1998 North Carolina Land Use
Litigation
David W. Owens
Institute of Government
The University of North Carolina at Chapel Hill
© 1999
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.
North
Carolina Supreme Court
Smith Chapel Baptist Church
v. City of Durham, 348 N.C. 632, 502 S.E.2d 364 (1998)
Delegation
[Note: The court reheard this case and a revised
decision that supercedes this decision was issued in 1999.]
Martin Marietta Technologies,
Inc. v. Brunswick County, 348 N.C. 698, 500 S.E.2d 665 (1998)
Appeals, Vested rights,
Preemption
Brunswick County adopted an
ordinance prohibiting the use of explosives and dewatering in any mining
operation located within five miles of the Brunswick nuclear plant or the Sunny
Point military ammunition depot. The
ordinance would have precluded a Martin Marietta open pit limestone mine
proposed to be located in this area.
The trial court held Martin Marietta had established vested rights, that
state law preempted the county ordinance, and that the ordinance was void due
to failure of the county to follow appropriate notice procedures. The court of appeals ruled the county’s
appeal of this judgment was interlocutory and must be dismissed. The court of appeals held a state mining
permit decision, which had not yet been made, was necessary to determine
whether there was any conflict between the state and local regulatory
provisions. The supreme court reversed
and remanded for a decision on the merits of the case.
North
Carolina Court of Appeals
State v. Mercer, 128 N.C. App. 371, 496
S.E.2d 585 (1998)
Procedure, Adult use,
Nuisance
The operators of adult businesses in
Onslow County sought to have a nuisance action brought by the state pursuant to
Chapter 19 of the General Statutes dismissed because cases involving the same
defendants were pending alleging violations of the county’s adult business
ordinance. The court held that the
nuisance action violation involved different subject matter, issues, and
potential relief, and was thus not precluded by the pending litigation
regarding ordinance violations.
State v. Taylor, 128 N.C. App. 616, 495
S.E.2d 413 (1998)
Noise, Vagueness
The court upheld a conviction for
violation of the county’s animal control ordinance provisions related to
excessive noise by dogs. Neighbors
complained that the defendant’s walker hounds barking was relentless,
incessant, and lasted almost twenty-four hours per day. The ordinance made in unlawful to keep an
animal that “habitually or repeatedly makes excessive noises that tend to
annoy, disturb, or frighten citizens.”
The court held these terms had commonly accepted meanings and were
sufficiently certain so as not to be impermissibly vague.
Fantasy World, Inc. v.
Greensboro Board of Adjustment, 128 N.C. App. 703, 496 S.E.2d 825, review denied, 348 N.C. 496, 510 S.E.2d 382
(1998)
Nonconforming, Adult use
The court ruled that expansion of
the floor space devoted to a nonconforming adult business was a violation of
the zoning ordinance. A portion of the
structure at issue had been lawfully operated as a topless bar and the
remainder operated as a restaurant.
After adoption of separation requirements for adult businesses that
rendered the use nonconforming, the restaurant closed. After a period of inactivity, the owner
sought to use the former restaurant portion of the building for an adult
bookstore and/or adult mini motion picture theater. The ordinance explicitly prohibited increasing the floor area
devoted to nonconformities, which the court held prohibited the expansion. The court also upheld use of a
“preponderance” of matter being devoted to sexually explicit materials as
sufficiently precise and held that there was sufficient evidence in the record
to support a finding that the area was being used as an adult mini motion
picture theater.
Reunion Land Company v.
Village of Marvin, 129 N.C. App. 249, 497 S.E.2d 446 (1998)
This case involved the statute of
limitations for challenging legislative zoning decisions. The zoning ordinance was last amended in
September 1996 and at that time the statute of limitations was nine months (or
until June 1997 in this instance) and this suit was filed in February 1997. However, on October 1, 1996 the statute of
limitations in G.S. 1-54.1 changed from nine months to two months. The court held when the legislature shortens
a statute of limitations, a plaintiff must file within a reasonable time, but
in no event beyond the new statute of limitations. Thus actions challenging legislative zoning decisions had to have
been filed within two months of October 1, 1996. The suit was therefore properly dismissed.
South Blvd. Video & News, Inc. v. Charlotte Zoning Board of Adjustment, 129 N.C. App. 282, 498 S.E.2d 623, review denied, 348 N.C. 301, 510 S.E.2d 656 (1998)
The Charlotte ordinance established
special separation requirements between adult establishments and other
sensitive land uses. The question
presented was whether the petitioner’s facility was an adult
establishment. The ordinance defined
these to include bookstores where a “preponderance of its publications books,
magazines, and other periodicals” were devoted to adult materials. The court held the use of the term “preponderance”
was not unconstitutionally vague. The
court held that “preponderance” did not require that more than fifty percent of
the materials be devoted to adult material, but rather that adult materials
were given a predominant and far greater emphasis in display within the store
and in importance to the store’s overall business. The court held that videotapes could be considered within the
“publications” subject to this definition.
The court also upheld a contempt citation based on the efforts to circumvent
court orders regarding the business.
Ball v. Randolph County Board of Adjustment, 129 N.C. App. 300, 498 S.E.2d 833, pet. for discretionary review dismissed, 349 N.C. 348, 507 S.E.2d 272 (1998)
The question presented was whether
remediation of petroleum contaminated soil could be considered an agricultural
use of land. The ordinance did not
explicitly address this use. The zoning
administrator concluded that since the state regulated this activity, the use
was carried on upon open agrarian land, and the use involved open use of land
and soil tilling, it could be carried out in a Residential-Agricultural zoning
district. The board of adjustment
upheld this determination. The court
reversed, holding as a matter of law that soil remediation is a waste treatment
process, not an agricultural use.
Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780, review denied, 349 N.C. 361, 525 S.E.2d 453 (1998)
The court upheld Onslow County’s
ordinance that established minimum separation requirements for adult
businesses. The court held these
requirements could be adopted as either zoning requirements or as a general
police power ordinance. The court held
the regulations were not preempted by the state indecent exposure statute, but
that the state law limiting adult businesses to one per structure (G.S.
14-202.11) does preempt a separation requirement between adult uses. [Note: G.S. 14-202.11 subsequently amended
by S.L. 1998-46 to remove any preemption.]
In re Willis and City of Southport Board of Adjustment, 129 N.C. App. 499, 500 S.E.2d 723 (1998)
Judicial review, Board of
adjustment
The court held that a superior court
hearing an appeal of a board of adjustment decision must, depending of the type
of issue being reviewed, apply one of two standards of review. For alleged errors of law, the court
undertakes a de novo review. On the
other hand, if the allegation is that the decision was not supported by the
evidence or that the decision was arbitrary and capricious, the court is
limited to reviewing the whole record before the board of adjustment supports
the board’s conclusions. Since both
types of allegations were made in this case and the trial court did delineate
which standard was applied to which issue, the court remanded the case for a
new order specifying application of the appropriate scope of review for each
allegation.
Williams v. Town of Spencer,
129 N.C.
App. 828, 500 S.E.2d 473 (1998)
Nonconformities,
Manufactured housing
The court upheld an ordinance
provision that allowed nonconforming manufactured housing parks to remain, but
explicitly prohibited bringing in a new unit when a leased mobile home lot was
vacated. The court held such a policy
is rationally related to a legitimate governmental objective of eventually
phasing out nonconformities. The court
held such a provision is not a taking since the land can be used for any of the
uses allowed in the industrial zone, thus the owner was not deprived of all economically
beneficial or productive use of the land.
Derwort v. Polk County, 129 N.C. App. 789, 501
S.E.2d 379 (1998)
Public duty doctrine,
Subdivisions
The county approved a subdivision
plat submitted by the plaintiffs. The
plat was recorded, the site graded, roads and a water line installed, and lots
were sold with guarantees that septic tank approval could be obtained. It was subsequently determined that none of
the lots were suitable for septic tanks.
The court held the county could not be held liable for damages under the
public duty doctrine. Since the county
owed no legal duty to the plaintiffs, there could be no liability even if there
was negligence in subdivision approval.
Koontz v. Davidson County
Board of Adjustment, 130 N.C. App. 479, 503 S.E.2d 108, review
denied, 349 N.C. 529, 526 S.E.2d 177 (1998)
Manufactured Housing, Vested
Rights
Shortly after developers entered a
contract to purchase a 6.78 acre site for the purpose of developing a mobile
home community, the plaintiffs petitioned the county to rezone the site to
exclude mobile homes as a permissible use from an area that included this
site. After the notice of the hearing
on the proposed zoning amendment was published, but before the zoning change
was adopted, the developer applied for and received subdivision approval and
commenced work on streets and landscaping.
However, no mobile homes were located within the subdivision until some
ten days after the zoning change was adopted.
The zoning administrator, the board of adjustment, and the trial court
held the developers had a vested right to place mobile homes on the site. The court reversed. The developers knew the proposed specific
zoning amendment had been set for public hearing before making substantial
expenditures and the developers had actively sought and acted upon advice on how
to circumvent the proposed amendment.
The court thus held the developers had not proceeded in good faith.
Estates, Inc. v. Town of
Chapel Hill,
130 N.C. 664, 504 S.E.2d 296 (1998), review
denied, 350 N.C. 93, 527 S.E.2d 664 (1999)
Appellate procedure
The town council denied a special
use permit for an apartment complex and single family development proposed for
a thirty-four acre parcel. The
applicant appealed and neighbors opposed to the project intervened. The superior court reversed the denial and
ordered the town to issue the permit.
The intervenors filed notice of appeal to the court of appeals (but did
not apply for a stay of the trial court’s order). The town did not appeal.
While the case was on appeal, the town council issued the special use
permit for the project. The court held
that Rule 62 of the Rules of Civil Procedure provides an automatic stay of the
trial court’s judgment, but does not prevent the town from voluntarily
complying the with the trial court’s judgment.
To maintain the status quo, the intervenors must obtain an injunction
prohibiting the issuance of the permit during the pendancy of the appeal. Once the town issued the permit, the appeal
is moot.
County of Durham v. N.C.
Department of Environment and Natural Resources, 131 N.C. App. 395, 507
S.E.2d 310 (1998), review denied, 350
N.C. 92, 528 S.E.2d 361 (1999)
The court held that the state Department of Environment and Natural Resources had correctly interpreted the statutes to distinguish “Land Clearing and Inert Debris” landfills from “sanitary landfills.” The court noted that while a de novo review is made on statutory interpretation questions, the court also accords considerable weight to the agency’s interpretation and will not disturb such if it is based on a permissible interpretation of the statute. The court further held that since the requirements for notice to the county of a proposed site only apply to sanitary landfills, there is no requirement to provide such notice regarding land clearing and inert debris landfills.
Crist v. City of
Jacksonville, 131 N.C. App. 404, 507 S.E.2d 899 (1998)
The plaintiff constructed a replica
of a church on his residential lot. The
structure was located within the required five feet side yard setback line for
the zoning district involved. The city
staff ruled this was an impermissible location of an accessory building. The board of adjustment denied a variance to
allow the structure to be located on the lot, but failed to make any findings
of fact. The court ruled that the issue
of whether this structure was an “accessory building” was not presented to the
trial court and thus could not be raised on appeal. The court rejected the city’s contentions that findings are not
required for denial of a variance and remanded the case to the board of
adjustment to make appropriate findings of fact to support their decision.
Water Tower Office
Associates v. Town of Cary Board of Adjustment, 131 N.C. App. 696, 507
S.E.2d 589 (1998)
The plaintiff contended their
property was zoned for commercial use.
However, on October 11, 1996 the city staff ruled the property was zoned
for residential use. Upon inquiry from
the plaintiff, the city advised the plaintiff on October 18 that the ruling
could be appealed to the board of adjustment, but the city made no mention of
the time period for making an appeal.
The Cary zoning ordinance required appeals to the board of adjustment to
be made within thirty days of the contested decision. The plaintiff did not appeal until February 17, 1997. The board heard the case and upheld the
staff determination. The plaintiff
appealed to superior court, which dismissed the appeal for failure to make a timely
appeal to the board of adjustment. The
court of appeals affirmed, noting the ordinance provisions on appeals are
binding on the board as well as on the appellant. Since the appeal was not made within the requisite thirty-day
period, the board was without subject matter jurisdiction to hear the
case. The court held the fact the board
actually heard the case is irrelevant as the board could not waive its lack of
subject matter jurisdiction and the city was entitled to raise the defense for
the first time on judicial appeal. The
court also noted the city has no obligation to notify persons of the thirty-day
period at the time of decision.
Darnell v. Town of Franklin, 131 N.C. App. 846, 508 S.E.2d
841 (1998)
The plaintiff appeared before the
town’s board of adjustment and town council (which had final decision-making
authority for variances under the town’s zoning ordinance) to object to a
setback variance for an adjoining property owner. Upon issuance of the variance, the plaintiff filed a petition for
writ of certiorari seeking judicial review of the variance decision. The petition stated that the plaintiff was
an adversely affected property owner, but contained no allegations specifying
how the plaintiff was aggrieved by the decision. The town moved to dismiss for lack of subject matter jurisdiction. While that motion was under advisement, the
plaintiff sought to amend her pleadings to add specific allegations of
harm. The court held that while the
initial petition was deficient, the plaintiff had clearly established by her
participation in the matter before the town boards that she was affected by the
action in a manner distinct from the rest of the community. Therefore the trial court should have
allowed her to amend the petition under N.C.G.S. § 1A-1, Rule 15(a).
Selected
Federal Cases Arising in North Carolina
CMH Manufacturing, Inc. v.
Catawba County,
994 F.Supp. 697 (W.D. N.C. 1998)
Manufactured housing
Plaintiff challenged the county
zoning provisions establishing appearance standards for single-wide and
double-wide manufactured housing. The
ordinance required lap siding and a pitched roof with shingles. The court held that while federal law
preempted local construction and safety standards for manufactured housing, but
not local appearance or aesthetic standards.
The court also held the local regulations did not violate the Commerce
Clause, Due Process Clause, or Equal Protection Clause
Mermaids, Inc. v. Currituck
County, 19
F. Supp.2d 493 (E.D.N.C. 1998)
Adult businesses
Plantiff operated a bar in the Point
Harbor area of Currituck County, just across the bridge to the Dare County
beaches. Plaintiff began offering
topless dancing at the bar without the requisite special use permit for adult
entertainment. The ordinance limits
adult businesses to the Heavy Manufacturing zoning district and establishes a
1000-foot separation from various sensitive land uses and from residential
zoning districts. The court upheld the
county ordinance as a reasonable regulation aimed at preventing adverse secondary
impacts.