tag: North Carolina Land Use Litigator: October 2010

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Tuesday, October 19, 2010, 2:19 PM

Proposed "Sagging Pants" Ordinance Likely to Face Legal Obstacles


The Mayor of East Laurinburg--a Town in Scotland County described by one commissioner as "11 blocks long and three blocks wide"--has proposed an ordinance that would, um, extend the Town's indecent exposure laws to, um (again), cover "sagging pants." According to reports, the proposed ordinance would take a, um (for the third time), belts and suspenders approach to decency and prohibit the tops of pants and skirts from falling "3 inches or more below the waistline." From the Mayor's perspective, broadcast by way of a public notice, "You can't go anywhere and not be offended by some individual with his pants down below his buttocks."

The North Carolina Chapter of the American Civil Liberties Union has taken notice, indicating that the ordinance could get into "dicey legal territory" including potentially running afoul of the First Amendment as well as prohibitions against "racial profiling." Of note, we understand that similar "saggy pants" laws have run into significant legal obstacles in other jurisdictions. In 2007, Georgia's ACLU Chapter challenged a proposed state "sagging pants" law, claiming the law could lead to racial profiling. And in 2008, a Florida court struck down a similar municipal ordinance as unconstitutional.

The proposed ordinance, which would likely carry a fine but no jail time, is scheduled for consideration before the Town Board of Commissioners on November 9.

***UPDATE Nov. 16, 2010 UPDATE***
Prompted by an October 26, 2010 letter from the ACLU, the Town Board, ahem, dropped the proposed ordinance from its November 9 agenda prompted by claims that the proposed ordinance is "likely an unconstitutional abridgement of freedom of expression" as well as "vague and impractical." Perserverence, though, will keep pants aloft. The Board currently plans, after some good legal consideration, to ad-"dress"--see what I did there?--the issue at its December meeting. We'll continue to follow.

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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Wednesday, October 13, 2010, 9:21 AM

Town of Carolina Beach Adopts Zoning Text Amendment to Allow Restaurant Expansion

The Town of Carolina Beach sits 19 miles due south of Wilmington, North Carolina, where it boasts itself a scenic point of unrivaled surf fishing and historic enclave of Civil War tales. Tourism, of course, is a significant concern in the Town and with it comes the usual amenities of food and fun.

Under the Town's Code, it has long been the case that neither the construction of new drive-through restaurants nor the expansion or renovation of existing drive-through restaurants could occur within the area zoned as Central Business District. Such a restriction is meant to protect the pedestrian-friendly nature of the designated area, and is claimed to be consistent with the Town's Master Plan as well as the express purpose of that very zoning district.

McDonald's Corporation seeks to expand by 800 square feet its restaurant built in 1984 and located within that Central Business District. Due to the aforementioned Code restriction, however, McDonald's would need a zoning text amendment to achieve that end.

On Tuesday evening, the Town Council voted unanimously to adopt the text amendment, allowing McDonald's Corporation (and other drive-through restaurants located in the Central Business District) to grow its size on North Lake Park Boulevard. What's more, the Code may undergo further scrutiny by the Town Council in months to come insofar as the restriction at issue applied only to drive-through restaurants, and leaves dry cleaners, banks and Dunkin' Donut shops--to name the few--without the same limitation.

Do you want fries with this post?

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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Monday, October 11, 2010, 12:02 PM

North Carolina COA Speaks On the Public Trust Doctrine and "Man-Made" Waters


The Public Trust Doctrine requires that the State of North Carolina preserve certain property for use by and in trust for the general public. In the context of navigable waters, according to the Doctrine, members of the public enjoy certain rights separate and distinct from water rights incident to the ownership of riparian or littoral property. The North Carolina Court of Appeals recently held that “the public ha[s] the right [] to unobstructed navigation as a public highway for all purposes of pleasure or profit, of all watercourses, whether tidal or inland, that are in their natural condition capable of such use.” See Bauman v. Woodlake Partners, LLC, 681 S.E.2d 819, 824 (N.C. App. 2010). However, the line of authority cited by the Court in the Bauman decision does not address the intersection between such a “natural condition” and man-made canals.

In Fish House, Inc. v. Clarke, No. COA09-1047 (May 18, 2010), the Court of Appeals confronted this issue. In Fish House, Inc., the Court ruled that a man-made canal, called the Old Sam Spencer Ditch, is touched by the Public Trust Doctrine and, therefore, Fish House, Inc. cannot maintain an action for trespass on those waters. The Court cited, or more accurately adopted, the “particularly persuasive” analysis of a South Carolina opinion in rendering its decision: “The fact that a waterway is artificial, not natural, is not controlling. When a canal is constructed to connect with a navigable river, the canal may be regarded as part of the river.” Quoting Hughes v. Nelson, 303 S.E.2d 24, 25 (S.C. 1990). Referencing additional authority, including the CAMA Handbook for Development in Coastal North Carolina, the Court made clear that “‘in its natural condition’ [of the test articulated in Bauman] reflects only upon the manner in which the water flows without diminution or obstruction” and implied that “natural condition” has nothing to do with the manner in which the body of water is developed or created.

Making this a daily double, the Fish House, Inc. Court also addressed the argument that the defendant, an individual, had no standing to litigate the Public Trust Doctrine, an embodiment of the rights of the State of North Carolina. The Court dispensed with the standing argument by noting the important distinction between privately litigating the rights of the State on behalf of the State (no standing) and raising the Public Trust Doctrine in defense to a trespass action “to ensure that Plaintiff does not prevent [the Defendant] from enjoying these rights” (standing).

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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Wednesday, October 6, 2010, 6:00 PM

Charlotte's Light Rail System the Envy of Others


Charlotte's light rail line is getting some good press. It seems the Lynx Rapid Transit Services, the 9.6-mile light rail line serviced by the Charlotte Area Transit System, has become the envy of Tampa, Florida. By some estimates, the Lynx system sees some 21,600 riders per day, already far in excess of the 18,100 passengers previously assumed by 2025. Even better, these ridership numbers consecrate the Lynx system the 21st-largest light rail system in the United States, just behind Seattle's Central Link and ahead of Portland's Streetcar and Cleveland's Rapid System. This, of course, is to say nothing of the new development and eco-friendly benefits flowing therefrom.

Well, at least Tampa has its Devil Rays.

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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Tuesday, October 5, 2010, 2:52 PM

Town of Hope Mills Enters Into Annexation Agreement With City of Fayetteville


In 1989, the North Carolina General Assembly enabled two or more cities to enter into binding agreements relating to the exercise of the annexation powers. The purpose of enabling such agreements was "to enhance orderly planning by such cities as well as residents and property owners in area adjacent to such cities." N.C.G.S. Section 160A-58.21. Such annexation agreements, which may be set in duration for a period not to exceed twenty years, will delineate the geographic areas that one or more of the city-parties may not annex. Therefore, by way of a simple example, agreeing City A promises not to annex unincorporated portions 2, 3, or 4 while agreeing City 1 promises not to annex unincorporated areas B, C, or D. The object is that City A would retain the option of annexing portions B, C, or D without threat of the same by City 1, and vice versa.

Once the annexation agreement becomes effective as between (or among, if more than two) the signatory municipalities, North Carolina law prohibits either local government (or any, if more than two) from adopting an annexation ordinance that violates the agreement. In fact, in the event of violation, N.C.G.S. Section 160A-58.27 permits a non-breaching government to petition the superior court for review within 30 days. The statutes are generally silent on third-party enforcement.

N.C.G.S. Section 160A-58.24 requires that each participating city to an annexation agreement adopt an ordinance to that effect. This past Monday night, October 4, the Board of Commissioners of the Town of Hope Mills voted 4-1 to approve a 20-year annexation agreement with the City of Fayetteville. The City of Fayetteville, for its part, approved the agreement in late August. The agreement divvies between the two municipalities a number of unincorporated subdivisions and areas.

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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Monday, October 4, 2010, 2:24 PM

Triangle Residential Real Estate Market Getting Interesting


According to a series of reports published today by the Triangle Business Journal, one of forty-one primarily metropolitan weekly publications owned by Advance Publications and serving those respective business communities, the Triangle's residential real estate market may be warming. The Triangle of North Carolina includes the academically-endowed cities Raleigh, Durham and Chapel Hill.

Atlanta-based apartment builder Residential Group of Atlanta paid $2.5 million for 15 acres of bank-owned property in Raleigh's Brier Creek area. Should it secure financing, Residential Group plans to build as many as 280 rental apartment units, the new company's first acquisition. Not to be outdone, Epoch Properties of Florida has contracted to purchase some 18 acres in North Raleigh on which it plans to build a 276-unit rental project. Epoch has already filed site plans for The Jamison at Brier Creek. According to Kurt Alexander, a Residential Group principal and former York Residential LLC executive, "Raleigh is one of those market that investors are still talking about." A link to the full article sits here.

Afield from the rental market, the Chapel Hill luxury condominium market has likewise shown life. In the past year alone, 11 condominium units priced in excess of $750,000 have sold to buyers at three separate locations. The Journal reports that Chapel Hill developers are finding demand despite continued economic malaise.

Cary, a suburb of Raleigh, is witnessing its own residential real estate buying spree. Luxury home builders Toll Brothers has been slowly staking an ownership claim in loan portfolios and joint ventures with private equity groups having an interest Amberly. Amberly, a 1,100-acre residential community, fell on hard times when the Town halted the issuance of building permits after discovering that the bank (Amtrust Bank, closed by the FDIC in 2009) and the developer (L.M. Sandler & Sons) defaulted on the commitment to complete public infrastructure improvements. Of particular interest, the Town council was to vote this past Thursday, September 30 on a temporary (2-year) ordinance amendment allowing builders to contribute to those improvement costs.

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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Friday, October 1, 2010, 10:35 AM

North Carolina Building Code Council Mulls Energy Efficiency Revisions

Building codes are essentially uniform throughout North Carolina. Each local government is required by statute to adopt the building code approved by the North Carolina Building Code Council with no local variations, save for fire prevention codes and floodplain management regulations.

Of interest to developers and local governments, in 2008 the State of North Carolina accepted a $500,000 grant to rewrite the energy section of its building code. This is, after all, the "going green" era of the grease car, Ed Begley's household cleaner/sundae topping, and movie after movie starring Jonah Hill. Ok, the last part has nothing to do with the environment; but I find all three equally weird.

Anyway, the current energy portion of the North Carolina Building Code is based on the 2006 International Energy Conservation Code (IECC), with some state revision. The proposal under consideration is based on the presumably more efficiency-conscious 2009 version of the IECC. If adopted, these proposed revisions to the state Building Code would have become effective on January 1, 2012.

On September 14, however, the North Carolina Building Code Council voted 8-6 to delay updating the Code as such until, at least, the 2015 code cycle. North Carolina codes are updated on a three-year cycle.

***Update***
The News & Record out of Greensboro is reporting that the North Carolina Building Code Council may take up the proposed revisions as soon as November or December. If true, this represents a departure from the Council's September position. We'll continue to monitor.

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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