NC Court of Appeals Dismisses Appeal Concerning Highway 421 Asphalt Plant

Published Wednesday, August 8, 2018 at 3:48 pm

By Nathan Ham

In a 3-0 ruling on Tuesday, the North Carolina Court of Appeals dismissed an appeal by Randall and Carolyn Henion hoping to stop the construction of an asphalt plant on Highway 421 between Boone and Deep Gap.

The appeal was made following a decision by the Watauga County Superior Court upholding the approval of a High-Impact Land Use permit issued by the Watauga County Board of Adjustment to Johnny and Joan Hampton for the construction of an asphalt plant in March of 2017.

Judge Philip Berger Jr. issued the opinion on this case with Judges Rick Elmore and Lucy Inman concurring.

“As standing of a party seeking review is required for this Court o have jurisdiction to review, we must dismiss the appeal. The Henions have not established the special damages necessary for this Court to have jurisdiction to review the granting of the Land Use Permit to the Hamptons,” the conclusion of the ruling stated.

The saga over the proposed asphalt plant goes back to 2011 when the first permit was issued to the Hamptons. However, in June of 2015, the Hamptons received a letter from the Watauga County Director of Planning and Inspections office informing them that the land use permit was “expired and therefore revoked.”

In November of 2015, the Blue Ridge Defense League requested to intervene on behalf of the Henions.

The Henions believed that the asphalt plant would diminish their property value and diminish the use and enjoyment of their property by living less than a half-mile (roughly 1,800 feet) from the proposed asphalt plant.

After 10 meetings in late 2015 and early 2016, the planning board’s decision to revoke the permit was reversed in February of 2016.

Following testimony from Timothy J. Ragan, a licensed real estate appraiser, that stated “he did not think their property value would be affected by the asphalt plant in a negative way,” and testimony from Louis Anthony Zeller of the Blue Ridge Defense League being thrown out after being determined that his opinion was not qualified as an expert, the appeals court ruled that the Henions had no standing in the matter.

“The Henions have failed to sufficiently establish with credible evidence that their property value would suffer a diminution of property value if the asphalt plant was allowed to operate. This bald assertion alone confers neither standing on the Henions to challenge the granting of the Land Use Permit, nor jurisdiction on this Court to review their challenge,” court documents stated.

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