On July 23rd, Madison County residents who make up the parties-with-standing in the Madison Asphalt Plant case filed a Declaratory Judgement action against the Madison County Commissioners (and Madison Asphalt, as an interested party) in order to challenge the settlement agreement they entered into on June 23, 2020. The purpose of this Declaratory Judgment action is simply to challenge the settlement agreement the Commissioners entered into with Madison Asphalt as unlawful and outside the scope of the County’s authority. This is not a lawsuit involving monetary damages and only serves to resolve the uncertainty as to whether the County’s action—by avoiding Madison County’s own ordinances and North Carolina law regarding the quasi-judicial process—can legally be taken.
While the citizens involved with this case always hoped to work hand in hand with our county government to uphold the Board of Adjustment’s unanimous vote denying the permit, the Board of Commissioners left us with no choice but to challenge their closed-door dealings with Madison Asphalt. Despite the fact that the citizens are named parties to the permit appeal pending in Superior Court, the County and Madison Asphalt did not involve the citizens in their settlement negotiations and are attempting to resolve the appeal without regard to the clear rights of the citizens. This is illegal and improper, as alleged in the Declaratory Judgment action. The settlement agreement which the Commissioners entered into attempts to circumvent Madison County’s own quasi-judicial zoning process and purports to force the Madison County Board of Adjustment—who is supposed to be an impartial board tasked with approving or denying the permit based on sworn testimony and evidence—to grant the permit regardless of their original ruling on the matter. The Declaratory Judgment action requests that the court invalidate the settlement agreement as illegal and outside of the authority of the Commissioners, as well as to enjoin or prevent the entry of the consent order requiring the Board of Adjustment to grant the permit.
The Commissioners, in entering into this settlement agreement, have acted improperly by essentially granting Madison Asphalt a permit without using its own legally-prescribed procedures, and instead entered into a private contract under the threat of current and future litigation. For example, in recent interviews, Commissioner Wechtel stated that the Commissioners were told that Madison Asphalt would be suing them for millions of dollars if the county did not win the appeal. This is apparently what drove the Commissioners’ decision, not fairness or their duty to follow their own laws.
Moreover, the Commissioners’ concerns about the merits of the appeal are not valid. The Board of Adjustment heard over 36 hours of sworn testimony before voting to make their unanimous ruling denying the permit. There were no grounds for the county to be held responsible for paying Madison Asphalt’s legal fees and yet the Commissioners—who did not personally attend any of the 36 hours of hearings on the asphalt plant—were bullied into entering into this settlement agreement. The Board of Adjustment carefully considered the sworn testimony offered during the hearing, and in entering into this settlement agreement the Commissioners have opted to re-weigh the evidence outside of the quasi-judicial process and under the duress of threats.
The Commissioners are also beholden to Open Meetings and Public Records laws that require them to disclose certain public records related to the appeal and settlement, especially now that the settlement agreement is signed.. The parties with standing—and indeed the public generally—must be made aware of the dealings between the County and Madison Asphalt and the motivations of the County for entering into this agreement. The parties with standing’s attorneys requested these documents in June—and have followed up numerous times—but to this date have not received the requested documents.
The Declaratory Judgement action we have filed to challenge the settlement agreement is not a lawsuit seeking any monetary damages for the party-with-standing or the community at large, but rather is an appropriate method of ensuring that the County follows its own laws and procedures regarding land use permitting. In these types of Community vs. Polluting-Industry cases, it is common practice for well-funded asphalt companies to threaten additional lawsuits and issues into the fight in an effort to hold the County hostage and drain the pockets of the community-funded efforts. Indeed, we expected Madison Asphalt to try to throw all the wrenches they could into this fight. Legally, however, Madison Asphalt cannot be given a pass to sidestep County permitting laws simply because they have threatened additional lawsuits against the County. But this is exactly what the settlement agreement purports to do: it carves out a special exception for Madison Asphalt by agreement. What a shame it is that the Madison County Commissioners were not properly informed and fell victim to such bullying.
We are confident that the courts, through this Declaratory Judgment action, will determine that the Commissioners have violated state and County laws regarding quasi-judicial hearings and that they have overstepped their authority.