2019 North Carolina Land Use Litigation
David W. Owens
School of Government
The University of North Carolina at Chapel Hill
© 2021
Below are brief digests of reported decisions regarding planning, land use, and related issues in North Carolina. State court of appeals decisions are listed first, followed by federal cases arising in North Carolina (there were no relevant state supreme court 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.
North Carolina Court of Appeals
Weishaupt-Smith v. Town of Banner Elk, 264 N.C. App. 618, 826 S.E.2d 734 (2019)
Appellate procedure; Parties
The town issued a special use permit for a telecommunication tower and a variance regarding the width of an access easement to the tower. An adjacent property owner appealed the decision. After several remands from the superior court, the town made a final decision issuing the contested permit, which was upheld by the trial court. When this petition for review of the trial court decision was filed with the court of appeals, the adjacent property owner had sold her property. Another adjacent property owner sought to be substituted as a party under Rule 38 of the Rules of Appellate Procedure. While the person seeking to be substituted had participated in the board hearing on the permit, he had not been a party to the litigation.
The court held substitution was not permissible. As the original party had not died nor was she otherwise unable to continue to litigate, and the person seeking substitution was not a successor in interest to the property of a party, the neighbor seeking substitution had no standing to appeal the trial court decision. The person could have filed their own petition to challenge the board’s decision or intervened in the superior court action, but substitution at this stage of the proceedings would condone an evasion of the clear jurisdictional standards for obtaining judicial review.
Coates v. Durham County, 266 N.C. App. 271, 831 S.E.2d 392 (2019)
Interlocutory appeal
Neighbors challenged the county’s issuance of a special use permit to construct a middle school. The superior court reversed the issuance of the permit and remanded the matter with an order to advertise and conduct a new hearing on the application. The contractor who would build the school under the permit appealed the order remanding the case. The court held appellate review was premature because the remand by the superior court did not affect a substantial of the contractor. Avoidance of a rehearing is not in itself a substantial right. Also, the remand did not include a directive to issue or deny the permit, but rather to conduct further proceedings. Thus, this appeal is interlocutory and is properly dismissed.
Dellinger v. Lincoln County, 266 N.C. App. 275, 832 S.E.2d 172 (2019), remanded for reconsideration in light of PHG Asheville, 374 N.C. 430 (2020]
Conflict of interest; Special use permit
The plaintiff leased a portion of a farm they owned to a company for a solar farm. The county in 2013 denied the company’s a special use permit application for the solar farm, but on appeal the superior court remanded the case for the board to make sufficient findings. After remand, the county again denied the permit, but on judicial review the court of appeals held the board had placed an improper burden of persuasion on the applicant and remanded the case. Before the board of county commissioners took up the case on the second remand, a citizen who had actively opposed the permit in 2013 had been elected to the board. This board member refused to recuse himself, contending that he could be impartial and had taken no position on the application after his election to the board.
The court held the member had an impermissible bias, should not have participated in the case on remand, and the decision was invalid even though this board member’s vote was not determinative of the outcome. General expressions about renewable energy or solar farms would not be grounds for recusal. However, in this instance the board member had expressed opinions about the specific project and had contributed funds to oppose it. The member was thus not impartial.
The court also held that the applicant had submitted substantial evidence to show the permit standards were met. This established a prima facie case for issuance of the permit. The court found the burden then shifted to the opponents, who did not present substantial evidence to show the standard on adversely affecting property values was not met. An appraiser’s testimony regarding the property value impacts from a solar farm in an unzoned county where there were no setback, landscaping, or other buffering requirements could not be used to compare to this solar farm where landscaping and buffering were required. Another appraiser only offered a personal opinion about impacts, unsupported by quantitative analysis. The court held this evidence was insufficient to rebut the applicant’s prima facie showing of entitlement.
State v. Nance, 266 N.C. App. 353, 831 S.E.2d 605 (2019), rev. denied, 373 N.C. 585, 838 S.E.2d 182 (2020)
Enforcement; Nuisance
The City of Albemarle sought to have a motel that was the site of numerous criminal complaints closed as a public nuisance. The court held the complaint against the motel manager was properly dismissed as her employment there had ended prior to filing the complaint. The court held the city’s complaint was property dismissed as the city council had not adopted a motion to approve this particular civil action as required by the city code.
Jubilee Carolina, LLC v. Town of Carolina Beach, 268 N.C. App. 90, 834 S.E.2d 665 (2019)
Evidence; Special use permit; Vested rights
The plaintiff secured a special use permit to construct a grocery store. The site plan showed vehicular interconnectivity with the adjacent parcel. Subsequently the town considered a special use permit application for a different grocery store on the adjacent parcel. That applicant objected to interconnectivity. The town council found the ordinance did not require interconnectivity and issued a special use permit for the second store without an interconnectivity requirement. The plaintiff sued, contending they had a vested right to interconnectivity and that there was not substantial evidence to issue the permit without an interconnectivity requirement.
The court upheld issuance of the second special use permit. The court held that since the plaintiff did not raise the vested rights issue during the town’s consideration of the second special use permit, there were no findings of fact on that issue. Therefore, that issue could not be initially raised in the permit appeal. The court also noted that since the approved site plan was not a “site specific development plan,” it did not create a statutory vested right. The court found there was substantial evidence presented that the ordinance did not require interconnectivity and that evidence was not rebutted at the hearing by the plaintiff.
JVC Enter., LLC v. City of Concord, 269 N.C. App. 13, 837 S.E.2d 206 (2019), rev. granted, 839 S.E.2d 341 (2020)
Impact fees, Interpretation
The plaintiff challenged water and wastewater capacity fees imposed as a condition of development approval. The city contended its charter and local acts granted the authority to impose fees for services to be furnished in the future. The court applied a de novo review to the question of statutory interpretation as to the scope of the city’s authority. The court held the original local act did provide authority to a Board of Light and Water Commissioners to impose fees for services to be provided (as distinguished from the general public enterprise statute that did not provide that authority). However, a subsequent legislative act repealed some of the powers granted by the original local act and transferred the remaining powers from the Board to the city. The court found this subsequent act was ambiguous as to whether the power to impose fees for future services was repealed or transferred. Given two reasonable interpretations of this statute, the court applied the interpretation that the power was repealed because that avoided a serious constitutional question (whether the local act making the transfer was a prohibited local act affecting health and sanitation).
Federal Cases
Raynor v. Town of Chapel Hill, 2019 WL 503443, No. 1:18CV291, Feb. 8, 2019, M.D. N.C.
Due Process; Historic district
The plaintiffs applied for a certificate of appropriateness (COA) to construct a single-family home in a designated historic district. There was an existing 294 square-foot cottage on the site and its future was the subject of considerable discussion. The plaintiff originally proposed to move it to an adjacent lot, but explored other options given concerns raised by the historic commission. As no mutually acceptable alternative was found, after several meetings the plaintiff’s application proposed to demolish the cottage if no alternative was found to preserve or relocate it within 365 days. That request was eventually approved. However, the COA for the new residence was denied on the grounds that the structure was too large, there were inadequate setbacks, and it was not consistent with neighborhood character. Rather than appeal, a new application for a COA was submitted several months later. The historic commission refused to consider it on the grounds it was not substantially different from the previously denied application. The board of adjustment overruled that decision and remanded the case for a decision on the merits. On remand the historic commission denied the COA on the grounds that the relocation of the driveway and the visibility of the garage were incongruous with the district. The plaintiff again appealed to the board of adjustment and the board reversed the denial and remanded with instructions to issue the COA. The historic commission refused to issue the COA based on concerns that there were no findings on congruency by the board of adjustment. The town subsequently issued the COA administratively as the historic commission had not acted on it within the statutorily mandated 180-day period for decision.
The plaintiff contended the 16-month period to reach a decision violated federal substantive due process. The court rejected that contention, finding: (1) there was not a clear entitlement to a COA as that decision involved considerable discretion by the historic commission; and (2) the protracted discussion and local appeals process was not arbitrary and irrational nor did the process and rationales offered for decision shock the conscience of the court. The court likewise found no procedural due process or equal protection violation. The remaining state law claims were remanded to state court.
A Hand of Hope Pregnancy Resource Center v. City of Raleigh,386 F. Supp.3d 618 (E.D. N.C. 2019)
Religious uses
Plaintiff sought to relocate its pregnancy resource center to a site adjacent to an abortion clinic. The site was in a residential zoning district with a special highway overlay district, which allowed places of religious assembly but not medical practices. So, the plaintiff sought a rezoning to an office-mixed use zoning district. The planning commission found the rezoning consistent with the comprehensive plan and recommended approval, but the city council denied the rezoning. After this suit was commenced, the plaintiff sought an official interpretation as to whether its proposed use was consistent with the existing zoning. The zoning officials ruled the intended use was permissible within the existing district as a “civic use” provided it did not include any “medical uses.” On appeal to the board of adjustment, the plaintiff contended that ultrasound tests performed to determine whether there is a viable pregnancy should be considered a means to communicate a religious message rather than a “medical use.”. The board disagreed and ruled the use was not permitted in the residential district since ultrasound tests would be performed there.
The plaintiff contended the city’s actions violated the Religious Land Use and Institutionalized Persons Act provisions by imposing a substantial burden on religious activities and that it failed to treat the use on equal terms with nonreligious assemblies. The court noted that the city allows religious exercise on the site, including prayer meetings, counseling, Bible studies, and provision of educational materials. The prohibition of pregnancy testing and ultrasound imaging at this site is not a substantial burden, as these services could be provided at the plaintiff’s other appropriately zoned location and they would have constituted a small portion of the plaintiff’s work at the proposed site (these tests were to be provided to less than 4% of its clients). The fact that this is inconvenient or a less-preferred location for the services does not constitute a substantial burden. The court did not decide the equal terms challenge. As there were factual disputes as to the degree and scope of medical testing to be conducted on site, the court ruled summary judgement on the question of whether the testing constituted a principal or an accessory use was premature (the plaintiff had contended that the use was accessory and should be treated the same as a permitted EMS station).
Red Square Properties, LLC v. Town of Waynesville, 2019 WL 2420055 (No. 1:18-CV-211, W.D. N.C., May 22, 2019)
Taking; Ripeness
Two houses in the town’s extraterritorial area were damaged when a major water leak at a house up-slope from them rendered the slope under the houses unstable. At the request of the homeowners, the town condemned the houses as unsafe. The houses were not repaired or demolished, and the owners essentially abandoned them. Subsequently the plaintiff acquired two properties directly across the street and used them as short-term rentals. The plaintiff then acquired the two condemned houses at a tax foreclosure sale a decade after they had been condemned. Plaintiff repaired the homes (without building permits) and sought to use them as short-term rentals. The town refused to approve occupancy permits until receiving sealed reports from a qualified professional that the slope was stable. The plaintiff brought this action, alleging an inverse condemnation and a taking under the federal and state constitutions.
The court held the issue was not ripe as the town had not made a final determination on the building permit application but had requested additional site stability analysis and a plan to address the situation that led to the original condemnation. The fact that the plaintiff had engineering studies done that were not provided to the town and had offered to monitor slope stability did not address the town’s requests for further information. Also, the plaintiff had not sought relief through G.S. 40A-51, the state inverse condemnation provision. The claims were thus dismissed as not ripe for judicial review.
Cities4Life, Inc. v. City of Charlotte, 2019 WL 4127295 (No. 3:17-cv-670-KDB-DSC, July 26, 2019), report and recommendation adopted, 2019 WL 4121998 (W.D. N.C, Aug. 29, 2019)
Religious uses
The plaintiffs, a group that gathers near a women’s health clinic to express opposition to abortion, made numerous claims regarding enforcement of the city’s zoning, picketing, and sign regulations. The court held the city’s preexisting ban on portable signs did not impose a substantial burden on the plaintiff’s religious exercise. The plaintiff had no reasonable expectation that portable signs, which are banned throughout the city, would be allowed on their property. They also failed to show how other permitted signs could not be used on their property. There was no individualized assessment involved as the portable sign prohibition is universal and a decision that the plaintiffs were in violation was the application of that universal standard, not an “individualized determination” such as a special use permit or variance.
Mangum v. Town of Wrightsville Beach, 2019 WL 6190648 (No. 7:19-CV-29-FL, E.D. N.C., Nov. 20, 2019), reconsideration denied, 2020 WL 4938332 (Aug. 24, 2020), appeal dismissed, 2021 WL 672650, 4th Cir., Feb. 22, 2021)
Res judicata
Plaintiff was cited for zoning violations and assessed civil penalties relating to his operation of a jet ski rental business out of a N. C. Wildlife Commission public boating ramp and N. C. Department of Transportation bridge right of way. He and a successor to the business were enjoined from use of the public access for the business and eventually held in civil contempt by state courts for violation of a consent judgement. This federal action challenged the constitutional authority of the town to require a $500 fee to appeal zoning determinations, the authority of the town to regulate these areas, and the constitutionality of the zoning enforcement. The court dismissed of the federal law claims as barred by res judicata since there was a final judgment on these same issues with the same parties in the state court enforcement action. Having dismissed all federal claims, the court declined to exercise supplemental jurisdiction over the remaining state law claims.
