Ashe Cty. v. Ashe Cty. Plan. Bd.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-516

No. COA18-253-2

Filed 2 August 2022

Ashe County, No. 16 CVS 514

ASHE COUNTY, NORTH CAROLINA, Plaintiff,

v.

ASHE COUNTY PLANNING BOARD and APPALACHIAN MATERIALS, LLC,

Respondents.

Appeal by Petitioner from order entered on 30 November 2017 by Judge Susan

E. Bray in Ashe County Superior Court. Heard in the Court of Appeals on 3 October

2018. See Ashe Cnty. v. Ashe Cnty. Plan. Bd., 265 N.C. App. 384, 829 S.E.2d 224

(2019). Heard in the Supreme Court on 1 September 2020. Remanded to the Court

of Appeals by the Supreme Court on 18 December 2020. See Ashe Cnty. v. Ashe Cnty.

Plan. Bd., 376 N.C. 1, 852 S.E.2d 69 (2020). Heard in the Court of Appeals again on

15 April 2021.

Womble Bond Dickinson (US) LLP, by Amy O’Neal and John C. Cooke, for

Petitioner-Appellant.

Moffatt & Moffatt, PLLC, 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.

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Teague Campbell Dennis & Gorham, LLP, by Natalia K. Isenberg, for the North

Carolina Association of County Commissioners, amicus curiae.

JACKSON, Judge.

¶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.

I. Factual and Procedural Background

¶2 In 2015, Ashe County had a land use ordinance called the Polluting Industries

Development Ordinance (“PID Ordinance”), which had been in effect for 16 years.

The PID Ordinance created a permit system administered by the Ashe County

Planning Department with numerous requirements, the most relevant of which were

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that

(1) the applicant pay a $500 uniform permit fee;

(2) the applicant have obtained all necessary federal

and state permits;

(3) the polluting industry not be located within 1,000

feet of a residential dwelling unit or commercial building;

and

(4) the polluting industry not be located within 1,320

feet of a school, daycare, hospital, or nursing home facility.

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

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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

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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

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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:

I have reviewed the plans you have submitted on behalf of

Appalachian Materials LLC for a polluting industries

permit. The proposed asphalt plant is located on Glendale

School Rd, property identification number 12342-016, with

no physical address.

The proposed site does meet[] the requirements of the Ashe

County Polluting Industries Ordinance, Chapter 159 (see

attached checklist). However, the county ordinance does

require that all state and federal permits be in hand prior

to a local permit being issued. We have on file the general

NCDENR Stormwater Permit and also the Mining Permit

for this site. Once we have received the NCDENR Air

1 A County ordinance authorized the Ashe County Planning Board to act as Ashe County’s

board of adjustment.

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Quality Permit[,] our local permit can be issued for this site.

If you have any questions regarding this review[,] please

let me know.

(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

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(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 Materials’ application was sufficiently complete

at the time that it was submitted to the Planning Director to trigger the application

of the permit choice statutes”; (2) “whether the Planning Director was authorized to

deny Appalachian Materials’ permit application on the basis of the moratorium

statute”; (3) “whether the proposed asphalt plant was located within 1,000 feet of a

commercial building”; and (4) “whether the Planning Board erred by rejecting the

Planning Director’s determination that Appalachian Materials’ application contained

material misrepresentations.” Id. at 20, 852 S.E.2d at 82.

¶ 13 Striking a deferential tone, the Supreme Court first noted this Court’s prior

reliance on the 22 June 2015 letter to resolve nearly the entirety of the substance of

the appeal and second, “the fact that all of the[] additional issues appear[ed] to . . . be

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. . . interrelated with the appeal-related issue . . . resolved” by its opinion, concluding

that “the Court of Appeals should revisit each of these additional issues and decide

them anew without reference to the fact that Ashe County did not appeal the 22 June

2015 letter.” Id. at 21, 852 S.E.2d at 82. “Although the 22 June 2015 letter did not

constitute a final decision triggering the necessity for an appeal,” the Court added,

“we do not hold that that letter is irrelevant to the making of the necessary

determinations on remand, with the parties remaining free to argue any legal

significance that the letter may or may not, in their view, have.” Id. Accordingly, the

Court remanded the case to our Court “for reconsideration of each of the[] additional

issues[.]” Id.

II. Standard of Review

¶ 14 On appeal from the decision of the Planning Board, a body authorized by a

local ordinance to act as the County’s board of adjustment, the trial court sat as an

appellate court, reviewing the Planning Board’s decision on a writ of certiorari. See

Dellinger v. Lincoln Cnty., 248 N.C. App. 317, 322, 789 S.E.2d 21, 26 (2016). At the

time of the Planning Board’s decision and the proceeding in Superior Court, former

N.C. Gen. Stat. § 160A-388 provided that “[e]very quasi-judicial decision shall be

subject to review by the superior court by proceedings in the nature of certiorari

pursuant to G.S. 160A-393.” N.C. Gen. Stat. § 160A-388(e2)(2) (2019) (repealed by

2019 S.L. 111 § 2.3) (recodified at N.C. Gen. Stat. § 160D-406(k) (2021)).

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The Superior Court’s functions when reviewing the

decision of a board sitting as a quasi-judicial body include:

(1) Reviewing the record for errors in law,

(2) [E]nsuring that procedures specified by law in both

statute and ordinance are followed,

(3) [E]nsuring that appropriate due process rights of a

petitioner are protected including the right to offer

evidence, cross-examine witnesses, and inspect documents,

(4) [E]nsuring that decisions of [the Planning Board]

are supported by competent, material and substantial

evidence in the whole record, and

(5) [E]nsuring that decisions are not arbitrary and

capricious.

...

When [an] assignment of error alleges an error of law, de

novo review is appropriate. Under a de novo standard of

review, a reviewing court considers the case anew and may

freely substitute its own interpretation of an ordinance[.]

Thompson v. Union Cnty., 2022-NCCOA-382 ¶ 10-11.

III. Analysis

¶ 15 We review each of the outstanding issues in the order they are listed in our

Supreme Court’s opinion.

A. The Permit Choice Statutes Do Not Apply Because the Application Was

Not Submitted Until After the Moratorium Went into Effect

¶ 16 Based on our Supreme Court’s holding that the 22 June 2015 letter was not

“any sort” of a final determination, Ashe Cnty. II, 376 N.C. at 16, 852 S.E.2d at 79,

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we hold that the application was complete on 29 February 2016—when Appalachian

Materials forwarded the air quality permit issued by DEQ to the Planning Director

and demanded that the PID Ordinance permit be issued. In June 2015, Appalachian

Materials had not “obtained all necessary federal and state permits[,]” id. at 2, 852

S.E.2d at 71, as was required, because DEQ had not issued the air quality permit

until 26 February 2016, and this “necessary . . . state permit” was not submitted to

the Planning Director by counsel for Appalachian Materials until three days later, on

29 February 2016. As the 22 June 2015 letter from the Planning Director noted, “the

county ordinance [] require[d] that all state and federal permits be in hand prior to a

local permit being issued.” (Emphasis added.) Only after Appalachian Materials

supplemented its application with the required air quality permit on 29 February

2016 could the “local [PID Ordinance] permit [] be issued for th[e] site[,]” to quote the

22 June 2015 letter again. However, by that time, the County Board had adopted a

moratorium prohibiting the issuance of new PID Ordinance permits.

¶ 17 The permit choice statutes—N.C. Gen. Stat. §§ 143-755, 153A-320.1, and 160A-

360.1 on 29 February 2016 and N.C. Gen. Stat. §§ 143-755 and 160D-108 today—

provide, in general, that if a land use regulation changes between the time a permit

application is “submitted” and the time a permit decision is made, then the applicant

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may choose which version of the regulation applies.2 N.C. Gen. Stat. § 143-755(a)

(2021). The purpose of these provisions is to protect the investment and reasonable

reliance of developers on the decisions of local government regarding “site evaluation,

planning, development costs, consultant fees, and related expenses.” Id. § 160D-

108(a). Our General Assembly has found that they “strike an appropriate balance

between private expectations and the public interest” by “provid[ing] for the

establishment of certain vested rights in order to ensure reasonable certainty,

stability, and fairness in the development regulation process, to secure the reasonable

expectations of landowners, and to foster cooperation between the public and private

sectors in land-use planning and development regulation.” Id.

¶ 18 However, application of the permit choice statutes to the PID Ordinance

application submitted by Appalachian Materials depends on the “permit application

[being] submitted” where “a rule or ordinance changes between the time a permit

application is submitted and a permit decision is made[.]” N.C. Gen. Stat. § 153A-

2 In 2019, the General Assembly enacted “An Act to Clarify, Consolidate, and Reorganize the

Land-Use Regulatory Laws of the State[,]” repealing N.C. Gen. Stat. §§ 150A-320 to 153A-326. 2019

S.L. 111 § 2.2. Session Law 2019-111 consolidated and reorganized the municipal and county land-

use planning and development statutes into one Chapter of the General Statutes. Id. § 2.1(e). It also

made various changes and clarifying amendments, id. § 1.1, et seq., and gave persons aggrieved a

separate cause of action, distinct from the certiorari statute, which it amended significantly, id. §§ 1.7,

1.9 (codified at N.C. Gen. Stat. §§ 160A-393.1, -393). In 2020, the General Assembly enacted Session

Law 2020-25, completing the consolidation of the land use statutes into one Chapter of the General

Statutes, as directed by Session Law 2019-111. An Act to Complete the Consolidation of Land-use

Provisions into One Chapter of the General Statutes as Directed by S.L. 2019-111, as Recommended by

the General Statutes Commission, 2020 S.L. 25.

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320.1(a) (2016) (repealed 2020). That is, application of the statutes depends on when

the PID Ordinance application was “submitted,” and the statutes do not apply unless

an application has been submitted before the land use regulation changes.

¶ 19 We hold that the PID Ordinance permit application submitted by Appalachian

Materials was not “submitted” within the meaning of the permit choice statutes until

it was complete—on 29 February 2016, when counsel for Appalachian Materials

forwarded the air quality permit issued by DEQ on 26 February 2016 to the Planning

Director and demanded that the PID Ordinance permit be issued—because only then

did the application meet the requirements that “(1) the applicant pay a $500 uniform

permit fee; [and] (2) the applicant have obtained all necessary federal and state

permits[.]” Ashe Cnty. II, 376 N.C. at 2, 852 S.E.2d at 71. Yet, on 29 February 2016,

when the application was complete, the relevant land use regulation—the PID

Ordinance—had not yet been repealed and replaced by the High Impact Land Use

Ordinance, which did not occur until 3 October 2016. Instead, the County Board had

adopted a moratorium on the issuance of any new permits under the PID Ordinance.

Whether the Planning Director was justified in denying the application on 20 April

2016 that was submitted within the meaning of the permit choice statutes by

Appalachian Materials the previous February thus depends on whether the

moratorium adopted by the County Board on 19 October 2015 and later extended

until 3 October 2016 barred the Planning Director from issuing the permit.

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B. The Moratorium Statute Did Not Authorize the Planning Director to

Approve the Application

¶ 20 The moratorium statute in effect in February 2016, when Appalachian

Materials submitted a complete PID Ordinance application, authorized counties to

adopt development moratoria under certain conditions, but exempted from the

applicability of these moratoria “development for which substantial expenditures

ha[d] already been made in good faith reliance on a prior valid administrative or

quasi-judicial permit or approval[.]” N.C. Gen. Stat. § 153A-340(h) (2016) (repealed

2020) (emphasis added). The moratorium statute in effect today preserves the

exemption contained in former-§ 153A-340(h) from the applicability of these

moratoria to “development for which substantial expenditures have already been

made in good-faith reliance on a prior valid development approval[.]” N.C. Gen. Stat.

§ 160D-107(c) (2021) (emphasis added). Eliminating any ambiguity about whether

the permit choice statutes apply to a permit application that has been submitted but

not yet approved before a moratorium goes into effect that prohibits the requested

land use, the current moratorium statute goes on to specify that “if a complete

application for a development approval has been submitted prior to the effective date

of a moratorium, G.S. 160D-108(b) [i.e., the permit choice rule] applies when permit

processing resumes.” Id. (emphasis added).

¶ 21 In other words, under former-§ 153A-340(h) only “permitted” or “approved”

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land uses were exempt from the moratorium statute in effect in February 2016—an

exemption former-§ 153A-340(h)’s successor statute, § 160D-107(c), both preserves

and clarifies in relation to the permit choice statutes, by cross-referencing one of the

permit choice statutes in effect today and specifically providing that the permit choice

rule applies only to “complete[d] application[s] for . . . approval[.]” Id. § 160D-107(c)

(emphasis added). See also Town of Hazelwood v. Town of Waynesville, 320 N.C. 89,

95, 357 S.E.2d 686, 689 (1987) (“When the legislature amends an ambiguous statute,

the presumption is not that its intent was to change the original act, but merely to

clarify that which was previously doubtful.” (internal marks and citation omitted)).

¶ 22 We therefore hold that the application by Appalachian Materials submitted

within the meaning of the permit choice statutes in February 2016 was not exempt

from the moratorium adopted by the County Board on 19 October 2015 because

Appalachian Materials never obtained “a prior valid administrative or quasi-judicial

permit” or “approval” of the application. See, e.g., Ashe Cnty. II, 376 N.C. at 19, 852

S.E.2d at 81 (“[N]o part of the 22 June 2015 letter constituted a final, binding

decision[.]” (emphasis in original)). Indeed, Appalachian Materials could not have

obtained a permit or approval of the application by October 2015 when the application

was not even submitted until four months later, after the outstanding air quality

permit was submitted, which completed the application. See N.C. Gen. Stat. § 153A-

320.1 (2016) (“If a rule or ordinance changes between the time a permit application

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is submitted and a permit decision is made, then G.S. 143-755 shall apply.”) (emphasis

added); N.C. Gen. Stat. § 143-755(a) (2021) (“If a development permit applicant

submits a permit application for any type of development and a rule or ordinance is

amended, . . . between the time the development permit application was submitted

and a development permit decision is made, the development permit applicant may

choose which adopted version of the rule or ordinance will apply[.]”). See also id.

§ 160D-107(c) (“Notwithstanding the foregoing, if a complete application for a

development approval has been submitted prior to the effective date of a moratorium,

G.S. 160D-108(b) applies when permit processing resumes.”) (emphasis added); id.

§ 160D-108(b) (“If a land development regulation is amended between the time a

development permit application was submitted and a development permit decision is

made or if a land development regulation is amended after a development permit

decision has been challenged and found to be wrongfully denied or illegal, G.S. 143-

755 applies.”).

¶ 23 North Carolina General Statute § 153A-340(h) authorized Ashe County,

through the County Board, N.C. Gen. Stat. § 153A-340(c1) (2016) (repealed 2020), to

“adopt temporary moratoria on any county development approval required by law[,]”

with exceptions not applicable here, id. § 153A-340(h), and in the absence of any

exemption provided by the moratorium statute in effect in February 2016, we hold

that under the moratorium approved by the County Board in October 2015, the

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Planning Director lacked the authority to approve the application.3

C. The Proposed Asphalt Plant Was Located within 1,000 Feet of a

Commercial Building

¶ 24 As noted above, the Planning Director concluded in the 20 April 2016 denial of

the incomplete PID Ordinance application submitted by Appalachian Materials that

the 3.58 acres leased by Appalachian Materials for the proposed plant was within

1,000 feet of two commercial buildings—a quarry and a barn—and it was a

requirement of the PID Ordinance in effect in February 2016 that permitted polluting

industries “not be located within 1,000 feet of a residential dwelling unit or

commercial building[.]” Ashe Cnty. II, 376 N.C. at 2, 852 S.E.2d at 71 (emphasis

added). We hold that the record supports the Planning Director’s conclusions

regarding the location of these commercial buildings, and that the buildings did, in

fact, qualify as commercial buildings within the meaning of the PID Ordinance in

February 2016. Although any mention of the quarry is conspicuously absent from

this Court’s prior opinion, even the prior opinion conceded that the evidence was

“uncontradicted . . . that the barn was owned by a neighbor who ran a business in

which he harvested and sold hay and that he used the barn to store his hay inventory

and to store farm equipment used to harvest hay.” Ashe Cnty. I, 265 N.C. App. at

3 The Planning Director could have held the application in abeyance until the moratorium

lifted. Because we hold that Appalachian Materials was not entitled to the benefit of the permit choice

statutes based on the time the application was submitted, after the PID Ordinance was repealed, the

Planning Director would no longer have had the authority to do anything but deny the application.

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393, 829 S.E.2d at 230.

¶ 25 Our Supreme Court’s reversal of the holding in this Court’s prior opinion that

the County was estopped from later denying anything the 22 June 2015 letter said

repudiates the reasoning in this Court’s prior opinion that it was unnecessary to

resolve whether the buildings identified in the 20 April 2016 denial qualified as

commercial buildings. See, e.g., Ashe Cnty. I, 265 N.C. App. at 393, 829 S.E.2d at 230

(“[T]he Planning Director made the determination that they were not commercial

buildings in his June 2015 Letter and [] his determination was binding on the

County.”) (emphasis in original). Based on our Supreme Court’s holding that the 22

June 2015 letter was not “any sort” of a final determination, “in whole or in part,”

Ashe Cnty. II, 376 N.C. at 16, 852 S.E.2d at 79, we hold that denial of the application

by the Planning Director was required because the proposed plant would have been

located within 1,000 feet of not one, but two commercial buildings—a quarry and a

barn, see Ashe Cnty. I, 265 N.C. App. at 393, 829 S.E.2d at 230 (noting the definition

of “business” in a County ordinance as a “commercial trade . . . including but not

limited to . . . agricultural . . . and other similar trades or operations”).

D. Alleged Material Misrepresentations in the Application Submitted by

Appalachian Materials

¶ 26 Because there were two independently sufficient reasons in February 2016

preventing the Planning Director from granting the permit application submitted by

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Appalachian Materials—a complete version of the application was not submitted

until 29 February 2016, after the 15 October 2015 moratorium went into effect, and

there were two commercial buildings within 1,000 feet of the 3.58 acres leased by

Appalachian Materials where the proposed plant was to be located—we do not reach

the issue of whether the alleged material misrepresentations in the PID Ordinance

application were, in fact, misrepresentations, and if so, whether they constituted an

independent basis for denying the PID Ordinance application submitted by

Appalachian Materials.

¶ 27 In general, “we do not make credibility assessments as an appellate court.”

State v. Daw, 277 N.C. App. 240, 268-69, 2021-NCCOA-180 (citation omitted). The

reason is that trial courts, unlike our Court, have “the opportunity to see the parties;

to hear the witnesses; and to detect tenors, tones, and flavors that are lost in the bare

printed record read months later by appellate judges[.]” Shipman v. Shipman, 357

N.C. 471, 474, 586 S.E.2d 250, 253 (2003) (cleaned up).

¶ 28 Nevertheless, we note that the inconsistency between the representation in the

incomplete PID Ordinance application and the air quality permit application

submitted to DEQ regarding the anticipated output of the proposed plant supports

the inference of deceptive intent drawn by the Planning Director: Appalachian

Materials obtained an air quality permit from DEQ representing to DEQ that it

anticipated operating an asphalt plant in Ashe County producing as much as twice

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Opinion of the Court

as much asphalt annually as it had represented that it planned to produce to local

officials in Ashe County in its PID Ordinance application. On the cold record, it is

impossible to determine whether the representation in the PID Ordinance application

is false, the representation in the air quality permit application is false, or whether

any false representation in the PID Ordinance application was made knowingly. Yet,

the representations could not both be true at the time a complete PID Ordinance

application was submitted in February of 2016.

IV. Conclusion

¶ 29 We reverse the order of the trial court requiring Ashe County to issue

Appalachian Materials a PID Ordinance permit.

REVERSED.

Chief Judge STROUD concurs.

Judge DILLON dissents by separate opinion.

No. COA18-253 – Ashe Cnty. v. Ashe Cnty. Plan. Bd.

DILLON, Judge, dissenting.

¶ 30 I vote to affirm Judge Bray’s order, affirming the Planning Board’s decision to

direct the issuance of the permit to Appalachian Materials (“AM”).

¶ 31 I conclude AM is entitled to have its permit application considered under the

more developer-friendly version of the County’s ordinance in place when AM’s

application was submitted in June 2015. The fact that AM’s application filed with

the State for the required air quality permit was pending does not render AM

ineligible for protection under our permit choice law.

¶ 32 I further conclude the Planning Board’s findings support its conclusion that

the barn and quarry located within 1000 feet from AM’s proposed operation were not

“commercial buildings” under the County ordinance which prohibits the location of

asphalt plants within 1000 feet of a commercial building.

¶ 33 Finally, I conclude the Planning Board’s findings support its conclusion that

AM’s permit application should not be denied based on alleged material

misrepresentations made by AM in its application.

¶ 34 Accordingly, I respectfully dissent.

I. Background

¶ 35 This matter concerns AM’s desire to operate an asphalt plant on land it owns

in Ashe County. To have the legal right to do so, AM is required to obtain a permit

from the County as well as an air quality permit from the State.

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DILLON, J., dissenting

¶ 36 In June 2015, AM filed its application with Ashe County for the County permit

along with the required application fee. At the same time, AM filed its application

with the State for the required air quality permit. Shortly after the County

application was filed, the County’s Planning Director sent a letter to AM stating that

AM’s proposal appeared to meet the County’s Code requirements but that the County

permit could not be issued until the State permit was issued.

¶ 37 Four months later, in October 2015, due to political pressure from the some of

the County’s citizenry regarding AM’s proposed plant, the County’s elected Board

enacted a temporary moratorium on asphalt plant permits.

¶ 38 In February 2016, four months into the moratorium, AM obtained and

forwarded the required air quality permit from the State.

¶ 39 But two months later, in April 2016, while the moratorium was still in place,

the County’s Planning Director denied AM’s permit application. The Planning

Director articulated three separate reasons for its denial, discussed herein. AM

appealed that decision to the County Planning Board, an unelected board which

essentially serves as a board of adjustments for Ashe County.

¶ 40 In October 2016, while AM’s appeal was pending before the Planning Board,

the County’s elected Board of Commissioners lifted the moratorium but enacted a new

ordinance under which AM proposed would not qualify for approval.

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DILLON, J., dissenting

¶ 41 In December 2016, the County’s Planning Board issued its order, reversing the

Planning Director’s denial and directing the permit be issued. The County’s Board of

Commissioners, though, disagreeing with the decision of the Planning Board,

appealed the Planning Board’s decision to superior court.

¶ 42 In November 2017, Superior Court Judge Bray affirmed the Planning Board’s

decision to direct the permit be issued.

¶ 43 In May 2019, we affirmed as well, but on a narrow legal ground. We held that

the County was bound by the June 2015 statements of its Planning Director that

AM’s proposal met the requirements under the County ordinance.

¶ 44 However, in September 2020, our Supreme Court issued an opinion

disagreeing with our conclusion regarding the binding effect of the Planning

Director’s initial impressions of AM’s application. That Court held that the

communications were not binding and remanded the matter for us to consider the

other issues raised on appeal.

¶ 45 In this present appeal, the majority concludes the County’s Planning Board’s

decision directing the permit be issued was incorrect and the Planning Director’s

denial should be reinstated. The majority so concludes based on two of the three

independent reasons that were articulated by the Planning Director in his denial

letter to AM. The majority takes no position on the third reason. My vote is to affirm

Judge Bray and the Planning Board, for the reasoning below.

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DILLON, J., dissenting

II. Discussion

A. Permit Choice Law

¶ 46 The majority concludes the Planning Director correctly determined that AM

was not entitled to have its application considered under the version of the County’s

ordinance in place in June 2015, when AM submitted its application and paid its fee,

reasoning that AM’s application was not complete without the State air quality

permit in hand. I disagree with the majority’s reading of our permit choice law.

¶ 47 The permit choice law was first enacted by our General Assembly in 2014 and

is found in Section 143-755 (entitled “Permit choice”) and is cross-referenced in

Section 160D-108 (entitled “Permit choice and vested rights”) of our General Statutes.

Our General Assembly enacted this law to provide that if a local government changes

its development ordinance between the time a developer applies for a permit and the

time a decision is made on that permit application, then the developer can choose to

have its application decided under the ordinance in place at the time the “applicant

submits [its] permit application.” N.C. Gen. Stat § 143-755(a) (2015). The General

Assembly enacted Section 160D-108 in 2019, recognizing that developers have certain

“vested rights” under the common law and by statute at some point in the

development process, typically after a permit is issued, which cannot be taken away.

The right to have one’s application considered under existing law may not be a ”vested

right” under Section 160D-108. But when it enacted Section 160D-108, our General

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DILLON, J., dissenting

Assembly reiterated in Section 160D-108 that this statutory right of an applicant was

still in place, reiterating that “G.S. 143-755 applies” where “development regulation

is amended between the time a development permit application was submitted and

[the] decision is made[.]” N.C. Gen. Stat. § 160D-108(b).

¶ 48 The development of land is typically a long process. Our “General Assembly

recognizes the reality that local government approval of development typically follows

significant investment by the developer in site evaluation, planning, development

costs, consultant fees, and related expenses.” N.C. Gen. Stat. § 160D-108(a). Clearly,

the elected board in a county has discretion to amend its development regulations for

what it believes to be in the public good or in its political interest. Our General

Assembly enacted the permit choice laws to “strike a balance” between these realities:

A local government should be allowed to amend its ordinances, while at some point

of the development process, a developer should have certainty as to the ordinance by

which its application will be evaluated. Our General Assembly has defined this point

as being the time when the developer “submits a permit application” with the local

government. N.C. Gen. Stat. § 143-755.

¶ 49 The phrase “submits a permit application” in Section 143-755 is not defined,

nor is there case law construing its meaning.

¶ 50 The majority holds that AM’s application was not “submitted” until AM

provided proof the State had approved the air quality permit, which occurred eight

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DILLON, J., dissenting

months after AM applied for the County permit: It was not enough that the air

quality permit had been submitted and was pending with the State. I disagree for

several reasons.

¶ 51 First, there is nothing in Ashe County’s 2015 ordinance to suggest that a

developer have all required State and Federal permits in hand before it could submit

its application for the required County permit. Rather, the ordinance merely requires

that an application not be submitted without payment of the required application fee.

The ordinance otherwise merely stated that any required State and Federal permits

be in hand before the County would issue the permit:

A permit is required from the Planning Department for any

polluting industry. A uniform permit fee of $500.00 shall

be paid at the time of the application for the permit. No

permit from the planning department shall be issued until

the appropriate Federal and State permits have been

issued.

Code of Ashe County, § 159.06(A) (2015) (entitled “Permitting Standards”). This

language does not even hint that AM’s application could not be submitted (allowing

the County to begin its due diligence processing the permit) until after the State

permit was in hand. The language merely suggests that the County will not issue the

permit, even if the County is satisfied that the County requirements are met, until

the State permit was in hand. To be sure, back and forth between a county and a

developer is common during the county’s due diligence approval process. But the fact

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DILLON, J., dissenting

that a county may ask for additional information during its due diligence does not

render the application not submitted. And in this case, the record shows that Ashe

County accepted and deposited the fee and began its due diligence review.

¶ 52 Second, the language used by our General Assembly in the permit choice laws

supports my conclusion that an application may be deemed “submitted” while the

State is conducting its due diligence on the required State permit. For example, the

permit choice law provides that applications for which the county seeks additional

information will generally be reviewed under the version of the ordinance in place

when the “incomplete” application was submitted, so long as the applicant is

responsive regarding the shortcomings of its application:

If . . . the applicant fails to respond to comments or provide

additional information reasonably requested by the

[county] for a period of six consecutive months or more, the

application review is discontinued and the development

regulations in effect at the time permit processing is

resumed apply to the application.

N.C. Gen. Stat. § 143-755(b1)4. Also, the “Moratoria” law enacted in conjunction

with Section 160D-108 provides that any proposed development “for which a special

4 Subsection (b1) was not added to Section 143-755 until 2019. However, the session law

adding that subsection provides that the subsection “clarify[ies] and restate[s] the intent of existing

law and appl[ies] to ordinances adopted before, on, and after the effective date.” 2019 Session.Law

155, § 3.1.

The County does not argue that the subsection applies based on the State’s eight month

delay in issuing the air quality permit. If such argument had been made and I had concluded that

the subsection applied, my vote would have been to remand for the Planning Board to make findings

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DILLON, J., dissenting

use permit application has been accepted as complete” is generally exempt from any

intervening, temporary, permit-issuing moratorium that is adopted. N.C. Gen. Stat.

§ 160D-107(c) (emphasis added). This “has been accepted as complete” language,

however, is not in Section 143-755. Had our General Assembly intended that an

application “be accepted as complete” before the permit choice law in Section 143-

755 be triggered, that body could have so stated. However, the permit choice law

merely requires that the application be “submitted.”

¶ 53 Finally, I believe that the majority’s interpretation is not in harmony with our

General Assembly’s intent to provide a sense of certainty for the developer in the

process. Many developments require permits from more than one level of

government. For instance, a development which involves removing an underground

storage tank and stabilizing a stream bank might require – in addition to a

development permit from the county where the project is located – a permit from the

U.S. Army Corps of Engineers (to stabilize the stream) and a permit from our State’s

Department of Environmental Quality (to remove the storage tank). The majority’s

interpretation creates an imbalance between the competing interests. For example,

assume an ordinance allows for asphalt plants located more than 1000 feet from a

school. The county could thwart any attempt by a developer who must spend

concerning whether the County was reasonable to require the State permit be provided within six

months.

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DILLON, J., dissenting

significant funds prior to seeking the county permit, simply by changing the distance

requirement while the developer awaits its air quality permit from the State.

¶ 54 In sum, I do not think the phrase “submits a permit application” should be read

in such an anti-development way as, I believe, the majority is reading it. Of course,

it should not be read in a pro-development way. Rather, we should read it in a way

that achieves the balance intended by our General Assembly. Perhaps an application

left almost entirely blank should not be considered “submitted.” But where an

applicant has filled out the required application (often after much time and expense)

sufficient for the county to evaluate the proposal and has paid its application fee, I

believe the application is “submitted.” The fact that a county might have follow up

questions or requests for additional information does not change this result. Such

applicant, at this stage, is entitled to the certainty afforded by our General Assembly.

B. Commercial Buildings

¶ 55 I disagree with the majority’s holding that the nearby barn and the quarry

constitute “commercial buildings” under Ashe County’s ordinance.

¶ 56 The Planning Board reversed the Planning Director’s determination regarding

the character of these buildings. Under the Ashe County Code, the Planning Board

conducts a de novo review of the Planning Director’s findings. Specifically, the Code

provides that the Planning Board has the authority to “uphold, modify, or overrule[]

in part or in its entirety” any determination made by the Planning Director. Ashe

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DILLON, J., dissenting

County Code § 153.04(f) (2015). Any finding made by the Planning Board is binding

in our review if supported by the evidence in the record.

¶ 57 The term “commercial building” is not defined in the Ashe County Code.

¶ 58 Our Supreme Court instructs that “[t]he basic rule [when construing an

ordinance] is to ascertain and effectuate the intention of the municipal legislative

body.” Westminster Homes v. Town of Cary Bd. of Adj., 354 N.C. 298, 303-04, 554

S.E.2d 634, 638 (2001). The Court further instructs that “[i]ntent is determined

according to the same general rules governing statutory construction, that is, by

examining (i) language, (ii) spirit, and (iii) goal of the ordinance.” Id. at 304, 554

S.E.2d at 638. At the same time, the Court “has long held that governmental

restrictions on the use of land are construed strictly in favor of the free use of real

property.” Morris v. City of Bessemer, 365 N.C. 152, 157, 712 S.E.2d 868, 871 (2011).

¶ 59 The two buildings at issue here are a quarry shed and a barn.

¶ 60 The quarry is owned by AM’s parent. The quarry, itself, is obviously not a

“building”; however, AM’s parent does maintain a mobile shed as part of the quarry

operation. The Planning Board, though, found that AM’s parent would have moved

the shed if that shed was deemed a “commercial building” and, on that basis,

disagreed that the permit should have been denied because of the shed.

Alternatively, the Planning Board concluded that the shed was not a “building”,

finding that the shed, “lacks a foundation, has no footers, and does not have running

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DILLON, J., dissenting

water.” These findings are supported by the evidence. I agree with the Planning

Board’s interpretation that a movable shed not attached to the land should not be

construed as a “building” within the meaning of the Code. In sum, I agree with both

alternative reasons of the Planning Board regarding the shed.

¶ 61 The barn presents a closer question. The Planning Board concluded that the

barn was not a “commercial building” based on its findings that “[t]he barn is not

used to conduct business, is not used in connection with any commercial activity, has

no parking or other access for anyone other than the property owner, has no road

access, and does not have electricity or air conditioning” and that the “primary aim”

for the barn’s owners is not for “financial profit.” These findings are all supported by

the affidavit of the barn’s owners (husband and wife).

¶ 62 The Planning Board also found that the County does not list the barn as a

commercial building on the property tax card and that the barn is not located within

a commercial district.

¶ 63 The owners, however, do state that they use their property for farming (where

they also live) and that they do store farm equipment and materials in the barn.

¶ 64 The question then is whether the storing of farm equipment is enough to

render the barn a “commercial building” in the context of a use restriction in an

ordinance.

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DILLON, J., dissenting

¶ 65 The “language” used in the ordinance is the term “commercial building,” a term

which is not defined. This term could be read broadly to include even a small shed

where a teenager might store his lawn mower used sometimes to mow the lawns of

neighbors for money. Or the term could be read narrowly to include only those

buildings where commerce takes place.

¶ 66 The “spirit” and the “goal” of the Code are not served by construing

“commercial building” to include the barn at issue here. For instance, the purpose of

the ordinance as stated in the Code is to protect the “health, safety and general

welfare” of those in “established residential and commercial areas in Ashe County.”

Ashe County Code, § 159.02 (2015). Further, the Code describes a “polluting

industry” as “an industry which produces objectionable levels of noise, odors, [etc.]

that may have an adverse effect on the health, safety or general welfare of the citizens

of Ashe County.” Ashe County Code, § 159.05. As no one works in the barn. No

customers visit the barn. Nothing is stored there that is sold. The barn is not located

in an established commercial area.

¶ 67 In sum, the language, spirit, and goal of the ordinance suggests that the barn

is not a “commercial building” within the meaning of the ordinance. Alternatively,

the term is, at best, ambiguous. There is a reasonable interpretation which would

suggest that the barn is a commercial building, in that it stores equipment that is

used, at least in part, in the owners’ farming business. However, there is a reasonable

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DILLON, J., dissenting

interpretation which would suggest that the barn is not a commercial building,

because it is an agricultural building where no commerce takes place. And based on

our Supreme Court’s jurisprudence, we must construe this ambiguity in favor of AM.

I, therefore, conclude that the Planning Board, based on its findings, got it right

concerning the barn.

C. Material Misrepresentation

¶ 68 The Planning Board found that AM did not make any material

misrepresentations to the County in its application. The majority does not address

this basis offered by the Planning Director when he denied AM the permit. The

Planning Board made detail findings to support its ultimate finding on this issue.

Given the Planning Board’s discretion to substitute its judgment for that of the

Planning Director, there is no basis for our Court to reverse the Board’s

determination on this issue.

III. Conclusion

¶ 69 I agree with the Planning Board’s resolution on the issues of law which are

before us. And I conclude that the Board’s findings support its conclusions and the

evidence supports those findings. Accordingly, my vote is to affirm Judge Bray’s

order.