County answers Appalachian Materials’ lawsuit

Legal fight continues as commissioners prep to vote on new ordinance

JEFFERSON-The future of a proposed Glendale Springs asphalt plants remains an open question as Ashe County and the plant’s planners continue to wrangle in court.

Ashe County still refuses to approve the permits Appalachian Materials LLC needs to move forward with its controversial plan, according to documents filed Aug. 8, in Ashe County Civil Superior Court.

That news comes from the county’s long awaited answer to Appalachian Material’s “writ of mandamus” motion which was first filed on April 7, 2016. Ashe County Attorney John Kilby said in previous interviews the “mandamus,” motion is meant to compel a county to perform a certain action which the petitioner believes the county is obligated to do.

In this case, the motion is a bid to force the county to allow Appalachian Materials to move forward with its Glendale Springs project.

Appalachian Materials later filed an amended complaint and the court granted Ashe County an extension through Aug. 10, to answer Appalachian Material’s motion.

The county’s answer earlier this month claims a total of 11 affirmative defenses, which allege in part:

•That all of part of Appalachian Material’s motion “fails to state a claim for which relief can be granted,”

•That Appalachian Materials failed to exhaust its administrative remedies before launching its suit and that the court lacks “subject matter jurisdiction,” over the case.

•Immunity: Defendants named in the suit plead governmental immunity, sovereign immunity, public officers’ immunity, good faith immunity, qualified immunity and/or absolute immunity as affirmative defenses in the case and that the individual Ashe County commissioners are entitled to legislative immunity for their legislative acts and actions, and/or for acts taken in their legislative capacity.

•That the county is also protected by the fact that Ashe County Planner Adam Stumb “correctly denied Appalachian Materials’ incomplete application for a permit under Ashe County’s polluting industries ordinance,” reasons which Kilby said were communicated to the company in an April 20, 2016, letter to Appalachian Materials.

How’d we get here?

Appalachian Materials first began working on its asphalt plant project in mid-2015, and the company’s complaint indicates that it believes the sequence of events concerning the project are important to its case.

In early June 2015, the company filed for both state and local permits it believed it needed to move forward with the operation, including a state air quality permit and a county “polluting industry,” or PID, permit.

The company claims in its complaint that Ashe County Planning Director Adam Stumb notified it on June 15, 2015, that “the PID application met all the requirements of the ordinance and stating that the PID permit was ‘on hold’ until Appalachian received the air quality permit from the (North Carolina Division of Environmental Quality).”

Appalachian further claims that Stumb’s “approval decision” was never appealed and has since become binding.

The company said it moved forward with its application – based on Stumb’s approval decision it claims – and spent substantial resources in the belief it would soon be able to produce asphalt on the site.

But the plan began to draw fire from the public in late summer after it became known that Appalachian Materials planned to build an asphalt plant in Glendale Springs. An environmental advocacy group, Protect our Fresh Air, lobbied the Ashe County Board of Commissioners to oppose the plan.

“On October 19, 2015, almost four months after Appalachian submitted the PID Application and the Approval Decision was issued, the County succumbed to political pressure and adopted a six month moratorium on the issuance of development approvals required under the Ordinance,” according to the complaint.

County commissioners instructed the Ashe County Planning Board to craft a stronger polluting industries ordinance, which ultimately led to Ashe County’s High Impact Land Use Ordinance, which the planning board approved in March. County commissioners, however, have yet to adopt the new ordinance.

County commissioners voted on April 4, to extend the moratorium for another six months and Appalachian Materials filed its suit against the county three days later. The company’s complaint alleges that because its application was filed before the county moved to amend its polluting industries ordinance, state law says the moratorium simply doesn’t apply to Appalachian Material’s proposal.

Kilby said in previous interviews the county does believe the moratorium applies to Appalachian Materials.

Commissioners could consider an updated HILU ordinance in coming weeks.

Reach Adam Orr at 336-489-3058 or
Legal fight continues as commissioners prep to vote on new ordinance
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