Ashe County v. Ashe Cnty. Plan. Bd.
249PA19-2
N.C.Mar 21, 2025Background
- Appalachian Materials, LLC applied for a permit in June 2015 to build an asphalt plant under Ashe County's Polluting Industries Development (PID) Ordinance.
- The initial application included a $500 fee, site maps, and representations of compliance, but did not include a state air quality permit, which was still pending.
- Public opposition led to the county enacting a development moratorium on polluting industries in October 2015, before the state permit was acquired and forwarded in February 2016.
- The Planning Director ultimately denied the application, alleging incompleteness, non-compliance with setback requirements, and misrepresentations.
- Appalachian Materials appealed, and the Planning Board reversed the denial, finding the application complete and compliant; subsequent court actions led to Supreme Court review focused on completeness, setbacks, and misrepresentation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appalachian Materials' permit application was "complete" in June 2015 | County: Application incomplete without State Permit and truthful info | Appalachian: "Complete" means sufficient to start review, state permit not needed at submission | Application was "complete" when submitted in June 2015 |
| Whether the mobile shed and barn triggered commercial setback requirements | County: Structures are "commercial buildings" triggering setbacks | Appalachian: Structures are not commercial buildings (shed is impermanent, barn not used commercially) | Neither structure qualified as a commercial building |
| Whether the application contained material misrepresentations | County: Application included false/incomplete statements | Appalachian: No material misrepresentations, Board’s findings should stand | No material misrepresentations; Board’s finding is supported |
| Effect of moratorium and timing on permit choice statute eligibility | County: Moratorium barred permit issuance; application not complete by moratorium | Appalachian: Permit choice applies from initial submission; application accepted as complete | Permit choice triggered by initial application; moratorium did not bar issuance |
Key Cases Cited
- Morris Commc’ns Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 365 N.C. 152 (N.C. 2011) (standards for review in zoning board appeals; de novo vs. whole record)
- Northwestern Fin. Grp., Inc. v. County of Gaston, 329 N.C. 180 (N.C. 1991) (normal give and take in permit applications does not defeat permit completeness)
- J.T. Hobby & Son, Inc. v. Family Homes of Wake Cnty., Inc., 302 N.C. 64 (N.C. 1981) (essential character of property use determines whether it is commercial)
- Henderson v. Rochester Am. Ins. Co., 254 N.C. 329 (N.C. 1961) (materiality is typically a question of fact)
- In re Clayton-Marcus Co., 286 N.C. 215 (N.C. 1974) (undefined ordinance terms are given their ordinary meaning)