Administrative – ‘Permit Choice’ Statutes – Determination of Application ‘Completeness’

The superior court did not err in affirming the Ashe County Planning Board’s decision to issue a Polluting Industries Development Ordinance permit.

We reversed the Court of Appeals.

This was the second appeal to this Court involving respondent Ashe County Planning Board’s decision to issue a permit under Ashe County’s Polluting Industries Development Ordinance (the PID Ordinance) to respondent Appalachian Materials, LLC for construction of an asphalt plant. We previously held that the Court of Appeals erred in treating a letter from the local planning director expressing preliminary approval of the permit as a binding decision. On remand for reconsideration in light of that holding, a divided panel of the Court of Appeals held that the superior court erred in affirming the Ashe County Planning Board’s decision to issue the permit.

The parties first disagreed over the correctness of the Board’s and Court of Appeals’ differing determinations as to whether the June 2015 application was “complete” for purposes of the Permit Choice statues. We held that the Board did not err in determining Appalachian Materials’ application was complete for purposes of permit choice and in light of the text of the PID Ordinance upon its initial submission in June 2015, and the superior court likewise did not err in affirming that decision.

Even setting aside the Board’s statutory authority to determine permit application completeness, de novo interpretation and application of the PID Ordinance demonstrates Appalachian Materials’ application was complete in June 2015 even without the State Permit. Strictly construing the PID Ordinance, the only immediately obvious requirement imposed on the application itself is payment of the $500 fee. And it is evident that not all the provisions of the PID Ordinance apply at the application stage; subsection (B)(4) provides that “[t]he operation of this type industry shall not violate the Ashe County Noise Ordinance,” a requirement that, by its very nature, cannot be satisfied prior to permit issuance. Id. § 159.06(B)(4). Similarly, the ordinance’s requirements concerning paved roads and material piles likewise contemplate post-permitting conduct. Other requirements do, however, appear applicable to the application itself. As for the state and federal permitting requirement, this does not appear to apply at the permit application stage under a strict construction of the ordinance; the PID Ordinance simply states that “[n]o permit from the planning department shall be issued until the appropriate Federal and State permits have been issued.” This, strictly construed, is a limitation on the ability of the County to issue a permit rather than a definition of what constitutes a completed application. As such, a completed application can be submitted under the ordinance without state or federal permits, but no PID Ordinance permit will issue until those permits, if required by some other authority, are supplied. Appalachian Materials’ application met these pre-permitting requirements. The Board appropriately found and concluded that the June 2015 application was complete when submitted. The superior court did not err in affirming this decision.

Having held that the June 2015 PID Ordinance application was “complete” for purposes of Permit Choice under the moratoria statute, we turned to whether the application satisfied that ordinance’s requirements. The Court of Appeals held that it did not meet the commercial setback requirement based on the proposed plant’s proximity to a mobile shed on an adjoining quarry and a barn on a nearby farm, reasoning that “the record supports the Planning Director’s conclusions regarding the location of the commercial buildings, and that the [mobile shed and barn] did, in fact, qualify as commercial buildings within the meaning of the PID Ordinance in February 2016.” Our de novo consideration of whether the shed or barn constituted “commercial buildings” lead us to reverse the Court of Appeals and affirm the superior court’s and Board’s orders. The PID Ordinance does not define the phrase “commercial buildings.” We therefore gave those words their ordinary meanings. To the extent that there is any ambiguity that arises from these conflicting definitions, it is to be resolved in favor of Appalachian Materials.

The facts as found by the Board support the conclusion that the mobile shed on the adjacent quarry is not a “commercial building” by virtue of its impermanence. Construing the undefined term “building” in favor of the free use of land and in keeping with the purposes of the PID Ordinance, the shed was not a “commercial building” as that term is used in the PID Ordinance’s set-back requirements. We reached the same ultimate conclusion as to the barn, but for different reasons. A barn is unquestionably a “building,” and our analysis thus turned on whether it can be considered “commercial.”  In sum, the Board had full authority on de novo review to make its own factual determination as to any material misrepresentations in Appalachian Materials’ permit application.

Reversed.

Ashe County, North Carolina v. Ashe County Planning Board and Appalachian Materials LLC (Lawyers’ Weekly No. 010-009-25, 37 pp.) (Allison Riggs, J.) Appealed from Ashe County Superior Court (Susan E. Bray, J.) Womble Bond Dickinson (US) LLP, by William D. Curtis and John C. Cooke, for petitioner-appellee; Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Craig D. Justus, Brian D. Gulden, and Jonathan H. Dunlap, for respondent-appellant Appalachian Materials, LLC; No brief for respondent-appellee Ashe County Planning Board; Law Offices of F. Bryan Brice, Jr., by F. Bryan Brice, Jr., Andrea C. Bonvecchio, Anne M. Harvey, and Dresden Hasala, for Blue Ridge Environmental Defense League and its chapter, Protect Our Fresh Air, amicus curiae; Morningstar Law Group, by William J. Brian, Jr. and Jeffrey L. Roether, and J. Michael Carpenter, for the North Carolina Home Builders Association, Inc., amicus curiae. North Carolina Supreme Court