tag: North Carolina Land Use Litigator: March 2011

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Monday, March 28, 2011, 6:12 PM

North Carolina General Assembly Mulling Legislation Governing Location and Maintenance of Electronic Billboards

The North Carolina General Assembly is mulling two bills at the committee phase -- Senate Bill 183 and House Bill 309 -- that would allow outdoor advertisers to replace existing outdoor billboards with electronic ones, would allow placement of those electronic billboards every 1500 feet, and would expand the area from 250 feet to 400 feet around those outdoor billboards that could be cleared of trees or other vegetation. As drafted, the bills would affect interstate highways and federally assisted roads such as U.S. 64 and 70 in Wake County (home of Raleigh) and U.S. 74, N.C. 49 and 521 in Mecklenburg County (home of Charlotte).

According to news outlets, the bills have met mixed reviews.

We'll keep an eye on this evolving legislation.

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 Addresses Challenge to Legislative Zoning Decision Regarding Location of Pawn Shops


In 2006, the Raleigh City Council began considering a zoning ordinance which would serve to restrict pawn shops to certain locations within the City. At that time, pawn shops were permitted in the Business, Thoroughfare, Industrial-1, Industrial-2, Buffer Commercial, Neighborhood Business, and Shopping Center zoning districts.

On 17 February 2009, after conducting 14 meetings to discuss the issue over approximately two and one-half years, the City Council enacted an ordinance restricting pawn shops to the Business, Thoroughfare, Industrial-1, and Industrial-2 zoning districts; in other words, the new zoning ordinance carved "Buffer Commercial, Neighborhood Business, and Shopping Center" zoning districts from the permitted areas. Those pawn shops already in existence were allowed to remain in their current locations.

On 17 April 2009, plaintiffs -- a group of pawn shops and pawn shop owners -- filed an application and order extending time to file a complaint with the trial court, which was granted. On 1 May 2009, plaintiffs filed a complaint for declaratory judgment and a motion for preliminary injunction alleging, inter alia, that the new zoning ordinance was arbitrary and capricious. On 1 March 2010, the City filed a motion for summary judgment, which the trial court granted.

On appeal, plaintiffs primarily argue that the trial court erred in granting summary judgment because there were material issues of fact pertaining to the reasonableness of enacting the ordinance and whether the enactment was arbitrary and capricious. Plaintiffs contend that "the ordinance does nothing that the existing ordinances governing pawn shops did not already accomplish."

In an unpublished decision captioned Beck v. City of Raleigh, the Court of Appeals affirmed the trial court's decision. The Court noted that "allegations that the City Council's decision was unreasonable, or arbitrary and capricious, does not create a factual dispute," which should suffice and should probably end the analysis. Indeed, why not dismiss at the Rule 12(b) stage rather than wait for Rule 56 summary judgment? Nevertheless, citing to Graham v. City of Raleigh, 55 N.C. App. 107, 284 S.E.2d 742 (1981) ("When the action of the legislative body is reviewed by the courts, the latter are not free to substitute their opinion for that of the legislative body so long as there is some plausible basis for the conclusion reached by that body."), the Beck Court continued with a relatively brief but fulsome recitation of facts in the record to demonstrate "a 'plausible basis' for the enactment of the ordinance, and the decision to enact the ordinance was not arbitrary and capricious." In doing so, the Court made clear that "[t]he plausible basis standard does not require a substantial amount of evidence to support the City Council's [legislative] determination."

Lastly, the Court addressed plaintiffs' contention that the zoning ordinance amounted to "exclusionary zoning," which occurs when a municipality impermissibly uses its zoning power to prevent a lawful type of land use from locating within its borders. The Court notes that "North Carolina has not specifically recognized a cause of action for exclusionary zoning" but rather such arguments have been addressed in the State "under the Equal Protection Clause." Finding that plaintiffs' have not made an equal protection argument, the Beck Court affirms summary judgment on this claim, as well. Again, why hadn't the parties addressed this claim at the Rule 12(b) stage?

Municipalities are afforded significant discretion in discharging their legislative functions. And according to Beck, it seems that any municipality should meet contentions to the contrary at the Rule 12(b) stage insofar as allegations of arbitrary and capricious behavior are wholly questions of law. For their part, those challenging municipal zoning and other legislative decisions should take care to plead specifically and with a full enough record before the municipality to meet the inevitable dispositive briefing.

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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Friday, March 4, 2011, 4:22 PM

Town of Chapel Hill Vets the Issue of Food Trucks

When I was practicing in New York, my law firm's office -- which sat across the street from Rockefeller Center and within a short walk (even by New York standards) of popular restaurants like Ben Benson's Steakhouse, 21 Club, Bar Americain, Rue 57, and BLT Steak -- probably sent more of a lunch crowd to food trucks than to brick and mortar buildings. Halal meats, hot dogs, fresh juices, gyros, and even German food fell off the back of rolling lunch counters.

This issue remains hot in the progressive, culturally diverse and increasingly bustling Triangle of North Carolina. We've posted in the past here and here on food trucks, permits, and food truck permits (that last one is for the "word cloud").

It seems Chapel Hill is taking some very serious steps on the food truck topic. The challenge, as always, is balancing what the people want (choice) with what local businesses need (standards and predictability). Is there a happy balance? We don't know. But one of our favorite local papers -- The Independent Weekly -- gives us a very good roundup of where the issue rests in Chapel Hill and where it may go in Raleigh.

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 Senate Votes On Moratorium Over Local Government Annexation

We've blogged in the past about the relatively controversial topic of annexation here and here.

In North Carolina, local governments may incorporate, or annex, tracts of land within the city or county limits regardless of the unincorporated landowner's support or resistance to the movement. Having spent some time working for the federal court in Wyoming, in my younger days, I know something about the core belief in remaining "off the grid" -- whether for tax purposes, philosophical purposes, or otherwise.

Yesterday, the North Carolina Senate voted 38-11 in favor of Senate Bill 27, which will place a moratorium on local government annexation powers until July 1, 2012. According to Senator Andrew Brock, the Bill's sponsor, the purpose of the moratorium is to grant a "time-out" and allow interested parties the opportunity to work out any necessary changes in the State annexation law.

And for those annexation processes already in motion? The Bill is express:

Annexation Process Commenced, But Not Yet Adopted
"If any annexation proceeding has been initiated under those Parts prior to the date this act becomes effective but the annexation ordinance has not yet been adopted, any provision of law requiring any action or notice by the municipality or any person within a certain period of time is tolled during the suspension of authority provided by this section."

Annexation Ordinance Adopted, But Not Yet Effective
"An annexation ordinance adopted under Part 2 or 3 of Article 4A of Chapter 160A of the General Statutes that has an effective date on or after the day this act becomes law shall not become effective until July 1, 2012, unless the municipality by ordinance adopts a new effective date later than July 1, 2012, for the annexation ordinance."

Finally, any litigation pending in State court challenging an annexation is stayed upon enactment of the general law.

Senate Bill 27 will face one more vote in the State Senate before advancing to the House of Representatives. We will keep an eye on this interesting piece of legislation.

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, March 2, 2011, 10:04 AM

North Carolina Court of Appeals Trips Over Incomplete Local Government Record and Finds Factual Issues In Claim for Prescriptive Easement


Yesterday morning, the North Carolina Court of Appeals handed down two decisions of particular interest in the land use context. The first decision, in CRLP Durham, LP v. Durham City/County Bd. of Adjustment, addresses the importance of a full record for judicial review in the nature of certiorari of a site plan decision. The second, styled Deans v. Mansfield, discusses prescriptive easements. We'll digest these in turn.

CRLP Durham, LP v. Durham City/County Bd. of Adjustment
Developer submitted a site plan for the development of its 42.76 acre parcel. Neighboring Landowner took issue with the "proposed use" of the development (apartments, mostly) as well as the developing parcel's claim to a "cross-access connection" without limitation. The Planning Department sided with the Developer, however, and the Neighboring Landowner appealed to the Board of Adjustment. The Board of Adjustment upheld the Planning Department's decision, and Neighboring Landowner sought judicial review of the Board's decision in the nature of certiorari.

Durham County's Planning Director testified before the Board that the "development plan in question" was approved in 2000, under what was then called the Merged Zoning Ordinance ("MZO"). But, the MZO was supplanted in 2006 by Durham's adoption of a Unified Development Ordinance ("UDO"). Amidst this confusion, the Board based its decision on the application of the UDO "presumably because it assumed ... that the UDO completely 'supplanted' the MZO in 2006." But this is not clear.

This confusion left the Court of Appeals in a state. Which ordinance--the MZO or the UDO--was in effect at the time of the Board of Adjustment's decision? Turns out the record certified from the local government was not complete enough for the Court to render a decision. We quote from the opinion:

"From the record before us, we cannot, without engaging in speculation, determine whether the MZO or the UDO is the applicable municipal ordinance as petitioner failed to include in the record on appeal any portion of the UDO containing language stating when or if the UDO “superseded” the MZO or language from the UDO explaining its applicability to development plans approved under the MZO. As the record before us does not permit a proper examination of the issues before us, we must dismiss petitioner’s appeal."

The full decision can be found here. The lesson is that the practitioner should think as much about his record as about his brilliant legal contentions. The devil, after all, is in the details.

Deans v. Mansfield
Neighboring Landowners claimed a prescriptive easement through a subdivision to access a main road. Neighboring Landowners sued in 2002, and, upon settlement, Subdivision Developer executed a restrictive covenant providing for ingress and egress over the dirt road for the enjoyment of Neighboring Landowners.

In 2006, Subdivision Developer sent the Neighboring Landowners a letter asking them to voluntarily cease from using the "existing soil road" for ingress and egress. It seems Neighboring Landowners refused. Then, in 2009, Neighboring Landowners filed suit against Subdivision Landowners claiming a prescriptive easement. This appears to be a repeat of the lawsuit filed and settled back in 2002.

The Court walked through the necessary elements of proving a "prescriptive easement": (1) adverse use, meaning without the landowner's permission, (2) that is open and notorious such that the true owner of the land may have notice of the adverse use, (3) that is continuously used for more than twenty years, and (4) the way used must be "confined to a definite and specified line." The Court also considered defenses to the claim of a "prescriptive easement," including (1) the issue of whether Neighboring Landowners may "tack" onto the time period of prior owners for satisfying the twenty-year standard and (2) the issue of whether Neighboring Landowners abandoned the easement.

Upon thorough analysis, the Court found factual issues aplenty and reversed the grant of summary judgment in favor of the Subdivision Landowners. This is hardly surprising in light of the factually intensive standards at play in proving, or disproving, easements. The decision is available 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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