Environmental group still fighting Marshall asphalt plant despite appeals court decision
MARSHALL - Though the North Carolina Court of Appeals ruled last month to uphold Judge Gary Gavenus' decision ordering the North Carolina Board of Adjustment to issue an asphalt plant permit to Madison Asphalt LLC, a local environmental advocacy group is vying to continue the fight against the plant.
Clear Sky Madison founder Jim Tibbetts filed the N.C. Court of Appeals case, 21-115, on Feb. 15.
Asheville-based law firm Allen Stahl & Kilbourne served as legal representation for Tibbetts, et. al. In addition to Tibbetts, more than 10 other county residents were listed as appellees or appellants on the docket.
"If this Court 'routinely allowed a writ of certiorari in every case in which the appellant failed to properly appeal, it would render meaningless the rules governing the time and manner of noticing appeals,'” the N.C. Court of Appeals said in its decision summary.
"Individual Respondents-Appellants contend the issues raised are important, and determination of the issues would aid North Carolina jurisprudence regarding planning and zoning. However, Individual Respondents-Appellants fail to show how the issuance of a writ of certiorari would change the outcome in this case. Therefore, this Court denies Individual Respondents-Appellants’ petition for writ of certiorari."
Asheville-based firm The Van Winkle Law Firm was representing Madison Asphalt, the petitioner in the appeal.
In Tibbetts' view, the court of appeals failed to provide answers for Clear Sky Madison's main questions.
"The main thrust of our argument raised important questions about whether a county can override its own BOA decision and if the BOA should be considered a separate legal party from the county trying to overrule it," Tibbetts said. "These went wholly unaddressed."
Tibbetts emphasized despite the court's decision, his organization is nowhere near stepping down in its fight to contest the state's Department of Environmental Quality Department of Air Quality May 26 decision to issue an air quality permit to Madison Asphalt.
"While this appeal process has come to a close, Clear Sky Madison is still actively opposing the asphalt plant," said Tibbetts. "We are currently well underway appealing the air quality permit issued by the North Carolina Department of Environmental Quality, Division of Air Quality. The permit relies on clearly erroneous data and breaks DAQ rules in order to pass emissions tests."
Background
In June 2019, the Board of Adjustment ruled 5-0 to deny the plant the conditional use permit needed to move forward with the project.
After the BOA’s denial of its application, Madison Asphalt appealed to Madison County Superior Court via writ of certiorari and threatened additional litigation against the county unless the county agreed to enter into a settlement agreement whereby the county was precluded from defending the BOA’s order.
In June 2020, the county board of commissioners voted 3-2 for Madison County to agree to an out-of-court settlement with Madison Asphalt.
On Sept. 4, 2020, Superior Court Judge Gary Gavenus ruled that the Madison County Board of Adjustment reverse its original decision.
To Gavenus, the Board of Adjustment overstepped its authority by enforcing standards around public welfare not specifically outlined in the county's land use ordinance. The judge called the local zoning board's decision to deny the permit “unconstitutional" and stated their decision was not based on “competent, material and substantial evidence.”
Looking ahead
Tibetts said Clear Sky is still focused on challenging the DAQ's decision to issue Madison Asphalt its air quality permit.
"So far, we are currently taking this appeal on ourselves (pro-se)," Tibbetts said. "We’ll be stronger with an attorney on our side. This is our best hope that a court decision will be based on facts and evidence."
This article originally appeared on Asheville Citizen Times: NC Court of Appeals upholds decision to issue permit to asphalt plant
