tag: North Carolina Land Use Litigator: June 2011

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Thursday, June 30, 2011, 9:01 AM

South Carolina Enacts New "Point of Sale" Law

Morris Ellison, a prominent lawyer in our newly-christened but long-established Charleston office, has authored a very informative piece on the implications of a new "point of sale" law for individuals or businesses owning commercial real property in South Carolina.

The piece on South Carolina's "point of sale" law, which requires tax reassessment of properties whenever a sale has occurred, can be viewed 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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Friday, June 24, 2011, 10:42 AM

North Carolina Land Use Litigator Added to Albany Law School Professor's "Blogroll"

We've made the permanent "Blogroll" on Albany Law School Professor Patricia Salkin's nationally-recognized and nationally-canvassing land use blog, "Law of the Land." Dean Salkin's biography can be found here, and her wonderfully insightful blog can be accessed here.

As a native New Yorker--Rockland County, if you're curious--I take this personally.

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 Supreme Court Issues Land Use Ruling Bearing On Local Ordinance Interpretation and View of Zoning Restrictions


We've blogged in the past here and here about billboard laws in North Carolina. This post concerns billboards, yes, but it's more about the Supreme Court's most recent edict on land use.

This past week, the Supreme Court of North Carolina handed down a decision in Morris Communications Corp. v. City of Bessemer City Zoning Board of Adjustment. At its core, the Morris Communications matter is about what constitutes "work" under a local zoning ordinance--the term is not defined, but used--to determine whether the advertising company possessed a vested right to relocate its billboard in the City. The City contended "work" to mean "actually something moving on the ground ... [c]onstruction." Morris Communications, on the other hand, insisted work "encompasse[d] the broader range of activities necessary to complete the sign relocation [such as] negotiations with NCDOT and [property owner] Dixon" and "acquisition of a county building permit."

Procedural History
The City's Board of Adjustment agreed with the City, and prohibited the advertising company from relocating its billboard. Upon a petition for certiorari, the trial court affirmed the local board of adjustment. The Court of Appeals, in a divided opinion, affirmed the trial court. In his dissent, Judge Robert C. Hunter believed "that the term 'work' does not necessarily mean that a physical alteration must occur at the site."

Supreme Court's Decision
The Supreme Court reversed. In doing so, the Supreme Court reinforced the "rule of construction" that "zoning ordinances are strictly construed in favor of the free use of real property is appropriately applied."

However, the Supreme Court's decision also appears to depart from or implicitly overrule other principles of land use law. As an initial matter, the Morris Court states: "As with any administrative decision, determining the appropriate standard of review to be applied when reviewing a board of adjustment decision depends on 'the substantive nature of each assignment of error." This moves away from the notion that a board of adjustment decision as to an appeal from a zoning administrator's determination is quasi-judicial in nature, not administrative. Harden v. City of Raleigh, 192 N.C. 395 (1926); Bessemer City Code, Section 4.5.2 ("The consideration and final decision on any application for an appeal, variance, special exception, conditional use permit or interpretation, as provided above, shall be made by the Board of Adjustment only after a quasi-judicial public hearing has been properly advertised and convened.").

Shameless plug: for a brief review of the distinction between these two types of land uses decisions--the third being "legislative"--you can visit our recent article here.

In addition, the Supreme Court agreed with the contention that "the Court of Appeals erred in determining the BOA's interpretation was entitled to deference under de novo review." But NCGS 160A-393(k)(2), to which the Court does not cite in its analysis, details the "Scope of Review": "When the issue before the court is whether the decision‑making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision‑making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate."

I'm an admitted fan of the billboard case--they are always full of real estate, local government and constitutional issues--but there is much here for any land use practitioner to mull. Enjoy.

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, June 13, 2011, 11:56 AM

New Article In Land Use Quarterly, Published By the Zoning, Planning and Land Use Section of the North Carolina Bar Association

We've recently placed the lede article in the latest edition of the Land Use Quarterly, which is published by the Zoning, Planning and Land Use Section of the North Carolina Bar Association. The piece is entitled "The Administrative Land Use Decision As Both Sword and Shield" and can be found here.

The article serves to walk through the higher points of North Carolina caselaw governing administrative land use decisions, including practice pointers for local governments and for the commercially or residentially developing throughout North Carolina.

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, June 8, 2011, 9:12 AM

North Carolina Court of Appeals Upholds Annexation Ordinance, Articulates Standard of Judicial Review

In May 2009, the City of Wilmington adopted an ordinance annexing an area known as Monkey Junction. The original annexation proposal provided for the addition of personnel and "necessary corresponding equipment" to accommodate and facilitate the annexation of new land into the City. Moreover, the City projected $0 in cost for extending services to Monkey Junction in fiscal year 2010, but did project revenues and expenditures for fiscal years 2011 through 2014.

In July 2009, unhappy with the annexation plan, Plaintiffs filed a petition seeking judicial review of the ordinance. Plaintiffs alleged that (1) the City failed to substantially comply with the requirements of NCGS §160A-47 to set forth the method by which the City planned to finance the extension of services to Monkey Junction for the fiscal year the annexation became effective, and (2) that the City failed to comply with NCGS §160A-49 by denying City residents and persons resident or owning property in the annexation area the opportunity to be heard at the public hearing.

The trial court granted the City's motion for summary judgment. Plaintiffs appealed.

In Royal Palms MHP, LLC v. City of Wilmington, the North Carolina Court of Appeals affirmed summary judgment in the City's favor.

In doing so, the Court spelled the judicial manner of reviewing an annexation ordinance. First, the Court noted that NCGS §160A-50(f) provides the paradigm governing judicial review of an annexation ordinance. Relevant provisions provide that review shall be conducted by the court, which may hear oral arguments and receive written briefs, and "may take evidence intended to show (1) That the statutory procedure was not followed, or (2) That the provisions of G.S. 160A-47 were not met, or (3) That the provisions of G.S. 160A-48 have not been met."

The Royal Palms Court then quoted from well-held caselaw regarding the practical application of the above paradigm and the limited breadth of judicial review: "The scope of judicial review of an annexation ordinance adopted by the governing board of a municipality is prescribed and defined by statute.... These statutes limit the court's inquiry to a determination of whether applicable annexation statutes have been substantially complied with. When the record submitted in superior court by the municipal corporation demonstrates, on its face, substantial compliance with the applicable annexation statutes, then the burden falls on the petitioners to show by competent and substantial evidence that the statutory requirements were in fact not met or that procedural irregularities occurred which materially prejudiced their substantive rights. 'In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A–48 ... ?'"

Challenging an annexation ordinance can be complicated work and, like most land use processes, must be addressed swiftly and in a technical manner. The hurdles articulated in Royal Palms reinforce that difficult lesson.

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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