Below are brief digests of reported decisions regarding planning, land use, and related issues in North Carolina. The state supreme court decisions are listed first, followed by court of appeals decisions, followed by federal cases arising in North Carolina. 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.
2008 North Carolina Land Use Litigation
David W. Owens
School of Government
The University of North Carolina at Chapel Hill
© 2009
Below are brief digests of reported decisions regarding planning, land use, and related issues in North Carolina. The state supreme court decisions are listed first, followed by court of appeals decisions, followed by federal cases arising in North Carolina. 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
Chapel Hill Title and Abstract Co. v. Town of Chapel Hill, 362 N.C. 649, 669 S.E.2d 286 (2008)
Variance, Restrictive covenant
The plaintiffs owned a lot in Chapel Hill that was subject to both conventional zoning setbacks and further setbacks based on a Resource Conservation District (RCD) overlay. The town issued a permit in 2002 for a single family residence on the lot with the house location meeting the town’s 28-foot street setback. However, neighbors successfully enjoined construction at this location because it violated a 1959 private restrictive covenant that required a 50-foot street setback and set minimum lot sizes. The plaintiff acquired additional land to meet the lot size issue. However, since compliance with the restrictive covenant would push the building site back into the RCD setbacks, the plaintiff sought a zoning variance from the town. The board of adjustment denied the variance on the grounds that the hardship was created by the covenants, not the town ordinances. The trial court reversed, ruling that since the covenants were existing when the RCD provisions were adopted, it was the ordinance that effectively precluded building on the site. The court of appeals held that the board of adjustment correctly considered only the application of the ordinance in determining whether there was undue hardship to qualify for a variance.
The court held the terms of the zoning ordinance itself compelled the board of adjustment to consider the effect of the restrictive covenant in evaluation of the variance petition. The ordinance specifically directed that the board “shall consider the uses available to the owner of the entire zoning lot” in making its determination. As the restrictive covenant prevented the owner from constructing a home outside the RCD, the owner had no reasonable use of the property outside the RCD and the board must consider that in determination of the “uses available” to the owner. The court thus remanded with instructions that the variance be issued. A concurring opinion contended the RCD restriction would, absent the variance being granted, constitute a taking.
Mangum v. Raleigh Board of Adjustment, 312 N.C. 640, 669 S.E.2d 279 (2008)
Standing
The Raleigh board of adjustment issued a special use permit for an adult establishment (a “Gentlemen’s/Topless Adult Upscale Establishment”) near the Raleigh-Durham Airport. The plaintiff adjacent property owners filed for judicial review of the permit. Two of the three plaintiffs alleged that they were adjacent property owners and the third that she owned a nearby business that would be adversely affected. The trial court reversed the decision to grant the permit. The court of appeals, however, held the plaintiffs did not have standing for judicial review.
The court held that while an allegation of proximity is relevant, it alone is insufficient to confer standing. A credible allegation of special damages is necessary to establish standing. The court held allegations of parking problems, stormwater problems, and crime problems were sufficient to establish “special damages” and that evidence of property value harm is not required.
North Carolina Court of Appeals
Weaverville Partners, LLC v. Town of Weaverville Zoning Board of Adjustment, 188 N.C. App. 55, 654 S.E.2d 784 (2008)
Conditional uses, Evidence, Standard of review
The plaintiff challenged the denial of a special use permit for a 90 unit apartment complex proposed for a twelve acre site. The site was adjacent to a commercial strip on one side and across the street from a 24-unit apartment building, with single family residential development on the remaining sides of the site. At the hearing on the permit application, the plaintiff presented testimony from a project engineer, traffic engineer, and real estate appraiser. Neighbors testified in opposition. The board denied the permit based upon a finding the access road for the project would create traffic problems for pedestrians and vehicles and that the project would substantially harm neighboring property values. The trial court reversed, conducting: (1) a de novo review to hold the plaintiff had submitted a prima facie case of compliance with the ordinance standards and the rebutting evidence to the contrary was not competent, substantial, or material evidence as a matter of law the denial unsupported by sufficient evidence, and (2) a whole record review to determine that the board’s findings were not supported by competent, substantial, and material evidence.
The court held the proper standards of review had been employed and correctly applied. The plaintiff presented credible quantitative evidence as to each standard while the rebuttal testimony was held to be largely speculative and non-expert opinion. On traffic, the plaintiff’s traffic engineer produced trip generation data, related this to the town road plans, and described measures for minimizing congestion. The opposing testimony from neighbors was characterized as speculative lay opinions unsupported by mathematical studies or a factual basis. On property values, the plaintiff’s real estate appraiser conducted a market analysis of similarly situated neighborhoods in the town, reviewed sales histories around the site, conducted interviews with nearby purchasers, and reviewed the architectural plans. The opposing testimony from neighbors looked at countywide data regarding the effect of apartments on depressing rates of property value appreciation and whether nearby sales were less than the asking price. The court held this did not establish violation of the ordinance standard of substantial depreciation of value. The court held testimony presenting reports of crime rates near apartment complexes in out-of-state cities without any factual relation to this project constituted speculative opinions and generalized fears that could not support permit denial. Likewise, testimony regarding the incongruity of the project design with neighboring properties was based solely on personal observations and had no quantitative link to a substantial depreciation in property values.
Rakestraw v. Town of Knightdale, 188 N.C. App. 129, 654 S.E.2d 825, review denied, 362 N.C. 237, 659 S.E.2d 739 (2008)
Notice, Amendments
The plaintiff neighbors brought a declaratory judgment action challenging the rezoning of a 56.8 acre tract from “highway business” and “urban residential” to a “highway commercial conditional” district. The town held a public hearing on the rezoning, with newspaper, mailed, and posted notices. The notices indicated the rezoning would allow subdivision of the parcel and development of a shopping center-community center with some 430,650 sq. ft. of retail and commercial uses. The advertised hearing was continued to two additional dates. These additional hearing dates were apparently announced at the advertised hearing but were not subject to additional notices. The trial court granted summary judgment for the town.
The court upheld the trial court and the rezoning. The court held the published notice to be legally sufficient provided there was no substantial change to the proposed ordinance as it moved towards passage and interested parties were informed when additional meetings would be held. No evidence was presented to show that either of these conditions was not met. The two-feet by three-foot posted sign on the site of the proposed rezoning contained the message: “Town of Knightdale PUBLIC HEARING PROPERTY NOTICE – For more information: (phone number).” The court held that the posted sign was adequate to identify and locate the property and need not contain the level of detail contained in published and mailed notices. The plaintiffs presented affidavits that not all of the mailed notices were received. However, the court held that the statute provides that if the mailer certifies the mailing of the notice, that is deemed conclusive in the absence of fraud. Here the town made such a certification and there was no evidence of fraud presented, so there could be no issue of material fact regarding the mailing. Finally, the court held that the statutes do not preclude adoption of a conditional district with less stringent standards that the comparable conventional district and in this instance the town ordinance explicitly allowed such.
McDonald v. City of Concord, 188 N.C. App. 278, 655 S.E.2d 455 (2008)
Conditional uses, Government uses
Neighbors challenged a conditional use permit issued by the city to Cabarrus County for a Law Enforcement Center located along the edge of downtown Concord. The permit authorized construction of three buildings on a ten acre site: a sheriff’s office, an annex, and a jail. The Center would be located adjacent to the existing jail and would be located on the portion of the site zoned “central city.” The remainder of the site (which was not proposed for development) was zoned “residential compact” and adjoined the plaintiffs’ residential neighborhood. The trial court upheld issuance of the permit.
The court applied a whole record review and concluded the decision was supported by competent, substantial, and material evidence. The conditional use permit standard at issue was that the project must conform “to the character of the neighborhood, considering the location, type, and height of buildings or structures and the type and extent of landscaping and screening on the site.” The ordinance directed that Webster’s Dictionary be used to define its terms. Applying those definitions, as well as the specific items listed in the standard to address conformity, the court concluded the proposed buildings were sufficiently similar to historical uses in this portion of downtown, that the bulk, height, style, and appearance of the proposed buildings was similar to the neighboring governmental and business buildings in the central city district, and that these governmental uses had always been adjacent to residential areas. The court noted the permit contained conditions for a fifty-foot vegetated buffer for the portion of the site contiguous to residential areas. While there was contrary evidence presented, neither the trial court nor the appellate court can substitute its judgment between two reasonably conflicting views so long as the board’s view is supported by the evidence.
Blue Ridge Company v. Town of Pineville, 188 N.C. App. 466, 655 S.E.2d 843, review denied, 362 N.C. 679, 669 S.E.2d 742 (2008)
Subdivision, Evidence, Remedy
The town denied approval of a subdivision plat for a 102 lot subdivision on a 52 acre site. The denial was based on a conclusion by the town council that the proposal failed to meet two subdivision ordinance standards: (1) that the subdivisions be consistent with adopted public plans (including policy plans and plans for public facilities, including roads, parks, and schools), and (2) that new subdivisions be designed to “protect and enhance the stability, environment, health, and character of the neighboring area.” The council based denial regarding the first standard on school overcrowding and denial regarding the second on traffic concerns. The trial court remanded for a new hearing with a directive to the town to provide the applicant with plans in effect at the time of the application was filed and the specific criteria regarding the factors to be considered by the town in determining compliance with the second standard noted above.
The court held there was insufficient evidence in the record to support a denial based on school overcrowding. The court noted it was uncertain that there was in fact an adopted plan or policy specifically addressing this point, the ordinance did not require a school impact analysis and, in any event, the overcrowding existed even without this subdivision. As for traffic impacts, the court noted an expert testified that the substantial increase in traffic that would be generated would not create an undue safety problem while opponents offered no mathematical studies but only speculative and generalized concerns. The court held the proposed subdivision complied with general provisions in the adopted plans calling for smaller lot sizes, connections to greenways, a mix of housing styles and densities, and size of homes. The court upheld the remand as within the trial court’s discretion to assure that the town followed the procedures in the ordinance, in this instance to provide clarification of the subjective criteria used by the town in the review.
City of Wilmington v. Hill, 189 N.C. App. 173, 657 S.E.2d 670 (2008)
Ownership, Enforcement
The city’s development regulations permitted a garage apartment as an accessory use in a single-family zoning district, provided the property owner lived in either the main residence or the accessory apartment. The defendant was cited for a violation of this requirement and assessed a civil penalty. After unsuccessfully seeking an ordinance text amendment to remove the ownership requirement, the defendant refused to pay the penalty and brought this action challenging the constitutionality of the ownership requirement.
The court held that the defendant was not required to appeal the civil penalty to the board of adjustment in order to exhaust his administrative remedies, reasoning that if the provision was indeed illegal, the city had no authority to enforce it. The court then held the ownership requirement unconstitutional as an impermissible regulation of ownership rather than a permissible regulation of land use. The court also held the owner-occupant regulation was beyond the scope of delegated zoning powers.
Friends of Mt. Vernon Springs, Inc. v. Town of Siler City, 190 N.C. App. 633, 660 S.E.2d 657 (2008)
Spot zoning, Mootness
A mineral company sought a conditional use district rezoning from Agriculture-Residential to Heavy Industrial Conditional for a 1,076 acre tract and a conditional use permit for a quarry and processing facility on the site. The town board approved both in July, 2006. Neighbors filed suit challenging the rezoning and the permit issuance. At the trial court hearing, the mineral company (which had intervened in the suit) advised the court it was no longer pursuing permits for the project and had no position on the town’s motion to dismiss.
The court held the applicant’s withdrawal did not render the case moot as it did not dispose of the matter in controversy – the validity of the rezoning and permit issuance. The court held that given the size of the rezoning involved, it did not constitute spot zoning. The court further held the trial court properly applied a whole record review in determining the town’s actions were not arbitrary and capricious and were supported by substantial evidence and a whole record review in determining there were no errors of law in either decision.
Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 663 S.E.2d 320 (2008)
Appellate procedure
The plaintiff sued the state and town regarding the town’s lake structure regulations (following prior suits against the town in federal court). The trial court granted summary judgment in favor of the town but did not rule on the claims against the state. The court held a grant of partial summary judgment is an interlocutory order that is not subject to appeal.
Table Rock Chapter of Trout Unlimited v. Environmental Management Commission, 191 N.C. App. 362, 663 S.E.2d 333 (2008)
Attorney fees
The plaintiff petitioned the Environmental Management Commission to reclassify an area as “trout waters” based on uncontested information that the area supported a stocked trout population. The EMC denied the petition and the plaintiff brought this action challenging the decision. The trial court found the EMC had no reasonable basis for the decision and awarded the plaintiff attorney fees pursuant to G.S. 6-19.1 (which allows attorney fees in specified circumstances for those successfully challenging decisions under the state Administrative Procedures Act. The court upheld the attorney fee award upon determining that the EMC decision was without substantial justification and there were no special circumstances that would make the award unjust.
Durham County v. Graham, 191 N.C. App. 600, 663 S.E.2d 467 (2008)
Parties, Enforcement, Sedimentation
The defendant secured a land disturbance permit for a landfill. The county issued a notice of violation alleging more than an acre had been disturbed, the fill had extended into a floodplain, and the sediment had not be contained onsite. The county sought an injunction to compel restoration and compliance with the terms of the permit. Subsequent to the permit and notice of violation, the property changed hand, went into foreclosure, and title was transferred to the lender.
The court held the current owner of the property was a necessary party as their rights to use the property would be affected by an injunction. The court held that lien holders were not necessary parties and nor was the city (which would have to permit the remedial actions being sought).
Laurel Valley Watch, Inc. v. Mountain Enterprises of Wolf Ridge, LLC, 192 N.C. App. 391, 665 S.E.2d 561 (2008)
Amendments, Estoppel, Exhaustion of administrative remedies
The defendants in June 2005 applied for a rezoning of twelve acres in order to construct a private airport in Madison County adjacent to resort properties of the defendant. The notice of the both the planning board hearing and the board of commissioners hearing on the proposed rezoning noted the proposed rezoning was to an industrial district, the only district in the county zoning ordinance that permitted an airport. In August 2005 the county commissioners unanimously approved the rezoning. However the minutes of the meeting noted the property had been rezoned to a “residential-resort” district. The plaintiff nonprofit group was incorporated in January 2006. On March 9, 2006 this action was filed, alleging the defendant developers were improperly constructing an airport in a residential-resort district and that the defendant county had improperly rezoned the land involved. On March 13 the county commissioners adopted a resolution noting a scrivener’s error in the August minutes incorrectly identified the zoning district adopted for this property and amended the minutes to state the property had been rezoned to an industrial district.
The court held the evidence clearly supported a conclusion that the property had in fact actually been rezoned to the industrial district in August 2005. The application, hearing notices, planning board recommendation, affidavits of the applicant and the zoning administrator, and contemporary newspaper accounts all referred to a rezoning to the industrial district, supporting the conclusion that there was indeed a scrivener’s error in the minutes. Thus the two month statute of limitations to challenge the rezoning ran from August 2005, rendering the plaintiff’s challenge untimely. The court rejected an equitable estoppel argument for reliance on the mistaken minutes as there was no evidence the plaintiff organization or any of its principles were aware of or had relied on the mistake in the original meeting minutes. The court also noted that the trial court was without subject matter jurisdiction to hear the complaint against the developers for a zoning violation as the plaintiff had failed to exhaust their administrative remedies. The plaintiff should have asked the zoning administrator for a ruling on zoning compliance and appealed an adverse ruling to the designated board (the planning board in this county) prior to initiating a petition for judicial review.
Carroll v. City of Kings Mountain, 193 N.C. App. 165, 666 S.E.2d 814 (2008)
Amendments
In September 2005 the city at the plaintiff’s request rezoned his property from residential to a general business zoning district. The following month another resident of Kings Mountain petitioned to have the property rezoned back to a residential district. The plaintiff filed a protest petition objecting to the second rezoning. The planning board recommended approval of the second rezoning as the town comprehensive plan called for residential uses in this area. New city council members took office in December and in January 2006 they rezoned the property back to residential use by a 6-1 vote.
The zoning ordinance provided that petitions for amendments could only be made by those owning property or residing within the city jurisdiction. The petitioner for the second rezoning had provided a street address but had not explicitly noted the address was within the city. The court held the petition to be adequate, noting it was common practice before the city council not to list a city in an address unless the address was out of town. The court further noted the court can take judicial notice of the location of the given address (which was within the city).
The trial court had held the second rezoning circumvented the process for judicial review of the first rezoning and was arbitrary and capricious given the lack of change in circumstances between the two votes. The court held these conclusions to be erroneous as the trial court had failed to apply a deferential review to the legislative rezoning decision and the decision whether or not to rezone was within the legislative discretion of the city council. However, the city ordinance established a four-month waiting period between rezoning petitions for a particular parcel and since that period was not observed, this rezoning was invalid.
Meares v. Town of Beaufort I, 193 N.C. App. 49, 667 S.E.2d 244 (2008)
Historic preservation, Procedures, Jurisdiction, Exhaustion of remedies
The plaintiff proposed to build a three-story commercial and residential structure on three lots within the Beaufort historic district. After the Historic Preservation Commission denied approval and while that decision was on appeal in the courts, the plaintiff filed a second application for an alternative structure. The ordinance required action on applications within sixty days of a final application, with the application deemed to be approved otherwise. When the commission refused to process or act upon the second application, this action was filed seeking mandamus to compel issuance of the certificate of appropriateness.
The court upheld the trial court’s order mandating issuance of the certificate of appropriateness. Since it was undisputed that sixty days had passed without action on the complete application, the court held issuance was required by the ordinance and was thus a ministerial action. The court held there were no provisions in the ordinance or in general law that preclude an alternative application while an initial application is on appeal. The court noted noncompliance with zoning setback provisions does not divest the historic commission of jurisdiction as the historic district requirements and zoning requirements are independent standards for review (and thus an order regarding the certificate of appropriateness does not affect the town’s authority or actions under the zoning regulations). The court held that since zoning compliance is not a predicate to the historic commission’s certificate of appropriateness and that a variance is possible from the zoning standards, potential zoning inconsistency does not render the historic commission action moot, remove its subject matter jurisdiction, or otherwise excuse non-action by the commission. The court held that a letter from the town attorney that a second application would not be considered while the first application was on appeal, which was sent prior to the second application, cannot be considered an appealable action by the commission. Finally, the court concluded that since the commission refused to act on the application, there was no decision that could be appealed to the board of adjustment and thus there was no failure by the applicant to exhaust administrative remedies prior to initiating a court action.
Meares v. Town of Beaufort II, 193 N.C. App. 96, 667 S.E.2d 239 (2008)
Historic preservation, Scope of authority, Statute of limitations
The plaintiff proposed to build a three-story commercial and residential structure on three lots within the Beaufort historic district. After receiving preliminary plans for the structure, the Historic Preservation Commission adopted a new design guideline requiring new buildings be consistent in height and scale with pre-existing historic structures on that site. The commission then, relying in part upon the new guideline, denied approval of the certificate of appropriateness for the proposed structure.
The court held the new standard to be more restrictive than allowed by the state historic preservation statute and thus void. The court reasoned the design guidelines could only require congruence with the special character of the district, not with an individual historic building previously located on the site. The court held that potential inconsistency with zoning standards does not render the matter non-justiciable, as the ordinance did not require a finding of zoning compliance as a predicate to issuance of a certificate of appropriateness from the historic commission. The court also held that the two-month statute of limitations in G.S. 160A-364.1 for challenging the adoption or amendment of zoning ordinances is not applicable to the challenge of design guidelines adopted by the historic preservation commission.
Federal Cases
MLC Automotive, LLC v. Town of Southern Pines II, 532 F.3d 269 (4th Cir. 2008)
Jurisdiction, Abstention
The plaintiff claimed a vested right to develop a 21-acre site for multiple automobile sales facilities and contended a rezoning of the site from General Business to Office Services that blocked the project violated their substantive due process rights and constituted tortuous interference with contract and prospective economic advantage rights.
The district court held the federal claim was inextricably woven with the state common law vested right claim, which is more appropriately heard in state court. The court thus abstained in deference to the state’s domestic policy. Since the plaintiff sought damages as well as equitable relief, the court upheld a stay awaiting the state court decision on the case.
The circuit court affirmed, noting the plaintiff’s allegations and evidence, viewed in the light most favorable to the plaintiff, were sufficient to withstand a motion for summary judgment. The court also held the factual and legal issues on the vested rights claim was not clearly and easily resolved under state law, so abstention was not an abuse of discretion by the district court.
Templeton Properties, L.P. v. Town of Boone, 2008 WL 5839000 W.D. N.C. 2008)
Abstention
The plaintiff applied for a special use permit to locate a medical clinic in a residential zoning district. At the hearing on the permit, the mayor appeared and opined that commercial special uses should not be allowed in this district. The board of adjustment found the application incomplete and continued the hearing. The plaintiff then submitted a revised application. Prior to resumption of the hearing on the revised complete application, the town amended the ordinance to eliminate this special use in the district. The board of adjustment then denied the application. The plaintiff filed an action in state court contesting the denial and claiming the action violated federal due process and equal protection rights, and sought an order to issue the permit and for costs and fees. The town then removed the action to federal court, contending there was original jurisdiction there for the federal constitutional claims.
The court held resolution of the zoning claims depend on the construction of state land use law, noting a well established line of abstention cases in the Fourth Circuit that the resolution of routine land use disputes properly rests with state courts. Therefore the matter was remanded to state courts.
Griffin v. Town of Unionville, 2008 WL 697634 (W.D. N.C. 2008)
Vested rights, Landfills
The plaintiffs operated a “Construction and Demolition” landfill (later referred to as a “Land Clearing and Inert Debris” landfill) beginning in 1992 as a permitted use under the county zoning ordinance. After the ordinance was amended to require a special use permit for these landfills, the plaintiff secured an special use permit in 1997 in conjunction with an expansion of the landfill. The permit limited the use to an inert debris landfill and specified that any changes would require permit modification. In 1998 the county amended its definition of these landfills to include non-hazardous industrial wastes. In 1999 the plaintiff sought state permits for inclusion of industrial wastes in this landfill. The state advised the plaintiff that G.S. 130A-294(b1) required a local franchise as well as zoning approval. The plaintiff did not secure such a franchise nor an amended special use permit from the county. In 1998 the town had became an incorporated municipality and in 2003 the town adopted its own land use regulations, with the same provisions regarding landfills as were in the county ordinance. The town in 2003 issued the plaintiff a franchise for an inert debris landfill. In 2005 the plaintiff requested a town franchise for an industrial debris landfill, which was not granted. In 2006 the town amended its land use ordinance to delete industrial waste from the range of uses that could be allowed within the special use permits within this zoning district.
The plaintiff brought this § 1983 claim contending the town’s actions violated substantive due process by depriving plaintiff’s vested rights in an industrial waste landfill. The court held the plaintiff’s vested rights were limited to an inert debris landfill and did not extend to include industrial wastes. The court noted the plaintiff had never secured all required approvals for this use. The special use permit had not been amended to include industrial wastes. The zoning text amendment authorized that, but that is not the same as securing a permit amendment. Further the plaintiff did not secure a franchise for this aspect of the landfill, something clearly required by state law. The franchise is a personal right that is legally separate from and addresses separate issues from the special use permit. Investments made to secure state approval prior to securing all required local approvals is neither in reliance on a valid approval nor made in good faith.
Karagiannopoulous v. City of Lowell, 2008 WL 2447362(W.D. N.C. 2008), aff’d, 305 Fed. Appx. 64
Discrimination, Estoppel
Plaintiff acquired a lot that had been used as a used car sales lot from 1962 to 1990 (as well as being the site of a pool hall). The property was rezoned from residential to neighborhood commercial (C-2) in 1985 to accommodate the neighborhood business use (with the record not clearly indicating whether the prior car sales were deemed to be a lawful nonconformity). The site was later used successively as a laundry, a pottery shop, and a welding shop. The plaintiff acquired the lot in 2003. In 2004 she located a school on the site to provide computer and English language proficiency at no cost to students from low-income households. She acquired the appropriate licenses for the school. Plaintiff then proposed to resume selling used cars on site to raise funds to defray the costs of the school.
The city concluded car sales were not a permitted use in the neighborhood business district, but would be allowed in the more intensive C-3 district. The plaintiff petitioned for a zoning text amendment to allow this use in a C-2 district, which was denied by the town. The plaintiff’s husband then secured a privilege license for a used car lot at another location and began to store cars on this property. The city cited plaintiff for storing junk vehicles on the lot. When the plaintiff responded that the cars were inventory rather than junk, the city advised it would be a zoning violation to store used cars in a district where used car sales are not allowed.
Plaintiff brought this action pro se, contending the city discriminated in not allowing resumption of used car sales because of her Hispanic heritage. The court noted that while the lot had been used in a manner inconsistent with its zoning from 1962 to 2004 and more consistently with a C-3 zone, prior noncompliance did not rezone it from C-2 to C-3. Further, prior non-enforcement does not estop the town from present enforcement of a violation. Plaintiff did not establish any intentional discrimination based on ethnicity nor show any stark pattern of discrimination against Hispanics. There was no evidence previous non-enforcement had any racial or ethnic component. The city showed other denials to white applicants for approval to operate a used car lot in a C-2 district, so there was no evidence of a failure to treat similarly situated applicants equally.
On appeal the court of appeals held the plaintiff had waived review of the summary judgment order of the district court that her motion for default judgment was entirely without merit, and that her claim of a conspiracy between the city and district court was delusional.
Quality Built Homes, Inc. v. Village of Pinehurst, 2008 WL 3503149 (M.D. N.C. 2008)
Due process, Equal protection, Aesthetics, Evidence
Plaintiffs challenged architectural design and landscaping requirements adopted by the village in 2006. The architectural design standards required inclusion of three or four design elements for new construction in three of the village’s seven residential zoning districts (those three districts were located near the downtown area and historic core of the village. The landscaping standards required a tree survey in most districts and required a certain number of plantings based on a point system. The standards were based on the recommendations of a broad citizen committee that meet over many months and had substantial citizen comment, as well as extensive staff analysis of ordinances and documents from other jurisdictions (and the study flowed from a 2003 update of the village’s comprehensive plan). Plaintiff’s contended the standards increased the cost of housing in the village and were unconstitutionally applied only in specified zoning districts.
The court first granted motions to strike several affidavits offered by the plaintiffs regarding the economic impacts of the regulations. In most instances the affidavits were from persons identified but then not offered as expert witnesses or not identified as witnesses at all, and thereby not available in the discovery process. The court noted that even if the evidence in the stricken affidavits was allowed, it would not change the outcome of the decision.
The court then held the ordinance did not violate the substantive due process rights of the plaintiffs. None of the plaintiffs had a protected property right as there is no constitutional right to build houses for a certain price or to earn a particular level of profit or wages nor is there a right to build according to the regulations in effect at the time of property purchase. Also, the regulations were rationally related to legitimate governmental objectives of protecting property values, promotion of tourism, and preservation of community character. Aesthetic regulations legitimately preserve the special character, integrity, and ambiance of the village. The village clearly gave careful consideration to balancing of the regulations with the economic burden they would impose.
The court dismissed the exclusionary zoning claim, noting the plaintiffs likely did not have standing to raise it. The court held the plaintiff had not demonstrated the availability of affordable housing prior to the regulation nor shown that the village did not provide affordable housing options within its jurisdiction. The court also dismissed the Equal Protection claim, noting zoning regulations can be different in different zoning districts and that no suspect classifications were involved that would generate strict scrutiny.
The plaintiff also alleged a violation of the state public records law. Plaintiff’s employee appeared in the village offices the Friday before Christmas and requested certified copies the amendments and council minutes. When they were not immediately produced the employee refused to leave the premises and was eventually escorted out by village police. The records were made available the first working day after the Christmas holiday (and the plaintiff contended they were not available until the day after the New Year holiday). The court held that the plaintiff’s public records claim was frivolous in that there is no legal right to immediate production and they were clearly provided in a reasonable time period. The court thus awarded attorney fees to the defendant for its defense of this claim.
