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
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.
North Carolina Court of Appeals
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 (and noted that G.S. 160A-299(c) specifies that upon closing of a dedicated right of way title goes to the adjacent fee title owners). As long as the right of way remains a “street,” it cannot be used for as a park that blocks all vehicular use, but use of part of the street for utilities, rail access, or even a seawall many be permissible without abandonment of the right of way.
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.
Selected Federal Cases Arising in North Carolina
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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