the cotton gin. Plaintiff also made its first application for permits that month, when on 12 March 2001 it completed septic permit applications and paid the $300.00 application fee. Plaintiff received preliminary approval of its septic permit application on 21 March 2001 pending submission of a final site map.
The third instance of assurances by Pitt County officials occurred in late March when plaintiff attended a meeting of the Board of Commissioners to make a presentation on the cotton gin project. At that meeting, the county attorney gave further assurances that plaintiff could proceed with the cotton gin project as long as it obtained the necessary permits by 1 July 2001. Plaintiff alleges that the chairman of the Board of Commissioners made similar statements at this meeting. Opposition to the cotton gin project was voiced at this meeting.
Plaintiff applied for air quality permits from the North Carolina Department of Environment and Natural Resources (DENR) on 4 April 2001 and paid the $50.00 application fee. However, before DENR could issue a permit, a compliance letter was required from the Pitt County Planning Office stating that the cotton gin project was consistent with local regulations. Plaintiff requested on 6 April 2001 that the Pitt County Planning Office send a compliance letter to DENR. Even though plaintiff requested this letter on 6 April 2001, the letter was not sent until 26 April 2001, almost three weeks after the request. A few days after contacting the Pitt County Planning Office, plaintiff delivered its site plan to the North Carolina Environmental Health Division (EHD) for final approval of septic permits.
The Board of Commissioners held a public hearing on 16 April 2001 on whether to specifically add cotton gins to the February 5 moratorium. At this meeting there was also a unanimous vote to notify Governor Mike Easley and the North Carolina Agricultural Finance Authority that the Pitt County Board of Commissioners opposed the construction and development of a cotton gin at the Manning site. These two letters were sent 17 April 2001 and a similar letter was sent to plaintiff on 19 April 2001.
Plaintiff completed its sedimentation and erosion control plan application and submitted it on 22 April 2001 to the Pitt County Planning Office, along with the $9,728.00 application fee. A few days later on 26 April 2001, the Pitt County Planning Office sent the compliance letter required by DENR. DENR issued the required air quality permits.
After a public hearing on 7 May 2001, the Board of Commissioners amended the February 5 moratorium to include cotton gins. On the same day, septic permits for an office building and a cotton gin were issued to plaintiff. Two days after the moratorium was amended, plaintiff filed for a building permit for the cotton gin project. The Pitt County Planning Office refused to accept the application because of the recently amended moratorium.
Plaintiff filed this action. The trial court granted a temporary restraining order to plaintiff on 17 May 2001. Plaintiff's sedimentation and erosion control plan was approved on 23 May 2001 and plaintiff again applied for a building permit for the cotton gin project. On the same day, intervenor-defendants moved to intervene in the present action. Plaintiff's building permit was issued on 25 May 2001. After obtaining all the above referenced permits, plaintiff completed construction of the cotton gin project and began operation in early October 2001.
Plaintiff argues in its cross-assignment of error that intervenor-defendants were improperly allowed to intervene in the present action. Defendant Pitt County has not appealed the trial court's order. Therefore, if this Court determines that the intervenor-defendants were improperly allowed to intervene, we do not reach intervenor-defendants' assignments of error. Accordingly we first consider plaintiff's cross-assignment of error.
The trial court granted intervenor-defendants' motion to intervene on 31 May 2001. The trial court, in allowing the intervention as a matter of right, noted in its order that the intervenor-defendants "are so situated that the disposition of this action may as a practical matter impair or impede their ability to protect their property interests, as well as their health, safety and welfare."
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...in other areas of interpreting our Rules of Civil Procedure given some overlap in design. See Harvey Fertilizer & Gas Co. v. Pitt County , 153 N.C. App. 81, 87, 568 S.E.2d 923, 927 (2002) (looking to federal court decisions for guidance because Rule 24 of the North Carolina Rules of Civil P......
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