Posted by: Patricia Salkin | May 22, 2019

NC Appeals Court Reverses Decision of County’s Planning Director to Deny a Permit to Operate an Asphalt Plant Despite Moratoria Under State Permit Choice Statute

This post was authored by Matthew Loeser, Esq.

In June 2015, Appalachian Materials, LLC, filed an application for a permit to operate an asphalt plant in Ashe County. In June 2015, the County’s Planning Director sent Appalachian Materials a letter positively commenting on the application, but also stating that Appalachian Materials needed to provide the State-issued air quality permit before any PIDO permit could be issued. In October 2015, Ashe County’s elected Board of Commissioners adopted a temporary moratorium on the issuance of PIDO permits. During the Moratorium, Appalachian Materials finally supplemented its PIDO permit application with the State air quality permit. In April 2016, the Planning Director issued a letter to Appalachian Materials denying the PIDO permit request. The County’s Planning Board reversed the Planning Director’s decision, directing that the permit be issued. The County appealed the decision of its Planning Board to the superior court. The superior court affirmed the decision of the Planning Board, and the County appealed.

At the outset, the court found Appalachian Materials had completed its application sufficiently prior to the October 2015 Moratorium to trigger the statute which allows an applicant to choose which version of an ordinance to have its application considered under where the ordinance is changed before a submitted application is acted on by a county. The court found that the required State permit was one of many possible prerequisites which may have to be met after a sufficient application is submitted but before a permit can be finally approved. Here, the record reflected that the application was submitted, and the County accepted and deposited the application fee. Furthermore, the application was still before the County when the State permit was approved. Accordingly, the court held that the application was sufficiently “submitted,” pursuant to the Permit Choice statute, in June 2015.

The court next determined that based on the circumstances in which the June 2015 Letter was issued and the language of the prior email and the June 2015 Letter itself, the Planning Director did not intend for his June 2015 Letter to be a determination that the permit would be issued once the State permit was obtained. Nevertheless, the court found the June 2015 Letter had some binding effect as to the Planning Director’s partial denial of the permit. Here, the record indicated that the proposed site was within one thousand (1,000) feet of a portable shed, not attached to the land, was used by Appalachian Materials’ parent company on the same site, and was also within one thousand (1,000) feet of a barn on an adjacent property.

The record reflected that these buildings were shown in the application and that the Planning Director stated in his June 2015 Letter that he had “verified” that these buildings were not a problem. Further, Appalachian Materials was prejudiced by this determination in that it could have sought a variance had the Planning Director not made the determination. Thus, the Planning Director bound the County on the issue of whether certain buildings were each a “commercial building” as defined in the buffer provision in the Old Ordinance. The court further found that the Planning Board had the authority to determine whether the application otherwise complied with the Old Ordinance. Accordingly, the court affirmed the trial court’s order upholding the decision made by the Planning Board.

Ashe County v. Ashe County Planning Board, 2019 WL 2179980 (NC App. 5/21/2019)

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