tag: North Carolina Land Use Litigator: January 2012

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Wednesday, January 18, 2012, 5:49 PM

The Clock On Certain North Carolina Development Approvals, Previously "Paused", Has Now Been "Un-Paused"

In November 2010, we blogged here about the North Carolina General Assembly's action to extend the "tolling" or "suspension" of the expiration of certain development approvals in light of the poor economic climate. The logic, as far as we can tell, made sense: certain development approvals are for a time certain, the economic climate is such that much development is on "hold", we'd like these entities, individuals and local governments to have the opportunity--subject to local government agreement (local governments could opt out of the legislation, which some did)--to develop as they had planned once the economy improves.

Well, the extension of this "tolling" period has, itself, expired as of January 1, 2012 and the North Carolina General Assembly has not "re-loaded" the tolling weapon as it did in 2010. Professor David Owens of the North Carolina School of Government summarizes the effect of this pocket veto in his recent blog post.

What this means is, essentially, the tolling by the earlier laws of any development approvals has now ended and the clock has, again, begun to tick on those projects having previously enjoyed a little "free" hiatus. Local governments and developers/the developing, alike, should take note of any projects affected by this non-move and determine next steps.


Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

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Monday, January 9, 2012, 9:55 AM

South Carolina Supreme Court Upholds Zoning Ordinance: Cites Importance of Controlling "Mass Student Congestion"


Appellant owns a piece of property located within the City of Columbia, South Carolina, zoned RD-DP. Pursuant to that zoning, only one "family" may occupy a single dwelling unit. More importantly, the zoning ordinance defines a "family" as: "an individual, or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit."

Columbia, of course, is a college "town". Well, it's much more than a college "town", but it IS the home of the University of South Carolina-Columbia. As such, the property at issue was occupied by four unrelated individuals, all of whom were undergraduate students at the University. According to the Court, the "occupants were friends, shared meals and expenses, and operated as a single household."

Upon inspection, the City's zoning administrator concluded that four unrelated individuals living together violated the applicable zoning ordinance. The Board of Zoning Appeals affirmed.

The occupants appealed to the circuit court, challenging the constitutionality of the zoning ordinance. Following a hearing, the circuit court held that the ordinance is constitutional; it does not violate the occupants' due process rights.

In McMaster v. Columbia Board of Zoning Appeals, the Supreme Court of South Carolina affirmed the circuit court and upheld the ordinance. In doing so, the Court applied the following presumption: "A municipal ordinance is a legislative enactment and is presumed to be constitutional. [E]very presumption will be made in favor of the constitutionality of a legislative enactment; and a statute will be declared unconstitutional when its invalidity appears so clear as to leave no room for reasonable doubt that it violates some provision of the Constitution. [T]he power to declare an ordinance invalid because it is so unreasonable as to impair or destroy constitutional rights is one which will be exercised carefully and cautiously, as it is not the function of the Court to pass upon the wisdom or expediency of municipal ordinances or regulations."

Following the landmark decision in Village of Belle Terre v. Boraas, the Court found a "rational relationship between the Ordinance's definition of 'family' and the legitimate governmental interests the Ordinance seeks to further."

And the "governmental interests" at issue? The Court describes the City's need to "control[] the undesirable qualities associated with 'mass student congestion'." Read: fraternity houses.

There is much deference due a local government's legislative decision. However, will the ordinance survive if applied to a more sensitive matter? There isn't much sympathy, I'd wager, for the chaps of Sigma Chi.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

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Monday, January 2, 2012, 9:16 AM

Charlotte Occupiers Burn U.S. Flag, Charged With "Careless Use of a Fire"

Four men associated with the Occupy Charlotte movement were arrested for burning a U.S. flag in Occupy's uptown-area campsite.

No, flag burning is not illegal. The Supreme Court's 5-4 decision in Texas v. Johnson made this clear: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the experission of an idea simply because society finds the idea itself offensive or disagreeable."

However, the four Occupiers are not to be charged with "burning an American flag." Rather, according to news reports, the men violated a law prohibiting the "careless use of a fire" because they burned the emblem without the use of a fire pit, a misdemeanor. It's not clear from reports as to whether the law violated is part of the North Carolina Fire Code, a local modification thereof or a purely local ordinance. Whatever the case, as we've seen in past cases, it can sometimes be that an ordinance of seemingly general applicability can run into legal obstacles when enforced in seeming conflict with First Amendment rights.

Therein lies the interest to readers of this feed: most any local law can tread in perfectly legal though seemingly complicated waters, whether land use laws or otherwise.

We'll see if free expression groups take this one up.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

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