Court of Appeals Issues Two (Unpublished) Decisions on Quasi-Judicial Permit Appeals
By Toby Coleman
The Court of Appeals issued two unpublished decisions in November in connection with appeals of quasi-judicial land use decisions.
Madison Asphalt, LLC v. Madison County, et al. (2021-NCCOA-603)
An interesting case involving citizen efforts to challenge a negotiated settlement of a disputed quasi-judicial permit decision. The court decided the case on procedural/jurisdictional grounds.
Quick Background: Madison Asphalt sought a conditional use permit for (you guessed it) an asphalt plant. After originally denying the requested permit, the County’s Board of Commissioners rethought their position after Madison Asphalt appealed and “threatened additional litigation.” Madison Asphalt and the County entered into a settlement agreement under which the County would issue the requested permit. Because Madison Asphalt’s appeal was still pending before the Superior Court, the parties requested a consent order from the Superior Court hearing Madison Asphalt’s appeal reversing the prior permit denial and remanding the case back to the County.
Individuals opposed to the asphalt plant attempted to derail the settlement agreement between Madison Asphalt and the County by filing a declaratory judgment action to set aside the deal. and making a set of related motions. The effort failed. The Superior Court entered the consent order reversing the permit denial, and the County ultimately issued the permit for Madison Asphalt’s new facility.
Rather than appealing the County’s follow-up approval of the conditional use permit, opponents appealed the Superior Court’s decision reversing the County’s original decision to deny the permit. The Court of Appeals declined to consider the merits of the opponents’ appeal, holding that once the County had voted to approve the permit on remand, appeals related to the prior denial were moot.
Coswalld, LLC v. New Hanover County (2021-NCCOA-596)
A case reiterating that lay testimony regarding traffic and stormwater concerns is not competent to rebut a prima facie case of entitlement for a special use permit.