tag: North Carolina Land Use Litigator: Federal Court Kicks Out Developer's Tortious Interference Lawsuit Against Zoning Official

Thursday, December 2, 2010, 3:02 PM

Federal Court Kicks Out Developer's Tortious Interference Lawsuit Against Zoning Official


When one's zoning review does not afford a satisfactory result -- neither the board of adjustment nor the courts will award the proper approvals -- what's left to do? Well, that's an excellent question. One developer in Florida took the road less traveled and sued the zoning administrator. In federal court. For tortious interference with a contractual relationship.

Cue ominous music.

Isaac Walton Investors LLC enjoyed a contractual relationship with developer Forum Architects LLC for the development of a project in Yankeetown, Florida. Yes, Yankeetown. And for the record, I'm a Met fan. Anyway, the developer and the investor submitted six project applications to the Town zoning officer, at the time a Mr. Stanley Moore. It seems Mr. Moore sent a letter to the Town after review stating that the submitted applications were "approved," but Mr. Moor did not sign the certificates of zoning compliance nor did he append his letter with any documentation verifying the alleged "approval." Mr. Moore resigned in the midst of this review (though it does not appear because of this review) and was replaced in his zoning official capacity by Rebecca Jetton, the appellee. Ms. Jetton rebooted the review process and, in so doing, denied five of the six development applications. Investor Isaac challenged the denials before the Town's board of adjustment, which upheld Ms. Jetton's determination. Investor Isaac then sought review in the Florida courts -- the circuit court and, subsequently, the court of appeals -- but remained unsucessful. Ms. Jetton's decision carried the day.

Pretty pedestrian so far, right? Well, here's where it gets interesting. Developer Forum filed a federal lawsuit against Ms. Jetton, individually, alleging that she -- as zoning administrator having denied five of the six zoning compliance applications -- tortiously interfered with developer Forum's contractual relationship with investor Isaac. At the trial stage, the Northern District of Florida granted summary judgment in zoning official Jetton's favor on the notion that she "was jusitifed in reviewing the zoning applications and approving or denying such applications on the basis of her findings."

Developer Forum appealed to the 11th Circuit, arguing that Ms. Jetton's "re-review" of the zoning applications (recall that Mr. Moore had already reviewed and, allegedly, approved the applications) was motivated by "an anti-development political climate" and "qualifies as an intentional and unjustified interference with Forum Architects' relationship with Isaac."

In an unpublished opinion, the federal appellate court affirmed the grant of summary judgment in favor of the zoning official. The appellate court noted that "Moore's monthly report states that Isaac review is still 'in progress, subject to change and a final fee has not been sent [by Isaac or Forum]'" and "it is undisputed that Moore did not sign or date the certificate of zoning compliance." In other words, the appellate court pinned its analysis on the erroneous term "re-review" and stopped short of considering motive.

You can view the decision here.

In any event, this should warm the hearts of zoning officials everywhere. Ok, but it's at least a feather in the cap.

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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