NC Supreme Court deals setback to proposed Ashe County asphalt plant

An asphalt plant near a camp for seriously ill children.

A fight between the planning board and the planning director.

A recalcitrant quarry owner.

Guns.

A seven-year legal slog over a proposed Ashe County asphalt plant continued this week after the state Supreme Court reversed part of an appellate court’s decision and sent other portions back for further review.

The case began in June 2015. That’s when Appalachian Materials, owned by DJ Cecile, applied to the Ashe County planning department for a permit to build an asphalt plant on 30 acres near Glendale Springs and the New River. The plant would have been constructed adjacent to Radford Quarries, a facility also owned by the Cecile family with a long violation history. (When state regulators inspected Radford Quarries in 2015, Danny Cecile, father of DJ Cecile, “produced a pistol from his pocket,” according to state records, and stated “that the pistol was in case any of the inspectors got ‘out of line.'”)

The plant would also have been located within a quarter mile of Camp New Hope, a getaway for children with serious or terminal illnesses.

Because of the ongoing litigation, the plant has not been built, according to state records. If it is constructed, the plant would emit an estimated 64 tons of air pollution per year, including 20 tons of carbon monoxide, Division of Air Quality records show.

When Appalachian Materials applied for its county permit in the summer of 2015, it did not yet have a state air quality permit, which was pending. The planning director issued a letter of recommendation to the company noting that based on the information received, it had met the requirements of the county’s Polluting Industries Development ordinance, except for the air quality permit.

However, the planning director would later argue that the letter was not binding, in part because the company’s permit application was incomplete.

Many Ashe County residents and the Blue Ridge Environmental Defense League protested the proposed location of the facility. In the fall of 2015, the county enacted a six-month moratorium on permits subject to the Polluting Industries Development ordinance, like those for mines and asphalt plants.

Meanwhile, also in 2015, the state legislature passed an industry-friendly law that appeared to defang counties’ moratoria on polluting industries. The law allows companies like Appalachian Materials, if they apply for a permit before a county amends a development ordinance, to choose which version they want to be governed under. In the case of Ashe County, Appalachian Materials could choose the ordinance in effect when it initially filed its permit or a new, more stringent ordinance that was approved after the moratorium was lifted.

Appalachian Materials received its state air permit in February 2016, while the initial moratorium was in effect. That April, the county extended its moratorium for another six months, during which the planning director reviewed Appalachian Materials’ application that now contained the state air permit.

The planning director denied the permit. He found Appalachian Materials’ application had “contained number of false statements, misleading statements, and/or misrepresentations,” according to court records. Nor had the company received a local watershed permit. An outbuilding onsite did not meet the 1,000-foot setback requirements from residences.

Appalachian Materials took their case to the county planning board, which sided with the company and ordered the permit to be granted.

Ashe County challenged the planning board’s decision in Superior Court. That judge ruled in favor of the board and the company; the county then took the case to the Court of Appeals, which in 2019, agreed with the Superior Court judge.

The appellate court offered several reasons for the ruling, including that the county planning board was within its authority to overturn the director’s decision. The judges also ruled that the planning director’s cursory approval of plant’s application — submitted before the state’s air quality permit was finalized—was in part, binding.

Although batting 0-for-2, Ashe County petitioned the state Supreme Court, which agreed to hear the case in late 2020. In this week’s ruling, the state Supreme Court determined that the planning director’s 2015 letter to the company was not a “final, binding decision.” That letter is still relevant to the case, the Supreme Court wrote, and the appellate court should weigh the letter’s findings in its required review.