Asphalt plant permit reinstated after application deemed complete

The North Carolina Supreme Court has reversed the Court of Appeals and reinstated a permit issued to Appalachian Materials, LLC for the construction of an asphalt plant, holding that the company’s 2015 permit application was complete under Ashe County’s Polluting Industries Development (PID) Ordinance and satisfied the requirements of North Carolina’s “Permit Choice” statutes.

This was the second time the case reached the state’s high court. On remand, a divided Court of Appeals held that the permit should not have been granted due to incomplete application materials and setback violations. The Supreme Court disagreed, finding the application complete when initially submitted in June 2015.

The court emphasized that under a strict reading of the PID Ordinance, only the $500 fee was clearly required at the application stage. Other elements — like compliance with noise regulations, road paving, or acquiring state and federal permits — apply only after the county issues the permit.

The court also concluded that the permit satisfied the ordinance’s setback requirements. It rejected the Court of Appeals’ interpretation that a nearby mobile shed and barn qualified as “commercial buildings,” which would have invalidated the permit. The court ruled the shed did not qualify due to its impermanence, and the barn, while a building, lacked commercial characteristics.

By finding the application timely and legally sufficient, the court upheld the planning board’s authority to grant the permit and reinforced the principle that ambiguous land-use terms must be construed in favor of the property owner.

The 37-page opinion is Ashe County, North Carolina v. Ashe County Planning Board and Appalachian Materials LLC, Lawyers Weekly No. 010-009-25.