School of Government

1996 Litigation

David W. Owens, Professor, Institute of Government, The University of North Carolina at Chapel Hill, CB# 3330, Knapp Building, UNC-CH, Chapel Hill, N.C. 27599-3330

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Below are brief digests of cases decided by North Carolina courts regarding planning, land use, and related issues. The state supreme court decisions are listed first, followed by court of appeals decisions. Selected federal cases arising in North Carolina are the third category of cases included. The cases are in chronological order (the more recent cases at the bottom of each list). Index terms are included in italics for each case. Some of the cases also contain links to additional information about the case, such as photographs of the site or follow-up information about subsequent developments on the site.

North Carolina Supreme Court

Gwathmey v. State, 342 N.C. 287, 464 S.E.2d 674 (1996)
Navigability, Wetlands Public trust doctrine
This case involved disputed title to regularly flooded marshlands in New Hanover County. Title to the areas had been conveyed to private parties by the State Board of Education between 1926 and 1945. The state contended lands between high and low tides were subject to the public trust doctrine and could not have been conveyed in fee simple. The court held that "navigability" is determined not by an ebb and flow test (whether the waters are subject to lunar tides) but rather whether the waters are navigable in fact by pleasure or commercial watercraft, even if it has not been used for such purposes. The court held that the General Assembly could by special act convey fee title to submerged lands subject to the public trust doctrine, though there is a rebuttable presumption that it has not done so. However, such a grant free of public trust restrictions must be made in clear and express terms. The court held that the authority delegated to the State Board of Education to convey marsh and swampland did not include an express provision allowing sale free of public trust rights. The court remanded the case for further findings as to whether the waters and marshland involved were navigable in fact.

Appalachian Poster Advertising Co. v. Harrington, 343 N.C. 303, 469 S.E.2d 554 (1996), per curiam, reversing and adopting dissent in 120 N.C. App. 72, ___ S.E.2d ___ (1995)
Signs, Delegation
The plaintiff had a billboard adjacent to Interstate 40 in McDowell County that was lawfully in existence prior to the enactment of the Outdoor Advertising Control Act. The state DOT revoked the sign permit when the company replaced the sign face and replaced the sign poles and cross-bracing. In this per curiam decision the court adopted the dissent in court of appeals. That opinion held the DOT had authority under G.S. 136-130 and 136-133 to regulate replacement or repair of lawful nonconforming signs as well as the erection of new signs. The opinion also held that the sign had been substantially changed, that a requirement that the sign not be "substantially" changed was not unduly vague, and that the policies in the Act provided adequate guiding standards for the Secretary of DOT in administering the law.

North Carolina Court of Appeals

Ballas v. Town of Weaverville, 121 N.C. App. 346, 465 S.E.2d 324 (1996)
Conditional use, Evidence, Findings
The plaintiffs were denied a special use permit for a bed and breakfast in a rehabilitated house in a residential district on the basis of negative impacts on neighboring property values and inadequate roads and utilities. The court held there was adequate evidence in the record to support a finding on either side of the property values impact issue (the plaintiffs had submitted evidence the use would be "an attribute to the community" and the opponents had submitted testimony from a real estate appraiser that surrounding property values would be reduced by 11-23%), but evidence submitted after the hearing by the town regarding acceptance of the infrastructure improvements could not be considered. Since the board of adjustment had not adopted findings indicating the basis of their decision, the case was remanded for proper findings.

Young v. Lomax, 122 N.C. App. 385, 470 S.E.2d 80 (1996)
Manufactured Housing
The issue in this case was the interpretation of private restrictive covenants for a subdivision in Cabarrus County. The covenants prohibited "mobile homes." The structure involved had two sections, each with a steel chassis, axles, and wheels. The axles and wheels were removed upon installation and the units were secured to concrete piers. The court held the unit remains a "mobile home" as a matter of law and was distinguishable from the modular units secured to permanent foundations in Angel v. Truitt, 108 N.C. App. 679 (1993).

Hayes v. Fowler, 123 N.C. App. 400, 473 S.E.2d 442 (1996)
Interpretation, Accessory uses, Churches
The plaintiffs had contracted to purchase a historic home, Maryhurst, in Pinehurst. The seller was the Catholic Diocese and the structure had been used as a meeting place for religious and secular groups by the Sacred Heart Church, which was located a block and a half away. The applicable zoning district permitted residences and churches, but not commercial uses or guest houses. The court held the plaintiffs' proposed use of four of the structure's eleven bedrooms for a bed and breakfast was not an accessory use to the permitted residential use of the structure (and noted that the interpretation of the ordinance is a question of law subject to de novo review by the trial court wherein the court may freely substitute its judgment for that of the board of adjustment). However, the court held Sacred Heart's previous use of the structure for classes, meetings, retreats, and social activities was not use as a "church" as defined by the ordinance, but rather was use as a nonconforming community center. Thus a secular purchaser would be allowed to continue (but not expand) the nonconforming use of the structure as a meeting center and site for social events.

Midway Grading Co. v. Dept. of Environment, Health, and Natural Resources, 123 N.C. App. 501, 473 S.E.2d 20 (1996)
Sedimentation, Enforcement
The court held that an erosion and sedimentation control plan is required whenever a person uncovers or disturbs a tract greater than one acre; there is no requirement that the person own an acre being disturbed. The court further held that service of the notice of violation of the Sedimentation Pollution Control Act by certified mail to an officer of the corporation alleged to be in violation was adequate under the state Administrative Code and the formal provisions of G.S. 1-75.10 regarding proof of service of process are not applicable.

Outdoor East v. Harrleson, 123 N.C. App. 685, 476 S.E.2d 136 (1996)
Signs
The court upheld state DOT authority to revoke the sign permit for a nonconforming billboard in a noncommercial/nonindustrial area based on the illegal conduct of an advertiser's employees.

Walker v. Coastal Resources Commission, 124 N.C. App. 1, 476 S.E.2d 138 (1996), rev. denied, 346 N.C. 185, 486 S.E.2d 220 (1997)
Attorney fees
The court awarded attorney fees to the plaintiff who had prevailed in a previous suit challenging the issuance of a CAMA permit for a marina in the absence of an easement from the state for use of the public trust waters (see 111 N.C. App. 851). The court held there was no "substantial justification" for the agency's original decision (even though it had been originally upheld by the trial court), thus attorney fees could be awarded pursuant to G.S. 6-19.1. The court did not allow recovery of attorney fees and costs for the administrative hearing, only for the subsequent judicial appeal.

City of Roanoke Rapids v. Peedin, 124 N.C. App. 578, 478 S.E.2d 528 (1996)
Delegation
The court held the Halifax County Board of Health did not have authority to adopt the smoking regulations at issue. The court held that because the regulations set different rules for different facilities (e.g., requiring restaurants with over thirty seats to provide a non-smoking area but allowing smaller restaurants not to do so), the board had improperly engaged in making legislative policy choices involving factors other than public health (such as balancing economic costs and health impacts).

Gossett v. City of Wilmington, 124 N.C. App. 777, 478 S.E.2d 648 (1996)
Judicial review, Procedure, Amendment
The petitioners sought rezoning of a 3.84 acre tract from a single family residential district to a multi-family special use district in order to construct forty condominium units. The city council denied the rezoning and the petitioner sought judicial review by filing a writ of certiorari. The court held it was appropriate to challenge this rezoning as a quasi-judicial decision because the Wilmington city charter specifically provided that the city's special use district zoning proceedings were quasi-judicial in nature.