RALEIGH — With a pair of concurring opinions published May 21, the North Carolina Court of Appeals affirmed the county planning board’s decision to issue a Polluting Industries Development Ordinance permit to Appalachian Materials for a proposed asphalt plant in the case of Ashe County v. Ashe County Planning Board.
As a brief summary of Ashe County v. Ashe County Planning Board, Appalachian Materials applied in June 2015 for a PIDO permit required to operate an asphalt plant that the company proposed to build in Glendale Springs.
The PIDO permit was denied by the county’s planning director, Adam Stumb, but that decision was overturned by the Ashe County Planning Board, which granted Appalachian Materials the permit.
The County of Ashe appealed the planning board’s decision to Ashe County Superior Court, and Judge Susan Bray further affirmed the planning board’s decision in a superior court hearing Nov. 30, 2017.
Tuesday, May 21 — 230 days after hearing the county’s cases in the N.C. Court of Appeals — a court of appeals judge affirmed the superior court’s order affirming the decision of the Ashe County Planning Board to issue Appalachian Materials a PIDO permit.
N.C. Court of Appeals Judge Chris Dillon wrote the main opinion, which Judge Donna Stroud concurred with.
According to the first superior court decision, Judge Swan Bray of Ashe County Superior Court was correct in affirming the decision of the Ashe County Planning Board to overturn the planning director and grant Appalachian Materials the PIDO permit, based on five points of contention heard during oral arguments October 3.
The court summarized that the county planning board was acting within its legally defined rights to overturn the planning director, the opinion said.
In a second opinion, N.C. Court of Appeals Judge Philip Berger Jr. concurred with the majority but said the entire case should have been dismissed to begin with.
“Because neither the Planning Board nor the trial court had subject matter jurisdiction, the order should be vacated, this matter dismissed, and the PIDO permit released to Appalachian Materials,” Berger said.
Ashe County Planning Board Chairwoman Priscilla Cox, who was on the board that issued the PIDO permit, said she is pleased with the court of appeals’ decision.
“I thought we had carefully deliberated and applied the ordinances correctly,” Cox said. “I’m not at all surprised that at each and every point, the court has essentially said there’s no merit to the claims the county was making.”
According to Cox, there are some lessons to take away from the case.
“The main thing we should learn from this is, when a business has a business plan and complies with every regulation on the books, you cannot impose some standards that do not exist or make it up as you go,” Cox said. “I hope that this will allow the county planning board to focus on long-range planning, instead of having to spend all its time reacting to frivolous litigation.”
Acting Ashe County Manager and Planning Director Adam Stumb said he was unsure whether the case would be further appealed, or left as is.
“We’ll look at the court’s ruling with the county commissioners and go from there,” Stumb said.
Appalachian Materials was contacted for comment but had not responded by presstime.
Ashe Post & Times will update this story with more information as it is made available.