tag: North Carolina Land Use Litigator: February 2012

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Monday, February 13, 2012, 11:56 AM

New Hampshire Supreme Court Rules That Lowering Pond's Water Level Not a Taking of "Constitutional Dimension"

"Eminent domain" is defined as the power vested in a sovereign to take, to authorize the taking of, or to damage, the private property of owners without their consent for a public purpose upon the payment of just compensation. Think, "Your yard will now become a public opera venue".

"Inverse condemnation", which is well-established in North Carolina, allows that a landowner may initiate an action to seek compensation for a taking whenever his property is taken for a public purpose though no declaration of "eminent domain" power has been made by the sovereign. In English, it is a device that forces the sovereign--a local government, e.g.--to exercise its eminent domain power even though it may have no desire to do so. Think, "We didn't turn your yard into an opera venue, but we did turn the space next to your yard into an opera venue and you're now able to enjoy this season's 'The Rake's Progress' for free. Over and over again. Nevertheless, quit bugging us for money and pay for your own move."

The New Hampshire Issue
The plaintiffs, residents of Lyme, New Hampshire, own land abutting a pond that is controlled by the State. Additionally, the pond is part of a local park. The pond's water level is controlled by a beaver dam, into which pipes have been placed to facilitate water level control. Some of those pipes are located on plaintiffs' property, and were constructed without proper permits.

In 2008, the Town of Lyme changed its water release policy allowing the Town to, in effect, lower the pond's water level. The Town did, ultimately, lower the pond's water level.

In 2009, the plaintiffs filed a petition in equity and writ of mandamus alleging that the Town's actions as to the pond's water level violated certain state statutes, the public trust doctrine, the Town's own zoning ordinance, and a conservation easement. Plaintiffs also alleged that the Town trespassed on private property, "created and maintained a private nuisance" and committed a taking.

The trial court granted the Town's and State's motions to dismiss, and an appeal to the New Hampshire Supreme Court followed. Professor Zalkin covers the decision here, as well.

Nuisance Claim
In December 2011, the Supreme Court affirmed the dismissal of the nuisance claim. On the bases that "[m]ere annoyance or inconvenience will not support an action for a nuisance", and that "depreciation in land values 'is ordinarily accorded little weight by the courts in nuisance cases'", the Supreme Court determined that the allegations fell short of demonstrating that "the Town's 'activity [with regard to the pond's water level] substantially and unreasonably interfere[d] with the use and enjoyment of their property'".

Takings Claim
By far the more interesting claim, the Supreme Court nonetheless also affirmed dismissal of plaintiffs' "inverse condemnation" action.

The Supreme Court concluded: "the allegations fail to support a claim that lowering the water level of Post Pond substantially interfered with or deprived the petitioners of the use of their property, in whole or in part".

More pointedly, the Court scolded that "[m]erely alleging that the Town lowered the water level so as to 'compromiss[] [their] access to water' and 'interfere[] with [their] enjoyment of [their] property' is not sufficient to demonstrate that a taking of a constitutional dimension has occurred".


As a procedural sidenote, the plaintiffs attempted to argue that what the courts had interpreted as a petition for a write of mandamus was, in actuality, a claim for declaratory judgment; presumably because the legal standard is lower, but that's not clear. The Supreme Court gave this argument the "back of the hand", however, and construed plaintiffs' submission as a petition.

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 matters in both state and federal venues throughout North Carolina.

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Tuesday, February 7, 2012, 12:49 PM

N.C. Court of Appeals Addresses "Standing" to Challenge Zoning Decisions, and the Manner of Interpreting "Permitted Uses"

The North Carolina Court of Appeals handed down a decision today affecting the "standing" of neighbors to challenge zoning approvals as well as the interpretation of permitted uses spelled out--or not spelled out, as the case may be--in a zoning ordinance.

The facts of Fort, et al. v. County of Cumberland and TigerSwan, Inc. are fairly straightforward.

TigerSwan submitted a site plan to Cumberland County seeking approval for the location of a "training facility" on a piece of land in the County. The land is zoned "A1 Agricultural District" by the County's zoning ordinance.

TigerSwan classified the proposed "training facility" as a "firearms training facility" and the evidence presented in the appeal established that TigerSwan intends to provide "instruction to military, law enforcement, and security personnel in topics such as weapons training, urban warfare, convoy security operations", and "[w]arrior [c]ombatives" in order to "teach, coach, and mentor tomorrow’s soldiers". TigerSwan also intends to provide "courses on topics such as first aid, firearm and hunting safety, and foreign languages for adults and children".

Included in the list of permitted uses for land zoned A1 Agricultural District are "SCHOOLS, public, private, elementary or secondary". The Cumberland County Zoning Administrator approved TigerSwan's site plan by "classifying the business as 'private school'".

Neighboring landowners appealed the Zoning Administrator's decision to the County's Board of Adjustment, citing increased noise, potential stray gunfire and groundwater lead contamination from discharged gun rounds.

The Board of Adjustment voted unanimously that the neighbors had standing to challenge the site plan approval, but the Board could not reach the necessary 4/5 supermajority vote to overrule the Zoning Administrator's approval of the site plan.

The landowners petitioned the Superior Court for a writ of certiorari. As did the Board, the Court agreed with the Board that the neighbors had standing but held that the training facility is a permitted use in the zoning district.

Court of Appeals on "Standing" to Challenge a Zoning Approval.
At issue, the neighbors submitted lay testimony and lay affidavits for purposes of showing "special damages" to meet the "standing" standard articulated in Magnum v. Raleigh Bd. of Adjustment (2008).

The Court of Appeals affirmed the trial court's decision as to standing. Deflecting an argument that "lay testimony" is not proper to determine standing before the Board of Adjustment, the Court made clear that the prohibition against "lay testimony" in N.C.G.S. 160A-393(k)(3) applies only to a Court's review of the substance of the Board's decision, not to any "standing" analysis.

In other words, the Court concludes that lay testimony is "competent" to confer standing for purposes of 160A-393 however it is "incompetent" for purposes of reviewing the substance of a Board decision in the nature of certiorari pursuant to 160A-393.

Whether "Training Facility" Is a Permitted Use.
The Board concluded, and the trial court agreed, that the "training facility" is permitted as a "private school" in the property's zoning district. The Court of Appeals, however, reversed, concluding the "training facility" to be an impermissible use.

Applying the "rules of statutory construction" and looking to the the "spirit and goal" of the zoning ordinance at issue, the Court of Appeals analyzed the "permitted use provision at issue. Notably, the Court stated, "[W]e find instructive this Court's use of the long-standing rule of statutory construction: 'expressio unius est exclusio alterius', meaning the expression of one thing is to the exclusion of another." In other words, depending on the application of this rule, silence could be interpreted as prohibition. Also notably, the Court made no mention of another axiom as to the narrow interpretation of zoning laws as a "derogation of rights".

The Court concluded, "Training Facility is not a permitted use as it is not a public or private, elementary or secondary school".

The Fort, et al. decision marks a more liberal approach to a "standing" analysis for purposes of challenging a zoning decision, though a more strict approach to interpreting a zoning ordinance.

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, February 6, 2012, 3:29 PM

Federal Court Mulls While Village Court Rules Municipal "Tree Law" Unconstitutional, Despite Presumption of Validity

As readers of this blog know, we'll sometimes reach to "other places", outside North Carolina, for some interesting land use law developments. Readers will also know that I, in particular, like to reach back to Rockland County, New York, the place of my birth.

This latest news is fun and educational.

The Village of Montebello is located in the Town of Ramapo, about 45 minutes north of The Bronx, New York. I would describe Montebello as "rustic suburban"; "rural" is aspirational and, frankly, unfair. In any event, rustic suburban Montebello enacted in 2005 a "Tree Law", the only such law in Rockland County. Pursuant to that local "Tree Law", property owners are restricted as to the removal of trees from their property. The "Tree Law" can be found here, specifically at Section 176.

Mr. and Mrs. Novie moved into the Village in 2004. In 2009, Mr. and Mrs. Novie applied for and received permission from the Village authorities, pursuant to the "Tree Law", to remove 3 dead trees and 3 living trees from their property. The Village alleged that the Novies removed 12 trees, and cited the Novies for violating the "Tree Law". In February 2010, the Novies and the Village settled on a $250 fine and assurances of no further violation, such as an assurance may be.

In 2010, Mr. and Mrs. Novie applied to remove 15 trees from their property. The Village did not "expressly 'deny'" the Novies' application, according to the Novies, and they proceeded to cut certain of those 15 trees. The Village ordered the Novies to go before the Planning Board, at which point the Village fined the Novies in excess of $1500 for violating the "Tree Law".

In December 2010, the Novies filed a federal lawsuit against the Village and "its boards and agents" contending the "Tree Law" is unconstitutional. Specifically, the Novies allege:

"[T]aken together, the Village's ordinances constitute an interference with their constitutional right of contract for the purchase of a suburban residence without unreasonable regulation, and constitutes both a regulatory and possessory taking of [Novies'] real property without just compensation through the Village's de facto creation of a conservation easement upon the entirety of [Novies'] back yard. [Novies] also allege unconstitutional selective enforcement."

The federal case is still pending in the S.D.N.Y. In the meantime, however, a Village Justice--hearing an appeal of the fines levied against the Novies--ruled from the bench this past week that the "Tree Law" is unconstitutional. The Village court is quoted as stating, "[Notwithstanding the usual presumption of constitutionality afforded to municipalities, in this case the Village's law was clearly unconstitutional, and 'not a close call'."

You've seen us blog before about the presumptions benefiting a municipal government and their legislative acts; but you also seen us blog about litigants overcoming those presumptions in a variety of cases.

Whatever the case, in the Village of Montebello as concerns the trees, it's Property Owners-1, Municipal Government/Trees-0.

We'll see how the federal court "tree-ts" these issues.

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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