tag: North Carolina Land Use Litigator: April 2011

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Wednesday, April 20, 2011, 10:49 AM

Paper Presented On the Judicial Treatment of the Two-Month Statutes of Limitations and Repose Applicable Against Challenges to Zoning Ordinances

This past week, I presented a paper entitled "Absolute Bar, a Roll of the Dice, or Somewhere in Between: Divining Application of the Two-Month Statute of Repose" at the joint annual meeting of the Zoning, Planning and Land Use Section and the Government and Public Sector Section of the North Carolina Bar Association. A link to the informational materials, including topical lineup and date of statewide replays of that seminar, can be found here.

I co-authored the piece with Anna Short, a lawyer in our Raleigh office.

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 Whether An Administrative Land Use Decision Is An Order, Requirement, Decision or Determination

The following blurb will appear in a paper I authored for circulation in this month's Land Use Quarterly, a publication of the North Carolina Bar Association's Zoning, Planning and Land Use Section. A link to the Section's homepage can be found here. This particular discussion addresses a recent, unpublished decision of the North Carolina Court of Appeals addressing the finality of an administrative land use "decision" that it is binding, ripe for appeal, and gets running those applicable limitations periods. See N.C.G.S. §§160A-388(b); 153A-345(b).

In S.T. Wooten Corporation v. Bd. of Adjustment of the Town of Zebulon, No. COA10-515 (April 5, 2011), the North Carolina Court of Appeals addressed whether "a specific statement by the Town Planning Director [and Land Use Administrator]—that, pursuant to the Town zoning code, the proposed asphalt operation is a permitted use by right requiring only a general use permit—is an order, decision, or determination of binding force."

In the summer of 2001, the Town’s then-planning director issued a writing “confirming the Town’s extraterritorial jurisdiction … and stating that an asphalt plant was a permitted use,” which no one appealed. The local official echoed this decision three months later in a writing to N.C.D.E.N.R. regarding air quality permitting and the corporate landowner continued to spend money and pursue entitlements.

In May 2009, the Town approved a zoning permit for a temporary asphalt plant, specifying that “no change of use permit was required.”

Then, in October 2009, the Town’s current planning director notified landowner that “the ‘ultimate approval’ of the proposed permanent site for an asphalt manufacturing plant was ‘still to be made by the Board of Commissioners by way of a Special Use Permit.’” Wisely, despite its belief that the 2001 decision could be the only “final” decision, the landowner appealed the 2009 writing to the board of adjustment, which affirmed the current planning director. The trial court upheld the board’s decision in the Town’s favor.

In an unpublished decision, the S.T. Wooten court reversed the trial court and held that the unappealed 2001 decision by the Town planning director “became a binding zoning determination to which the Town must adhere.” The court determined that the 2001 decision is “more similar to the actual ‘decision’ rendered in Meier [v. City of Charlotte] than the ‘advisory’ response of In re Historic Oakwood.” Looking to the Meier framework, the court articulated that (i) the planning director was “empowered” by local law to render the 2001 interpretation, (ii) the landowner “specifically requested” the permitted use interpretation, (iii) the planning director “clearly interpreted” the zoning ordinance on “at least two occasions,” and (iv) the landowner relied on the planning director’s 2001 interpretation.

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, April 12, 2011, 1:46 PM

Unique Event! Join NC Attorney General Roy Cooper & Womble Carlyle for the CLE Symposium for Top NC Legal Counsel on May 5

Womble Carlyle CLE Symposium for Top NC Legal Counsel
A full-day CLE event for in-house counsel
May 5, 2011 -- 8:30-4:30 p.m.
10 CLE Sessions, Lunch and Keynote Address by North Carolina Attorney General Roy Cooper

On May 5, Womble Carlyle will offer CLE sessions on such topics as:


  • political contributions/lobbying

  • data management

  • economic development

  • crisis/catastrophic event planning

  • employee defection/personnel departures

  • outsourcing agreements

  • intellectual property minefields

  • legal project management

  • the China market

  • ‘green’ strategies

Event information

Location: Proximity Hotel
704 Green Valley Road
Greensboro, NC 27408
(800) 379-8200
http://www.proximityhotel.com/
Reference this event when booking overnight stay to receive special rate.

RSVP: There is no fee to attend but seating is limited.
Please RSVP by Friday, April 22nd, using one of the following methods:
phone: (336) 433-5699
email: greensbororsvp@wcsr.com

Click here for information on the ten panels that are being offered to top legal counsel in North Carolina.

Register today!

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