Dobbins Heights can pursue lawsuit against charcoal production facility

The North Carolina Court of Appeals will allow the town of Dobbins Heights to proceed with a lawsuit attempting to block a charcoal production facility near the town’s limits. Wednesday’s Appeals Court ruling reverses a trial judge’s decision in the dispute.

Dobbins Heights, Hamlet, and four individuals filed suit against Richmond County in 2020 after county commissioners rezoned property near the two towns.

The rezoning, requested by railroad company CSX, was designed to allow an Ohio-based company, International Tie Disposal, to build and operate a “biochar” facility. The facility would create charcoal through a process involving untreated lumber and “creosote-treated railroad ties,” according to the Appeals Court opinion.

The suit alleges that the process would create harmful toxins and air pollution. The rezoned property sits roughly 2 ½ miles away from both towns and 1 ½ miles from Hamlet’s extraterritorial jurisdiction. The property also sits “less than 2,500 feet” from the Marks Creek property that provides drinking water for both towns, according to the Appeals Court decision.

“The municipal plaintiffs alleged they have standing to challenge the rezoning ‘because International Tie’s proposed biochar production facility plant will have a significant negative impact’ on the water supply and ‘general quality of life for the residents,’” wrote Judge Donna Stroud.

A trial judge dismissed Dobbins Heights from the case in May 2021. The state Appeals Court initially dismissed the town’s appeal in 2023. But the state Supreme Court reversed that decision in 2024.

The high court returned the case to the Appeals Court to address Dobbins Heights’ standing to participate as a plaintiff in the lawsuit.

“In the complaint, Plaintiff clearly alleges how the erection of this biochar facility would directly and negatively impact the community, such as the burning of carcinogens, releasing a number of ‘toxic and harmful air pollutants,’ potential contamination to local water supply, and ‘traffic from industry’ that ‘would disproportionally affect the road network of’ Plaintiff,” Stroud wrote. “We note the only differences between the allegations of the municipal plaintiffs are that the City of Hamlet owns the public water supply system installed in Marks Creek, even though this system ‘serves over 10,000 people, including the residents of the City of Hamlet’ and Plaintiff, and that there is a small difference between the proximity of each municipality’s borders to the Property.”

Dobbins Heights argued that it has a right to sue under North Carolina’s Declaratory Judgment Act.

“Plaintiff has satisfied the requirements to bring a claim under the DJA in sufficiently alleging it was ‘affected by’ Defendant’s rezoning ordinance,” Stroud wrote. “The DJA establishes a ‘legal right’ for Plaintiff to challenge Defendant’s rezoning ordinance, and the assertion of an ‘injury in fact’ was not required for Plaintiff to have standing to challenge the ordinance.”

“As for Defendant’s second argument asserting Plaintiff was required to allege special damages, separate and distinct from the rest of the community, we do not agree,” Stroud added. Richmond County’s rezoning involved legislative rather than quasi-judicial action, so the “special damages” requirement did not come into play, the Appeals Court opinion explained.

“Plaintiff’s complaint sufficiently alleged it was ‘affected by’ Defendant’s rezoning ordinance, allowing it standing under the DJA to bring its declaratory judgment action,” Stroud wrote. “Because Plaintiff has sufficiently asserted standing, the trial court erred in granting Defendant’s … motion to dismiss.”

Judges John Tyson and Valerie Zachary joined Stroud’s opinion.

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