tag: North Carolina Land Use Litigator: August 2012

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Thursday, August 30, 2012, 4:00 PM

Federal Appeals Court Upholds Bribery and Fraud Convictions of Municipal Actors

An interesting, albeit rare, criminal case in the land use context comes to our attention by way of Professor Patricia Salkin's Law of the Land blog

The United States Court of Appeals for the 11th Circuit upheld the criminal convictions of a zoning official and two County commissioners from Dixie County, Florida.  Specifically, the zoning official was convicted of fraudulently obtaining property from a local government receiving federal funds, and the zoning official and the two county commissioners were convicted of conspiring to commit fraud involving an organization receiving federal funds, accepting or agreeing to accept a bribe and making a false statement to the FBI. 

The opinion can be found here.

But we aren't necessarily interested in the content of the judicial opinion.  Instead, we agree with the admonition at the top of Professor Salkin's post, the lesson to all in the land use space arising this unfortunate tale:
"While this is a criminal law case, it is included on Law of Land to point out how unethical behavior [in the land use context] may also rise to criminal activity."
You can read Professor Salkin's post about the decision here.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate and Land Use 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.

Wednesday, August 29, 2012, 11:24 AM

Religious and/or Political Advertisements Run Afoul of Transit Company's Advertising Policy

Chapel Hill Transit is the second largest transit system in North Carolina, serving as the public transportation provider for over 160 square miles of Chapel Hill, Carrboro and the University of North Carolina at Chapel Hill.  With that coverage, Chapel Hill Transit enjoys more than 7,000,000 annual passenger rides.

In light of those 7,000,000 annual passenger rides, a bus seems like a great place for captive advertising.  Not surprisingly, then, a religious group recently "purchased" the following advertisement.  The ad appeared briefly this month in a significant number of buses until its removal due, at least in part, to several rider complaints:
"Join with us. Build peace with justice and equality. End U.S. military aid to Israel."
According to reports, the Town removed the signs because they violated the Transit policy governing advertising.  Specifically, it's reported that the placards may have been removed because (1) the advertisements do not contain the church's contact information, which is required of advertisements of a religious or political nature and/or (2) the advertisements are false, misleading or deceptive or intended to be disparaging or disrespectful to persons.

Interestingly, the policy is clear that, "By allowing limited types of advertising on or within its buses and or/bus shelters and providing limited space at no charge pursuant to this policy, Chapel Hill Transit does not intend to create a public forum for public discourse or expressive activity, or to provide a forum for all types of advertisements."

A copy of the advertising policy can be found here.

We'll be interested to see how the religious and political communities respond.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate and Land Use 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.

Tuesday, August 28, 2012, 10:54 AM

With a Bang: North Carolina County Accused of Attempting "Gun Control" Through Amendments to Noise Ordinance

The governing board of a North Carolina county will vote on September 6, 2012 over the adoption of a proposed amendment to that county's "Loud and Disturbing Noise" ordinance (scroll to page 68 of the linked PDF). 

The proposed amendment defines "unreasonably loud" and "disturbing" for purposes of enforcement, as well as providing a list of "non-exclusive factors" incident to a determination of noise suitability including "time of day", "proximity to residential structures" and whether the noise is "intermittent or constant".

The fact of a "Loud and Disturbing Noise" ordinance is not, in itself, drawing the [f]ire of some folks.  What's instead causing the, um, ruckus is the fact that the propsoed amendment adds the following language regarding the discharge of guns:

 (d) The following acts, among others, are declared to be loud and disturbing noises in violation of this article, but such enumeration shall not be deemed to be exclusive:

***

(6) The discharge of firearms in such a manner as to create an unreasonably loud or disturbing noise, as described in this section.  It shall not be a defense to a violation of this section that the discharge is in compliance with Section 16-3.
According to some critics of the ordinance, the County is attempting to impose gun control through the clever but not-so-veiled artifice of land use laws.  We're not sure about that accusation but we do think it's an interesting issue.



And you thought land use law was boring.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate and Land Use 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.

Thursday, August 23, 2012, 12:02 PM

Lows of the High Line: When Green Space Threatens to Become Unpopular

Every now and again, we at the Land Use Litigator step away from the legal and venture into the anecdotal.  Today's story comes to us from New York City, a place of much land use and even more drama.

The "High Line" is a public park built on an historic freight rail line elevated above the streets of Manhattan.  The High Line is located on Manhattan's West Side, between 10th & 11th Avenues, running from Gansevoort Street in the Meatpacking District to West 34th Street. It is owned by the City of New York, and maintained and operated by a non-profit conservancy working with the New York City Department of Parks & Recreation.



The High Line is, in other words, the re-purposing of private industrial space into public green space.  Sounds great, (lowercase "d") democratic, and very Generation Y, right? 

Well, according to this Op-Ed from the New York Times, the park may not be having the monolithically positive impact it is (allegedly) intended to have.  Consider the following excerpt from the Times piece:

"But the problem isn’t just the crowds. It’s that the park, which will eventually snake through more than 20 blocks, is destroying neighborhoods as it grows. And it’s doing so by design. While the park began as a grass-roots endeavor — albeit a well-heeled one — it quickly became a tool for the Bloomberg administration’s creation of a new, upscale, corporatized stretch along the West Side. As socialites and celebrities championed the designer park during its early planning stages, whipping community support into a heady froth, the city rezoned West Chelsea for luxury development in 2005.  The neighborhood has since been completely remade. Old buildings fell and mountain ranges of glassy towers with names like High Line 519 and HL23 started to swell — along with prices....  Between 2003 and 2011, property values near the park increased 103 percent.  This is good news for the elite economy but not for many who have lived and worked in the area for decades. It’s easy to forget that until very recently, even with the proliferation of art galleries near the West Side Highway, West Chelsea was a mix of working-class residents and light-industrial businesses.  But the High Line is washing all that away."

It's easy to wade in and become swept away by the enthusiasm for municipal green space.  Just because it's easy, though doesn't make it wrong.  That said, it's interesting to have the opportunity -- as we do in NYC -- to look down the road at these decisions and see just how unpopular the popular can become. 

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate and Land Use 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.

Tuesday, August 21, 2012, 6:59 PM

A Game of Municipal Chicken: City Lacks Standing to Challenge County's Re-Zoning of Property

In this battle between a City and a County over the location of a chicken processing plant, a battle about which we've previously blogged, the County looks to have won the second round.

As background for this lawsuit, the County re-zoned certain property "General Industrial" for the not-so-secret purpose of locating a chicken processing plant as part of an economic development effort.  The re-zoning, predictably, is a necessary condition for the location of the processing plant on the "subject property". 

The City and five landowners, each of whom object to the location of a processing plant, filed a lawsuit challenging the County's re-zoning of the "subject property". 

The trial court dismissed the City's challenge to the re-zoning on the basis that the City lacked standing, and the North Carolina Court of Appeals affirmed dismissal of the City's complaint.  It is this specific issue that we're interested with for purposes of this post. 

What is "standing"?  Standing is a plaintiff's ability to maintain a lawsuit.  The Court, in other words, determined that the City did not have the ability to challenge the County's re-zoning of the "subject property". 

But why didn't the City have the ability, or the "standing", to challenge the County's re-zoning of the property?  Well, for the Court, the answer can be digested as follows:

First, the City's land is just too damn far away from the re-zoned "subject property" to confer standing.  Citing the very case the City attempts to use in its favor -- Taylor v. City of Raleigh, 290 N.C. 608 (1976) -- the Court notes that ownership of property in "proximity to the re-zoned property" is determinative as to standing.  Standing to challenge a re-zoning is unique.

Second, the damage has already been done.  The Court determined that the issue about which the City is concerned -- the "injury" the City claims it will suffer -- is "not made possible by the zoning amendment [the City] seeks to reverse" and, thus, will not be "redressed" or remedied by an undoing of the re-zoning.  The Court concluded that the environmental issues so concerning to the City have nothing to do with the re-zoned "subject property" (and, thus, a chicken processing plant); rather those environmental issues will exist by virtue of other land in the County that is not governed by the zoning decisions challenged in this lawsuit (the plant's planned spray fields).  In short, the Court is convinced that the City's real beef is with the spray fields, which are permitted as of right on other land, and not with the processing plant for which the "subject property" has been re-zoned.  It might be said that the City should be challenging the car's tailpipe rather than challenging the car's engine.

Third, the damage has been done, sure, but it's not really damage.  The Court determined that the injury the City claims it will suffer is "conjectural" or "hypothetical".  Specifically, the Court notes that any wastewater produced by a processing plant locating on the "subject property" would "have to meet state and federal effluent standards" and, if those standards were violated, "a separate action for violations of environmental regulations may provide the city with the proper remedy".  In other words, it may be that environmental concerns are not be the proper basis upon which to mount a challenge to a re-zoning in the presence of other legal protections.   

It is this third point that, to me, is the most interesting.  How does this jive with the two-month statute of repose applicable to re-zoning challenges?  Will only the less-serious environmental harms suffice to confer standing for re-zoning challenges while the more serious harms (those guarded against by significant local, state and/or federal regulation) do not suffice?  We'll see.



Mike Thelen is a lawyer in Womble, Carlyle's Real Estate and Land Use 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.

Monday, August 13, 2012, 2:02 PM

Your Ad Here: Zoning Condition May Not Be the Taking a Billboard Owner Believes It to Be

For my money, billboard cases are some of the most interesting in the land use context.  They can bring with them free speech issues, eminent domain issues, zoning issues, lease issues and environmental issues, all in the same story.  It's true.  It's a northeastern diner menu of legal problems--lobster, pancakes, souflaki, monte cristo sandwiches, beef wellington.  You name it.

In a recent billboard case decided by the North Carolina Court of Appeals, the Court confronted a mix of lease, eminent domain and zoning issues.

The Facts
For some 45 years, until its removal in 2008, a billboard stood on a main thoroughfare in the City of Wake Forest, North Carolina.  The content of the billboard is not at issue.

In 1978, Plaintiff acquired the billboard and leased the land on which the billboard stood pursuant to a lease agreement.  In 1996, The Mason Group acquired the land on which the billboard stood.

In 2005, Plaintiff contacted The Mason Group about purchasing a permanent easement on the land "to 'insure the life of [its] business by protecting [its] signs, while at the same time providing a windfall lump sum payment to [The Mason Group]."  About a year later, in 2006, The Mason Group responded to the easement offer explaining that it had already entered into a purchase contract with Regency Realty Group, Inc. for the land, "and thus had no authority to negotiate a permanent easement agreement."  In that letter to Plaintiff, The Mason Group responded that the billboard "will be required to be removed by the City of Wake Forest as a condition of site plan approval for a shopping center."

Before acquiring the property from The Mason Group, Regency applied for and received a special use permit from the City to build a shopping center on the land.  One condition of the special use permit:  "The existing billboard is to be removed as soon as possible with no new lease or extension allowed."  This is the key.  Regency notified Plaintiff of this condition.  Regency acquired the property in January 2008.

On September 15, 2008, Plaintiff removed the billboard.

The Lawsuit
Plaintiff brought suit against the City alleging (1) it was entitled to just compensation pursuant to N.C.G.S. 136-131.1 for the removal of its sign pursuant to the special use permit and (2) the City had effected a taking without just compensation entitling Plainitff to damages pursuant to 42 U.S.C. 1983.

The Trial Court Decision
The trial court awarded summary judgment to Plaintiff, concluding that the City " had 'caused' the removal of Plaintiff's billboard by conditioning the [special use permit] upon the billboard's removal" and that the City had "effected a taking without just compensation by denying Plaintiff the economically viable use of its property."

The Appellate Court Decision
On appeal, the Court reversed the trial court's award of summary judgment. 

The Court concluded that competing affidavits revealed an issue of fact as to whether the condition included within the special use permit was the sole reason the billboard went the way of Tiger Woods' hopes at 19 major golf championships.  It seems Regency, the new landowner, gave the City an affidavit stating that Regency "had no intention of entering into a long-term lease with [Plainitff] after the lease with The Mason Group was to expire," which was enough to meet Plaintiff's affidavit testimony that the permit condition was "the only reason" Plaintiff couldn't obtain a new lease or an extension of its existing lease.

Yep, it seems the new landowner threw the City its support in the City's efforts to fend Plaintiff's challenge.  Judicial opinions, of course, do not always reveal the true color of the story.  But, I bet this is a pretty good one in terms of the dealings between the City, Plaintiff and Regency. 

In any event, the Court ruled, the "cause" of Plainitff's heartburn and injury is for the jury to decide.  

See?  Leases, eminent domain, zoning laws, civil rights, behind-the-scenes drama.  That makes for good reading.  Well, it does for me, anyway.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate and Land Use 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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