When an asphalt plant company started construction work before getting its air quality permit from the Division of Air Quality, did Henderson County's local building inspector have to revoke the building permit under the mandatory-revocation provisions of state law?

Plain-English summary

A Henderson County code enforcement officer asked whether the Inspections Department had to revoke a building permit issued for Tar Heel Paving's asphalt plant. The company had undertaken some construction activities before obtaining a permit from the Division of Air Quality (DAQ). The AG concluded that the department should not treat the activities in question as violating the cited air-quality or building-permit statutes and should not revoke this permit.

The opinion quotes G.S. § 153A-362, which makes revocation mandatory for failure to comply with an applicable law or regulation. It then addresses the timing of permits under G.S. § 153A-357. The Department of Insurance's Division of Engineering had long interpreted building construction as beginning when footings are poured. Under that interpretation, listed site-preparation activities such as clearing land, laying gravel, compacting soil, laying vapor barriers, and digging footings can occur without a building permit. Before pouring footings, a builder must obtain the building permit and any other permit then required by applicable state law.

The separate question was when the air-quality law required an air permit for this particular plant. The AG advised deferring to DAQ as the agency administering that law. DAQ had chosen not to issue a notice of violation or begin enforcement concerning Tar Heel Paving's activities. On those facts, the AG said the Inspections Department should not treat the work as a violation and should not revoke the building permit.

The opinion does not say that site preparation is generally exempt from air permitting. It says air-program timing may vary. For future cases, it advises the Inspections Department to consult DAQ before issuing a building permit about whether an air permit is required before footings are poured. If DAQ requires one by that point, the building permit should be withheld until the air permit is obtained.

Currency note

This opinion was issued in 2001 and concerns the particular activities and DAQ response described. Check current permit statutes, rules, and agency determinations for a present-day project.

What this means for you

If you inspect building work: The opinion treats the building-permit and air-permit timing questions separately. It recommends consulting DAQ before issuing a building permit when it is unclear whether an air permit is required before the footings.

If you develop a permitted facility: The opinion identifies site-preparation work that did not require a building permit under the then-current Department of Insurance interpretation. It gives no general clearance to start that work without any air permit.

Common questions

When did building construction begin under the interpretation cited by the AG?
The Department of Insurance's Division of Engineering treated pouring the footings as the start of construction for G.S. § 153A-357. It identified several earlier site-preparation activities that did not require a building permit.

Did the opinion say an air permit is unnecessary for all site preparation?
No. It says air-permit timing may vary from building-permit timing and directs inspectors to consult DAQ about the particular project.

Why did the AG advise against revoking Tar Heel Paving's permit?
DAQ had elected not to issue a notice of violation or start enforcement over the activities at issue. The AG said the Inspections Department should not regard them as a violation of either cited statute and should not revoke the permit.

What if DAQ says a future project needs an air permit before footings are poured?
The opinion says the Inspections Department should deny the building permit until the air permit is obtained.

Citations

• G.S. § 153A-362: building-permit revocation provision quoted in the opinion.
• G.S. § 153A-357: timing of building-permit and other required permits.
• G.S. § 143-215.108: air-quality statute whose application the AG assigned to DAQ expertise.
• Britthaven, Inc. v. North Carolina Dep't of Human Resources, 118 N.C. App. 379, 455 S.E.2d 455 (1995): agency-interpretation deference cited by the AG.
• High Rock Lake Assoc. v. Environmental Management Comm., 51 N.C. App. 275, 276 S.E.2d 472 (1981): agency expertise cited by the AG.

Source

• Landing page: https://ncdoj.gov/opinions/revocation-of-permit/

Original opinion text

Reply to: ANNE 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, 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 vapor 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.

Very truly yours,

Reginald L. Watkins
Senior Deputy Attorney General

Anne Goco Kirby
Assistant Attorney General