2018 North Carolina Land Use Litigation

David W. Owens

School of Government
The University of North Carolina at Chapel Hill
© 2018

Below are brief digests of reported decisions regarding planning, land use, and related issues in North Carolina. 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

Willowmere Community Assoc., Inc. v. City of Charlotte, 370 N.C. 553, 809 S.E.2d 558 (2018)

Standing

Two neighboring homeowner associations sought to challenge the rezoning of a seven-acre parcel to allow development of a 70-unit multifamily project proposed by the Charlotte-Mecklenburg Housing Partnership. At the hearing, neither party raised standing as an issue, but the trial court issued summary judgment for the defendants, finding both plaintiff groups lacked standing because neither followed the process required by their bylaws regarding initiation of litigation. 

The court held the standing issue could be raised by either party or by the court on its own motion.  The court found that while neither association may have complied with the notice and meeting requirements of their bylaws required to initiate litigation, this did not result in a lack of standing to bring this action. Compliance with their internal bylaw procedures was a non-jurisdictional technicality.

Quality Built Homes Inc. v. Town of Carthage II, 371 N.C. 60, 813 S.E.2d 218 (2018)

Statute of limitations, Utility fees; Estoppel

The court held that the time to challenge unlawful fees imposed for future provision of water and sewer services begins to run when the fees are paid, not when the fee ordinance is adopted.  The court held the applicable statute of limitations was the three-year statute of limitations for a liability created by statute (here a fee in excess of that authorized by the public enterprise statutes).  The court also held that that the plaintiff was not estopped from challenging the fee based on an acceptance of benefits for two reasons.  First, the payment was not voluntary but was required to get water and sewer services.  Second, the plaintiff received no benefit from payment of the fee to which they would not otherwise have been entitled.

North Carolina Court of Appeals

Cherry Community Organization v. City of Charlotte, 257 N.C. App. 579, 809 S.E.2d 397, review denied, 371 N.C. 114, 812 S.E.2d 850 (2018)

Standing

The plaintiff nonprofit organization challenged the rezoning of a two-acre parcel to a mixed-use district to construct a 119-foot-tall building, a parking structure, and eight attached single-family homes. After community meetings, revised rezoning petitions were submitted and scheduled for hearing. After staff noted the maximum height limit in the proposed zoning district was 100-feet, the rezoning petition was again amended to a 106-foot building height at the time of city council consideration. The council denied the rezoning petition and the owner, before the meeting adjourned, agreed to reduce the height to 100-feet. The council then, also at the same meeting, approved a motion to reconsider the vote at its next meeting. The rezoning was then approved at the next meeting. The trial court granted summary judgment for the city.

The court held that while the plaintiff’s pleadings contained an allegation of special damages sufficient to defeat a motion to dismiss, the failure to produce any evidence to support the allegation of special damages warranted summary judgment for the city.  A party may not rest on mere allegations in their pleadings but must by affidavits or otherwise set forth specific facts to support those assertions.  Here, a showing they owned adjacent or nearby property in and of itself was insufficient to establish particularized harm.  A concurring opinion would have upheld the summary judgment because the plaintiff failed to forecast competent evidence to support a finding of special damages, which is a justiciable issue, rather than because they had not established they were an aggrieved party.

Byron v. Synco Properties, Inc., 258 N.C. App. 372, 813 S.E.2d 455, review denied, 371 N.C. 450, 817 S.E.2d 190 (2018)

Standing

Plaintiff neighbors sought to challenge a rezoning by the City of Charlotte, raising facial constitutional challenges and an interpretation issue regarding statutory repeal of the protest petition option. However, none of the plaintiffs owned property sufficiently close to the rezoned property to have been eligible to file a protest petition.  As they had no interest protected by that statute, they were not “directly and adversely affected” by the repeal or interpretation of the statute and thus had no standing to challenge its repeal or interpretation.  Similarly, as they could not avail themselves of the protest petition statute and it was not their property being rezoned, they had no constitutionally protected interests affected by the challenged rezoning process, only a generalized grievance. As they alleged no immediate danger of a direct injury to a constitutionally protected right, they likewise had no standing to raise a constitutional challenge. Without standing, there was no constitutional issue to be resolved, so there was no need for the trial court to transfer the matter to a three-judge panel in Wake County that G.S. 1-267.1 requires hear all facial constitutional challenges to acts of the General Assembly.

Jeffries v. County of Harnett, 259 N.C. App. 473, 817 S.E.2d 36 (2018), review denied, 372 N.C. 297, 826 S.E.2d 710 (2019)]

Agriculture, Bona fide farm zoning exemption

The court addressed whether various commercial shooting activities (shooting towers, archery ranges, sporting clay, skeet, and trap shoots, rifle ranges, and pistol pits) constituted agritourism when conducted on a bona fide farm.  The parties also disputed whether a hunting preserve would be agritourism, but the neighbors did not appeal the county’s ruling that this was agritourism.

An initial issue was whether the court should consider 2017 legislation defining agritourism” since it was enacted after this litigation was initiated.  The court decided that since the 2017 law was a clarification of the bona fide farm exemption rather than being a substantial alteration of the law, the 2017 law could be considered in interpretation of the scope of the farm exemption in this case.  The court then concluded the statute, even as clarified, was still ambiguous as to these shooting activities.  The court noted that while hunting and a hunt preserve were traditional rural activities, that was not the case with shooting ranges.  Therefore, the court considered rules of statutory construction as an aid to ascertaining legislative intent.  The court noted the examples of agritourism listed in the statute – “farming, ranching, historic, cultural, harvest-your-own activities, or other natural activities and attractions” implied other exempt agritourism should be similar “natural” activities that can be enjoyed without alteration of the land.  Including farming and ranching, but not hunting, in the list implies that shooting activities were not contemplated “agritourism.”  Also, the listed uses of “wedding, receptions, meetings, and demonstrations” in farm buildings “because of its farm and rural setting” are all different from these shooting activities.  An outdoor shooting range may require land space that only a rural setting can provide, but they are “not purposefully performed on a farm for the aesthetic value of the farm or its rural setting.”  The court concluded shooting ranges share little resemblance to the listed rural agritourism examples or the spirit of preservation and traditionalism embodied in the statute.  The court held the shooting activities were not agritourism and were subject to county zoning.

LeTendre v. Currituck County, 259 N.C. App. 512, 817 S.E.2d 73 (2018), rev. denied, 372 N.C. 54, 822 S.E.2d 641 (2019)

Injunction, Enforcement

The plaintiff homeowner sought an injunction to prevent the county from enforcing its zoning regulations regarding a 15,000 sq. ft. home built on the “roadless” area on the northern Currituck Outer Banks.  The plaintiff built the structure while the county’s approval was under appeal, with notice that if she did not prevail in that litigation the structures could be ordered demolished or relocated.  After the structure was 95% complete, the court of appeals in Long v. Currituck County held the structure violated the county ordinance.  In this action the plaintiff sought to enjoin the county from enforcement of the ordinance.

The court held the county should not be enjoined from enforcement as the plaintiff had no likelihood of success on the merits of any of her claims.  The county’s appeal of the preliminary injunction was interlocutory, but permissible since precluding a state or local agency from enforcing the law affects a substantial right.  The standard of review of a preliminary injunction is de novo and the defendant has the burden of showing the plaintiff does not have a likelihood of success on the merits of each claim. 

The court held the contested regulation was within the scope of the county’s zoning authority.  The ordinance provision in question defined single-family detached dwellings in a manner that limited residences to one “primary structure” per lot.  The ordinance did not mandate any particular type of building foundation, building type, or regulate building design elements.  The fact that the plaintiff constructed three attached primary structures to avoid increased CAMA oceanfront setbacks that would have applied to a single larger building does not affect the validity of the county ordinance definitions.  The court then held the ordinance as applied did not violate due process as it furthered legitimate public objectives.  It allowed only low-density residential development to preserve natural resources, protect wildlife habitat, create service demands consistent with the very limited infrastructure, and minimize threats to life and property due to flooding and storms.  The regulatory means chosen were reasonable and the interference with private property rights were reasonable in degree.  The lot could be used as a single-family residence and a larger structure could be built if located on the part of the lot further from the ocean.  There was no evidence the ordinance was applied in a discriminatory, arbitrary, or retaliatory manner.  The ordinance provisions were complex and subject to interpretation, but not unconstitutionally vague.  The zoning use restrictions are not preempted by state building code provisions, as the issue here was not how the buildings were constructed but how many principal structures are allowed as a single-family detached house.  Finally, no common law vested rights are created when the substantial expenditures are made on an approval that has been appealed and is subject to reversal.  An owner may not elect to proceed at their own risk and then claim good faith reliance on an approval they know is under appeal.  The fact that neither the county nor the neighbor sought to stay construction while the permits were under appeal does not estop the county from applying the ordinance once the appeal is concluded.

Note: For subsequent proceedings on this case, see 2020 Digests, Federal Cases.

Appalachian Materials, LLC v. Watauga County, 262 N.C. App. 156, 822 S.E.2d 57 (2018)

Statutory interpretation

The county’s High Impact Land Use ordinance prohibited asphalt plants within 1,500 feet of a public or private “educational facility,” day care facility, assisted living facility, or nursing home.  The court held that a school district’s administrative office was not an “educational facility” as defined by the ordinance.  The definition of the term in the ordinance included a list of types of schools and did not include administrative offices.  It also included facilities owned by the listed schools and used for educational purposes and the court noted the school district’s administrative offices were not owned by individual schools within the district.  

Federal Cases

American Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707 (4th Cir. 2018)

Adult uses; First Amendment

The plaintiff began operation of a club offering adult entertainment without a license from the city to operate a sexually-oriented business. When the city threatened suit, the plaintiff sued the city, arguing that the city’s adult-entertainment ordinance was unconstitutional. The city granted a temporary license to operate, pending resolution of the suit. The plaintiff then voluntarily dismissed the suit. Subsequently city law enforcement investigated and determined that the club was operating without a permit, that it was violating the city adult-entertainment ordinance in several respects, and that criminal action would be taken if the club did not come into compliance. In response, the plaintiff brought this action contending that the ordinance was invalid.

The court held that the definitions of sexually-oriented businesses and adult caberets were not overly broad, were adopted to regulate deleterious secondary effects (particularly negative impacts on crime and property values), and that the licensing requirements furthered this substantial government interest. The court also held the requirement that the applicant and business principals be at least twenty-one years old did not violate the Equal Procetion Clause or the First Amendment. However, the court held that a provision allowing the chief of police to deny a permit if the application would not comply with “all applicable laws” was an unconstitutional prior restraint. That provision was deemed to be too broad and left the officer with too much discretion as it was not limited to building codes, zoning, and health and safety regulations. The court remanded the case to determine if the offending provision was separable from the valid portions of the ordinance.

A Hand of Hope Pregnancy Resource Center v. City of Raleigh, 332 F. Supp.3d 983 (E.D. N.C. 2018)

Religious uses

The plaintiff proposed to locate a pregnancy counseling center on a lot adjacent to an existing abortion clinic.  In addition to counselling and prayer, the center proposed to offer pregnancy tests and, if positive, ultrasounds to view the fetus.  The property was in a residential zoning district that allowed civic uses (which includes places of worship and educational facilities) but did not allow medical uses.  The city advised the plaintiff that a rezoning would be required, but then provided a zoning certification that the use may be a permitted civic use if no medical services were provided.  The adjacent abortion clinic appealed the determination to the board of adjustment.  The Board found the use of ultrasound tests at the site, all performed by registered nurses as required by state law, constituted medical services and was not allowed under the residential zoning.  This suit was brought contending the ordinance as applied violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), and constitutional guarantees of free speech and equal protection.

The court held summary judgment on the “equal terms” claim under RLUIPA was inappropriate since there was a genuine issue of material fact as to whether the plaintiff had met its initial burden of showing that it fulfills the applicable zoning criteria in the same way as its identified comparable uses that provide only civic uses without medical uses on site.  Assuming the provision of live ultrasound images is protected speech, the court found no religious animus or basis for the regulation, thus no discrimination based on content or viewpoint.  As a content neutral time, place, and manner restriction, the limitation on medical uses in residential zoning districts was narrowly tailored and left adequate alternative avenues of expression available. The court found no Equal Protection claim as comparative uses offered by the plaintiff were not similarly situated.  It was treated the same as other religious uses not offering medical services.  The adjacent abortion clinic was zoned commercial by a prior owner who in fact used it for a commercial real estate office, which was also done under a different, prior ordinance.

Note: For subsequent proceedings on this case, see 2019 Digests, Federal Cases.