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)
Statute of Limitations
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)
Interpretation, Adult Use
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)
Interpretation, Agriculture
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)
Adult uses, Preemption
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)
Interpretation
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, 131N.C. App. 404, 507 S.E.2d 899 (1998)
Findings, Variance
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)
Appellate procedure
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, 131N.C. App. 846, 508 S.E.2d 841 (1998)
Appellate procedure, Standing
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.
