tag: North Carolina Land Use Litigator: May 2011

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Tuesday, May 24, 2011, 8:53 AM

General Assembly Mulls Limitations Period Against Challenges to Validity of Zoning Ordinances


We've blogged in the past here and here about the two-month statutes of repose applicable against challenges to the validity of zoning ordinances, and we presented a paper -- with shameless self-promotion here -- on this same topic to the North Carolina Bar Association Local Government Section and the Zoning, Planning and Land Use Section.

In a nutshell, the currently-existing statutes of repose bar all comers aiming to challenge a zoning ordinance once the ordinance is two months past its date of adoption. Attempts to circumvent this bright line have met limited and varying success, which we addressed to the North Carolina Bar Association. Again, see us here.

With the introduction of House Bill 806, which made its debut some three days prior and which we briefly discussed before our colleagues at the North Carolina Bar Association, the North Carolina General Assembly is looking toward revision of those statutes of repose. At its core, the latest version of the revised statutes of repose would do as follows:

(a) Two Months, At Least for Some. Keep in place a strict two-month window within which to challenge "the validity of any ordinance adopting or amending a zoning map or approving a special use, conditional use, or conditional zoning district rezoning request."

(b) Two Years and Accrual Is Anyone's Guess. But for those actions outlined in (a) above, any other challenge to the "validity of any zoning or unified development ordinance ... shall be brought within two years of the accrual of such action." The General Assembly also attempts to define accrual in House Bill 806, which the current law sets at the date of ordinance adoption: "Such an action accrues when the party bringing such action first has standing to challenge the ordinance."

(c) The "End Around". While a head-on challenge to the validity of a zoning ordinance may be barred by either (a) or (b) above, the revised statute would be clear that these statutes of repose/limitation do not "bar a party in an action involving the enforcement of a zoning or unified development ordinance from raising as a defense to such enforcement action the invalidity of the ordinance."

These are significant changes to a paradigm some originally believed so beneficial that the original 9-month "window" was subsequently shortened to 2 months in duration, with accrual at the date of adoption.

On May 13, 2011, the Senate received House Bill 806 from the House. Then, on May 16, 2011 and after passing its first reading, House Bill 806 was referred to the Senate Committee on State and Local Government.

We'll continue to monitor this 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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Monday, May 23, 2011, 9:23 AM

Local Ordinance Governing Site Plan Applications: "In Effect At Time of Application" or "Subsequently Adopted"

In 2007, the North Carolina Supreme Court held that an applicant to a local government for approval of a site specific development plan is "entitled to have his application reviewed under the ordinances and procedural rules in effect as of the time he filed his application." Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007). The brief facts of Robins are that after his application and in the course of mulling Mr. Robins' application -- which proposed the construction of an asphalt plant "directly across" from an existing cement plant -- the Town passed a moratorium on the approval of any "processing facility involving petroleum products." The moratorium contained the following language, which endeavored to put the brakes on Mr. Robins' application: "This section shall apply to all applications for a permit or approval, including any application which is pending as of the effective date hereof." According to the highest court, however, a North Carolina local government cannot change the rules midstream. Notably, Robins contains no discussion of "vested rights."

This past week, the North Carolina Court of Appeals appears to have departed from that line.

In Wilson v. City of Mebane Board of Adjustment, an applicant first submitted his site plan application in January 2008. At the time of that application, the City employed both a Landscape Standards Ordinance ("LSO") and a Mebane Zoning Ordinance ("MZO"), which were outcome-friendly to the site plan applicant.

In February 2008, after the site plan application had first been filed, the City adopted a Unified Development Ordinance ("UDO"), the application of which would have rendered the site plan illegal. The City eventually approved the site plan in February 2009 pursuant to the MZO and LSO, at which point a building permit was issued. A disgruntled neghbor appealed the issuance of the permit to the Board of Adjustment, alleging that the UDO -- rather than the LSO and the MZO -- applied to the site plan and so the building permit should not have issued. The Board of Adjustment disagreed, upholding the issuance of the building permit. On a proceeding "in the nature of certiorari," the Superior Court affirmed the Board and ruled that the Board committed "no error of law" in determining the site plan applicant "acquired a common law vested right to proceed under the LSO and was entitled to a building permit."

The Court of Appeals reversed the trial court. After thorough analysis with regard to common law vested rights, without reference to Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007), the Court determined that the site plan applicant "did not acquire a common law vested right to proceed with its development plan under the LSO and the MZO." As a result, the Court concluded, the building permit issued pursuant to the site plan approval "was void ab initio."

It's not clear to us at this point whether the Wilson decision marks a departure from the Robins line or whether the former is discernable. Either way, this is an important issue for land use practitioners throughout North Carolina and should be watched with significant interest.

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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