This month the Court of Appeals published an opinion (Appalachian Materials v. Watauga County) that provides clear step-by-step instructions for interpreting a zoning ordinance. Is this opinion, following on the heels of Henion v. Watauga County boring? Not at all.
It involves local political intrigue, a meddling “environmental” group, and friendly judicial jousting. Plus, I’ll give you background information not found in the opinion.
Facts and Narrative
Appalachian Materials is the second case out of Watauga this year involving local attempts to prohibit asphalt plants. The facts are fairly simple. Appalachian Materials requested a High Impact Land Use (HILU) permit to construct an asphalt plant within 1500 feet of a school district office building. The county planning director, however, denied the permit, determining that the office building was an “educational facility” even though the HILU Ordinance defined an educational facility as “an elementary school, secondary school, community college, college or university.”
Why the s t r e t c h e d interpretation? Because Watauga County had become a hotbed of anti-asphalt plant activity and the political winds favored the loud voices of small groups when local ordinances became inconvenient. Appalachian Materials was one of two asphalt plant cases that were occurring essentially at the same time.
What happened in the first asphalt plant case provides a clear context for the Appalachian Materials permit denial. Full disclosure: the first case (Henion v. Watauga County) was my case. The HILU permit holder in Henion was Maymead Materials, another company that manufactured asphalt.
In Henion, the planning director created his own permit standards in order to declare that Maymead Material’s HILU ordinance permit could be revoked. The plant wasn’t being built fast enough, he said, even though he could cite to no ordinance or provision or permit term that created a deadline. The Board of Adjustment and Superior Court said otherwise, and the Court of Appeals ultimately decided that the opponents lacked standing.
The planning director’s permit revocation followed a routine permit issuance to Maymead’s predecessor. The planning director even defended his decision when asked about it by newspapers, the public and his commissioners.
But circumstances changed quickly. As soon as Maymead erected a sign notifying the public that it was applying for an NCDEQ air quality permit, the community became agitated. The Watauga Democrat and High Country Press began writing articles. County commissioners emailed the planning director. Citizens wrote to complain. The county manager became involved. The Board went into (illegal) closed session to discuss ways to stop the plant’s construction. The Blue Ridge Environmental Defense League came in to form a local fundraising chapter to hire lawyers.
Within days, the planning director – who admitted he never visited the site to inspect it and never called Maymead to inquire – summarily revoked the permit for “lack of progress,” a fuzzy permit “requirement” that cannot be found in the ordinance. It’s all in a well-documented court record.
And it was in this milieu that the planning director attempted to deny Appalachian Materials’ HILU permit application.
What the Court Said
The Court reminds us that “clear and unambiguous” ordinances are applied as written and are not subjected to judicial construction. It refused to “effectively add new words” to create a different meaning convenient to the County’s new desires.
Four Take-away Points
(1) Although the Blue Ridge Environmental Defense League d/b/a High Country Watch was granted standing to intervene, it owns no property in the area of the proposed plant, and it was formed only to fight two asphalt plants. Under N.C.G.S. §160A-393(d)(3) its intervention should have been challenged. BREDL is not what the average person calls an environmental organization. It is a professional NIMBY group that helps to organize local groups like High Country Watch to fight development projects.
(2) The Court issued a simple and cautionary statement that will be oft-quoted in future cases: “Words matter.”
(3) Judges Dillon and Davis, both excellent and respected judges, engaged in interesting and uncommon sword play over different ways to reach the same result.
(4) Property owners and developers have a greater chance against a politically biased board on matters of ordinance interpretation than with fact weighing. The former is reviewed de novo (without board deference) while the latter is reviewed under the whole record standard (with board deference).