Margaret Gragg Ed Center

The Margaret E. Gragg Education Center, the Watauga County Schools system central office, in February 2017.

RALEIGH — A proposed asphalt plant on Rainbow Trail could again be viable after a ruling this week by the N.C. Court of Appeals.

In a Nov. 6 ruling, a three-judge panel of the Court of Appeals unanimously reversed and remanded a Watauga County Superior Court September 2017 decision that affirmed a denial of a high impact land use permit to Appalachian Materials for an asphalt plant on Rainbow Trail.

“Obviously, my client is pleased and we agree with the court’s decision,” said Tyler Moffatt, who represented Appalachian Materials in the case. “That’s what we’ve been pursuing before it went in front of the (Watauga County) Board of Adjustment almost three years ago. We feel the court of appeals made the right decision and look forward to taking it to its conclusion — whether that happens sooner depends on the county’s reaction. We’re prepared to move forward.”

The decision centers around whether the Margaret E. Gragg Education Center — the Watauga County Schools system central office — can be classified as an educational facility. At the time, the Watauga County high-impact land use ordinance prohibited high-impact facilities within 1,500 feet of an educational facility, which Watauga County Planning and Inspections Director Joe Furman cited in denying Appalachian Materials a HILU permit in July 2015. Subsequently, the Watauga County Board of Adjustment and the Watauga County Superior Court affirmed Furman’s decision. Davis wrote that the Gragg Center doesn’t qualify as an educational facility “based on the plain language of the ordinance’s definition of that term.”

“Our holding today is not the result of a hypertechnical reading of the HILU ordinance,” the opinion by Judge Mark Davis stated. “Rather, it applies longstanding principles of statutory construction by relying on the ordinance’s plain language, which simply does not lend itself to the interpretation sought by the county in this appeal.Accordingly, we hold that the trial court erred in affirming the (Watauga County Board of Adjustment’s) decision to uphold the denial of (Appalachian Materials’) permit application.

At the time of the permit denial, the HILU ordinance defined “educational facility” as “elementary schools, secondary schools, community colleges, colleges and universities. Also includes any property owned by those facilities used for educational purposes.”

Davis says that the Gragg Center does not meet the requirement in either sentence.

“Clearly, the phrase ‘those facilities’ refer to the entities listed with specificity in the first sentence,” Davis stated. “It is undisputed that the Gragg Center is not owned by an elementary school, secondary school, community college, college or university and is instead owned by the Watauga County Board of Education. Thus, the Gragg Center likewise fails to qualify as an ‘educational facility’ under the second sentence of the definition.”

Judge Richard Elmore joined in Davis’ opinion. Judge Chris Dillon concurred with the decision but for another reason.

“I agree with the majority that the BOE property does not meet this definition of ‘educational facility,’” Dillon stated. “I base my conclusion, however, on the fact that the BOE property is not property ‘used for educational purposes.’” He said because the Gragg Center is primarily used for administrative purposes and only “sporadically” for student use, it doesn’t meet the definition of “educational facility.”

The court also rejected the arguments by Watauga County that the definition of “educational facility” in the HILU ordinance was meant to include the Gragg Center.

“Were we to accept the county’s invitation to effectively add new words to this provision of the ordinance, we would be creating a new definition out of whole cloth rather than interpreting the one that is currently before us,” Davis stated. “This we cannot do.”

Moffatt said that where the case goes next depends on whether Watauga County wants to appeal to the North Carolina Supreme Court. If the ruling isn’t appealed, the case would return to Watauga County Superior Court “for proceedings not inconsistent with this opinion,” the conclusion of the case says.

Messages left for Watauga County Manager Deron Geouque were not returned by press time. Watauga County’s attorney for the case, Chelsea Garrett, was unavailable for comment. When asked if Appalachian Materials still plans on constructing the asphalt plant, Moffatt replied, “as far I know, they are.”

The case started in June 2015 when Appalachian Materials submitted a request for a HILU permit for an asphalt plant at an 8.5-acre tract of land located along Rainbow Trail in Watauga County. A week later, Watauga County Planning and Inspections Director Joseph Furman denied the permit. Appalachian Materials appealed in July 2015 to the Watauga County Board of Adjustment. Sharon and Terry Covell, homeowners whose property was located next to the proposed asphalt plant, and the Blue Ridge Environmental Defense League Inc., subsequently filed motions to intervene as parties to Appalachian’s appeal.

After the appeals was heard Oct. 14, 2015, the board upheld Furman’s decision on Oct. 30. Appalachian Materials appealed to Watauga County Superior Court in December 2015 and the case was heard on Aug. 17, 2017. WCSC Judge Gregory Horne affirmed the board’s decision on Sept. 8, 2017.

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(2) comments

Deborah Greene

It appears the Watauga County High Impact Land Use Ordinance was amended on March 2017 as it now reads:

“Educational Facility – Elementary schools, secondary schools, community colleges, colleges, and universities, including support facilities such as administration for all of the preceding. Also includes any property owned or operated by those facilities used for educational, vocational or athletic purposes.“

According to this news article the version of the ordinance used by the NC Court of Appeals in reaching their decision, like the current version of the ordinance, does not distinguish public schools from non-public schools in the definition. Furman could have denied the permit based on a nearby non-public school since his ordinance does not clearly define that an educational facility is a “public school”. Non-public schools include homeschools which all register with the NC State Division of Nonpublic Education.

Again I suggest, the county appointed attorney review this document and refer to the ann refer to the NC General Statute definitions.

Deborah Greene

When I became involved in Watauga County local government property right issues, I learned that most of the ordinances dealing with land use were written by the county’s director of Planning and Inspections; and to save money, not reviewed or drafted by the county’s appointed attorney. I suggested to the county commissioners on multiple occasions that all of their ordinances, including their ethics policy, be reviewed or written by the appointed county attorney as they were poorly written or in the case of the ethics policy, simply insufficient in meeting the the law as the required ethics policy.

As the NC Court of Apoeals points out, NC schools do not own property. The NC Schools are owned either by the local board of education or the local county government, depending on whether the property is encumbered by installment financing. Installment financing has become the norm with replacing school bonds. Where school bonds are voted on by the citizens of the county and are backed by the full faith pledge of taxing authority, installment financing uses the school property as collateral. Local county school boards are not allowed to enter into installment agreements so if a school property is used for collateral for construction or capital improvements, to a void the vote of the citizens, (Watauga High School, Mable School for example) are owned by Watauga County and not by the Watauga County Board of Education. Regardless, schools do not get own property, they are properties that are owned.

To make it more confusing, In reviewing the financial statements of Watauga County and the Watauga Board of Education, I found that both entities have included some school properties as assets (not much to be said about the integrity of their Statement of Assets and Liabiilities, or the certified audits of such). But, since the county and the board of education are unsure who owns what and whether they own land or buildings or both, hopefully the Watauga Register of a Deeds has the correct information when and if the ordinance is amended (hopefully by the county appointed attorney).

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