Precedents and Authorities Cited and Their Influence

Statutory Framework

• Permit Choice: N.C.G.S. § 143-755 and § 160D-108 allow an applicant to choose which version of a development regulation applies if it changes after submission but before decision. The Court emphasizes the remedial purpose of permit choice to ensure certainty, stability, and fairness in development regulation.
• Moratoria: N.C.G.S. § 160D-107(c) exempts projects with a “complete” application submitted before the effective date of a moratorium; when processing resumes, permit choice applies. The Court treats “complete” in this context as acceptance for review, not finality.
• Planning Staff/Board Powers: N.C.G.S. § 160D-402(b) authorizes staff to determine whether applications are complete; § 160D-406(j) gives boards of adjustment full de novo power to reverse, affirm, or modify staff decisions and to make the decision that “ought to be made.”
• Judicial Review: N.C.G.S. § 160D-1402(j) frames appellate standards: de novo for legal issues; “whole record” for evidentiary sufficiency of findings.

Seminal North Carolina Cases

• Morris Communications Corp. v. City of Bessemer City ZBA, 365 N.C. 152 (2011): Clarifies standards of judicial review and the canon that land-use restrictions are strictly construed in favor of the free use of property. The Court relies on both—applying de novo review to interpret statutes/ordinances and strictly construing undefined restrictions.
• Northwestern Financial Group v. County of Gaston, 329 N.C. 180 (1991): Recognizes the “normal give and take” in permit review, supporting the idea that completeness does not mean finality and supplementation is expected.
• Richardson v. Union County BOA, 136 N.C. App. 134 (1999) and Wade v. Town of Ayden, 125 N.C. App. 650 (1997): Illustrate local variation in completeness criteria—some ordinances allow flexible completeness determinations; others require specified elements (like site plans). These cases undercut the County’s claim that every complete application must contain a site plan or equivalent detail absent an ordinance requiring it.
• Kroger Ltd. P’ship I v. Guastello, 177 N.C. App. 386 (2006) and Nash-Rocky Mount Bd. of Educ. v. Rocky Mount BOA, 169 N.C. App. 587 (2005): Support the ordinary meaning of “building” as a permanent structure, guiding the “commercial building” analysis.
• J.T. Hobby & Son, Inc. v. Family Homes of Wake County, 302 N.C. 64 (1981): Teaches that “commercial” turns on the essential purpose of the use, not the mere receipt of funds, informing why the barn was not “commercial.”
• Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540 (2018): Remedial statutes are construed broadly to afford relief. The Court deploys this canon to avoid constricting permit choice.
• Godfrey v. ZBA, 317 N.C. 51 (1986): Preservation principles; no new legal theories on judicial review not raised before the local board. Applied to reject a late-raised “access road” argument.
• Johnson v. Beverly-Hanks & Assocs., Inc., 328 N.C. 202 (1991) and Henderson v. Rochester Am. Ins. Co., 254 N.C. 329 (1961): Intent to deceive and materiality are fact questions, supporting deference to the Board’s findings on alleged misrepresentations.
• Ashe County II, 376 N.C. 1 (2020): Prior stage of this litigation—clarified that the Planning Director’s 2015 letter was not a binding approval; set the stage for resolving the remaining issues addressed here.

Interpretive Canons and Structural Principles

• Contextual reading: Statutes must be read in the context of the overall scheme (State v. James, 371 N.C. 77 (2018)).
• Anti-surplusage: Courts avoid interpretations that render statutory text redundant (State v. Conley, 374 N.C. 209 (2020)). Used to reject the view that “complete” means “final,” which would make the six-month supplementation rule in § 143-755(b1) pointless.
• Do not eviscerate statutory function: Interpretations that defeat legislative purpose are disfavored (In re Summons Issued to Ernst & Young, LLP, 363 N.C. 612 (2009)).
• Strict construction of land-use restrictions: Ambiguities favor property owners (Morris Communications).

Legal Reasoning

1) What makes an application “complete” for permit choice and moratorium purposes?

• The permit choice statute (§ 143-755; § 160D-108) contains no textual “completeness” criterion; it protects applications “submitted” before a regulatory change.
• The moratorium statute (§ 160D-107(c)) adds that permit choice applies where a “complete” application was submitted before a moratorium; “complete” is undefined.
• Reading the statutes together and against the practical “give and take” of development review:
  • “Complete” means adequate to begin substantive review and accepted as such by the local government, not “final” with every external permit attached.
  • This interpretation gives effect to § 143-755(b1), which presumes supplementation after submission and allows permit choice to lapse only if the applicant fails to respond to reasonably requested information for six months or more.
  • Local planning staff are expressly authorized to determine completeness (§ 160D-402(b)), and boards of adjustment may revisit that determination de novo (§ 160D-406(j)).
• Applying this framework, Appalachian Materials’ June 2015 application was complete on submission: it paid the fee; supplied site-specific materials allowing staff to evaluate setbacks and other ordinance standards; and disclosed that the state air permit was pending. The PID Ordinance required that state/federal permits be in hand before issuance, not before application.

2) Could the moratorium block issuance?

• Because the application was complete before the moratorium, § 160D-107(c) preserves permit choice and allows the applicant to proceed under the pre-moratorium ordinance when processing resumes.
• The Court of Appeals’ construction—requiring the application to be “approved,” “permitted,” or “final” before the moratorium—collapses “complete” into “issued” and would allow moratoria to nullify permit choice during normal review exchanges, contrary to legislative purpose.

3) What does “commercial building” mean in this ordinance?

• Undefined terms in land-use regulations are given their ordinary meaning, and ambiguities are resolved in favor of free use of land.
• “Building” connotes permanence; a mobile, forklift-movable shed without foundation is not a “building.”
• “Commercial” depends on the essential purpose of the structure’s use. The barn lacked indicators of commercial use (no access/parking/utilities; tax card not commercial; “No Trespassing” signage). Even if hay was stored or occasionally sold, the Board’s findings did not establish that the barn’s essential use was commercial.
• Therefore, neither the shed nor the barn triggered the 1,000-foot “commercial building” setback.

4) Were there material misrepresentations?

• The Board—exercising full de novo authority—found no intended or material misrepresentations. Materiality and intent are factual issues; the evidentiary record supported the Board:
  • Grading: No showing of illegality; staff inspected the site after grading and still concluded the application met ordinance standards in June 2015.
  • Setbacks: The mobile shed and barn were disclosed and not disqualifying; a separate distance issue was a state-agency scrivener’s error; an “access road” theory was unpreserved and, in any event, not covered by the PID Ordinance’s text.
  • Production tonnage: Any change flowed from NCDEQ’s guidance; the PID Ordinance did not regulate tonnage.

5) Standards of review carefully delineated

• Courts review questions of law de novo (statutory/ordinance interpretation) and factual sufficiency under the whole record test. But critically, the Planning Board’s administrative appeal is de novo from the Planning Director; the Board can substitute its findings and conclusions and “make the decision that ought to be made” (§ 160D-406(j)).

Impact and Practical Consequences

Statewide legal significance

• When permit choice vests: The trigger is submission and acceptance of an application that is sufficiently complete for review—not finality or possession of all other permits. This is a controlling interpretation for the moratorium cross-reference in § 160D-107(c) and the broader permit choice regime.
• Local autonomy to define “completeness”: Local governments can, via ordinance and administrative practice, specify completeness criteria (including requiring a site plan) and issue “complete” determinations, subject to de novo scrutiny by the board of adjustment and judicial review. Jurisdictions that want stricter front-end requirements should codify them expressly.
• Limits on moratoria as a device to thwart pending applications: A moratorium cannot retroactively capture applications already accepted as complete. This reinforces the legislature’s aim to give developers certainty and to prevent midstream rule switches from defeating reasonable expectations.
• Construction of undefined setback terms: “Building” implies permanence; “commercial” turns on essential purpose. If localities intend to include temporary structures or agricultural buildings, they must define terms accordingly and with specificity.
• Material misrepresentation doctrine: Denials premised on “misrepresentation” must show materiality and, where asserted, intent; these are fact questions for the board. Staff-level assertions will not carry the day if the board finds otherwise on supported evidence.

For developers

• Submit early and completely: Provide enough information for staff to evaluate ordinance compliance; pay required fees; disclose pending external permits. This decision confirms that doing so can lock in permit choice.
• Respond promptly to information requests: The six-month lapse rule in § 143-755(b1) can forfeit permit choice if you fail to respond to reasonable requests.
• Build a record: Document staff acceptance of completeness and the substantive review initiated before any moratorium or ordinance change.

For local governments

• Codify completeness standards: If you expect site plans, surveys, or particular studies at submission, say so in the ordinance. Consider a formal “application complete” letter practice.
• Define key terms: If you mean to include temporary or accessory structures in setbacks, define “building” and “commercial building” precisely (e.g., include mobile structures; define commercial use thresholds).
• Train boards on de novo authority: Boards of adjustment must understand they are not confined to staff’s record or conclusions; they must make findings and apply the law independently.
• Use moratoria carefully: They are prospective tools. Ensure findings and scope comply with § 160D-107 and understand they will not capture applications already accepted as complete.