LETTERS / NC Court of Appeals Decision: re The Maymead Case

Published Friday, August 10, 2018 at 9:02 am

Dear Editor,

On August 7,  A NC Court of Appeals three judge panel ruled that Randall and Carolyn Henion do not have standing to pursue the Maymead/Hampton asphalt plant case.  That means the court did not even bother to look at the substantial legal issues involved.  The issue of standing was addressed in a way that one  attorney described as “all politics aside, one of the worst written findings I have ever read”.  There was no “bald assertion” claiming damages by the Henions, but there was solid evidence ignored by Judge Berger.

Judge Phil Berger Jr. wrote the decision and was not challenged by the two others on the panel, Rick Elmore and Lucy Inman.  We are disappointed in the outcome, but this three and an half year fight may still not be over.  Even more troubling is that this panel of high court jurists could not be bothered to write an order that demonstrated they had even read the briefs.  No doubt it was the work of a clerk, but that is no excuse.    For example,  that ruling states that: 
On June 20, 2011, Maymead Materials, Inc. and JW Hampton Company, which
both provide asphalt for road construction and are controlled by the Hamptons, were
issued permits for the construction of an asphalt plant, including the requisite Land
Use Permit.

That one sentence contains three untruths, or errors, if you will.

Maymead was never involved until four years later after the Hamptons had decided not to build.  Maymead was not “controlled” by Hampton, etc. etc.   Such a basic lack of understanding, or even any effort to understand,  by a“distinguished”jurist takes my faith in the judiciary to a new low.  Combined with the way the local Board of Adjustments hearing was handled, and the fact that the Judge in the Superior Court version admitted to having gone to see a movie instead of reading the briefs, it appears that justice through a fair hearing is sometimes a fantasy in our judicial system.

The Court of Appeals is not “publishing” its decision which means it has no value as a precedent, which is good because it is contrary to much of how standing has usually been treated.  To read what Mr. Berger (or his clerk) wrote, see it here: https://law.justia.com/cases/north-carolina/court-of-appeals/2018/17-1107.html 

High Country WATCH sends thanks to the many citizens and local officials who have supported the grass roots effort to make sense of where heavy industry goes in our county.  That is a fight that has resulted in protections for the future, and HCW will continue to be a watchdog.  Unfortunately, this particular case has yet to get the hearing it deserves.  A petition to the NC Supreme Court for discretionary review may be in the offing.

David Sengel

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