BLOGS: North Carolina Land Use Litigator

Friday, July 24, 2015, 3:25 PM

Doin' the Deed: State Conveys 300 Acres of Urban Property to City of Raleigh

We've blogged in the past here, here and here about the political saga between the City of Raleigh and the State of North Carolina over the Dorothea Dix property in downtown Raleigh, a 300-plus acre piece of lovely real estate.  And you thought cities and states were on the same side, didn't you? Oh, how cute.

Anyway, enough about the political row.  Let's talk about the real estate, which is rolling, with open fields and mature trees and which features an unmatched, majestic view of Raleigh's quickly-growing downtown skyline (yes, we have other skylines; we are a modern city).

Let's put this in perspective: 300-plus acres of mostly undeveloped urban real estate.  San Francisco's Golden Gate Park (created in 1870s) is 1,017 acres in size.  New York's Central Park (1850s) is 843 acres.  Chicago's Grant Park (1840s, as Lake Park)  is 319 acres.  We have something here.  From a city planning standpoint, we have something here.  In terms of modern city planning, we very much have something here.  I mean, it's 2015.

Today, the State recorded a deed conveying to the City: "[A]ll of Lot 1, containing approximately 154.439 acres, Lot 2, containing approximately 9.950 acres, and Lot 3, containing approximately 143.589 acres, all as shown on that plat titled "Subdivision & Recombination Plat Properties of The State of North Carolina," prepared by Taylor Wiseman & Taylor, dated July 15, 2015 and recorded in Book of Maps 2015, Pages 1183 through 1191, inclusive, Wake County Registry."

A copy of the deed can be viewed here.

Look!  From here, I can see significant political will!

We'll see what the City does from this point.  In the meantime, for the citizens of Raleigh and the citizens of the State, many view this as a good day.

Mike Thelen practices in Womble Carlyle's Real Estate Practice Group out of the Firm's Raleigh office. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.


Wednesday, July 22, 2015, 5:27 PM

N.C. Court of Appeals Dissent Asserts That Spot Zoning Does Not Require a "Single Owner"

Appellate court dissents are often overlooked by the public, viewed more intently by the litigants as bases for further appeal or other strategic maneuvering.  But dissents are an important part of legal doctrine.

In Good Neighbors of Oregon Hill Protecting Property Rights v. County of Rockingham, No. COA12-121 (July 21, 2015), we are specifically interested in the dissenting judge's view that spot zoning in North Carolina does not require "a single owner".   

In Good Neighbors, Judge Dillon dissents from the majority decision, which concludes that the rezoning of a parcel owned jointly by two individuals cannot constitute spot zoning "as our courts have defined it" because "the definition of spot zoning requires a single owner of property".

Judge Dillon would uphold the rezoning -- he believes it is legal spot zoning -- but he separates himself from the majority on the "single owner" point.  We turn to Judge Dillon:

I recognize that our Supreme Court has used the phrase a single “tract owned by a single person” as part of a definition of spot zoning, Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45 (1975), a phrase which has been repeated in subsequent cases, see Chrismon v. Guilford County, 322 N.C. 611, 627, 370 S.E.2d 579, 588 (1988); Musi, 200 N.C. App. at 382-83, 684 S.E.2d at 895, and, therefore, I understand how the majority reached its conclusion in the present case. I do not believe, however, that the Supreme Court intended by the use of this phrase to fashion a definitive rule whereby the question of whether the rezoning of a single tract of land constitutes “spot zoning” turns on whether that tract is owned by a single person rather than by two people. Such a rule would allow a landowner to avoid the spot zoning analysis simply by conveying a partial interest in his land to a “straw” entity. Rather, by its use of the phrase “by a single person” in certain opinions, I believe the Supreme Court was merely describing an example of spot zoning, as was the case in Chrismon....  I note that the Supreme Court has never expressly held – in Good Neighbors or otherwise – that a rezoning of a single tract did not constitute spot zoning simply because the tract was owned by multiple individuals. Rather, the Supreme Court recently avoided reaching this question. Wally v. City of Kannapolis, 365 N.C. 449, 722 S.E.2d 481 (2012).

We'll see if the North Carolina Supreme Court has the opportunity and interest to settle the question Judge Dillon's Good Neighbors dissent presents.

Mike Thelen practices in Womble Carlyle's Real Estate Practice Group out of the Firm's Raleigh office. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.

N.C. Court of Appeals Addresses Public Records, Closed Session and "Personnel Matters"

In The Times News Publishing Co. v. The Alamance-Burlington Bd. of Education, No. COA15-99 (July 21, 2015), the Court of Appeals considered the intersection between the State's Open Meetings Laws (N.C.G.S. 143-318.9, et seq.) and Public Records Act (N.C.G.S. 132.1, et seq.) in the context of minutes from a "closed or executive session" of a board of education resulting in the termination of a school superintendent.

Facts
In October 2013, the superintendent of the Alamance-Burlington County Schools agreed to a new, four-year employment contract approved by defendant school board.

Just seven months later, defendant school board held a closed meeting wherein the superintendent abruptly resigned and the board approved a $200,000 severance payment.

Plaintiff newspaper sought access to the minutes from the closed session, which was denied.

Plaintiff newspaper filed a lawsuit to obtain the minutes from the closed session.  The trial court dismissed the lawsuit, and plaintiff newspaper appealed.

Analysis
Citing extensively to News and Observer Pub. Co. v. Poole, 330 N.C. 465 (1992), the Court of Appeals notes the Supreme Court's conclusion as to the interplay between the two State laws:  "The Open Meetings Law 'provides an exception to the Public Records Act for minutes, which would ordinarily be public records, so long as public inspection would frustrate the purpose of the executive session.'"

Applying this, the Court of Appeals determined that minutes of a closed or executive session in which a government employee was terminated and awarded a severance payment -- the so-called and commonly-used "personnel matter" defense to publication -- are not "categorically exempt from public disclosure".  The Court of Appeals explained the distinction between necessary private "personnel information", on the one hand, and the critical transparency of governmental deliberation, on the other hand:

"[C]ore personnel information such as the details of work performance and the reasons for an employee’s departure will remain permanently exempt from disclosure. But other aspects of the board’s discussion in the closed session, including the board’s own political and policy considerations, are not protected from disclosure."

The Court of Appeals sent the matter back to the trial court so that it may conduct an in camera (that is, a private) review of the minutes, which was not done. Specifically, the Court of Appeals directed the trial court to review with an eye toward balancing the interests, to "ensure that the exception to the disclosure requirement should extend no further than necessary to protect ongoing efforts of a public body, respecting the policy against secrecy in government that underlies both the Public Records Act and the Open Meetings Law."

Why It Matters
Ultimately, the minutes may remain out of the public reach.  The important thing to remember is that (1) the trial court must conduct an in camera review of the records sought and denied before refusing public access pursuant to State law, and (2) matters that are expressly excepted from the reach of public record laws can quickly become public record, even derivatively, if the local political body is not careful as to how it proceeds.

Mike Thelen practices in Womble Carlyle's Real Estate Practice Group out of the Firm's Raleigh office. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.

Monday, July 13, 2015, 6:08 PM

Inapplicability of the "One Year" Limitations Tolling Period of theN.C. Rules of Civil Procedure

In Murphy v. Hinton, No. COA14-1230 (July 7, 2015), the North Carolina Court of Appeals determined that a complaint dismissed voluntarily cannot benefit from the "one-year refiling" period pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure if that dismissed complaint does not meet the notice pleading requirements of Rule 8(a)(1).

Facts
On June 21, 2012, plaintiff filed a wrongful death complaint against defendant as a result of a carbon monoxide asphyxiation caused by propane heater.  Despite allegations in the complaint of "aforementioned negligence, carelessness, recklessness, and/or willfulness", the Court of Appeals stated that "no portion of the complaint describes any act or omission by [defendant] that could constitute negligence or similar tort liability".

On October 4, 2012, plaintiff voluntarily dismissed the complaint.

On August 30, 2013, plaintiff refiled that same complaint.

On December 31, 2013, plaintiff amended the refiled complaint with "far more detail[]", in the words of the Court of Appeals.

Motion to Dismiss
On May 27, 2014, defendant moved to dismiss the complaint "based on the statute of limitations".

At core, defendant argued that the October 2012 voluntary dismissal of the complaint "did not provide a one-year period in which to refile under Rule 41(a)(1)", which is the only means by which the plaintiff could argue that the August 2013 complaint fell inside the applicable limitations period.

The trial court granted the motion to dismiss.

The Appellate Decision
The Court of Appeals affirmed dismissal.

Quoting Estrada v. Burnham, 316 N.C. 318 (1986) (violation of Rule 11(a)) and citing also to Robinson v. Entwistle, 132 N.C. App. 519 (1999) (violation of Rule 9(j)), the Court reminds the litigants at the outset that “in order for a timely filed complaint to toll the statute of limitations and provide the basis for a one-year ‘extension’ by way of a Rule 41(a)(1) voluntary dismissal without prejudice, the complaint must conform in all respects to the rules of pleading.”

The Court looks into the substance of the voluntarily dismissed complaint filed in June 2012 to find that the June 2012 complaint "does not include any 'aforementioned' negligence", does not allege that defendant "owed any duty" to the deceased, does not claim that the propane tank was "defective, unreasonably dangerous, improperly installed, or negligently maintained", and that "the [June 2012] complaint does not even allege that [the] propane tank was the source of the carbon monoxide that allegedly killed" the deceased.  The Court concludes that these deficiencies render the June 2012 complaint in violation of Rule 8.

The Court adds that "[t]here is no more fundamental 'rule of pleading' than the foundational requirement of Rule 8(a)(1)", which requires that the plaintiff cannot benefit from the "one-year" tolling protections of Rule 41(a)(1).

The Takeaway
In the face of running limitations periods, clear "placeholder" complaints will not toll that period for the one-year period as spelled in Rule 41(a)(1) of the North Carolina Rules of Civil Procedure.  This has been the law for some time.

But litigants should understand that North Carolina courts will look closely at refiled complaints -- even where the "placeholder" nature is not apparent or even correct -- to determine whether the Rules of Civil Procedure were followed in that original, since dismissed filing such that the "one-year" tolling protections will apply.


Mike Thelen practices in Womble Carlyle's Real Estate Practice Group out of the Firm's Raleigh office. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.

Tuesday, July 7, 2015, 2:17 PM

Searching for the Heart of the Doctrine of Vested Rights?




Two recent decisions discuss the doctrine of vested rights in entirely different contexts.  What might we learn from these cases about the doctrine of vested rights? 

A divided Court of Appeals held in N.C. Assoc. of Educators v. State of North Carolina, ___ N.C. App. ___, (June 2, 2015) that contractual rights had vested for teachers who had attained career status and the General Assembly could not deprive these teachers of their vested rights by repealing the career status law.  The dialogue between the judges concerned contract formation.  The majority found that the repealed statute created contractual expectations in governmental employees.  The minority concluded that unless a statute contained contract-like language, it cannot create a contract. 

What does a case about teacher contract rights have to do with land use law?  The doctrine of vested rights exists in land use law too. 

Nine days after the Court of Appeals’ decision, a unanimous North Carolina Supreme Court held in Town of Midland v. Wayne, __ N.C. ___  (June 11, 2015) that a common law vested right existed and made the land significantly more  valuable.  But, the North Carolina Supreme Court’s discussion did not mention a contract.

What might be the organizing principle of the doctrine of vested rights?   In every vested rights case, a legislative body has changed law to cure perceived defects in prior law – whether it is teacher tenure or establishment of an asphalt plant.  The doctrine exists to ameliorate the tyranny of the majority, a principal concern of the Federalist Papers.   For example, when majority rule changes land use law, courts must balance the “interests of the public as a whole and those of individual property owners and in many cases, the elements of good faith and bad faith and resort to equity and equitable principles.”  Godfrey v. Zoning Bd. of Adjustment of Union Cnty., 317 N.C. 51, 62, 344 S.E.2d 272, 279 (1986). 

The heart of the doctrine is fairness.  Standards of fairness are imposed upon majority rule (against its will) by constitutional restraints. For government employees, does the change impair their contract with the government? For land owners, does the change violate due process rights?

Why care about the heart of the doctrine of vested rights?  Understanding the heart leads to a better understanding of the myriad of arcane rules and principles applicable to the various species of vested rights.  It is easy to miss the forest for the trees.

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