Ashe Cnty. v. Ashe Cnty. Planning Bd.
| Docket Number | COA18-253-2 |
| Decision Date | 02 August 2022 |
| Citation | 284 N.C.App. 563,876 S.E.2d 687 |
| Parties | ASHE COUNTY, North Carolina, Plaintiff, v. ASHE COUNTY PLANNING BOARD and Appalachian Materials, LLC, Respondents. |
| Court | North Carolina Court of Appeals |
Womble Bond Dickinson (US) LLP, by Amy O'Neal and John C. Cooke, Raleigh, for Petitioner-Appellant.
Moffatt & Moffatt, PLLC, Boone, by Tyler R. Moffatt, for Respondent-Appellee Appalachian Materials, LLC.
No brief for Respondent-Appellee Ashe County Planning Board.
Law Offices of F. Bryan Brice, Jr., and David E. Sloan, for Blue Ridge Environmental Defense League and Protect Our Fresh Air, amicus curiae.
Teague Campbell Dennis & Gorham, LLP, Raleigh, by Natalia K. Isenberg, for the North Carolina Association of County Commissioners, amicus curiae.
¶ 1 A panel of this Court issued an opinion in this case on 21 May 2019, affirming the order of the trial court. Ashe Cnty. v. Ashe Cnty. Plan. Bd. , 265 N.C. App. 384, 394, 829 S.E.2d 224, 231 (2019) (" Ashe Cnty. I "), rev'd in part , 376 N.C. 1, 852 S.E.2d 69 (2020). On 18 December 2020, our Supreme Court reversed in part the prior opinion of this Court, remanding the case to our Court for us to resolve outstanding issues in the appeal in light of the Supreme Court's holding that the primary holding of this Court's prior opinion was erroneous. Ashe Cnty. v. Ashe Cnty. Plan. Bd. , 376 N.C. 1, 16, 20-21, 852 S.E.2d 69, 79, 82-83 (2020) (" Ashe Cnty. II "). Our Supreme Court's opinion recounts the facts of the case in detail, id. at 2-9, 852 S.E.2d at 70-75, so we repeat only those necessary for an understanding of the disposition of the issues that remain.
Ashe Cnty. II , 376 N.C. at 2-3, 852 S.E.2d at 71.
¶ 3 This case is about a permit application submitted under the PID Ordinance that did not meet the second requirement because at the time the application was submitted, the applicant had not yet obtained an air quality permit issued by the North Carolina Department of Environmental Quality ("DEQ") that would have been required for its proposed use of 3.58 acres of land in the County to proceed.
¶ 4 Defendant Appalachian Materials, LLC ("Appalachian Materials") is an asphalt sales and production company that beginning in at least 2015 was interested in operating an asphalt plant in Ashe County. In early June of 2015, Appalachian Materials submitted an application and $500 permit fee under the PID Ordinance to the County's Planning Director to obtain County approval of the proposed plant. While Appalachian Materials had applied for an air quality permit from DEQ at the time it submitted the PID Ordinance application, the air quality permit application was still pending. DEQ issued the air quality permit on 26 February 2016, and Appalachian Materials promptly forwarded the air quality permit to the County's Planning Director to supplement the PID Ordinance application it had submitted the previous June.
¶ 5 In the intervening period—between June 2015 when Appalachian Materials submitted its initial, incomplete PID Ordinance permit application and February 2016 when Appalachian Materials supplemented the application with the required air quality permit issued by DEQ—the political winds had shifted against Appalachian Materials in Ashe County. In response to concerned citizens raising questions about the location of the proposed plant, the Ashe County Board of Commissioners (the "County Board") enacted a moratorium prohibiting the issuance of new PID Ordinance permits on 19 October 2015, which was effective until 19 April 2016. In other words, by the time Appalachian Materials supplemented its application because DEQ had finally issued the air quality permit, the moratorium had taken effect, barring issuance of the PID Ordinance permit until at least 19 April 2016.
¶ 6 On 4 April 2016, the moratorium was extended an additional six months. On 3 October 2016, after the moratorium had lifted, the County Board repealed the PID Ordinance and enacted a new ordinance in its place, the High Impact Land Use Ordinance, which created new and more onerous requirements applicable to permits to operate asphalt plants.
¶ 7 By this point, Appalachian Materials was embroiled in a dispute with the County over when and whether its application for the PID Ordinance permit was complete and whether it had complied with the PID Ordinance and was entitled to issuance of a permit under the less onerous, now-repealed regulatory regime that had governed at the time the initial, incomplete application was submitted and for the previous 16 years.
¶ 8 The Planning Director denied the application on 20 April 2016, giving three reasons for the decision: (1) a complete application was not submitted before the moratorium went into effect on 15 October 2015; (2) the 3.58 acres was within 1,000 feet of two commercial buildings—a quarry and a barn; and (3) the incomplete application submitted by Appalachian Materials on 29 February 2016 contained material misrepresentations. Based on a comparison of the incomplete PID Ordinance application and the air quality permit application submitted to DEQ, the Planning Director concluded that inconsistencies between the applications proved deceptive intent on the part of Appalachian Materials. Specifically, the air quality permit application submitted to DEQ represented that the annual output of the asphalt plant would be 300,000 tons per year or less, whereas the incomplete PID Ordinance application submitted to the County represented that the annual output of the asphalt plant would be 150,000 tons per year or less. Based on the scale of the output of the proposed plant reflected by the representations in the air quality permit application submitted to DEQ, the Planning Director additionally concluded that Appalachian Materials potentially anticipated using the quarry within 1,000 feet of the proposed plant as part of the operation, which if true, would mean that the proposed plant was within 1,000 feet of both commercial buildings and residences, neither of which was permitted. Appalachian Materials noted an appeal to the Ashe County Planning Board (the "Planning Board") from the Planning Director's denial.1
¶ 9 On appeal to the Planning Board, Appalachian Materials took the position that a 22 June 2015 letter from the Planning Director to Appalachian Materials was a final determination that bound the County to issue the PID Ordinance permit. The letter read as follows:
(Emphasis added.)
¶ 10 Despite the language emphasized above, Appalachian Materials prevailed in its appeal to the Planning Board, and the Planning Board reversed the Planning Director's decision and ordered that a PID Ordinance permit be issued to Appalachian Materials. The County Board then petitioned to Ashe County Superior Court for judicial review of the Planning Board's decision. In the trial court, Appalachian Materials prevailed again, and the court ordered the County Board to issue the permit within ten days. The County Board then noted an appeal to our Court.
¶ 11 In the appeal to our Court, Appalachian Materials prevailed a third time. Ashe Cnty. I , 265 N.C. App. at 394, 829 S.E.2d at 231. This Court's prior opinion, which was unanimous, reasoned that the 22 June 2015 letter was not a final determination but that it nonetheless "did have some binding effect[,]" and that Appalachian Materials was prejudiced by the letter because it could have sought a variance were it not for the letter. Id. at 392-93, 829 S.E.2d at 229-30 (emphasis in original). The Court essentially held that the County Board was estopped from denying that the 22 June 2015 letter was a final determination because the County Board had not appealed from the issuance of the letter to the Planning Board within 30 days (presumably from the date the Planning Director dated the letter rather than the date Appalachian Materials received it, although the prior opinion did not address this detail), even though there was no existing procedure for such an appeal at the time. Id. at 392-94, 829 S.E.2d at 229-31.
¶ 12 Our Supreme Court was unpersuaded. In a unanimous opinion, the Court held that the 22 June 2015 letter was not "any sort" of a final determination, "in whole or in part," reversing the holding of this Court based on the estoppel theory. Ashe Cnty. II , 376 N.C. at 16, 852 S.E.2d at 79. The Supreme Court was more circumspect about the implications of this holding, however, remanding the case to our Court to determine (1) "whether Appalachian...
To continue reading
Request your trial