North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: A NNE GOCO KIRBY INSURANCE SECTION

(919) 716-6610 FAX NO. (919) 716-6757

May 22, 2001

Grover Sawyer Deputy Commissioner Chief Engineer North Carolina Department of Insurance Engineering Division 410 N. Boylan Avenue Raleigh, NC 27603

Re: Advisory Opinion; Revocation of permit pursuant to N.C. Gen. Stat. § 153A-362

Dear Mr. Sawyer:

On February 22, 2001, you forwarded a letter from Samuel J. Laughter, a Code Enforcement Officer from the Henderson County Inspections Department [Inspections Department] as a request from the North Carolina Department of Insurance for a formal interpretation of the requirements for revocation of permits under N.C.G.S. § 153A-362 as it pertains to Tar Heel Paving’s [THP’s] permit for construction of an asphalt plant. In his letter, Mr. Laughter requested an interpretation of the requirements for revocation of permits under G.S. § 153A-362 as it pertains to the permit he issued on January 1, 2001 to John L. Pace, President of THP. Relevant to this inquiry is the fact that THP had not obtained a permit [AQ Permit] from the Division of Air Quality [DAQ] prior to undertaking some construction activities at the facility site.

N.C.G.S. § 153A-362 provides that:

The appropriate inspector may revoke and require the return of any permit by giving written notice to the permit holder, stating the reason for the revocation. Permits shall be revoked for any substantial departure from the approved application or plans and specifications, for refusal or failure to comply with the requirements of any applicable State or local laws or local ordinances or regulations, or for false statements or misrepresentations made in securing the permit. A permit mistakenly issued in violation of an applicable State or local law or local ordinance or regulation also may be revoked.

(Emphasis added). The issues raised by Mr. Laughter’s letter are 1) whether THP’s construction activities prior to obtaining an AQ Permit violate the requirements of G.S. § 153A-357 and 2) if so, Grover Sawyer May 22, 2001 Page 2

whether G.S. § 153A-362 requires the Inspections Department to revoke the building permit for these violations. For the reasons stated below, it is our opinion that the Inspections Department should not regard THP’s construction activities as a violation of these statutes and thus should not revoke the permit.

The building permit could not be issued in accordance with G.S. § 153A-357 if G.S. § 143-215.108 required the builder of this asphalt plant to obtain an AQ Permit prior to commencing construction of the building. It has been the longstanding opinion of the Division of Engineering of the North Carolina Department of Insurance that construction of a building or other structure does not "commence" within the meaning of N.C.G.S. § 153A-357 until the footings are poured. Thus, the builder can engage in site preparation activities (such as land clearing, laying gravel, compacting the soil, laying vap or barriers, and digging the footings) without a building permit before pouring the footings. However, before the builder can pour the footings, and thus commence construction,

G.S. § 153A-357 requires the builder to obtain a building permit and any other permits required to be obtained at that time by any other applicable State law.

In determining whether G.S. § 143-215.108 required THP to obtain an AQ Permit prior to commencing construction, deference should be given to the opinion of the state agency charged with the responsibility for enforcing the State’s air quality statutes and regulations. See Britthaven, Inc.

v. North Carolina Dep’t of Human Resources, 118 N.C. App. 379, 384, 455 S.E.2d 455, 460 (1995) (interpretation of a statute by an agency created to administer that statute traditionally accorded deference by appellate courts); High Rock Lake Assoc. v. Environmental Management Comm., 51

N.C. App. 275, 279, 276 S.E.2d 472, 475 (1981) (deference given to specialized expertise of agency on judicial review of agency decisions under the whole record test). On the facts of this particular case, DAQ has elected not to issue a Notice of Violation or to initiate an enforcement action against THP. Therefore it is our opinion the Inspections Department should not regard the construction activities in question as a violation of either G.S. § 143-215.108 or G.S. § 153A-357 and thus should not revoke the building permit.

In conclusion, it is our opinion that G.S. § 153A-362 does not require the Inspections Department to revoke the building permit issued to THP. Because the timing of the permit requirements of the air quality program may vary from those of G.S. § 153A-357, the Inspections Department should consult with the DAQ on cases such as this in the future before issuing a building permit in order to confirm whether DAQ would require the builder of that particular project to obtain an AQ Permit prior to pouring the footings. If it does, then the Inspections Department should deny issuance of the permit until an AQ Permit is obtained.

Grover Sawyer May 22, 2001 Page 3

We hope that this advisory opinion will be useful to you. Please let us know if you have additional questions concerning this matter.

Very truly yours,

Reginald L. Watkins Senior Deputy Attorney General

Anne Goco Kirby Assistant Attorney General