Judge John O. Craig III of High Point heard what's
become known as "the Maymead case" all day Monday and part of the
morning today. At the adjourning of court, the judge said it was a
"fascinating" case, well presented and well argued, and he planned to
have a decision by the end of the week. Or possibly next week.
Judge Craig has handled some high-profile cases and
is well respected. He struck me as attentive, smart, skeptical, and fair. He
announced up front on Monday that he knew nothing about the case and had never
before handled an appeal of a quasi-judicial board's decision. That was a
signal for the lawyers to pitch in and educate the judge. (Verily, I was
edified too. )
How will Judge Craig rule? Dunno and won't guess.
The Maymead case has amassed a file of over 5,000
pages. That's mainly the record of the 60 hours of testimony in front of the
Watauga Board of Adjustment (BOA), which overturned County Planning Director
Joe Furman's revocation of an asphalt permit claimed by Maymead
Materials of Mountain City, Tenn. It's a complicated case with a multitude of
moving parts.
One of the prime issues of law: Whether the Watauga BOA erred in
assuming that "Johnny Hampton" and "JW Hampton Co." were
legally the same entity. Johnny Hampton as an individual applied for and
got the asphalt permit. JW Hampton Co. now claims ownership, which they also
now claim to have sold to Maymead.
The JW Hampton Co. first leased and then sold some acerage
to Maymead. In none of those conveyances is an asphalt permit mentioned
as part of the lease or as part of a bill of sale. Maymead's lawyer argued that
the company wouldn't have paid $1,600,000 for the property without the permit
(and poo, said Maymead's lawyer, on the "gotcha technicality" of no explicit, written
transference of ownership of the permit).
Johnny Hampton is the minority owner of JW Hampton
Co. His daughter owns 51% of the stock and is the CFO. The JW Hampton Co. is a
excavation and grading contractor, the biggest in Watauga County. The
plaintiffs in this case ("petitioners") -- trying to stop the Maymead
Asphalt plant -- maintain that the Hampton Company and Maymead cannot qualify
for "vested rights," which the BOE found to be the case, no matter
how much they've spent, because neither ever legally owned the permit.
The plaintiffs contend that Maymead and JW Hampton
Co. are therefore "third parties," insofar as "third parties"
can not earn vested rights. Vested rights are based on a substantial
expenditure of money by the owner of the permit prior to any revocation. Jamie
Whitlock of Asheville, the attorney for the plaintiffs, said he could find no
case in North Carolina of vested rights accruing to a third party, nor did
opposing counsel for Maymead produce one.
Mr. Whitlock also argued that the expenditures
Maymead and JW Hampton Co. claimed as accruing toward vested rights were almost
entirely for the crushing and recycling business as well as the grading business
of JW Hampton Co., not progress toward building an asphalt plant, which Mr.
Hampton, by his own admission, had abandoned until Maymead came along in mid-2014.
And since Maymead only leased the correct land in May of 2015, a month before
the permit revocation, they had no time to (and did not) accomplish any
vesting.
Plaintiffs also contend that the BOA erred in
another "finding of fact" -- that there had been substantial
progress made on the building of the asphalt plant -- in the form of a
major expenditure of money -- four years after the issuance of the permit by
Joe Furman. Judge Craig questioned the county's right to abruptly revoke the
permit, in light of the failure of the Watauga County High Impact Land Use
ordinance (HILU) to specify a process for revocation, a time-line to establish
"lack of progress," and the grounds for revocation. Stacy C. Eggers
IV ("Four") argued persuasively that the Hampton standard of
performance -- no appreciable, visible progress toward an asphalt plant after
four years -- was valid grounds for revoking the permit. In fact, at the time
of the revocation, Maymead had not shown that it had actually leased the
land for which the proposed site plan for an asphalt plant had been submitted.
The HILU asphalt permit was granted to Johnny
Hampton on June 20, 2011. In June 2015, Watauga County development officer Joe
Furman revoked the permit -- "given the evidence that he had available at
the time" -- because of no appreciable progress toward an asphalt plant.
Some dirt had been moved (5% - 7% of what would have to be moved for the plant
to operate, according to expert testimony given before the BOA). According to
lawyer Eggers, Mr. Furman had every right to revoke the permit.
Jamie Whitlock for the plaintiffs referred to
"the fictions" of Johnny Hampton that the Watauga BOA had relied on
to rule in his favor -- a "narrative" constructed to explain away
secret dealings done to avoid public scrutiny. The lawyer for Maymead, Mr. Tim
Terrell of Greensboro, countered that the revocation of the permit had been the
result of political pressure. Mr. Terrell wanted the judge to believe that a
different standard of doing business prevailed in Watauga, where things aren't
necessarily spelled out in writing (like the conveyance of an asphalt permit).
Johnny Hampton did business on a handshake. (I believe Mr. Terrell was saying
that mountain people aren't too observant of legal niceties and have "no
filter" when "just talking," like when giving testimony to the
BOA. The "benefit of the doubt" would therefore need to be paid, Mr. Terrell argued.)
Lawyer Terrell for Maymead repeatedly returned to
this as his bedrock: the Watauga BOA, after 60 hours of extreme attentiveness,
heard all the testimony and the same arguments that Judge Craig is hearing now
and still voted that Mr. Furman had
no right to revoke the permit. That struck me as a thin reed for heavy logic to
lean on, since this whole trial is about the BOA's alleged
"irrational" findings of fact in the case. Just because the BOE
bought Maymead's argument doesn't prove anything.
