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 selected cases decided by North Carolina courts regarding planning, land use, and related issues prior to 1996. The state supreme court decisions are listed first, followed by court of appeals decisions. 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. Digests of additional pre-1996 cases are included in the appendices to LEGISLATIVE ZONING DECISIONS.

North Carolina Supreme Court

Harden v. City of Raleigh, 192 N.C. 395, 135 S.E. 151 (1926)
Board of adjustment; Judicial review; Quasi-judicial body; Scope of review
Raleigh's denial of a permit for a filling station in a neighborhood business district was upheld. The court ruled that the board of adjustment might determine what uses were noxious or offensive and that such a decision was a quasi-judicial one, not to be overturned by the court unless it was shown to be arbitrary, oppressive, or manifestly abusive.

Little v. Board of Adjustment, 195 N.C. 793, 143 SE 827 (1928)
Board of adjustment; Quasi-judicial body; Reapplication, res judicata
The court in this case found that the board of adjustment had improperly reopened and reheard a case presented upon the identical facts of a previously decided matter. The court reasoned that because the board of adjustment was a quasi-judicial body, the doctrine of res judicata applies to it.

Elizabeth City v. Aydlett, 201 N.C. 602, 161 SE 78 (1931)
Nonconforming uses; Purposes; Uniformity of standards
This is the basic case upholding zoning as a legitimate exercise of the police power in North Carolina. The court held that a properly adopted zoning ordinance was a permissible exercise of the police power. The ordinance can completely prohibit uses in certain districts, even though a special-purpose ordinance can not, and such a prohibition is not a taking. Allowing prior nonconforming uses to continue is not unlawful discrimination.

In re Parker, 214 N.C. 51, 197 SE 706, appeal dismissed, 305 U.S. 568 (1938)
Presumption of validity; Setbacks; Takings
In a case involving a wall on the rear- and side-yard property lines that exceeded the height limit in the zoning ordinance, the court upheld Greensboro's setback provisions. The court ruled that a zoning ordinance was presumed valid and the courts would defer to the city council's legislative judgment unless it was clearly unreasonable or abusive of discretion. The fact that individual projects may not cause harm or that enforcement may seriously depreciate a property's value do not invalidate the ordinance. An individual's right to the use of property is subordinate to the general welfare and to public interests such as traffic control, fire safety, and aesthetics.

Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)
Applicant; Quasi-judicial body; Variances, undue hardships
This is the leading North Carolina case on variances. It involved a request by an option holder for a permit to build a grocery store/service station in an area zoned for exclusive residential use by the Rocky Mount zoning ordinance. The court held that; (1) because only an option was held, there was no present legal right to build, and therefore there could be no "undue hardship"; (2) financial loss occasioned by inability to construct a nonconforming use is not "undue hardship"; and (3) as a quasi-judicial rather than a legislative body, the board of adjustment has to act within the spirit and the intent of the ordinance and can not effectively "amend" it by granting a use variance that would create a nonconforming use.

Penny v. City of Durham, 249 N.C. 596, 107 S.E.2d 72 (1959)
Protest petitions
Setting up a 150-foot buffer on shopping center property between the street and the portion of the property to be rezoned was held to be sufficient to avoid application of the protest-petition provisions of the zoning enabling statute. Directly opposite was held to mean opposite the portion of the land being rezoned, not opposite the entire parcel.
[Click here for photographs of the Penny site.]

Stowe v. Burke, 255 N.C. 527, 122 S.E.2d 374 (1961)
Vested rights, good faith
This case involved a suit by neighbors to enjoin the construction of an apartment complex in Charlotte. After receiving notice of a proposed rezoning to limit the use of the property to single-family homes and after receiving notice of the opposition of neighbors, the defendant proceeded to lease the property and start construction before the adoption of the rezoning. The action involved the expenditure of over $60,000 and the completion of foundations for eight of ten proposed buildings. The court held that no vested rights had been established because the expenditures had not been made in good faith; the defendant had moved forward with construction at an extraordinary pace in an attempt to establish a vested right before rezoning.

Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961)
Down zoning; Mistakes; Notice; Takings
This suit involved several small lots in Charlotte rezoned from an industrial to a residential district. The court held that newspaper notice according to the enabling statute had been adequate; that due process did not require individual notice; that a mistakenly issued building permit does not estop the city from subsequent enforcement; and that zoning districts do not have to follow property lines. To avoid a taking claim, some practical, reasonable use has to be left, and such has to be supported by definite, sufficient findings. Because the trial court had not made sufficient findings as to whether the lots had any practical and reasonable value for residential purposes (e.g., whether houses could be sold for an amount greater than their construction cost), the case was remanded for additional evidentiary findings.

Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968)
Purposes; Spot zoning
This case involved the rezoning of a 60-acre triangular tract formed by two major roads in Wilmington. Most of the land had originally been zoned for single-family residential use. The change put the 27.5 acres at the point of the triangle in a commercial district and the next 12 acres in a multifamily residential district; it left the remaining 20.5 acres in a single-family residential district. Neighbors in the adjacent single-family district challenged the rezoning as spot zoning. The court upheld the rezoning, noting that neighbors have no vested right to the existing zoning. The basic tests of validity were: (1) whether the council acted in good faith; (2) whether the act was arbitrary or capricious; and, (3) whether it contributed to a legitimate purpose of the enabling legislation. In this case there was an ample showing of legitimate and rational grounds for rezoning 40 acres bounded by heavily traveled highways and leaving a 20-acre low-density buffer between existing residential uses.

Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969)
Board of adjustment; Conditional uses; Quasi-judicial body; Standing
This case involved a challenge to the board of adjustment's granting of a special use permit for a mobile home park in a Guilford County agricultural district. The court upheld the General Assembly's delegation of zoning authority to counties. It also upheld the delegation of decision making on special use permits to the board of adjustment, provided that the board is limited to determining whether factors set forth in the ordinance have been met. The board may not make legislative findings (e.g., whether the proposed use is "in the public interest").

Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969)
Vested rights
This case involved construction of a dry cleaning business in Hillsborough. After the issuance of a building permit, but before zoning was enacted that made dry cleaning an impermissible use, the permit holder had bought the land and had entered into construction and equipment contracts. The court ruled that although the building permit itself does not confer vested rights, substantial expenditures in good faith reliance on it do (actual construction is not required, only substantial expenditures). When there is conflicting evidence on knowledge of the pending zoning change, and hence on the requisite good faith, the jury finding will not be disturbed. [Note: G.S. 160A-385(b) and -344(b), which were subsequently enacted, create a vested right based on the building permit.]

Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971)
Contract zoning; Spot zoning
This case involved the rezoning of a 9.26-acre tract adjacent to the Raleigh beltline (but without access to the beltline) from low-density residential to multifamily residential use. The planning board recommended denial. Several previous attempts to rezone the site to commercial use had been subject to protest petitions and had failed. The court held this rezoning to be invalid as contract and spot zoning. On the contract zoning question, the applicable test was whether all of the uses permitted in the new zone (not just the proposed project) were appropriate for the site, given its location and the surrounding circumstances.
[Click here for photographs of the Allred site.]
[Click here for additional background information on the Allred case.]

Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879 (1970)
Mobile homes
The court ruled that an ordinance completely barring mobile homes for residential use within the entire town is invalid. The ordinance, which was not part of the zoning ordinance, was held to be beyond the town's delegated police powers, for mobile homes are not a nuisance per se nor a detriment per se to public health, morals, comfort, safety, convenience, and welfare. [Note: G.S. 160A-383.1 was subsequently enacted to codify portions of this ruling.]

Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971)
Notice; Protest petitions
This case involved the rezoning of 40.3 acres of a 111.8-acre tract from residential to shopping center use. The court upheld the rezoning. The public notice of the hearing had been for a larger portion of the property to be rezoned, but also contained a statement that the area and the classification might be adjusted. The court ruled that the published notice is adequate unless the action ultimately taken is substantially different (and less favorable to the complaining party) and the initial notice does not indicate a possibility of substantial changes. For the requirement of an extraordinary vote to be triggered by a protest petition, the protesters have to own 20 percent or more of the area extending 100 feet from the rezoned portion of the tract.

Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972)
Contract zoning; Spot zoning
This case involved the rezoning of a 5-acre tract in Raleigh from a single-family residential district to one allowing multifamily residences, rest homes, hospitals, and other uses. The court ruled the rezoning invalid because there was no showing of unanticipated changed conditions (a finding required by the ordinance provision on rezonings). Also, given the lack of any showing of facts distinguishing this tract from the surrounding area, which was zoned single-family residential, the action was invalid spot zoning. Further, because only a particular use, rather than all the permitted uses in the new district, had been considered by the city council, the action was invalid contract zoning.
[Click here for photographs of the Blades site.]

Humble Oil & Refining Co. v. Board of Aldermen I, 284 N.C. 458, 202 S.E.2d 129 (1974)
Applicant; Board of adjustment; Conditional uses; Procedures; Quasi-judicial body; Standing
This case involved the Chapel Hill council's denial of a special use permit for a filling station in the central business district. The court held that an option holder who had exercised the option subject to the necessary permits being obtained to develop the property, had standing to participate in the review of the decision. When an ordinance has a process for mandatory referral to the planning board before council action, that procedure can not be ignored by the council, so the application was remanded for consideration de novo. In the reconsideration the board of adjustment (and/or the council) has to act in its quasi-judicial capacity, basing its decision on competent, material, and substantial evidence according to all essential elements of a fair trial, including the right to offer evidence, cross-examine witnesses, have sworn testimony, and offer rebuttal.
[Click here for photographs of the Humble Oil site.]
[Click here for additional background information on the Humble Oil site.]

State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. 1002 (1975)
Amortization; Nonconforming uses
This case involved a provision of the Winston-Salem zoning ordinance that required a nonconforming building-material salvage yard to be removed within three years of the ordinance's adoption. The court held that amortization requirements are valid if reasonable. This particular provision was upheld as being neither a violation of due process nor an unconstitutional taking.

A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979)
Comprehensive plan; Historic preservation
This case involved a challenge to the validity of a 98-acre historic-district-overlay zone adopted by the City of Raleigh for the Oakwood neighborhood. The court ruled that the regulation of exterior structural alterations for historic district preservation is within the police power and promotes the general welfare by providing education on the past, stimulating economic revitalization, fostering architectural creativity, and generating tourism. Such regulation might be applied to an entire district, not just to existing historic structures. The court also ruled that there was no impermissible delegation of legislative authority, given the adequacy of standards and a provision for appeal to the board of adjustment; that exclusion from the district of part of a block with an existing modern structure does not violate the equal protection clause; that Raleigh's citywide zoning, plans, and historic district study constitute a "comprehensive plan" within the meaning of the enabling statute; and that an overlay district does not violate the uniformity-of-districts provision.

Coastal Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 265 S.E.2d 379, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980)
Conditional uses; Interpretation; Scope of review
This case involved the Nags Head council's denial of a conditional use permit for a cement plant in a commercial zoning district. The court upheld the denial, noting that the scope of judicial review on appeal included (1) reviewing for errors in law; (2) ensuring that proper procedures in both statute and ordinance had been followed; (3) ensuring that due process rights had been secured (including rights to offer evidence, cross-examine witnesses, and inspect documents); (4) ensuring that competent, material, and substantial evidence supported the decision; and (5) ensuring that decisions were not arbitrary and capricious. The court interpreted "appurtenances" as used in the ordinance to be something physically secondary to a primary part that served a useful or necessary function in connection with the primary part (in ruling that a 45-foot-tall cement-mixing bin was not a "mechanical appurtenance" to the conveyor belt taking materials to its top).

State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982)
Aesthetics; Junkyards
This case involved a Buncombe County ordinance requiring fencing to screen junkyards from view in residential areas. The court ruled that regulations can be based on aesthetics alone, with the diminution in value of individual property being balanced against the corresponding gain to the public from the regulation. The court also ruled that an ordinance is not void for vagueness if, when read contextually by persons of ordinary intelligence, it apprises them of what is required to abide by the law.

Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988)
Contract zoning; Spot zoning
This case involved the rezoning of a 5.06-acre tract (along with a 3.18-acre tract across a small dirt road that was being used for a related, valid nonconforming use) from an agricultural to a "conditional use industrial" district. The rezoning was invalidated by the court of appeals as both illegal spot zoning and illegal contract zoning. The supreme court overruled on both grounds and upheld the rezoning. The court ruled that the concept of conditional use zoning is valid as long as the zoning is reasonable, is neither arbitrary nor unduly discriminatory, and is in the public interest. It does not have to allow all of the uses in the corresponding general-use district (expressly limiting the application of the ruling in the 1971 Allred case). Spot zoning per se is not invalid, but must be justified by a reasonable basis. Factors to be applied in a case-by-case analysis of its reasonableness include the size of the tract; the compatibility with the existing comprehensive zoning plan; the benefits and the detriments for the owner, the neighbors, and the community; and the relationship between the old and the new permitted uses. Contract zoning, which is invalid, involves the applicant and the local government undertaking reciprocal obligations in the context of a bilateral contract. Permissible conditional-use zoning involves a unilateral promise from landowners about their intended use of the land, with the local zoning authority retaining its independent decision-making authority.

Hall v. City of Durham, 323 N.C. 293, 372 S.E.2d 564 (1988)
Contract zoning
This case involved the rezoning of a 12.9-acre tract from single-family residential and neighborhood-commercial use to "heavy commercial with development plan." A detailed site design, an offer to donate adjacent land to a nonprofit group, and a deed restriction in the nature of a reverter clause donating the property to a nonprofit group or the city if the use for which the developer was applying was ever abandoned, were also submitted. The court ruled that this was not invalid contract zoning because there was no evidence that the city had undertaken to obligate itself. However, the court invalidated the rezoning because when the council was rezoning from one general use to another, it must to consider all permissible uses in the new zone, not just the one offered by the owner. Local legislation authorizing the city to require the submission of development plans with rezoning requests did not alter this basic responsibility.

Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8 (1989)
Down zoning; Takings
This case involved the city's rezoning of a 2.6-acre parcel adjacent to I-85 from an office-institutional to a residential district. The property was originally zoned for residential use, was rezoned for office use in 1979, and was rezoned back to residential use in 1985. The plaintiff contended that the 1985 rezoning had reduced the value of the property from $550,000 (if used for a proposed motel) to $20,000 (if used as one single-family lot). The city contended that other valuable uses were also available, including a church, a day-care site, or additional single-family lots. A jury found a taking, but awarded no damages. The trial court then granted a judgment notwithstanding the verdict as to damages, invalidated the rezoning, and awarded $150,937 in damages. The supreme court reaffirmed the test that there is no taking unless the owner is deprived of all practical use of the property and the property is rendered of no reasonable value. Deprivation of previously held property rights and diminution of value do not in and of themselves constitute a taking. The court found that the ordinance had a reasonable nexus to a legitimate public objective, that alternative rezonings such as clustered residential had been proposed by the city but not pursued by the owner, and that the property in any event retained practical use and reasonable value. [Note: Three dissenters concluded that although the remaining use and value of the property was not such as to constitute a taking as a matter of law, it was adequate to support a jury's finding of a taking.]

Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931 (1990)
Dedications; Subdivisions, roads
The town denied approval for an eleven-lot, 20-acre subdivision. The grounds for the denial included failure to accommodate a proposed major parkway included in the town's adopted thoroughfare plan that ran through the property. The trial court and the court of appeals ruled that the denial was based on a demand for an unconstitutional taking. The supreme court first ruled that the trial court had improperly made additional findings of fact, noting that as an appellate body making a review of the town's quasi-judicial plat approval, it can only review whether the town board's findings were supported by competent evidence in the record. The court held that there was sufficient evidence in the record to support a finding that the development had not taken into account present and future road plans as set forth in the adopted thoroughfare plan. A requirement to coordinate plans was within the statutory power of the town and was not tantamount to a compulsory dedication. If there was a single valid ground for denial, it was unnecessary to review the other grounds. Because the court ruled that there had been a valid permit denial on adequate and independent state grounds, it also dismissed the federal statutory (42 U.S § 1983) and constitutional claims.

River Birch Associates v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990)
Dedications; Open space; Subdivisions
The city denied approval of a plat for a twenty-four-unit townhouse development on a 3-acre parcel. The denial was based on a finding that the site had previously been shown as open space on a preliminary plat approved for a larger development that included this site. The rest of the site had previously been developed in accordance with the preliminary plat. The court ruled that the city's statutory authority to require the dedication or the reservation of open space included the authority to compel conveyance of the open space to a homeowners' association. The court ruled that preliminary plat approval had given the developers substantial rights, including the right to construct improvements and the vested right to complete the project once substantial expenditures had been made in good faith reliance on the approval. Once the developers exercised those rights, they were bound by the preliminary plat even if it exceeded the minimum requirements of the city and they could not revert to the minimum standards unless a plan amendment was approved by the city. The required conveyance of open space was held not to be a taking because it was reasonably related to the valid purpose of preserving urban open space.

County of Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993)
Conflict of Interest, Quasi-judicial Conditional use
This case involved a challenge to a permit for a landfill issued to Mecklenburg County by the Charlotte-Mecklenburg Building Standards Department. The court held that special and conditional use permits may not be delegated to staff but must be determined by a board of adjustment (or other board acting as a board of adjustment) following an evidentiary hearing. The court held that staff may make findings and decide an application involving objective, non-discretionary standards and that this permit was in the latter class. On conflicts of interest, the court noted that due process requires non-participation in legislative zoning decisions if the member has a direct and substantial financial interest and also requires non participation in quasi-judicial zoning decisions if the member has a financial interest, a close relationship with the parties, or a bias. Absent a showing of undue influence, administrative zoning decisions can be made by a staff member of an employing unit of government.

Homebuilders Association of Charlotte v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994)
Fees, Delegation
This case involved a challenge to Charlotte's authority to impose user fees for a variety of city services, including rezonings, special use permits, plat reviews, and building inspections. The court upheld imposition of the fees even though the city had no express statutory authority to impose them, ruling that G.S. 160A-4 requires that grants of authority to cities be interpreted broadly to include additional and supplementary powers that are expedient to execution of the city's regulatory powers. The court noted that such fees must be reasonable, generally not to exceed the cost of the regulatory program.

Court of Appeals Cases

Kenan v. Board of Adjustment, 13 N.C. App. 688, 187 S.E.2d 496, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972)
Conditional uses
This case involved a denial by the Chapel Hill Board of Adjustment of a special use permit for a self-service filling station in the central business district. The court ruled that the four general standards set forth in the ordinance provided sufficient guidance for the board's discretion and that the burden was on the petitioner to present evidence to the board that it met the conditions of the ordinance. The four standards used were that the use: (1) not materially endanger the public health or safety; (2) meet all required conditions and specifications; (3) not substantially injure the value of adjoining property or be a public necessity; and, (4) be in harmony with the area in which it is located and be in general conformity with the comprehensive plan.

Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658 (1977)
Enforcement; Mistakes; Vested rights
This case involved the installation of a mobile home in a district that did not allow mobile homes. The county mistakenly issued a building permit for a storage structure on the lot. When it was discovered that the zoning did not allow this use, the permit was revoked and the revocation not appealed. The court ruled that no vested rights accrued to an unlawfully issued permit. The court noted that injunctive relief was appropriate under the State Building Code authorization (G.S. 153A-372) irrespective of whether the zoning ordinance provided for injunctive relief.

Graham Court Associates v. Town Council of Chapel Hill, 53 N.C. App. 543, 281 S.E.2d 418 (1981)
Ownership
This case involved an attempt by the town to regulate the conversion of an existing apartment complex to condominiums through the zoning ordinance. The court held that the zoning enabling statutes authorize the regulation of land use but not the regulation of land ownership, so the town was without authority to require a special use permit for a conversion in the form of ownership.

Harts Book Stores, Inc. v. City of Raleigh, 53 N.C. App. 753, 281 S.E.2d 761 (1981)
Adult entertainment; Conditional uses
This case involved the denial of a special use permit by the Raleigh board of adjustment for an adult bookstore. Although the proposed bookstore met all of the objective standards set out in the ordinance (parking, a sign, and separation from other adult-entertainment and residential districts), the board denied the application. The court ruled the denial was improper, holding that when an applicant produces competent, substantial, and material evidence that the conditions required by the ordinance are met, and when no contrary evidence has been produced, the permit has to be issued. A finding that the use would be a "detriment to the neighborhood" as a grounds for denial is an improper delegation of a legislative power to the board and such unguided discretion is unlawful.

In re Melkonian, 85 N.C. App. 351, 355 S.E.2d 503, review denied, 320 N.C. 631, 360 S.E.2d 91 (1987)
Alcohol sales; Preemption
This case involved the operation of a tavern in Havelock. The city denied a special use permit for a tavern that had been issued an alcohol beverage control (ABC) permit by the state ABC commission. The court ruled that G.S. 18B-901 preempted the field as to both the fitness of the applicant and the place of alcohol sales. Although the ABC commission expressly "may" consider parking, zoning, and local government recommendations, it had the sole discretion in permitting ABC facilities, so the trial court's order requiring the issuance of the city permits was upheld.

Vulcan Materials Co., Inc. v. Iredell County, 103 N.C. App. 779, 407 S.E.2d 283 (1991)
Adoption; Interim ordinance; Moratoria
The county board adopted an ordinance putting a sixty-day moratorium on the issuance of any building permits for uses that would be contrary to the county's land use plan, pending its consideration of a zoning ordinance. The court ruled that this was a land use ordinance and that therefore the public notice and hearing requirements of G.S. 153A-323 had to be met for it to be valid (which had not been done in this case). Therefore the plaintiff was entitled to a mandatory injunction directing the issuance of a building permit for the proposed quarry.

Brown v. Town of Davidson, 113 N.C. App. 553, 439 S.E.2d 206 (1994)
Rezoning, Motives
This case involves a challenge of a refusal to rezone property from a residential district to a commercial district. The first allegation was of racial discrimination, as the residential property involved was predominately owned by African-Americans and petitions for rezoning of undeveloped white owned property on the other end of the street had been rezoned. The court held there was no forecast of proof of racially discriminatory intent or purpose so this claim was properly dismissed. The second allegation was a due process violation due to lack of an impartial decision-maker, as several board members stated prior to the public hearing that they opposed the rezoning. The court held that since rezoning is a legislative rather than a quasi-judicial decision, a predisposition on the matter is not a due process violation.

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