Appalachian Materials, LLC v. Watauga Cnty.

• Decision Date: 06 November 2018
• Docket Number: No. COA18-188,COA18-188
• Citation: 262 N.C.App. 156,822 S.E.2d 57
• Parties: APPALACHIAN MATERIALS, LLC, Petitioner, v. WATAUGA COUNTY, A North Carolina County, Respondent, and Terry Covell, Sharon Covell and Blue Ridge Environmental Defense League, Inc., d/b/a High Country Watch, Intervenors.
• Court: North Carolina Court of Appeals

262 N.C.App. 156

822 S.E.2d 57

APPALACHIAN MATERIALS, LLC, Petitioner,

v. WATAUGA COUNTY, A North Carolina County, Respondent,andTerry Covell, Sharon Covell and Blue Ridge Environmental Defense League, Inc., d/b/a High Country Watch, Intervenors.

No. COA18-188

Court of Appeals of North Carolina.

Filed: November 6, 2018

Moffatt & Moffatt, PLLC, Boone, by Tyler R. Moffatt, for petitioner-appellant.

Di Santi Watson Capua Wilson & Garrett, PLLC, Boone, by Chelsea Bell Garrett, for respondent-appellee.

DAVIS, Judge.

This case requires us to construe a single provision of a Watauga County land use ordinance prohibiting the construction of an asphalt plant within 1,500 feet of an "educational facility." Although this appeal arises in the zoning context, the resolution of this issue provides this Court with an opportunity to reiterate fundamental principles of statutory interpretation applicable to the construction of any law or ordinance.

Appalachian Materials, LLC, ("Appalachian") appeals from the trial court's order upholding the denial of its application for a High Impact Land Use ("HILU") permit. The trial court affirmed the denial of Appalachian's permit because the proposed asphalt plant site was located within 1,500 feet of the Margaret E. Gragg Education Center (the "Gragg Center"), a building that serves as the central administrative office for the Watauga County Schools. Because we conclude that the Gragg Center does not qualify as an "educational facility" based on the plain language of the ordinance's definition of that term, we reverse the trial court's order.

Factual and Procedural Background

In March 2003, Watauga County adopted an "Ordinance to Regulate High Impact Land Uses" (the "HILU ordinance") in all unincorporated areas of the county. The ordinance was adopted "for the purpose of promoting the health, safety and general welfare of the citizens of Watauga County" by regulating certain land uses that "by their very nature produce objectionable levels of noise, odors, vibrations, fumes, light, smoke, and other impacts upon the lands adjacent to them." One such regulated use concerned the location of asphalt plants. Pursuant to the HILU ordinance, an asphalt plant "shall not be within 1,500 feet of a public or private educational facility, a [North Carolina] licensed child care facility, a [North Carolina] assisted living facility, or a [North Carolina] licensed nursing home." In addition, no applicant wishing to build an asphalt plant is permitted to proceed with construction without having first received a permit from the Watauga County Department of Planning and Inspections.

On 10 November 2013, Appalachian began leasing an 8.5 acre tract of land located along Rainbow Trail in Watauga County upon which it intended to construct and operate an asphalt plant. Appalachian subsequently hired Derek Goddard, the vice-president of Blue Ridge Environmental Consultants, to plan, design, and obtain any necessary permits for the proposed asphalt plant site.

On 9 September 2014, Goddard emailed Joseph Furman, the director of the Watauga County Planning and Inspections Department, to inquire whether Furman could provide him with a map displaying all of the buffers required by the HILU ordinance. The following day, Furman replied by sending Goddard via an email attachment a map (the "HILU map") containing the heading "High Impact Land Use Spacing." The HILU map purported to depict facilities in Watauga County subject to the ordinance's spacing requirements and displayed a 1,500-foot buffer zone around each such facility. The HILU map did not indicate that the site of Appalachian's proposed asphalt plant was within 1,500 feet of any facility implicated by the HILU ordinance. The Gragg Center was not indicated on the map as being subject to the ordinance's spacing requirements.

On 15 June 2015, Appalachian submitted a High Impact Land Use Development Permit Application to the Watauga County Planning and Inspections Department in which it sought approval to construct and operate an asphalt plant in the vicinity of Rainbow Trail. In his capacity as director of the Planning and Inspections Department, Furman denied Appalachian's permit application on 22 June 2015. Furman explained his reasoning for denying the application, in relevant part, as follows:

According to Article II, Section 3(G) Spacing Requirements, the nearest portion of the premises of an asphalt plant may not be established within 1,500 feet of a public or private educational facility. The [Gragg Center] is clearly within 1,500 feet of the premises of this asphalt plant based upon our review of the application.

On 17 July 2015, Appalachian appealed Furman's decision to the Watauga County Board of Adjustment (the "Board") pursuant to N.C. Gen Stat. § 160A-388(b1). Sharon and Terry Covell, homeowners whose property was located next to the proposed asphalt plant, and the Blue Ridge Environmental Defense League, Inc. subsequently filed motions to intervene as parties to Appalachian's appeal. A hearing on the motions to intervene and on Appalachian's appeal was held before the Board beginning on 14 October 2015. The Board first heard evidence on the two motions to intervene and granted both motions. The Board then received evidence with regard to Appalachian's appeal of the denial of its permit application.

Scott Elliot, the superintendent of Watauga County Schools, testified at the hearing concerning the various functions of the Gragg Center. Elliot stated that the Gragg Center served as the central office for Watauga County Schools as well as the meeting place for the Watauga County Board of Education.

He further testified that the building primarily housed administrative personnel responsible for coordinating and implementing the education curriculum for the entire Watauga County Schools system. In addition, Elliot stated that professional development training for teachers, student testing, and the Watauga County Spelling Bee also took place at the Gragg Center.

On 30 October 2015, the Board issued a decision upholding Furman's denial of Appalachian's permit application. In its decision, the Board made the following pertinent findings of fact:

2. The [Gragg Center] is located within 1500 feet from the nearest portion of the building, structure, or outdoor storage used as part of the premises for the proposed asphalt plant.

3. The [Gragg Center] meets the requirements for an Education Facility as defined in the High Impact Land Use Ordinance.

Appalachian sought review of the Board's decision in Watauga County Superior Court on 2 December 2015 by means of a petition for certiorari . Following a hearing on 14 August 2017, the Honorable R. Gregory Horne entered an order on 8 September 2017 affirming the Board's decision. Appalachian filed a timely notice of appeal to this Court.

Analysis

Although Appalachian has raised several arguments, we need address only the question of whether the Gragg Center is an "educational facility" as that term is defined by the HILU ordinance because that issue is dispositive of this appeal. This Court has held that "[a] legislative body such as the Board [of Adjustment], when granting or denying a conditional use permit, sits as a quasi-judicial body." Sun Suites Holdings, LLC v. Bd. Of Aldermen of Town of Garner , 139 N.C. App. 269, 271, 533 S.E.2d 525, 527 (citation omitted), disc. review denied , 353 N.C. 280, 546 S.E.2d 397 (2000). A board of adjustment's decision "shall be subject to review of the superior court in the nature of certiorari in accordance with G.S. 160A-388." N.C. Gen. Stat. § 160A-381(c) (2017). We have described the superior court's role in reviewing the decision of a local board as follows:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,

(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and

(5) Insuring that decisions are not arbitrary and capricious.

Dellinger v. Lincoln Cty ., ––– N.C. App. ––––, ––––, 789 S.E.2d 21, 26 (citation omitted), disc. review denied , 369 N.C. 190, 794 S.E.2d 324 (2016).

"If a petitioner appeals an administrative decision on the basis of an error of law, the trial court applies de novo review; if the petitioner alleges the decision was arbitrary and capricious, or challenges the sufficiency of the evidence, the trial court applies the whole record test." Premier Plastic Surgery Ctr., PLLC v. Bd. of Adjustment for Town of Matthews , 213 N.C. App. 364, 367, 713 S.E.2d 511, 514 (2011) (citation and quotation marks omitted). A reviewing court "does not make findings of fact, but instead, determines whether the Board of Adjustment made sufficient findings of fact which are supported by the evidence before it." Crist v. City of Jacksonville , 131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998) (citation omitted).

Our Supreme Court has held that "[t]he rules applicable to the construction of statutes are equally applicable to the construction of municipal ordinances." Cogdell v. Taylor , 264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965) (citation omitted). A basic tenet of statutory construction is that "[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning." Burgess v. Your House of Raleigh , Inc. , 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). Furthermore, courts should "give effect to the words actually used in a statute and should neither delete words used nor insert words not used in the relevant statutory language during the statutory construction process." Midrex Techs., Inc., v. N.C. Dep't of Revenue , 369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016) (citation and...