tag: North Carolina Land Use Litigator: November 2010

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Monday, November 29, 2010, 6:13 PM

State Court of Appeals Speaks On Intersection Between Standing and Limitations Period As To Challenging Zoning Ordinances

Challenges to the validity of zoning ordinances are subject to a two-month statute of repose, set out at N.C.G.S. Section 160A-364.1. We've previously covered this important topic here, including the statute's prohibitive application to even allegedly ultra vires exercises of the ordinance-making power (that is, challenges that the ordinance is not actually a zoning ordinance).

In Templeton v. Town of Boone, plaintiffs -- trustees serving a trust owning land in the Town of Boone -- claimed that zoning ordinance amendments adopted by the Town are "facially defective, vague and unenforceable" and that the Town's adoption of these ordinance amendments amount to a "deprivation of [plaintiffs'] rights and privileges as property owners." The plaintiffs brought what the Court referred to as constitutional and statutory claims. The ordinance amendments at issue addressed viewshed (Viewshed Protection Ordinance) and property sloping (Steep Slope Ordinance).

The Court of Appeals first tackled the issue of standing, affirming dismissal of plaintiffs' constitutional (facial) claims. The Court held, "Without an allegation that the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs, plaintiffs have failed to demonstrate that they have 'sustained an injury or [are] in immediate danger of sustaining an injury' from enforcement of the ordinance amendments against them." Quoting Grace Baptist Church v. Oxford, 320 N.C. 439, 444 (1987).

As to plaintiffs' stautory (as-applied) claims, the outcome is more nuanced with respect to standing. I'll briefly summarize:

  • On plaintiffs' statutory challenges to the Steep Slope Ordinance, the Court found affirmed a lack of standing because "Plaintiffs’ complaint makes no allegation that the slope value of the property owned by [plaintiffs] is 30% or greater and subject to this ordinance."

  • On plaintiff Bird's statutory challenge to the Viewshed Ordinance, the Court reversed on the issue of standing "to bring further statutory challenges to the Viewshed Protection Ordinance" because "there is an allegation that the trust property was 'subjected to' the Viewshed Protection Ordinance."

  • Conversely, the Court found no standing on the part of plaintiff Templeton to bring a statutory challenge to the Viewshed Ordinance because plaintiff Templeton "does not make factual allegations which would support a finding that plaintiff Templeton’s property is 'directly and adversely affected[,]' ... by the Viewshed Protection Ordinance."


  • Ok, for those keeping score, so far it's Plaintiff Templeton/no standing at all, Plaintiff Bird/standing to bring only statutory (but not constitutional) challenges. And the lesson? Plead with particularity at the Complaint stage when challenging zoning ordinances.

    Now, the Court next addressed the application of N.C.G.S. 160A-364.1, the statute of repose. Plaintiff Bird contended that the statute of repose cannot bar claims because "the Viewshed Map plaintiff Bird saw at the public hearing on 25 September 2006 showed that the trust property was not located in an area affected by the ordinance, but defendant subjected it to the ordinance later without notifying her and that is why she delayed in filing her action." The Court, however, disagreed. Citing Thompson v. Town of Warsaw, 120 N.C. App. 471 (1995), the Court concluded that "even if defendant failed to properly notify plaintiffs pursuant to Chapter 160A, plaintiff Bird’s claims are still barred by the applicable statute of limitations."

    Final score: Plaintiff Templeton/no standing at all, Plaintiff Bird/standing to bring statutory challenges but those challenges are barred by the statute of repose.

    In an interesting dissent, perhaps her last before elevating to the Supreme Court, Judge Barbara Jackson supported the majority's application of the statute of repose but "takes issue" with the standing analysis. Judge Jackson contends that the Court "errs by considering the standing requirements for facial constitutional challenges in the same light as those required for as-applied constitutional claims." Specifically, Jackson warns: "[A] requirement that the ordinance be enforced [as a necessary condition to standing] before a property owner may challenge it could allow a municipality to evade statutorily-mandated procedural safeguards by waiting to enforce an ordinance until two months after its adoption, thereby immunizing itself pursuant to the statute of limitations."

    This decision could have broader implications in developing litigations. We shall see.

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

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    Sweepstakes Industry Wins Constitutional Argument Over Recently-Enacted Legislation

    For those without the background knowledge, internet sweepstakes have for some time been a hot topic throughout North Carolina. We'll save the deep history and the technical points for another day.

    Suffice it to update, this past summer the General Assembly passed House Bill 80. The Bill, signed by Governor Perdue, aimed to render it "unlawful for any person to operate, or place into operation, an electronic machine or device to do either of the following: (1) Conduct a sweepstakes through the use of an entertaining display, including the entry process or the reveal of a prize[; or] (2) Promote a sweepstakes that is conducted through the use of an entertaining display, including the entry process or the reveal of a prize." You can view the law here.

    This law had been set to go into effect on December 1. That deadline, and the uncertain breadth of the new ban, brought two providers of the maligned technology into State court. Arguing, inter alia, that the law violated the First Amendment, the providers successfully secured a preliminary injunction against enforcement thereof pending further consideration of the merits. Then, this past week, Superior Court Judge Craig ruled that video game sweepstakes are protected free speech. Specifically, the Court applied the "strict scrutiny" standard to take issue with the breadth of a notable restriction on "[a]ny other video game not dependent on skill or dexterity that is played while revealing a prize as the result of an entry into a sweepstakes."

    In doing so, however, the Court also held that the State maintains the right to restrict those games covered by the subsections codified at N.C.G.S. 14-306.4(a)-(h), restrictions which pass constitutional muster: video poker, video bingo, video craps, video keno, eight-liner, pot-of-gold, and any "video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols not dependent on the skill or dexterity of the player."

    This ruling is a significant development for this industry, which secured a preliminary injunction in October against the collection of municipal privilege license taxes for the operation of these computer systems. Of course, it's similarly significant for local governments, local law enforcement, and State legislators alike.

    We'll continue to monitor this fast-changing landscape.

    ***UPDATE December 2, 2010 UPDATE***
    According to the news outlet The News and Observer, published among the oaks of Raleigh, the State will appeal Judge Craig's ruling as to the unconstitutionality of N.C.G.S. 14-306.4(i).

    ***UPDATE December 3, 2010 UPDATE***
    State Attorney General Roy Cooper has issued a written advisory to law enforcement officials regarding enforcement of N.C.G.S. 14-306.4 in light of the recent court rulings outlined above. We'll keep an eye on the resulting fallout and appeal.

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

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    Wednesday, November 24, 2010, 9:59 AM

    Rutherford County and Facebook Bring $450 Million Data Center to North Carolina

    Some of this is relatively old news in the world of immediate information, but it's certainly worth mentioning to our readers. Well, it's also worth our view.

    This month, Facebook and leaders from Rutherford County announced that the social networking company committed to building a $450 million data center near Forest City, North Carolina. The high-tech Facebook facility is expected to create 250 construction jobs over the course of its 18-month gestation, and, when complete, is expected to employ between 35 and 45 well-deserving individuals.

    The excitement around the facility has, as is the natural course of things in today's world, birthed a Facebook page entitled "Rutherford Data Center." The page is already sporting some 7,160 "likes." To put this in perspective, a mere 22,860 people "like" the New York Islanders hockey club. No, that doesn't give you any perspective? How about this: Rutherford County's population is only some 63,000 people.

    As part of its agreement, Facebook will receive $11.4 million in incentives from the County, assuming certain investment goals are satisfied, and the Company will be eligible to receive tax exemptions on electricity consumption and business property. The facility will be built in the location of a now-defunct boat manufacturing site about 65 miles west of Charlotte.

    This project is exciting for North Carolina insofar as it maintains the "cloud computing" momentum created in recent years by tech pioneers Apple and Google in bringing their talents to the State. Cloud computing is where a company stores data itself and allows customers to access it remotely from anywhere via the Internet. Many technology companies that used to lease data-storage space are now finding that it's more efficient and cost-effective to build their own data centers. Yes, I had to call the Firm's IT department to accurately draft those last two sentences.

    These are exciting times for businesses and local governments in North Carolina. We'll continue, as always, to bring news and analysis of our region's legal and business ingenuity.

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

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    Tuesday, November 23, 2010, 9:48 AM

    At Zoning Variance: My Taste and the Ordinance's Do Not Agree

    A variance is one of the more sensitive yet powerful zoning tools available to the developer and the local government.

    That's an omnious statement -- sort of like "clouds are gathering" or "Notre Dame football" -- but it probably means little in a vacuum. So, let's put a very simple, real-life face on this weapon.

    Mr. Frosty owns an ice cream stand. That stand, though, is outgrowing its space. Mr. Frosty would like to expand the building about 10 feet in the direction of the frontage street. However, his building is already set back 25 feet from the road, the closest he can get to the street under the Town's zoning ordinance (what we call a "setback"). Mr. Frosty is debating whether he should attempt to amend the zoning ordinance to fit his wishes or whether he should bring a lawsuit against the Town. Well, these are cumbersome and risky options. The third option? A zoning variance.

    A zoning variance is a quasi-judicial decision in North Carolina -- carrying with it all of that procedural hooplah -- which grants a landowner an exemption from the legal requirements that apply to everyone else in the city or county. According to Professor David Owens of the UNC School of Government, "The underlying notion of the variance is that a governing board cannot possibly anticipate every circumstance that will arise in the implementation of zoning and that an administrative tool short of amending the [zoning] ordinance or going to court is needed to deal with these peculiar situations." North Carolina courts have imposed strict requirements to prevent zoning variance abuse, making certain these allowances are not routinely and easily granted.

    Then, what's the legal test for securing a zoning variance in North Carolina? Well, the first thing we should make clear is that "use" variances are never allowed. A use variance would include pursuit of permission for an otherwise impermissible use in the zoning district within which the property is located -- a dog food store in a residential zoning district, a multi-family house in a single-family residential zoning district. See N.C.G.S. Section 160A-388(c) ("No change in permitted uses may be authorized by variance.").

    But we digress. The state statutes provide, "When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the board of adjustment shall have the power to vary or modify any of the regulations or provisions of the ordinance so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done." N.C.G.S. Section 160A-388(c). This standard for "awarding" a variance seems clear enough. But wait: in 2001, the North Carolina Court of Appeals concluded that the State's courts hadn't actually developed a workable standard for interpreting the statutory language: "practical difficulties or unnecessary hardship." Williams v. N.C. DENR, 144 N.C. App. 479 (2001). So, the Williams Court took it upon itself to require that the landowner should show that it "had been denied reasonable and significant use of his property."

    Now where do we stand in North Carolina as to securing a variance? According to Professor Richard Ducker of the UNC School of Government, "For a North Carolina local government to grant a zoning variance, the unit must at a minimum find that the property owner has been 'denied reasonable and significant use of his property,' and that this language should be included in the ordinance standards. Alternatively, the ordinance may include a requirement that a property owner show that he or she can make 'no reasonable return from nor make no reasonable use of the property' without the variance." The distinction is subtle -- the former from the perspective of the specifically intended use, the latter from the perspective of any use -- but it may be that Professor Ducker's explanation is a good parsing.

    Practitioners pursuing a variance should take care to understand the applicable standard in the jurisdiction, make a fulsome and appropriate quasi-judicial record in anticipation of judicial challenge, and keep on top of the necessary factual and legal findings the presiding board is required to make. These procedural pointers -- viewed with the understanding that more than mere inconvenience or financial loss absent a variance need be shown -- puts the developer or the local government in the best position to make these determinations.

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

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    Monday, November 22, 2010, 2:11 PM

    Village of Sag Harbor Taking Zoning Dispute Over Pair of Giant Legs In Stride

    Larry Rivers, the late Godfather of pop art, lived for a number of years in the Hotel Chelsea. You know who else lived there? Bob Dylan, Janis Joplin, Arthur C. Clarke, and Dylan Thomas. Mr. Rivers was either really famous or really cool. Or both.

    One of Mr. Rivers' sculptures, a supersized pair of walking legs seen at the image across the way, is causing a problem in the fancier-than-thou Town of Sag Harbor, New York. Sag Harbor is a 2,300 or so person village located on the East End of Long Island, with parts of the Village sitting in the Town of East Hampton (Andy Warhol!) and parts in the Town of Southampton (Shinnecock Hills Golf Club!).

    For the first time in history, a pair of legs may be too long. At 16 feet 1 inch tall, the legs are more than one foot over the 15-foot limit applicable to such structures pursuant to the Village's zoning code. The sculpture is also too close to the property line. As can be predicted in a community of this artistic history, the chairman of the Village's Historic Preservation and Architectural Review Board thinks Sag Harbor should take a forgiving view when applying zoning laws to artistic expression: "From where I sit, it is not and shouldn't be reviewed as a shed or a structure because it is a work of art." The owner of the legs agrees with her own constitutional freedom of expression: "I am not open to someone telling me how I should display my art."

    But dialogue and disagreement is what makes this country so great. To wit, the Village's Mayor and its Attorney believe the law is the law, and it should be applied accordingly. According to the Village Attorney: "While some may consider this to be 'art,' [that opinion] is irrelevant...."

    The Village continues to ponder the legs, the fate of which sits in the hands of the Zoning Board. Ok, at the feet of the Zoning Board. I'm not walking away from this story until I know the outcome.

    You can read the Wall Street Journal's article on the tail, er, tale, here.

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

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    Thursday, November 18, 2010, 6:06 PM

    Development of Cement Plant Hits a Wall, Seeks a Door or a Window

    Some of our readers may know the history -- which began in earnest in 2008 -- of the Titan American LLC/Carolinas Cement Company LLC project planned for Castle Hayne, New Hanover County. The State of Noth Carolina and New Hanover County have committed but not yet spent some $4.5 million ($300,000 from the State and $4.2 million from the County) on the project, which remains planned for the banks of the Northeast Cape Fear River.

    Long beset by political drag and dogged by well-organized public concern, however, the proposed cement factory -- to be built and operated by Titan American LLC/Carolinas Cement Company LLC, “one of the premier cement and building materials producers in the Eastern United States” -- currently sits in the delicate realm of the State Environmental Policy Act (SEPA).

    How did we get here? Well, in May of this year, Wake County Superior Court Judge Donald Stephens issued an Order that a SEPA environmental impact statement requirement does apply to the Titan project. In other words, though already subject to federal review (which factory proponents contend is satisfactory), the May Order means that the Titan proposal must undergo SEPA review prior to the issuance of necessary permits. By state statute, such review would consider the environmental impact of the proposed action, mitigation measures to minimize that impact, alternatives to the proposal, and the relationship between the short-term uses and long-term maintenance of the environment. The May Order, prosecuted in part by the Southern Environmental Law Center, reverses a November 2009 administrative ruling in Titan's favor that allowed the plant to go forward without SEPA review.

    Titan has appealed the May Order. In the meantime, Titan has been double-tracking by proceeding in a direction toward the SEPA review process.

    All's quiet, then? Nope, not even close.

    Just last week, Titan announced in a letter to Governor Bev Perdue that the cement maker would decline the agreed-upon economic incentives and withdraw the pending appeal of the May Order in an apparent effort to focus on the necessary environmental approvals, which Titan believes will be slowed if not stymied by the incentives and appeal. The November 11 letter from Titan can be viewed here.

    Not to be outdone, long-time project opponent and outgoing (by her choice) State Senator Julia Boseman sent Governor Perdue a letter of her own this week stating that it is "imperative that the air permit for Titan America be postponed until the SEPA review requirements are satisfied through the required NEPA review...." Therein, Senator Boseman accuses Titan of "using every maneuver possible to avoid a State Environmental Protection Act review (SEPA)." You can read Senator Boseman's letter here.

    There is much more to this story than this medium can accomodate, but this is the latest. Suffice it to say that, as is our usual refrain, controversial development projects are best handled with the utmost care and diligence on the part of both developers and local governments, as concerted opposition is virtually inevitable.

    We'll continue to follow along in this space.

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

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    Wednesday, November 17, 2010, 7:01 PM

    The National Law Journal Recognizes Womble's Innovative Efforts In the "Blogosphere"


    In an article published Nov. 15, 2010, the National Law Journal recognizes this Firm's innovative and diligent efforts in edutaining--a just-invented portmanteau of entertaining/educating, you've witnessed history--current and prospective clients, businesspeople, government officials, and other lawyers through the use of law blogging.
    Legal blogs provide as-it-happens, easily-digestible information pieces for folks with little time but a need to keep up. But is this material being read by folks who matter? According to the National Law Journal, "Greentarget and ALM completed a survey [in March of this year] that revealed that 35% of in-house counsel had visited a law blog within the past 24 hours. Forty-three percent of in-house counsel cited law blogs among their top "go-to" sources for news and information." So, yes, blogs matter. In other words, feel free to subscribe to what we and other Womble lawyers are doing in this dynamic space.

    As far as Womble's ingenuity in this respect as compared to other large law firms, the article points out the following:

    "The biggest firms in America aren't showing up in the search results in large part because they don't blog — or, more specifically, they don't create anywhere near the quantity of articles and posts that blogging attorneys do. There are more than 23,000 lawyers in the top 10 firms of the AmLaw 100, and how many blogs in total would you guess are being created by these 23,000-plus lawyers? The answer is two.
    ***
    When it comes to digital real estate, the firms of the AmLaw 100, especially the top 10, are being left in the dust. Consider the fact that in the entire AmLaw 100 there are more than 84,000 lawyers and only 130 law blogs. (Click here to see the full list of AmLaw 100 blogs.) More than 50% of these blogs come from just six firms. (Sheppard Mullin Richter & Hampton; Reed Smith; Hunton & Williams; Alston & Bird; Littler Mendelson and Dorsey & Whitney). In a recent survey of the AmLaw 101-200, we uncovered that these firms have fewer than 30,000 total attorneys creating 182 Law blogs. (Click here to see the full list of AmLaw 101-200 blogs.) To put this in perspective, take a firm like Womble Carlyle Sandridge & Rice that has 40 attorneys blogging and 15 law blogs. Forty attorneys blogging represents approximately 9% of the firm's total number of attorneys. If 9% of the attorneys at Baker & McKenzie had their own law blogs, that firm would have more law blogs than the entire AmLaw 200 put together."

    You can view the entire article here.

    If Womble lawyers are blazing trails in this manner, keeping on the vanguard of fast-changing legal developments, imagine what those legal minds are doing for our clients.

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

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    A Game of Chicken: Nash County Rezones Land In Controversial Bid for Processing Plant

    This past weekend, a swath of property off of N.C. Route 97 hosted a rally staged by a number of Nash County residents opposed to the location of a chicken processing plant. The protestors were comin' in on a "wing" and a prayer.

    Earlier this month, the County's Board of Commissioners voted 4-3 to re-zone 150 acres of land to allow for general industrial development. That reclassification of the property will allow more than 195 industrial uses, including a new Sanderson Farms poultry processing plant. It's been reported that County officials had been courting the Sanderson Farms facility and its approximated 1,100 jobs, and that, in turn, the Nash County property is a finalist for the "high tech" and "well-regulated" processing plant. It's also been reported that the City of Wilson in Wilson County, to the south of the re-zoned land at issue, has committed $1,000,000 to fight the proposed project should plans advance.

    The lesson is that contentious projects do not singly divide between developers and the local governments/public outcry. These situations are oftentimes more complicated, and, as here, can even divide between local governments. With Sanderson Farms currently enjoying what seems to be a "leg" up, we'll follow how this issue proceeds.

    ***UPDATE November 23, 2010 UPDATE***
    The City of Wilson, North Carolina has come through on its pledge to stop all the clucking. According to a regional news outlet, the City has sued Nash County alleging that the rezoning of the 150 acres violates state law.

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

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    Wake County Approves Bids for Knightdale/Zebulon Extensions of Extraterritorial Jurisdiction


    The statute granting municipalities extraterritorial regulatory authority defines the area within which a city may apply its land development regulations, such as the power to zone. That statute, N.C.G.S. Sec. 160A-360, includes a detailed process that must be followed by a city in establishing extraterritorial jurisdiction.

    In certain instances, county approval, required in the form of an adopted resolution by the county's board of commissioners, must be given for a municipality to exercise its extraterritorial powers. Section 160A-360(a) requires county approval wherever a city with a population in excess of 10,000 people seeks to extend its land use jurisdiction beyond the one mile originally granted to each municipal government. Section 160A-360(e) requires county approval for municipal extension into any area over which the county is presently exercising zoning, subdivision, or building code regulations.

    Just this week, the Wake County Board of Commissioners approved bids by the Towns of Zebulon and Knightdale to extend their jurisdictional reach over "Planning and Regulation of Development" pursuant to N.C.G.S. 160A-360. According to a report published in July by the Knightdale Planning Staff to the Planning Board, the extension "enables the municipality to plan for timely, efficient provision of development and associated infrastructure and urban services."

    In what is usually the case, residents of the as-yet uncovered areas spoke in opposition to the respective extensions. Such resistance is not surprising in view of prevailing anti-government sentiment; in fact, the Board denied an earlier Knightdale effort in July, which was revised for this latest consideration.

    Of course, these changes will have a significant impact on those property owners over which jurisdiction will be extended. We'll keep an eye on these stories as they unfold.

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

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    Tuesday, November 16, 2010, 1:26 PM

    The Icing On the Cake: Town Councilman Busts Bake Sale for Lacking Proper Permit

    When a kid needs some pocket change, he has two clear options: he can ask his parents or he can strike out on his own, using some sense of ingenuity, to fill his pockets by the manna of capitalism. This latter path, seemingly availed by fewer kids with each passing generation (paper routes, anyone?), has hit a snag. The enemy of such free market ideals? A New York town councilman.

    The story, almost stranger than fiction, involves two 13 year-old boys attempting to sell cupcakes, cookies, brownies and gatorade in a local park. The problem? The boys have been operating their contraband-filled concession station without a local government permit. According to news outlets, a "New Castle parks use permit requires a $1 million certificate of insurance and a fee ranging from $150 to $350 per two hours" and are "given on a 'case-by-case basis.'" That part makes sense. After all, licensing and permitting can serve a public purpose much more significant than simple bureaucratic landmining.

    The part that may not make sense to many is that our antagonist, Town Councilman Michael Wolfensohn, called the cops on these young self-starters rather than work through less formal channels.

    Since the story broke, it's gone viral. Public outcry will undoubtedly evoke the words of the great Irish satirist Jonathan Swift: "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through."

    ***UPDATE December 3, 2010 UPDATE***
    A happy ending to a depressing tale. The baker boys, otherwise shunned from public places in way-too-fancy Newcastle, have landed on wheels. And in a decidedly funny twist, with the help of a lawyer. A real lawyer? Nope, an unemployed lawyer running one of the more successful food trucks in New York City. The CupcakeStop, a Zagat favorite, has invited the baker boys to push their food from the bowels of a converted Ford Astro. You can update yourself, and feel good, here.

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

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    Monday, November 15, 2010, 6:05 PM

    North Carolina Local Governments Mulling New Extension of Development Permit "Expiration Dates"



    As the economy turned downward in 2008, many developers either opted to or were forced to postpone previously-approved projects throughout the State. This delay concerned the development community writ large that valuable and often couldn’t-do-that-again-if-we-tried approvals would expire before work could take place.

    As a result, North Carolina local governments and the North Carolina General Assembly worked together to create the land development boon S.L. 2009-406, known generally as “The Permit Extension Act of 2009.” The 2009 Act provided that the running and the expiration of any time limit for taking action on a development permit would be suspended for the period January 1, 2008 through December 31, 2010. The 2009 Act defines “development approval” to include sketch plans, preliminary plats, subdivision plats, site-specific and phased-development plans, development permits, development agreements, erosion and sedimentation control plans, CAMA permits, water and wastewater permits, nondischarge permits, water quality certifications, and air quality permits, and building permits.

    But December 31, 2010 is fast approaching and the economy continues to sputter. Accordingly, this summer, the General Assembly extended for one additional year this tolling period for development approvals. In other words, the January 1, 2008 - December 31, 2010 tolling period has been extended through December 31, 2011. Notably, however, S.L. 2010-177 (we'll call this the 2010 Act) allows local governments to "opt out" of this additional extension to December 31, 2011. According to one report published the day of this post, specific municipal and county governments are in the midst of weighing their options.

    According to the Triangle Business Jorunal, some North Carolina local governments are posied as follows with respect to "opting out" of the re-upping of the 2009 Act's extension:

    • The Raleigh City Council will discuss the issue at its Nov. 16 meeting and decide whether to extend all local government approvals or revisit recently amended site plan and subdivision sunset regulations.

    • The Cary Town Council could discuss its options at its regular meeting on Nov. 18.

    • Morrisville’s planning and zoning board has recommended that the town opt out of the permit extension, and the council will likely discuss the issue at its business meeting on Nov. 18.

    • Apex and Johnston County government leaders are not planning to opt out of the additional one-year extension.

    • The Knightdale planning department will present information to the town council at its meeting Nov. 17.

    • Wake Forest town commissioners will consider the matter at their meeting Nov. 16.

    • In Chapel Hill, Holly Springs, Wake County and Durham County, neither the planning boards nor the elected officials have brought the matter up for discussion and will likely not opt out of the extension.

    • Chatham County has scheduled a public hearing on Nov. 15.

    • Orange County’s county attorney is drafting a resolution that will likely be presented to the county commissioners at the Dec. 6 or Dec. 14 meeting. The resolution would advise the county to not opt out of the extension for planning and inspection approvals, but it would opt out of the extension for environmental health approvals, such as septic tank permits.

    For our space, those holding but sitting on qualifying development permits issued by local governments should pay close attention to this issue.

    ***UPDATE Nov. 16, 2010 UPDATE***
    A first of the local governments has opted out. Last evening, the Chatham County Board of Commissioners voted 5-0 to "opt out" of the new re-upping of the development approval extension through December 31, 2011. Others will follow, we're sure.

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

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    North Carolina Court of Appeals: Standards of Review Applicable to Quasi-Judicial Decisions

    Newly-adopted N.C.G.S. §160A-393 codifies the specific framework guiding judicial appeals of quasi-judicial decisions rendered by local governments. We've previously discussed this statute at some length.

    What we haven't discussed is the standard of judicial review applicable to these appeals. Generally speaking, the superior court to which the quasi-judicial decision is appealed will apply one of two standards of review. If errors of law are alleged on appeal, the court will conduct a de novo review whereby the court will review the matter as though it was never considered by the local government board. On the other hand, the reviewing court will employ the whole record test if it is alleged on appeal that the quasi-judicial decision was not supported by the evidence or the decision was arbitrary and capricious. And if both types of allegations are made--errors of law AND arbitrary or unsupported by the evidence? Well, the trial court will apply the proper standard to its corresponding allegation.

    But consider this recent unpublished case from the North Carolina Court of Appeals. In Jobe v. Town of Haw River, an individual petitioned the Town's "Planning and Zoning Board" for a special use permit to construct and operate "a construction and demolition debris recycling center and a concrete plant" in Alamance County. The Planning and Zoning Board recommended approval and the Town Council set the permit for a September public hearing. After extensive public comment, but no sworn testimony, the Town Council continued the meeting until October. In October, with only the petitioning individual offering sworn testimony, the Town Council granted the special use permit.

    Ctizens opposing the permit requested a writ of certiorari, the proper mechanism for appealing a quasi-judicial decision, alleging the Town Council's approval of the permit was "contrary to the ting ordinances, was both arbitrary and capricious, and not based upon competent evidence in the record." The court issued the writ and, subsequently, affirmed the Town Council's approval of the special use permit. In its order, the trial court "fail[ed] to mention, nor does the record sufficiantly indicate, that the trial court applied the whole record test in determining whether the decision of the Council was arbitrary and capricious." Only de novo review was, in fact, accounted for.

    The Court of Appeals pump-faked with a discussion about the proper standard of review, as well as the trial court's error in this regard, and proceeded to consider the merits. The Court reversed the trial court's affirmation of the Town Council's action, concluding that the trial court "committed reversible error when failing to vacate the [Town Council's] arbitrary and capricious decision." The Court reasoned that (1) October meeting, a continuation of the September meeting, failed to comply with the Town's own ordinance requirements with regard to notice, and (2) as a result, the trial court's reliance on sworn testimony from that improperly-noticed October hearing was entirely misplaced.

    Parties and boards alike should take care to follow the proper procedures when operating in what will promise to be a divisive political context, such as the building of a "construction and demolition debris recycling center and a concrete plant." Whoa. This applicant may return to the permitting process--it will depend on the language of the local ordinance--but, in the event he does, he's certainly learned to cover his legal bases.

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

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    Monday, November 8, 2010, 9:20 AM

    Raleigh-Durham Greeted As "New Silicon Valley" In Heart of "Recoveryland"



    Boosted by job growth over the last decade, and a relatively financially stable and fiscally conservative state government, Raleigh-Durham, North Carolina has been dubbed by the good folks from Newsweek as one of the ten American cities "best situated for recovery." Along with the Texaplex of Dallas-Austin-Houston-San Antonio (energy and startups), the Heartland cities of Indianapolis, Des Moines, and Oklahoma City (high-end industrial and agribusiness), and Salt Lake City and Northern Virginia (tech), Raleigh-Durham sits in the middle of "Recoveryland" insofar as the the jobs are plentiful and the cost of living is reasonable.

    View the full article here.

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

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