Posted by: Patricia Salkin | November 18, 2018

NC Appeals Court Holds Administrative Office did Not Qualify as an “Educational Facility” Based on the Plain Language of the County Ordinance

This post was authored by Matthew Loeser, Esq.

Appalachian Materials, LLC, appealed from the trial court’s order upholding the denial of its application for a High Impact Land Use (“HILU”) permit. Pursuant to the “Ordinance to Regulate High Impact Land Uses” (“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.” 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, a building that served as the central administrative office for the Watauga County Schools.

On appeal, the only dispositive issue before the court was whether the Gragg Center was an “educational facility” as that term was defined by the HILU ordinance. The version of the HILU ordinance in effect during the time period relevant to this appeal defined “educational facility” as including elementary schools, secondary schools, community colleges, colleges, and universities. The definition also included any property owned by those facilities used for educational purposes. Here, it was undisputed that the Gragg Center was owned by the Watauga County Board of Education, rather than by an elementary school, secondary school, community college, college, or university. Additionally, the Gragg Center failed to qualify as an “educational facility” under the second sentence of the definition.

The court further determined that had the County intended for any building owned by the Board of Education possessing some type of educational purpose to be encompassed within the ordinance’s definition, it would have been included in the definition itself. Accordingly, the court reversed and remanded the order of the trial court.

Appalachian Materials, LLC v Watauga County, 2018 WL 5795842 (NC App. 11/6/2018)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: