1997 Litigation -- Digests
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
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.
Three Guys Real Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d
681, (1997)
Subdivision
The owner of a 231.37 acre parcel proposed to divide the land into twenty-three
lots and proposed no street rights-of-way or other access to the lots. A revised
plat filed after suit was filed showing access by a series of private driveway
easements. The owner contended the subdivision was exempt from county regulation
under G.S. 153A-335(2) in that each proposed lot was greater than ten acres.
The county refused to approve plat filing, contending the subdivision did not
qualify for exemption. The trial court agreed, finding the private driveways
would be open for public use and the county could regulate the division under
its subdivision authority. The court of appeals reversed the findings that the
private easements constituted a street right of way, but held that county approval
could be withheld if the development posed a danger to the public health, safety,
and welfare. The supreme court reversed. The court concluded the statutory exemption
of G.S. 153A-335(2) is clear and unambiguous: If all lots created by a subdivision
exceed ten acres and there is no public right of way dedication involved, the
subdivision is exempt from any and all county subdivision regulation.
Messer v. Town of Chapel Hill, 346 N.C. 259, 485 S.E.2d 269 (1997)
Mootness, Taking
The owners of a 150 acre tract brought this action to challenge a rezoning that
reduced the allowed residential density from three units per acre to one unit
per five acres. The owners contended the value of the property was three million
dollars prior to the rezoning and that after the rezoning the development costs
would exceed sales value of the five acre lots. The court of appeals upheld
dismissal of the takings and due process claims on ripeness grounds, noting
the owners had not filed a development plan nor sought a variance. While on
appeal the owners sold the property for one and a half million dollars. The
court ruled this sale rendered the suit moot, as the plaintiffs no longer had
any development interests in the property and the receipt of $1.5 million "establishes
beyond peradventure" that the property had a practical use and a reasonable
value and a mere diminution in value, even if severe, is not an unconstitutional
taking.
Cates v. Department of Justice, 346 N.C. 781, 487 S.E.2d 723 (1997)
Sanitarians, Liability
The court held that the state is not required to defend a sanitarian alleged
to have conducted negligent preliminary site evaluations for septic tank suitability.
In this instance, a Durham County sanitarian provided a preliminary evaluation
of a site and determined that forty-nine lots were suitable for on-site septic
tanks. Based on this, a developer purchased the tract and marketed lots. It
was later determined that twenty of the forty-nine lots were not suitable. The
case was settled for $495,000. The sanitarian sought state-provided counsel
under G.S. 130A-4(b). The state refused to provide counsel for the sanitarian
on the grounds that in performing a preliminary soil evaluation, the sanitarian
was not enforcing state rules. The court held that since there are no provisions
for preliminary evaluations under state law or rules, and since this was done
strictly as a local service, the state had no obligation to provide counsel.
Town of Spruce Pines v. Avery County, 346 N.C. 787, 488 S.E.2d 144 (1997)
Watershed protection, Delegation
This suit was brought by the Town of Spruce Pine (which is in Mitchell County)
against neighboring Avery County and involved a dispute over the city's proposed
location of a new water supply intake in the North Toe River (which would trigger
a requirement that Avery County adopt a watershed protection ordinance). In
1988 the city asked the EMC to reclassify the North Toe for water supply purposes.
The EMC agreed. In 1993 the county denied the city's building permit application
for a water supply intake, prompting the city to file this suit against the
county. The county countersued, contending the watershed act is unconstitutional.
The city prevailed at the trial court level in 1994. The legislature passed
a bill in 1995 that required the EMC to place the watershed in a less restrictive
WS-IV class, which was done by the EMC. The county also agreed to allow the
intake to be constructed. But the litigation on the constitutionality of the
state law requiring local watershed protection ordinances continued. The court
of appeals held the level of guidance the General Assembly provided to the EMC
for its rule-making was inadequate and was thus an unlawful delegation of legislative
authority to the executive branch of state government.
The supreme court reversed and upheld the water supply protection statute. The
court noted that the legislative standards need only be as specific as the circumstances
permit and that procedural safeguards can be used to assure adherence to legislative
standards where precise standards are not appropriate. The court recognized
the complexity of watershed classification and management, the general goals
for water quality standards in G.S. 143-211, the direction in G.S. 143-214.5
to use density limits and/or performance standards to regulate watershed development
to protect water quality, and the detailed rule-making hearing requirements
of G.S. Ch. 150B as adequate for legislative guidance on the exercise of this
delegated power. The parties in this case agreed that subsequent legislation
that exempted a single watershed from the coverage of the state watershed protection
program was adopted without a rational basis. The court noted that while this
may well make the legislation making that exemption unconstitutional, it does
not invalidate the basic watershed protection statute.
March v. Town of Kill Devil Hills, 125 N.C. App. 151, 479 S.E.2d 252
(1997)
Streets, Parking
The plat for a subdivision in Kill Devil Hills showed a 100 feet right of way
between the bypass and the beach road. The right of way dedication had been
accepted by the town but this portion of the road had not been paved or opened
The town proposed to construct two travel lanes and forty-four parking places
in the median. Neighbors challenged the parking, contending this was a "parking
lot" rather than a street. The court upheld inclusion of the parking area within
the right of way, holding provision of on-street parking was within the town's
discretion and was consistent with use of the dedicated area as a street.
King v. State, 125 N.C. App. 379, 481 S.E.2d 330, review denied, 346
N.C. 280, 487 S.E.2d 548 (1997)
CAMA, Takings
Plaintiff's CAMA permit application to develop an eight acre peninsula in Topsail
Sound was denied. The development proposal was for a road down the center of
the property, a bulkhead around the perimeter of the peninsula., and a fifty
lot subdivision along the road. The application was modified to delete the subdivision.
Since the proposed road crossed wetlands in the interior of the property, a
federal wetland permit was required under Section 404 of the Clean Water Act.
The state denied a water quality certification necessary for the federal permit
and also denied the state CAMA permit. On appeal to the Coastal Resources Commission,
the CAMA permit was issued, but subject to receiving a water quality certification.
However, the water quality certification denial was subsequently upheld by the
Environmental Management Commission and affirmed by the courts (see 112 N.C.
App. 813). The court held the determination of the facts of the case in the
administrative hearings were binding for subsequent judicial review. The court
further held that since practical alternatives to the plaintiff's proposed development
scheme were established in the hearings (such as relocating the road and building
houses on pilings), there had not been a regulatory taking. The owner is not
entitled to maximizing her profits, only to some practical use of the property
with reasonable value.
Carter v. Stanley County, 125 N.C. App. 628, 482 S.E.2d 9, review denied,
346 N.C. 276, 487 S.E.2d 540 (1997)
Notice, Rezoning
In this challenge to the county's authority to acquire land to be given to the
state for a prison site, the court addressed the adequacy of the notice of the
hearing on a rezoning of the site. The notice of the public hearing stated that
the proposed text amendment would allow "government owned buildings, facilities,
and institutions" as permitted uses in the affected zoning districts. The court
held this fairly and sufficiently notified the public as to the character of
the proposed action and that the complaint that the notice should have been
more precise or have mentioned a potential prison siting was a political rather
than a legal complaint.
Wade v. Town of Ayden, 125 N.C. App. 650, 482 S.E.2d 44 (1997)
Conditional use, Application
The court invalidated issuance of a conditional use permit for a multi-family
housing project. The Ayden zoning ordinance required submission of "complete
final plans" before final approval could be granted. The applicant had submitted
a "sketch plan" that did not include utility, street, and other engineering
data. The court held that the ordinance requirements for the application were
binding on the town and the town had no authority to consider an incomplete
application.
Baker v. Town of Rose Hill, 126 N.C. App. 338, 485 S.E.2d 78 (1997)
Conditional use, Evidence, Change in membership
This case involved an appeal of the issuance of a conditional use permit by
the town board for a soybean meal transfer facility. The board originally made
findings on five of the seven standards in the zoning ordinance for conditional
use permits, but did not make findings on two standards-(1) that the use no
impair the integrity or character of surrounding properties and not adversely
affect the safety, health, and morals of the community and (2) that the use
is essential or desirable to the public convenience or welfare-on the advice
of counsel that these standards were too subjective in nature. The trial court
remanded for findings from the original hearing record on these two additional
standards. The board then made supplemental findings that these two standards
had also been met.
The court upheld the board's approval of the permit. Evidence held to support
the findings included testimony and site plans regarding the location of houses,
other industrial use, rail lines, and highways relative to the proposed facility,
as well as evidence on impacts on dust, truck traffic, potential freight spills,
and pedestrian safety. The court also held the board's vote was not invalidated
by the change in membership of one member between the time of the hearing and
the second vote, noting the new member had previously served on the planning
board and had been furnished a copy of the full record prior to the vote and
further holding that since four of the five board members had voted to approve
the permit, the petitioners had failed to show a harm to their interests.
Browning-Ferris Industries of South Atlantic, Inc. v. Guilford County Board
of Adjustment, 126 N.C. App. 168, 484 S.E.2d 411 (1997)
Vested rights
In the period between the time the plaintiff initiated the process of securing
approval for operation of a waste transfer site and the time building permits
were secured, the zoning ordinance was amended to require a special use permit
(a waste transfer station previously being a permitted use in the heavy industrial
zone applicable to the site). BFI obtained a letter from the county planner
that a waste transfer station was a permitted use at a particular site and had
submitted a site development plan to the county prior to acquiring the site.
The site plan was "conditionally approved" by a staff technical review committee
nine days prior to the ordinance amendment, but neither final approval nor a
building permit had been secured when the special use permit requirement was
imposed. The court held no vested rights had been established. The court held
expenditures based on the pre-amended ordinance, the planner's letter, or the
conditional approval should not be considered as reliance on a valid approval.
Further, the court noted there was no showing of any detriment or prejudice
to the applicant as a result of having to apply for a special use permit for
the transfer station.
Pine Knoll Associates v. Carden, 126 N.C. App. 155, 484 S.E.2d 446,
review denied, 347 N.C. 138, 492 S.E.2d 26 (1997)
CAMA, Riparian access
This case involved disputed riparian rights between adjacent property owners,
both with piers, along a navigable canal in Pine Knoll Shores. The court held
that where there is an irregular shoreline (here the canal frontage made a right
angle at or near the property boundary), a reasonable use test should be employed
to allow both owners access to the water.
Simmons v. City of Hickory, 126 N.C. App. 821, 487 S.E.2d 583 (1997)
Building inspection, Public duty doctrine
A city conducting building inspections in its extraterritorial jurisdiction
has not created a "special relationship" with the owner of the structure being
inspected. Thus under the public duty doctrine the city and its inspectors are
not liable to a home purchaser for negligence even if the inspection failed
to discover structural defects and code violations.
Purser v. Mecklenburg County, 127 N.C. App. 63, 488 S.E.2d 277 (1997)
Spot zoning, Comprehensive plan
A neighbor challenged Mecklenburg County's rezoning of a 14.9 acre tract from
residential to a commercial conditional use district as illegal spot zoning.
The court applied the Chrismon factors and held that the county had established
a reasonable basis for the rezoning. The court found the site met all of the
standards for the proposed neighborhood convenience center established in the
General Development Policies District Plan and the East District Plan (both
components of the county's comprehensive plan) regarding size, density, buffers,
traffic flow, and distance from other commercial centers. The court found the
conditional use site plan would integrate the center into the neighborhood and
insure the development was in harmony with the surrounding residential uses.
Maynor v. Onslow County, 127 N.C. App. 102, 488 S.E.2d 289, appeal dismissed,
347 N.C. 268, 493 S.E.2d 458, review denied, 347 N.C. 400, 496 S.E.2d 385 (1997)
Adult uses, Amortization
Onslow County, which did not have a countywide zoning ordinance, adopted a general
police power ordinance restricting the location of adult businesses (establishing
a minimum 1,000 feet separation between an adult business and any residence,
place of worship, school, day care, playground, or other adult business) and
establishing a two year amortization requirement for pre-existing nonconforming
adult businesses. The ordinance was challenged by The Doll House, a nonconforming
adult business. The court held this was a valid regulation to protect the public
health, safety, and welfare under G.S. 153A-121 and dismissed constitutional
challenges that the ordinance was vague or overly broad.
Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App.
212, 488 S.E.2d 845 (1997), review denied, 347 N.C. 409, 496 S.E.2d 394 (1997)
Evidence, Conditional use, Adequate public facilities
The plaintiff applied for a special use permit and sketch plan approval for
a 601 lot subdivision. The county denied the permit, finding the proposed development
would violate the standard that a project not exceed the county's ability to
provide adequate facilities, including but not limited to schools, fire and
rescue, law enforcement, and other county facilities. At the initial hearing
on the matter, the planning director testified under oath about comments received
on the project, including a written comment from the school superintendent,
and the petitioner estimated the project would increase the county's school
enrollment by ten percent. At a continued hearing in which the petitioner did
not participate (the petitioner had requested a "continuance" the day prior
to the hearing), a letter from the superintendent on long range needs of the
school system was presented. At its final meeting to decide the application,
the board received a staff analysis recommending denial based upon inadequate
school facilities to support the development and the board of commissioners
made its denial on that basis.
The court held the whole record included adequate competent, substantial, and
material evidence to support the denial. Failure to participate in the duly
advertised continued hearing waived any right to object to the competency of
the testimony from an unsworn witness at that hearing. Also, since claims regarding
vested rights, the authority to enact moratoria, and the county's duty to provide
school facilities were not raised as cross-assignments of error, the petitioner
had waived those matters on appeal. Finally, the court imposed double costs
on the petitioner's counsel for filing an appeal brief forty percent longer
than court rules allowed.
Lloyd v. Town of Chapel Hill, 127 N.C. App. 347, 489 S.E.2d 898 (1997)
Variance, Standing
The petitioner sought variances to construct ten single family residents on
pre-existing lots located within the Bolin Creek floodplain and within the town's
Resource Conservation District. The town planning staff recommended approval
and intervening neighbors objected. The board of adjustment voted six to four
to grant the variances, thus denying the variance as the requisite four-fifths
majority was not secured. On appeal by the petitioner, the trial court found
the intervenors had standing to participate in the appeal, but ruled all the
standards for a variance had been met and ordered the variances issued. The
court of appeals held the intervenors did not have standing. Their affidavits
in support of standing merely indicated they were near-by property owners and
did not allege (nor did the record support) that they would suffer any special
damages distinct from the rest of the community.
Onslow County v. Moore, 127 N.C. App. 546, 491 S.E.2d 670 (1997), vacated
and remanded for consideration on the merits, 347 N.C. 672, 500 S.E.2d 88 (1998)
Appellate procedure, Adult entertainment
This case consolidated three cases involving enforcement of the county's adult
business regulations. The trial court upheld the constitutionality of the ordinance
but ruled it partially preempted by state law, prompting appeals by both the
county and proprietors of regulated businesses. The court dismissed all appeals
for failure to make timely filings of the record on appeal. [Note: The case
on remand is reported at ___ N.C. App. ___, 499 S.E.2d 780]
Everhardt & Associates, Inc. v. Department of Environment, Health, and Natural
Resources, 127 N.C. App. 693, 493 S.E.2d 66 (1997), review denied, 347 N.C.
575, 502 S.E.2d 590 (1998)
CAMA, Comprehensive plan, Wetlands
The plaintiff's were denied a CAMA permit to place septic tanks and houses on
Tolson's Island in Hyde County on the basis of inconsistency with the county
land use plan and wetland fill. The plan prohibited development of estuarine
islands within one mile of Ocracoke Island. The court upheld the Coastal Resource
Commission's determination that the proposal was inconsistent with the plan
(overruling an administrative law judge's conclusion that the area was a "peninsula"
rather than an "island"). The state had offered testimony at the administrative
hearing on the issue of whether the land was an island, but the hearing officer
ruled the determination must be made on the map in the plan alone. The court
held is was proper for the Commission to consider offers of proof made at the
administrative hearing as they are part of the whole record before the body.
Sedman v. Rijdes, 127 N.C. App. 700, 492 S.E.2d 620 (1997)
Agricultural use
The defendants operated a plant and vegetable greenhouse operation on a forty-one
acre tract adjacent to the plaintiff's property. The operation included four
greenhouses, fans, a loading dock, and some sales of the plants on the premises.
The court dismissed the contention that the operation was in violation of the
Orange County zoning ordinance, ruling the entire horticultural operation was
exempt from zoning as a bona fide farm under G.S. 153A-340.
Carolina Spirits, Inc. v. City of Raleigh, 127 N.C. App. 745, 493 S.E.2d
283 (1997), review denied, 347 N.C. 574, 498 S.E.2d 380 (1998)
Interpretation, Adult use
The plaintiff operated a nightclub featuring female impersonators and contended
the zoning restrictions related to adult uses should not be applied to this
business. The court held that the parties were disputing the definition of "adult
establishments" set forth in the 1977 zoning ordinance, which had been subsequently
amended. The court dismissed the action as moot (there being no real controversy
as to the prior definition).
Wooten v. Town of Topsail Beach, 127 N.C. App. 739, 493 S.E.2d 285 (1997),
review denied, 348 N.C. 78, 505 S.E.2d 888 (1998)
Street, Park
A portion of a dedicated street right-of-way had not been improved, but had
been used for access to Banks Channel, parking boats and trailers, and for access
to a private residence. The court held the town may not block vehicular traffic
and convert the right-of-way to a park without complying with the applicable
statutes for closing a dedicated street.
Appalachian Outdoor Advertising Co., Inc. v. Town of Boone Board of Adjustment,
128 N.C. App. 137, 493 S.E.2d 789 (1997), review denied, 347 N.C. 572, 498 S.E.2d
375 (1998)
Nonconformities
The plaintiff had a nonconforming billboard that was damaged in a storm. The
structure consisted of two sign faces, six supporting poles, and lights. The
damage necessitated replace of two of the support poles and removal, straightening,
and repainting one sign face. The town staff sought to prohibit the work as
"reconstruction" of a nonconformity and this determination was upheld by the
board of adjustment. The court held the work was permissible "repair," noting
the sign had been damaged, not destroyed and that the cost of the work was $255
while the tax value of the billboard was $2,607 (well below the 50% of market
value allowed by the ordinance for repair of nonconforming structures).
Gregory v. County of Harnett, 128 N.C. App. 161, 493 S.E.2d 786 (1997)
Rezoning
The plaintiff owned a 73 acre tract zoned to allow manufactured home parks as
a permitted use. A fourteen lot park had been constructed on the property. Neighbors
sought to have a 324 acre area that included the plaintiff's property rezoned
to a district that prohibited manufactured home parks but allowed manufactured
homes as a conditional use on individual lots. The county board of commissioners
denied the rezoning petition. A virtually identical rezoning petition was filed
by another neighbor three days after the initial denial. After additional public
hearings, the second petition was approved some three months later. The court
invalidated the rezoning as arbitrary and capricious, finding it was based on
concerns about alleged crime problems generated by residents of mobile home
parks and the record was devoid of any consideration of consistency with the
character of the land, the suitability of the land for this use, consistency
with the comprehensive plan, or the existence of any changed circumstances since
the original zoning had been adopted.
Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp 372 (W.D.N.C. 1997),
aff'd (unpublished), 162 F.3d 1155 (4th Cir. 1998)
Adult businesses
Case upheld city regulation of adult book store.
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