Recently, the NC Court of Appeals affirmed a lower court’s decision to grant a polluting industry permit for an asphalt plant in Glendale Springs. The county permit was initially denied by the Ashe County Planning Director, setting off a legal fight between the Ashe County Planning Board and the board of County Commissioners.
The court’s reasoning is a stunning piece of sophistry, fatally flawed and illogical. The asphalt industry had a major role in this play, a story fed to the Ashe County Planning Board, who were like lambs led to slaughter during the county proceedings.
For example, the planning board incorrectly determined that a barn is not a commercial building, even though its purpose is agriculture and taxes are paid on it. The planning director denied the application based on his view that Appalachian Materials made misrepresentations on its application, also dismissed by the planning board and the court.
The Court of Appeals concluded that the planning director’s cursory approval — communicated by email before a completed application had been submitted — became binding when the county failed to appeal it within a thirty-day window in 2015.
However, Ashe County adopted a moratorium on polluting industry permitting in October 2015, early in the process and well before county and state permits were issued. But the Court of Appeal’s ruling turns the state’s moratorium statute into a meaningless exercise. State law permits county governments to adopt such moratoriums. NCGS Section 153A-340(h). A duly adopted moratorium states its purpose and need as well as its duration. In fact, the Ashe County Moratorium’s Articles 2 and 3 cite harmful emissions, a potential threat to air quality, and the protection of public health.
Information which came to light during the moratorium included the health risk to the severely disabled children of Camp New Hope, which would be about a quarter mile from the proposed asphalt plant, well within the zone of toxic air pollution. Ashe County’s elected leaders have made their intentions clear during this entire proceeding, at the county level, in superior court and most recently in the court of appeals; that is, the board of commissioners oppose this asphalt plant and its pollution-spewing smokestack at this site.
The court has made a serious error in this case. Its procedural legal reasoning may rest upon precedent, but its humanity is hobbled by a blinkered view of what is most vital in this world: protecting the children.