32 ELR 20479 -- Tri-County Paving, Inc. v. Ashe County

Tri-County Paving, Inc. v. Ashe County

No. 01-1931 (281 F.3d 430) (UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT February 22, 2002)

ELR Digest

The court holds that a North Carolina county did not violate a company's due process or equal protection rights by not issuing the company a building permit for a proposed asphalt plant, by enacting a one-year moratorium on the building of asphalt plants, and by subsequently enacting a polluting industries development ordinance. The court first holdsthat the company was not deprived of a property interest without due process of law. The company was provided with more than constitutionally adequate pre- and post-deprivation process in this case. The court next holds that the company's equal protection rights were not violated. The moratorium and the ordinance serve a legitimate state interest as they are intended to protect the health, safety, and well-being of the county's citizens. The court further holds that the county's actions were rationally related to these legitimate ends. It is rational for a community to decide that it does not want polluting industries, such as asphalt plants, in close proximity to residences, schools, daycare centers, hospitals, or nursing homes. In addition, the company failed to present evidence that the county intentionally treated it differently from any similarly situated entity. The court finally holds that the company's substantive due process rights were not violated. The county's actions clearly did not fall beyond the outer limits of legitimate governmental action. In fact, the county's actions were rationally related to a legitimate governmental purpose.

The full text of this decision is available from ELR (14 pp., ELR Order No. L-459).

Counsel for Plaintiff
Donald M. Nielsen
Kilpatrick & Stockton
1001 W. 4th St., Winston-Salem NC 27101
(336) 607-7300

Counsel for Defendants
James R. Morgan Jr.
Womble, Carlyle, Sandridge & Rice
200 W. Second St., Winston-Salem NC 27102
(336) 721-3600

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]