Editor’s Note: This is the first of a two-part story about the Little River quarry, the continuing legal fight over it and Lee County’s recent decision to appeal to the North Carolina Supreme Court for a solution. The second part will appear in Friday’s Herald.
On Monday night, the Lee County Board of Commissioners voted unanimously to continue fighting against the proposed Little River quarry, to be located near Carolina Trace.
It was the latest chapter in a fight that’s lasted more than two years, and the county has now pledged to invest more time and money into the litigation.
Here’s a look back at the fight, which shows competing court decisions, homeowners seeking tranquility and a business trying to establish itself.
Like a Courtroom Drama
The early stages of the Carolina Trace homeowners versus Little River LLC, which is seeking a special use permit to construct a quarry at 5500 N.C. Highway 87 S. in Sanford, took place in front of the Lee County Board of Adjustments.
The BOA held six separate hearings, starting on Aug. 17, 2015. The board was expected to vote on the proposal that night, but hours of testimony and public comments extended the meeting to 3:30 a.m., at which time the board decided to hold additional meetings. Those followed on Oct. 17, Nov. 16 and Dec. 15, 2015, and Jan. 25 and Feb. 15, 2016.
One could be mistaken for seeing an episode of "Law and Order" in the proceedings — opening and closing statements, expert witnesses for both sides and the sheer length of the discussion. Some of the meetings even took place in the old Lee County Courthouse. Attorneys for both sides argued their cases.
The BOA voted 4-1 on March 16, 2016, to deny the special use permit. Little River appealed to the Lee County Superior Court, which agreed with the BOA. Little River then appealed again to the N.C. Court of Appeals.
In a ruling handed down Dec. 19, 2017, Judge John M. Tyson wrote a decision saying both the BOA and the Superior Court had erred in their rulings by denying Little River a permit, supported by fellow Judges Donna S. Stroud and Robert N. Hunter, Jr. Tyson argued that the permit should be granted because the BOA’s findings were “unsupported by competent, material, and substantial evidence, and its conclusions thereon are, as a matter of low, erroneous,” and the Superior Court “erred by not properly reviewing the evidence of the whole record.”
In response, a bevy of Carolina Trace residents descended on Monday’s commissioners meeting, with nine of them speaking during public comments, asking the county to appeal to the state Supreme Court. The commissioners — with Kevin Dodson absent — complied in full.
“As an elected board we are mindful of the impacts our decisions make on the local community we serve,” Board Chair Amy Dalrymple said in a prepared statement after the vote. “We also believe we must support the local authority of the Lee County Board of Adjustments and the decision of the Lee County Superior Court. Therefore we have decided to direct our county attorney to continue to work with outside counsel to file a petition of discretionary review with the North Carolina State Supreme Court.”
The Court of Appeals’ Ruling
The Court of Appeals’ ruling was on four claims by Little River LLC: quarry opponents didn’t have legal standing; no competent, substantial and material evidence supported the BOA’s denial of a permit; the BOA’s decision was “arbitrary and capricious”; and Little River’s due process rights were violated.
The court denied Little River’s arguments on the first and last claims. The BOA’s meetings were public hearings, which allow for anyone to make comments or arguments. Tyson wrote that Little River’s claims regarding standing were “without merit.” Each party at those meetings was allowed the opportunity to be represented by lawyers and present evidence and cross-examine witnesses. Tyson wrote that there was “no violation of (Little River’s) due process rights.”
However, the Court of Appeals sided with Little River on the second and third claims.
Little River was required to make a “prima facie,” or “on the face of,” showing of their case — essentially, argue that their case was sufficient in establishing a fact unless disproved. The Court of Appeals ruled that Little River did that and that the BOA “failed to follow the appropriate procedure” to determine that. The court also ruled that Little River’s arguments were indeed “competent, substantial, and material,” while opponents of the quarry’s arguments were not.
To meet that requirement, Little River would have to prove that the quarry will 1.) “not materially endanger the public health or safety” of the area, 2.) “meet all required conditions and specifications” under the Sanford-Broadway-Lee County Unified Development Ordinance, 3.) “not substantially injure the value of adjoining or abutting property, or that the use is a public necessity” and 4.) “be in harmony with the area in which it is located and in general conformity with all adopted land use plans.”
The Court of Appeals argued the opposite of both the BOA and Superior Court findings. While the BOA (by a 4-1 vote) and Superior Court adjudged Little River’s arguments to be lacking in contract to quarry opponents’ claims, Tyson’s ruling said differently. He wrote that Little River’s presentation included:
- “Competent evidence of minimal off-site noise”
- “A 0.1 second delay due to truck ingress and egress from the proposed quarry”
- “75 percent of the property will be undisturbed vegetative buffer for screening from the adjoining properties”
- “Expert testimony by a certified real estate appraiser tending to show no impact on the adjoining or abutting property values”
Tyson also argued that the BOA’s ruling was “arbitrary and capricious.” He wrote that the BOA’s decision was “based solely upon opponents’ evidence and wholly ignore the evidence presented to make a prima facie showing by Petitioner.” He specifically cited “generalized fears” and “speculation of lay witnesses” and said they were not enough to deny the permit.
The case was remanded to the BOA to acknowledge Little River’s application and “consider and detail any conditions, approvals, or permits from state or federal regulatory agencies required of Petitioner to comply with the Developmental Regulations in the UDO in order to issue the SUP.”
Reach Staff Writer Zachary Horner at 919-718-1217 and on Twitter at @Zachary_Horner.