in the Court of Appeals 3 October 2018.
by Ashe County, North Carolina, from an order entered 30
November 2017 by Judge Susan E. Bray in Ashe County, No. 16
CVS 514 Superior Court.
Bond Dickinson (US) LLP, by John C. Cooke, for Ashe County,
North Carolina, Petitioner-Appellant.
Spruill LLP, by Chad W. Essick, Keith H. Johnson, and Colin
R. McGrath, for Appalachian Materials, LLC,
Materials, LLC ("Appalachian Materials"), filed an
application for a permit to operate an asphalt plant in Ashe
County (the "County"). Its permit was initially
denied by the County's Planning Director. However, 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. The County appeals to this Court. We
2015, Appalachian Materials submitted an application to the
County, seeking a PIDO permit to operate an asphalt plant on a certain
tract of land. However, Appalachian Materials noted in its
application that it had applied for but not yet obtained an
air quality permit from the State, a permit which
must be obtained before the County can issue a permit for an
asphalt plant in its jurisdiction.
in June 2015, the County's Planning Director sent
Appalachian Materials a letter (the "June 2015
Letter") positively commenting on the application, but
stating that Appalachian Materials needed to provide the
State-issued air quality permit before any PIDO permit could
months later, in October 2015, Ashe County's elected
Board of Commissioners (the "Governing Board")
adopted a temporary moratorium on the issuance of PIDO
permits (the "Moratorium").
the Moratorium, in February 2016, Appalachian Materials
finally supplemented its PIDO permit application with the
State air quality permit. But two months later, in April
2016, the Planning Director issued a letter to Appalachian
Materials denying the PIDO permit request. In the denial
letter, the Planning Director cited the Moratorium, among
other reasons, for the denial. Appalachian Materials appealed
the Planning Director's denial to the Planning Board.
Fall of 2016, prior to the decision of the Planning Board,
the County's Governing Board lifted the Moratorium, but
repealed the PIDO ordinance (the "Old Ordinance")
and replaced it with a new ordinance (the "New
Ordinance") which created additional barriers for the
approval of a permit to operate an asphalt plant.
December 2016, the Planning Board reversed the decision of
the Planning Director, determining that Appalachian Materials
was entitled to the PIDO permit. The County appealed the
Planning Board's decision to the superior court.
a year later, in November 2017, Superior Court Judge Bray
affirmed the Planning Board's order. The County has now
appealed Judge Bray's order to our Court.
County's unelected Planning Board, which operates as the
County's board of adjustments, voted in favor of
permitting Appalachian Materials' proposed asphalt plant.
See Ashe County Code § 153.04(J) (2015)
(stating that the County's Planning Board acts as the
County's board of adjustments). The County's elected
Governing Board, however, is against the decision of its
Planning Board, and is seeking a reinstatement of the
decision made by its Planning Director, a County employee,
denying the permit application. To better understand the
issues on appeal, we pause briefly to describe the bases why
the Planning Director denied the permit application and why
the Planning Board reversed, voting to allow the permit
2015, Appalachian Materials applied for the permit. In
October 2015, the County's Governing Board adopted its
temporary Moratorium on permit approvals. By October 2016,
the Moratorium had been lifted, the Old Ordinance was
repealed, and the New Ordinance had gone into effect.
in April 2016, while the Moratorium was still in effect, the
County's Planning Director denied Appalachian
Materials' application for a PIDO permit, concluding
that: (1) his June 2015 Letter to Appalachian Materials, in
which he positively commented on the permit application
shortly after the application was submitted, did not
constitute a binding decision on the County that the permit
would be approved once the State permit was procured; (2) the
proposed site of the asphalt plant was within one thousand
(1, 000) feet of certain commercial buildings, in violation
of the Old Ordinance's set-back requirements; (3)
Appalachian Materials' permit application was not
completed when the Moratorium went into effect, as the
required State permit was still pending; and (4) Appalachian
Materials made misrepresentations in its application.
Materials appealed the Planning Director's denial to the
County's Planning Board. The Planning Board reversed the
Planning Director's conclusions and ultimate denial,
itself concluding that (1) the June 2015 Letter from the
Planning Director did constitute a binding determination that
the permit would be approved once the State permit was
procured; (2) the proposed site was not in violation
of the Old Ordinance's one thousand (1, 000) foot buffer;
(3) Appalachian Materials' application was sufficiently
completed when submitted, prior to the adoption of the
Moratorium, to merit a decision under the Old Ordinance; and
(4) the application did not contain misrepresentations which
following reasons, we conclude that Judge Bray was correct in
affirming the decision of the Planning Board.
Appalachian Materials' Application Was Sufficiently
disagreement between the parties is whether 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. Specifically, Section 153A-320.1 of our
General Statutes, the "Permit Choice" statute,
provides that "[i]f a [county's] rule or ordinance
changes between the time a permit application is submitted
and a permit decision is made, then G.S. 143-755 shall
apply." N.C. Gen. Stat. § 153A-320.1 (2015). And
Section 143-755 provides that, in such situations, "the
permit applicant may choose which version of the rule or
ordinance will apply to the permit." N.C. Gen. Stat.
§ 143-755 (2015).
conclude that Appalachian Materials' application had been
"submitted" to the County, notwithstanding that a
required State permit was still under review. The required
State permit is one of many possible prerequisites which
might have to be met after a sufficient application is
submitted but before a permit can be finally approved. Here,
the application was submitted, and the County accepted and
deposited the application fee. The application was still
before the County when the State permit was approved.
Therefore, we conclude that the application was sufficiently
"submitted," pursuant to the Permit Choice statute,
in June 2015.
Moratorium Does Not Nullify Permit Choice Rights
county has the right to adopt a temporary moratorium on
certain permit approvals. N.C. Gen. Stat. § 153A-340(h)
(2015). We conclude that the existence of a moratorium is not
grounds to deny a permit. A moratorium simply delays the
County, though, argues that when a county adopts a temporary
moratorium and then modifies an ordinance, the Permit Choice
statute has no application. Instead, the County contends, a
pending application must be reviewed under the new ordinance
once the moratorium is lifted. We understand the County's
policy arguments, but we are compelled to disagree.
reaching our conclusion, we are guided in part by our Supreme
Court's decision in Robins v. Hillsborough, 361
N.C. 193, 639 S.E.2d 421 (2007). In that case, Mr. Robins
applied for a permit to construct an asphalt plant.
Id. at 194, 639 S.E.2d at 422. While his application
was pending, the town adopted a moratorium and then amended
an ordinance which prohibited asphalt plants from operating
in the town. Id. at 195-96, 639 S.E.2d at 423. Our
Supreme Court ruled that Mr. Robins had the right to have his
application considered under the version of the town
ordinance in effect when his application was filed, an
ordinance which did allow asphalt plants to operate
within the town, under certain conditions:
We hold that when the applicable rules and ordinances are not
followed by a town board, the applicant is entitled to have
his application reviewed under the ordinances and procedural
rules in effect as of the time he filed his application.
Accordingly, [Mr. Robins] was entitled to receive a final
determination from [the town] regarding his application and
to have it assessed under the ordinance in affect when the
application was filed. We express no opinion [on the
application's merits], but merely that [Mr. Robins] is
entitled to a decision by [the town] pursuant to the
ordinance as it existed before passage of the moratorium and
Id. at 199-200, 639 S.E.2d at 425.
years later, in 2014, the General Assembly essentially
codified much of the Supreme Court's reasoning in
Robins when it enacted the Permit Choice statute.
Like the rule applied in Robins, there is no
language in Section 153A-340(h), the moratorium statute,