              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-253

                                Filed: 21 May 2019

Ashe County, No. 16 CVS 514

ASHE COUNTY, NORTH CAROLINA, Petitioner,

             v.

ASHE COUNTY PLANNING BOARD AND APPALACHIAN MATERIALS, LLC,
Respondents.


      Appeal by Ashe County, North Carolina, from an order entered 30 November

2017 by Judge Susan E. Bray in Ashe County Superior Court. Heard in the Court of

Appeals 3 October 2018.


      Womble Bond Dickinson (US) LLP, by John C. Cooke, for Ashe County, North
      Carolina, Petitioner-Appellant.

      Poyner Spruill LLP, by Chad W. Essick, Keith H. Johnson, and Colin R.
      McGrath, for Appalachian Materials, LLC, Respondent-Appellee.


      DILLON, Judge.


      Appalachian 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
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superior court affirmed the decision of the Planning Board. The County appeals to

this Court. We affirm.

                                         I. Background

       In June 2015, Appalachian Materials submitted an application to the County,

seeking a PIDO permit1 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.2

       Later 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 be issued.

       Four 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”).

       During the Moratorium, in February 2016, Appalachian Materials finally

supplemented its PIDO permit application with the State air quality permit. But two



       1  A permit issued under Ashe County’s then-existing Polluting Industries Development
Ordinances.
        2 See S.T. Wooten v. Zebulon Bd. of Adjustment, 210 N.C. App. 633, 635, 711 S.E.2d 158, 159

(2011) (Judge, now Chief Justice, Beasley, writing for our Court, commenting on an asphalt plant
operator applicant obtaining a State-issued air quality permit as a precursor to obtaining a permit
from the town).

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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.

         In the 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.

         In 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.

         Almost 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.

                                       II. Analysis

         The 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



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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 application.

      In June 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.

      However, 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.




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      Appalachian 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 warranted denial.

      For the following reasons, we conclude that Judge Bray was correct in

affirming the decision of the Planning Board.

          A. Appalachian Materials’ Application Was Sufficiently Complete

      One 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



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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).

      We 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.

            B. The Moratorium Does Not Nullify Permit Choice Rights

      A 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

decision.

      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




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under the new ordinance once the moratorium is lifted. We understand the County’s

policy arguments, but we are compelled to disagree.

      In 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 the amendment.

Id. at 199-200, 639 S.E.2d at 425.

      Seven 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.


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Like the rule applied in Robins, there is no language in Section 153A-340(h), the

moratorium statute, which prevents the Permit Choice statute from applying once

the moratorium is lifted.

        C. The June 2015 Letter Was Only Partially Binding on the County

      The Planning Board concluded that the June 2015 Letter, in which the

Planning Director positively commented on the application, was a determination that

the application would be approved once the State permit was obtained. The Planning

Board further concluded that this determination by the Planning Director in his June

2015 Letter became binding on the County when the County failed to appeal the June

2015 Letter within thirty (30) days.

      The County now argues that the June 2015 Letter has no binding effect.

      The record shows the following: In early June 2015, Appalachian Materials

submitted its application for a PIDO permit. About a week later, an Appalachian

Materials representative followed up, requesting a letter from the Planning Director

regarding the application:

             . . . . A letter detailing that standards of our ordinance have
             been met for [our] site, with the one exception [the absence
             of the required State air quality permit] would be great. If
             you could just email that to me, it would help a great deal.

That same day, the Planning Director responded by email that he would send a letter

but that it would be merely his “favorable recommendation” of the application, that




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he still needed to see Appalachian Materials’ final plans, and that he did not have the

authority to provide conditional approval for the PIDO permit:

              . . . . I will write up a permit for the site assuming the new
              plans meet the requirements [of the PIDO].

              Concerning the conditional approval based on getting the
              [required State permit], I cannot do that without approval
              from the Planning Board. The language in the ordinance
              is pretty clear, “no permit from the planning department
              shall be issued until [all required State and Federal]
              permits have been issued.”

              That said, I could write a favorable recommendation, or
              letter stating that standards of our ordinance have been
              met for this site, with one exception.

(Emphasis in italics added.)

      A week later, the Planning Director sent the June 2015 Letter, which stated

as follows:

              I have reviewed the plans you have submitted on behalf of
              Appalachian Materials LLC for a polluting industries
              permit. The proposed asphalt plant is located on Glendale
              School Rd, property identification number 12342-016, with
              no physical address.

              The proposed site does meets (sic) the requirements of the
              Ashe County Polluting Industries Ordinance, Chapter 159
              (see attached checklist). However, the county ordinance
              does require that all state and federal permits be in hand
              prior to a local permit being issued. We have on file the
              general NCDENR Stormwater Permit and also the Mining
              Permit for this site. Once we have received the NCDENR
              Air Quality Permit[,] our local permit can be issued for this
              site.



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            If you have any questions regarding this review please let
            me know.

            [/s/ Planning Director]

      The June 2015 Letter enclosed the following checklist, which aligns with the

“Permitting Standards” required to receive a PIDO permit under the Old Ordinance:

159.06A     Fee                          $500.00 Paid 6/5/2015
            State & Federal Permits      Air Quality Permit – applied for by
                                         applicant, local permit on hold until
                                         received
159.06B     Buffer Requirements          1,000 feet of a residential dwelling or
                                         commercial building

                                         1,320 feet of any school, daycare, hospital, or
                                         nursing home facility.

                                         Verified, survey attached to permit.
159.06B1 Permanent Roads                 Permanent roads, used in excess of six
                                         months, within the property site shall be
                                         surfaced with a dust free material (soil
                                         cement, portland cement, bituminous
                                         concrete.

                                         To be inspected prior to final
                                         inspection.
159.06B3 Security Fence                  No extraction operation planned.
                                         Fence not required unless conditions
                                         change.
159.06B4 Noise                           Operations shall not violate noise
                                         ordinance.     Ongoing    inspection
                                         required.

      Our Court has held that where a planning department official makes a

decision, it may be binding on the city or county if not appealed to the board of

adjustments within thirty (30) days. See S.T. Wooten Corp. v. Bd. of Adjustment of


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Zebulon, 210 N.C. App. 633, 639, 711 S.E.2d 158, 162 (2011). In determining whether

a statement by a town official represents a decision binding on the County (if not

appealed timely), our Court has relied upon the following factors: (1) whether the

decision was made at the request of a party “with a clear interest in the outcome,”

such as at the request of a landowner, adjacent landowner, or builder rather than a

city attorney; (2) whether the decision was made “by an official with the authority to

provide definitive interpretations” of the applicable local ordinance, such as a

planning director; (3) whether the decision reflected the official’s formal and

definitive interpretation of a specific ordinance’s application to “a specific set of facts,”

such as “providing a formal interpretation of [a] zoning ordinance to a landowner

seeking such interpretation as it related specifically to its property;” and (4) whether

the requesting party relied on the official’s letter “as binding interpretations of the

applicable . . . ordinance.” S.T. Wooten Corp., 210 N.C. App. at 641-42, 711 S.E.2d at

163.

       However, we have also held that “[w]here the decision has no binding effect, or

is not ‘authoritative’ or ‘a conclusion as to future action,’ it is merely the view, opinion,

or belief of the administrative official.” In re Soc’y for the Pres. of Historic Oakwood

v. Bd. of Adjustment of Raleigh, 153 N.C. App. 737, 743, 571 S.E.2d 588, 591 (2002).

Notably, a determination that is conditioned upon a future event occurring “does not

convert [the official’s] unequivocal . . . interpretation into an advisory opinion.” S.T.



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Wooten Corp., 210 N.C. App. at 643, 711 S.E.2d at 164 (concluding that a planning

director was bound by his prior, written determination that the local zoning ordinance

would permit a proposed asphalt plant pending the issuance of a prerequisite

building permit).

      Here, based on the circumstances in which the June 2015 Letter was issued

and the language of the prior email and the June 2015 Letter itself, we conclude that

the Planning Director did not intend for his June 2015 Letter to be a determination

that the permit would be issued once the State permit was obtained. But we also

conclude that the June 2015 Letter did have some binding effect, as noted in the

following section.

       D. The June 2015 Letter Binds the County With Respect to the Buffer

      The Old Ordinance prohibited any asphalt plant from being developed on a site

within one thousand (1,000) feet of a “commercial building.” Ashe County Code §

159.06(B) (2015) (repealed).   The Planning Director denied the permit, in part,

because the proposed site was within one thousand (1,000) feet of a portable shed, not

attached to the land, used by Appalachian Materials’ parent company on the same

site and also within one thousand (1,000) feet of a barn on an adjacent property. The

Planning Department determined that these structures were not “commercial

buildings.”




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      Our review of language in an ordinance is de novo; that is, we interpret

language in an ordinance just like we interpret language in a statute.            Morris

Commc’ns Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 365 N.C. 152,

155-56, 712 S.E.2d 868, 871 (2011) (“Reviewing courts apply de novo review to alleged

errors of law, including challenges to a board of adjustment’s interpretation of a term

in a municipal ordinance.”). And “[z]oning ordinances should be given a fair and

reasonable construction in light of . . . the general structure of the Ordinance as a

whole[,]” but, since zoning regulations are in “derogation of common law rights,” they

“should be resolved in favor of the free use of property.” Yancey v. Heafner, 268 N.C.

263, 266, 150 S.E.2d 440, 443 (1966).

      Here, there is uncontradicted evidence that the barn was owned by a neighbor

who ran a business in which he harvested and sold hay and that he used the barn to

store his hay inventory and to store farm equipment used to harvest hay.

      It may be argued that it is ambiguous whether the barn’s agricultural use is a

“commercial use.” But it could be strongly argued that the language of the Ashe

County Ordinance as a whole supports the view that the barn in question, used for

an agricultural purpose which is commercial in nature (to sell farm products in the

marketplace), is a “commercial” property as used in the Old Ordinance. For instance,

one provision in the ordinance defines “business” as a “commercial trade . . . including

but not limited to . . . agricultural . . . and other similar trades or operations.” Ashe



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County Code § 163.05 (2015). And a planned unit development is defined as any

development that includes residential and commercial uses, without any separate

delineation for agricultural uses. Ashe County Code § 156.48 (2015). The ordinances

dealing with permit fees to construct buildings categorize buildings as either “one and

two family dwellings,” “mobile homes,” and “commercial,” without any separate

delineation for “agricultural.” Ashe County Code § 150.29 (2015).

      But we need not resolve whether the County’s interpretation or its Planning

Board’s interpretation of “commercial building” as applied to the barn or the shed is

correct. Rather, we conclude that the Planning Director made the determination that

they were not commercial buildings in his June 2015 Letter and that his

determination was binding on the County. Indeed, the record shows that these

buildings were shown in the application and that the Planning Director stated in his

June 2015 Letter that he had “verified” that these buildings were not a problem.

Further, Appalachian Materials was prejudiced by this determination in that it could

have sought a variance had the Planning Director not made the determination. Ashe

County Code § 159.07(B) (2015) (repealed) (allowing applicant to seek a variance for

any buffer issues).

      We conclude that the June 2015 Letter was not a binding determination that

the permit would be issued once the State permit was obtained. But we also conclude

that the table in the June 2015 Letter is indicative that the Planning Director was



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making a determination concerning the status of the buildings shown in the

application to be in proximity of the proposed site.

      It could be argued that the rule we apply creates the likelihood of

“interlocutory” appeals to a board of adjustments from decisions made by planning

department officials. However, we are bound by our precedent. And where a county’s

planning department official has made an interlocutory determination that is relied

upon by an applicant, to its detriment, such determination must be appealed by the

county to its board of adjustments within thirty (30) days; otherwise, the

determination becomes binding. Our precedent favors a policy that citizens should

not suffer when they reasonably rely upon determinations made be a county official.

It is, therefore, on each county to develop a process whereby it can become aware of

determinations made by its own staff so that it can preserve its right to appeal such

determinations, unless and until the law in this regard is changed.

                      E. Misrepresentations in the Application

      The Planning Director denied the application based on other factors such as

his view that Appalachian Materials made misrepresentations on its application.

The Planning Board reviewed these alleged misrepresentations and determined that

they were not sufficient to warrant the denial of the application. We note that, under

the Ashe County Code, the Planning Board has the authority to “uphold, modif[y], or

overrule[] in part or in its entirety” any determination made by the Planning Director.



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Ashe County Code § 153.04(f) (2015).      Here, the Planning Board has made its

determination; and we cannot say that the Planning Board has exceeded its authority

to overrule the determination made by the Planning Director.

                                  IV. Conclusion

      The Moratorium is no longer in effect. Appalachian Materials’ application

must be reviewed under the Old Ordinance, as requested by Appalachian Materials.

The Planning Director bound the County on the issue of whether certain buildings

were each a “commercial building” as defined in the buffer provision in the Old

Ordinance.   The Planning Board had the authority to determine whether the

application otherwise complied with the Old Ordinance. We, therefore, affirm the

trial court’s order affirming the decision made by the Planning Board.

      AFFIRMED.

      Judge STROUD concurs.

      Judge BERGER concurs by separate opinion.




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      BERGER, Judge, concurring in separate opinion.


      I concur with the majority that the Polluting Industries Development

Ordinance permit (“PIDO” or “PIDO permit”) should be released to Appalachian

Materials, LLC. However, because the County did not timely appeal to the Planning

Board, neither the Planning Board nor the trial court had the requisite subject matter

jurisdiction to review the appeal. Therefore, the trial court’s order should be vacated,

this matter dismissed, and the permit released to Appalachian Materials.

      In June 2015, Appalachian Materials submitted an application to Adam Stumb

(“Stumb”), Ashe County’s Planning Director, for a permit to be issued, as required

under the local PIDO. This permit would authorize Appalachian Materials to operate

portable asphalt equipment on a portion of its leased property in Ashe County, North

Carolina.    Appalachian Materials’ application included the required $500.00

application fee and a copy of its air quality permit application, which Appalachian

Materials contemporaneously submitted to the North Carolina Department of

Environmental Quality (“NCDEQ”). As this air quality permit was required for a

PIDO permit to be issued, Appalachian Materials further promised that it would

forward a copy of the air quality permit to Stumb upon receipt from NCDEQ.

      Shortly after Appalachian Materials submitted its PIDO permit application,

Stumb agreed to provide written confirmation as to whether Appalachian Materials’

permit complied with PIDO, notwithstanding the pending air quality permit

determination. Stumb’s decision “was important for Appalachian [Materials] to know
                       ASHE CNTY. V. ASHE CNTY. PLANNING BD.

                                BERGER, J., concurring



in order to continue to spend time, money and resources in connection with securing”

another necessary permit. In response to Appalachian Materials’ request, Stumb

visited Appalachian Materials’ property, “created and reviewed certain GIS maps and

photographs that identified all buildings in close proximity to the [p]roperty and

created certain GIS shape files identifying any buildings that required buffering or

setbacks from the proposed polluting industry under [PIDO].”

      On June 22, 2015, Stumb sent Appalachian Materials the following letter (the

“June 2015 Letter”):

            I have reviewed the plans you have submitted on behalf of
            Appalachian Materials LLC for a polluting industries
            permit. The proposed asphalt plant is located on Glendale
            School Rd, property identification number 12342-016, with
            no physical address.

            The proposed site does meets (sic) the requirements of the
            Ashe County Polluting Industries Ordinance, Chapter 159
            (see attached checklist). However, the county ordinance
            does require that all state and federal permits be in hand
            prior to a local permit being issued. We have on file the
            general [NCDEQ] Stormwater Permit and also the Mining
            Permit for this site. Once we have received the [NCDEQ]
            Air Quality Permit[,] our local permit can be issued for this
            site.

            If you have any questions regarding this review please let
            me know.

            [Stumb’s Signature]
            Adam Stumb
            Director of Planning




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                                BERGER, J., concurring



(emphasis added). Appalachian Materials “continued to invest time, money[,] and

resources into the proposed asphalt facility” after receiving the June 2015 Letter.

      On February 26, 2016, NCDEQ issued the outstanding air quality permit to

Appalachian Materials. On February 29, 2016, Appalachian Materials forwarded a

copy of its air quality permit to Stumb and requested that he issue its PIDO permit

as promised. That same day, Stumb responded via email that he may need additional

information from Appalachian Materials or NCDEQ before considering the request

to issue the PIDO permit. After a series of communications between Stumb and

Appalachian Materials, Stumb wrote a letter to Appalachian Materials on April 20,

2016 (the “April 2016 Letter”), which denied its request to issue a PIDO permit. In

the April 2016 Letter, Stumb contended that “the proposed polluting industry was

located with 1,000 feet of a residential dwelling unit or commercial building, in

violation of [PIDO], that the [a]pplication was incomplete because Appalachian

[Materials] had not obtained all necessary state and federal permits, and that

Appalachian [Materials] made several false statements in the [a]pplication.”

      On May 16, 2016, Appalachian Materials appealed Stumb’s April 2016 Letter

to the Planning Board. The Planning Board held a quasi-judicial hearing on October

6, 2016, in which Appalachian Materials argued that Stumb’s June 2015 Letter was

a binding determination that the County did not timely appeal.             Therefore,

Appalachian Materials argued that Stumb had no authority to subsequently reverse



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                                BERGER, J., concurring



this binding decision by denying Appalachian Materials’ application for a PIDO

permit in the April 2016 Letter. On December 1, 2016, the Planning Board entered

an order (the “Planning Board’s Order”), in which the Planning Board unanimously

reversed the April 2016 Letter; concluded that Appalachian Materials had satisfied

all the requirements of PIDO; classified the June 2015 Letter as a binding and final

determination; and found “no basis for any other allegation made by Stumb in his

April 2016 Letter that any material misrepresentation was made in the

[a]pplication,” and ordered Stumb to release the PIDO permit to Appalachian

Materials.

      The County appealed from the Planning Board’s Order by filing a petition for

writ of certiorari with in Ashe County Superior Court on December 30, 2016. On

November 30, 2017, the superior court entered an order (the “Superior Court’s

Order”), affirming the Planning Board’s Order in all respects and ordering the County

to issue a PIDO permit to Appalachian Material within ten business days.

      On December 7, 2017, the County filed a motion with the superior court to stay

its order. However, the County did not calendar the motion, therefore no stay has

been entered. Moreover, the County failed to comply with the Superior Court’s Order

because it transferred custody of Appalachian Materials’ PIDO permit to the superior

court rather than issuing the PIDO permit directly to Appalachian Materials.




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                                BERGER, J., concurring



      The County timely appealed the Superior Court’s Order to this Court, arguing,

inter alia, that the superior court erred by concluding that the June 2015 Letter was

a final, binding determination.      Because the June 2015 Letter was a final

determination that the County did not timely appeal to the Planning Board, the

Planning Board and superior court lacked the requisite subject matter jurisdiction to

review this matter. Accordingly, the trial court’s order should be vacated and the

PIDO permit should be released to Appalachian Materials.

      It is well settled in North Carolina that

             boards of adjustment do not have subject matter
             jurisdiction over appeals that have not been timely filed.
             The extent to which a board of adjustment has jurisdiction
             to hear an appeal is a question of law. In the event that a
             board of adjustment decision is alleged to rest on an error
             of law such as an absence of jurisdiction, the reviewing
             court must examine the record de novo, as though the issue
             had not yet been determined.

Meier v. City of Charlotte, 206 N.C. App. 471, 476, 698 S.E.2d 704, 708 (2010)

(citations omitted) (emphasis added). “Upon further appeal to this Court from a

superior court’s review of a municipal board of adjustment’s decision, the scope of our

review is the same as that of the trial court.” S.T. Wooten Corp. v. Bd. of Adjustment

of Zebulon, 210 N.C. App. 633, 637-38, 711 S.E.2d 158, 161 (2011) (purgandum).

      Section 153.04(J) of the Ashe County Code of Ordinances states:

             The Planning Board shall act as the Board of Adjustment
             for all land usage ordinances in the Ashe County Code of
             Ordinances (Title XV: Land Usage). The Board shall act


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                                 BERGER, J., concurring



             and hold hearings in accordance with G.S. § 153A-345.1
             entitled Planning Boards. Each hearing shall follow rules
             applied to quasi-judicial proceedings. Each decision shall
             be based upon competent, material, and substantial
             evidence noted in the record of the proceeding.

Ashe County Code § 153.04(J) (2019).

      Section 153A-345.1(a) of the North Carolina General Statutes dictates that

“[t]he provisions of G.S. 160A-388 are applicable to the counties.” N.C. Gen. Stat.

§ 153A-345.1(a) (2017). In relevant part, Section 160A-388 states:

             (a1) Provisions of Ordinance. – The zoning or unified
             development ordinance may provide that the board of
             adjustment hear and decide special and conditional use
             permits, requests for variances, and appeals of decisions of
             administrative officials charged with enforcement of the
             ordinance. As used in this section, the term “decision”
             includes any final and binding order, requirement, or
             determination. The board of adjustment shall follow quasi-
             judicial procedures when deciding appeals and requests for
             variances and special and conditional use permits. The
             board shall hear and decide all matters upon which it is
             required to pass under any statute or ordinance that
             regulates land use or development.

N.C. Gen. Stat. § 160A-388(a1) (2017).

      Aligning with Section 160A-388(b1), Section 153.04(J)(3) of the Ashe County

Code states, in relevant part:

             The Planning Board shall hear and decide appeals from
             decisions of Planning Department officials charged with
             enforcement of the development ordinances and may hear
             appeals arising out of any other ordinance that regulates
             land use, subject to all of the following:



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                                   BERGER, J., concurring



                     (a) Any person who is directly affected may appeal
              a decision to the Planning Board. An appeal is taken by
              filing a notice of appeal with the clerk to the Board. The
              notice of appeal shall state the grounds for appeal.
                     (b) A county administrative official who has made a
              decision from which someone wishes to appeal shall give
              written notice to the owner of the property that is the
              subject of the decision and to the party who sought the
              decision, if different from the owner. The written notice
              shall be delivered by personal delivery, electronic mail, or
              by first class mail.
                     (c) The owner or other party shall have 30 days from
              receipt of the written notice within which to file an appeal.
              Any other person with standing to appeal shall have 30
              days from receipt from any source of actual or constructive
              notice of the decision within which to file an appeal.

Ashe County Code § 153.04(J)(3).

       Simply stated, to appeal a decision made by an Ashe County Planning

Department official, a petitioner must (1) have standing and (2) file the appeal within

30 days after receiving actual or constructive notice of the official’s binding decision.

“Our case law has made clear that for this thirty-day [notice of appeal] clock to be

triggered, the order, decision, or determination of the administrative official must

have some binding force or effect for there to be a right to appeal . . . .” S.T. Wooten

Corp. 210 N.C. App. at 639, 711 S.E.2d at 162 (citation and quotation marks omitted).

“Where the decision has no binding effect, or is not ‘authoritative’ or ‘a conclusion as

to future action,’ it is merely the view, opinion, or belief of the administrative official.”

In re Soc’y for the Pres. of Historic Oakwood v. Bd. of Adjust. of Raleigh, 153 N.C.

App. 737, 743, 571 S.E.2d 588, 591 (2002).            Notably, a determination that is


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                                   BERGER, J., concurring



conditioned upon a future event occurring “does not convert [the official’s]

unequivocal . . . interpretation into an advisory opinion.” S.T. Wooten Corp., 210 N.C.

App. at 643, 711 S.E.2d at 164 (concluding that a planning director was bound by his

prior, written determination that the local zoning ordinance would permit a proposed

asphalt plant pending the issuance of a prerequisite building permit).

       When assessing whether a letter from an administrative official represents the

official’s binding and appealable decision, this Court has previously relied upon the

following factors: (1) whether the decision was made at the request of a party “with a

clear interest in the outcome,” such as at the request of a landowner, adjacent

landowner, or builder rather than a city attorney; (2) whether the decision was made

“by an official with the authority to provide definitive interpretations” of the

applicable local ordinance, such as a Planning Director; (3) whether the decision

reflected the official’s formal and definitive interpretation of a specific ordinance’s

application to “a specific set of facts,” such as “providing a formal interpretation of

the zoning ordinance to a landowner seeking such interpretation as it related

specifically to its property”; and (4) whether the requesting party relied on the

official’s letter “as binding interpretations of the applicable . . . ordinance.” Id. at 641-

42, 711 S.E.2d at 163.

       Here, the parties do not dispute standing, and it is uncontested that the County

did not timely appeal Stumb’s June 2015 letter. Rather, the crux of this appeal is



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                                BERGER, J., concurring



whether Stumb’s June 2015 Letter served as a final determination binding the

County to issue Appalachian Materials a PIDO permit.

      Applying the above-mentioned factors, it is clear that (1) Stumb issued the

June 2015 Letter to Appalachian Materials who, as the lessee of the disputed

property and owner of the proposed asphalt plant, had a “clear interest” in whether

Stumb concluded that its permit application complied with PIDO; (2) Stumb, as Ashe

County’s Planning Director, had the authority to issue PIDO permits and determine

whether Appalachian Materials’ permit application complied with PIDO; (3) the June

2015 Letter reflected Stumb’s formal and definitive interpretation that Appalachian

Materials’ permit application complied with PIDO; and (4) Appalachian Materials

relied on Stumb’s June 2015 Letter as a binding decision that its application had been

approved and that the PIDO permit would be issued once the air quality permit was

obtained. Accordingly, the June 2015 Letter represented a binding determination

that was subject to appeal to the Planning Board per N.C. Gen. Stat. § 160A-388(a1)

and Ashe County Code § 153.04(J)(3).

      Therefore, the County was required to voice any objection to the June 2015

Letter by noticing appeal within the requisite 30-day period per N.C. Gen. Stat.

§ 160A-388(b1)(3) and Ashe County Code § 153.04(J)(3)(c). Because the County did

not timely appeal from the June 2015 Letter, both the Planning Board and the

superior court lacked subject matter jurisdiction to reconsider whether Appalachian



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                                BERGER, J., concurring



Materials’ application complied with PIDO. See Meier, 206 N.C. App. at 476, 698

S.E.2d at 708 (“[B]oards of adjustment do not have subject matter jurisdiction over

appeals that have not been timely filed.”). Absent a timely appeal, the June 2015

Letter bound the County to release the PIDO permit to Appalachian Materials once

a copy of the outstanding air quality permit was forwarded to Stumb on February 29,

2016.

        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.




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