tag: North Carolina Land Use Litigator: July 2013

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Wednesday, July 31, 2013, 10:02 AM

Long on Twitter and LinkedIn, the North Carolina Land Use Litigator Is Now On Facebook

We've been accessible on LinkedIn (through Mike's profile) and Twitter (@nclanduselaw) for some time.

We're now available on Facebook, if that's your desired medium for enjoying our posts.  You can access us, and then "Like" us, here.

"Next up, we'll live feed in DOS."

Thanks for being a part of the North Carolina Land Use Litigator's growing success.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and "like" us on Facebook here.

Tuesday, July 30, 2013, 11:42 AM

Federal Agency Approaches, or Lands On, Charlotte Airport Kerfuffle

We blogged last week about the "battle" between the City and State over control and ownership of the Charlotte Douglas International Airport.  That prior post is available here.


The FAA has now sent a letter, viewable here, both to the North Carolina Attorney General and the Charlotte City Manager weighing in on the dispute.  The letter states that the FAA has "several concerns about [the new law], including whether it conforms to Federal law" and confesses confusion about, essentially, the responsible party for the airport--the City or the newly-created Airport Authority.  The letter then requests that the Attorney General "provide a legal opinion opining on who is the airport sponsor within the meaning of [the new law], and the entity empowered to enter into a Federal grant agreement under the laws of the State of North Carolina."

The letter concludes with the following, um, guidance to the Attorney General:
Generally speaking, legislation establishing entities responsible for airport operations must be consistent with applicable Federal law under the doctrine of Federal pre-emption where applicable.  As the parties move forward with constructing the governance and administration function of the airport operator, FAA cautions parties to ensure all directives identified in the legislation, whether specifically, inferred, or assumed, shall be executed by the airport operator in accordance with Federal statute, law, regulations, and policy.
We call it "um, guidance" because it seems to us like the FAA is telling the Attorney General that there is no real way as the new law is currently written that it will survive legal challenge.  And, while the Superior Court issued an injunction expressly doubting the "likelihood of success" by the City on the pre-emption issue, the injunction viewable here, the FAA has now breathed new life into that argument.  The FAA's guidance may, in fact, be the City's best hope of defeating the new law, and it may be that we'll see the City's next lawsuit (assuming it files a new suit) in Federal court.

We'll see.  All we know is that the FAA's letter is dated July 29, and the General Assembly is now done such that modification will have to wait.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Friday, July 26, 2013, 11:38 AM

Fights That Matter: Local Government and State Tangle Over Ownership and Control of an Airport

A very interesting battle is going on in the western part of the State between a local government and the powers in Raleigh over the ownership and control of the Charlotte Douglas International Airport, reportedly the 6th-busiest airport (traffic)/23rd-busiest airport (passengers) in the world.

Some view the fight as between the reach of local governments and the reach of the State, others view the fight as between political parties, some view it as between a pro-government and pro-public/private partnership camps, while still others view it as between business interests.

"It's a 13 member commission comprised of various individuals appointed by myriad government bodies and other things.  But that's not important right now."

The story is as follows.  

The First Law.  
In mid-July, the General Assembly adopted Session Law 2013-272, which created the Charlotte Douglas International Airport Authority, defined by the Session Law to be "a body corporate and politic, having the powers, authority, and  jurisdiction hereinafter enumerated and such other and additional powers and authority as shall be conferred upon it by future acts of the General Assembly".  The Authority would consist of 11 members appointed from various "pools".

But the creation of the Authority is not, in itself, what ruffled feathers.  Session Law 2013-272 transferred from the City of Charlotte to the newly-created Charlotte Douglas International Airport Authority "[a]ll right, title, and interest of the City of Charlotte in and to the Airport Property, Airport Facilities, and Charlotte Douglas International Airport ... as a matter of law when this act becomes law."

This transfer of ownership upset the City.   

The Lawsuit.  
On July 13, five days before the Session Law took effect, the City of Charlotte filed a lawsuit in State court against the State and the Authority (the latter did not yet exist, technically) to restrain the enforcement of the Act, including (or, specifically) the transfer of the Airport's ownership to the Authority.  

The Lawsuit claimed four bases for stopping the transfer of ownership: (1) the Session Law is a local act prohibited by the North Carolina Constitution, (2) the transfer of ownership will trigger a default of municipal bonds used to fund the Airport, (3) the Session Law is inconsistent with federal law governing the "certification and licensing of airports", and (4) the transfer of ownership is not a valid exercise of the eminent domain powers, and, if it is a valid exercise, it is one without the payment of just compensation.

The Temporary Restraining Order
On July 18, the Court entered a Temporary Restraining Order in the City's favor and against the State and the Authority preventing the State "from taking any action to implement or enforce the Act" and preventing the transfer of the Airport's ownership.  The Court extended the Order through July 29, at which point it would hear the parties in full on a preliminary injunction.  

So, everyone is paused until we can determine whether this should be paused.

Notably, in issuing the Order, the Court scribbled out the City's likelihood of success on points (2) and (3) from above, signaling that the Court is, at first blush, more convinced of the City's arguments (1) and (4).

The Second Law.  
On  July 25, in response to the lawsuit and the TRO, the State Senate substituted Senate Bill 380, which had been introduced back in March to address sanitary landfill fees, with a Second Bill that would repeal the First Bill and ostensibly remove the need for (or at least moot) the lawsuit. We don't know enough about the rules of the General Assembly to know why a bill was substituted in entirety, rather than a new bill introduced, but we can guess:  speed.

New Senate Bill 380, substituted in entirely on July 25 for Old Senate Bill 380, was passed into law on July 26 (yes, today) as Session Law 2013-358.

According to reports, the Second Law -- which repeals the First Law -- is different in that (1) the airport would stay a city asset, and (2) bonds would stay with the city too, avoiding a switch mandated by the authority bill that the city highlighted as a problem when it filed a lawsuit.  But the Second Law still takes away control of the Airport from the City, in that operations and finances would be run by a new 13-member commission.  

What's Next?
According to reports, the City is not satisfied with the Second Law, either.  The lawsuit will need to be amended, but we can be sure the fight is not over.  What we can glean is that neither side really wants to litigate.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Thursday, July 25, 2013, 10:51 AM

North Carolina Land Use Litigator to Present On Litigating Substantive Due Process Claims

The authors of and administrators behind the North Carolina Land Use Litigator -- John Cooke and Mike Thelen -- will be speaking next week at the summer conference of the North Carolina Association of Municipal Attorneys.  The conference will take place August 2-3 in Asheville, North Carolina, at the elegant Biltmore Estate.  The Estate was designed in part by Frederick Law Olmstead (or was it Joe Peppitone?), and remains the largest privately-owned house in the United States.  The Estate is still larger than that one from The Queen of Versailles, though there are fewer media rooms and "things from Rome" in the former.

At the conference, John and Mike will present a paper on "Defending Substantive Due Process Claims".  Trust us, there is enough to discuss in this topic to keep the interest of about anyone.


Jean-Francois Raffaelli's "George Clemenceau Giving a Speech at the Cirque Fernando"
(oil on canvas, 1883)

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Wednesday, July 24, 2013, 10:45 AM

A Two-fer: Lawsuits Over Damage to Coastal Wetlands and Damage by Local Government Prayer

We're blogging today about two distinct issues, one environmental and one constitutional.  The former -- the environmental -- concerns a lawsuit filed in Louisiana state court against energy companies over the long-term damage to coastal wetlands.  We, in North Carolina, have coastal wetlands of our own, so this is of interest.  The latter -- the constitutional issue -- concerns a lawsuit over prayer at municipal government meetings in North Carolina.

The Environmental Issue.
The New York Times is reporting that an organization called the Southeast Louisiana Flood Protection Authority-East will file a lawsuit this week in Louisiana state court against a number of energy companies over damage caused by "cutting a network of thousands of miles of oil and gas access and pipeline canals through the wetlands" causing vegetation death, soil erosion and the bleeding of brackish water into fresh water. According to the Times:
The suit argues that the environmental buffer serves as an essential protection against storms by softening the blow of any incoming hurricane before it gets to the line of levees and flood walls and gates and pumps maintained and operated by the board. Losing the "natural first line of defense against flooding” means that the levee system is “left bare and ill-suited to safeguard south Louisiana."...  The lawsuit relies on well-established legal theories of negligence and nuisance, as well as elements of law more particular to the Louisiana Civil Code, including "Servitude of Drain," which relates to changing patterns of water flow and drainage across the Bayou State. 
The plaintiff seeks damages to repair the damage caused by the alleged actions, though proving causation will likely be quite difficult for the plaintiffs.  Nevertheless, with recent concerns over energy company access along the Gulf Coast, including a recent "blaze" atop a Gulf rig, the lawsuit may prove to be well-timed for the plaintiffs.  Environmental issues are never simple, and rarely clear.

The Constitutional Issue.
A federal judge issued a preliminary injunction this week ordering the Rowan County Board of Commissioners to stop delivering "sectarian prayers" before public meetings "until this Court so orders otherwise".

Last year, the ACLU of North Carolina legal foundation sent a cease and desist letter to the Board of Commissioners arguing that a 2011 ruling by a federal appellate court in Joyner v. Forsyth County Board of Commissioners, stated that if local boards decide to open meetings with invocations, the prayers may not indicate a preference for one faith.  The U.S. Supreme Court declined to review that ruling, which some local governments in North Carolina took as the High Court's "endorsement" of its conclusion.

In March, the ACLU filed a lawsuit against the Board of Commissioners in behalf of three County citizens, seeking an order preventing the Board from engaging in "sectarian prayer" at the start of meetings.  The lawsuit accuses the Board of violating the First Amendment by routinely praying "to Jesus Christ", commingling church and state.  

In response to the lawsuit, the prayer battle went even, um, "higher", when a private group expressed its support through the face of a billboard.


Having achieved its ultimate relief, the remaining question is whether the Board appeals the injunction or chooses to abide it.  However the U.S. Supreme Court recently granted certiorari on this issue -- prayer at government meetings -- which may provide the County with a way out of pressing this lawsuit. 

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Tuesday, July 23, 2013, 12:06 PM

Oregon Court Upholds Vineyard's Conditional Use Permit Despite the "Wine" of Others

North Carolina produces in excess of 1 million gallons of wine per year, placing it in the top 10 of American States by that metric.  In fact, according to the North Carolina Department of Commerce, there are 100 wineries and 400 vineyard within the State.  

Why do these facts matter?  Because today's post is about how land use law can impact a winery.  

This post comes to the North Carolina Land Use Litigator by way of the always-interesting Professor Patricia Salkin, whom we follow on her own blog and on whose esteemed "blogroll" the Land Use Litigator appears.

Stoller Vineyards is winery located on an old turkey farm in Oregon.  The Winery is zoned for “exclusive farm use”.  Stoller applied for a conditional use permit for “commercial activities that are in conjunction with farm use.”  Yamhill County issued the conditional use permit, allowing Stoller to host up to 44 wine marketing events per year in a proposed new tasting room.  The permit contained various conditions designed to ensure that Stoller’s business remained focused on growing grapes and making wine and that it did not impact the surrounding community.

Petitioners -- the Oregon Department of Agriculture and the Friends of Yamhill County, a conservation group -- appealed the County’s issuance of the permit to the Land Use Board of Appeals. The petitioners argued that the proposed wine marketing events were not connected to farm use. The Board of Appeals rejected this argument and upheld the permit.  

On appeal to the Court of Appeals of Oregon, the petitioners argued that the Board's decision violated the limits of the Oregon law in two ways: (1) the approved commercial activity -- in particular, the events venue and commercial food service facility -- was a new use that should not be considered to be in “conjunction with farm use”; and (2) even if it is "in conjunction with farm use", the level of activity allowed on the Winery under the conditional use permit exceeds the incidental limitation imposed on such activity under the applicable law.

The Oregon Court of Appeals rejected petitioner’s arguments.  First, the Court concluded that “incidental activities” like an events venue and food facility are permitted as farm-use related commercial activities “to the extent that they are secondary to and support the wine processing activities of the winery.”  The Court agreed with the Board that the 44 approved annual events and food facility came to close to creating a scenario in which the "incidental and secondary" activities might overtake the primary activity (the processing and selling of wine), however the Court held that Stoller’s conditional use permit application nonetheless did not fall outside the scope of the State law.

Second, the Court concluded that the activities allowed by Stoller's conditional use permit would “reinforce the profitability of operations and the likelihood that agriculture use of the land would continue, thus promoting the goal of preserving farm land,” consistent with the applicable State law. 

The case is Friends of Yamhill County v. Stoller Vineyards, Inc. (Or. App. March 19, 2013), available here.

The Red Newt Cellars in Watkins Glen, New York.  Try the Gewürztraminer.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Friday, July 19, 2013, 1:23 PM

Appellate Court Speaks on Sovereign Immunity and the "Nature" of the Plaintiff's Involvement with the Government

A case decided last month by the Court of Appeals has something interesting to say about governmental immunity.  The case is Bynum v. Wilson County, No. 08 CVS 2443 (June 18, 2013), available here.

Facts
Mr. Bynum visited a multi-purpose Wilson County office building to pay his water bill.  While he was leaving the Wilson County office building, after paying his water bill, Mr. Bynum fell and "sustained serious injuries".  Mr. Bynum sued the County and the entity from which the County leased the office building.

We will skip the procedural issues and other analytical items in this discussion, and will instead focus only on the appellate court's review of the trial court's denial of the County's summary judgment motion on sovereign immunity grounds.

Analysis
The Court begins its analysis with setting out the "determinative factor" in an immunity analysis, which the Court finds to be the "nature of the plaintiff's involvement" with the government.  The Court writes:  "[T]he determinative factor to be considered in ascertaining whether a  particular injury resulted from a governmental or proprietary  activity is the nature of the plaintiff’s involvement with the  governmental unit and the reason for the plaintiff’s presence at a governmental facility rather than the underlying tasks which the governmental entity allegedly performed in a negligent manner."

But what does this mean, the "nature of the plaintiff's involvement" with the government?

According to the Court, in an immunity context, the "nature of the plaintiff's involvement" means as follows: "[W]here a plaintiff is  injured as a result of his or her involvement with a governmental function, such as transacting business at the register of deeds office or borrowing a book from a public library, the relevant governmental entity is immune from suit. On the other hand, if a plaintiff is injured as a result of his or her involvement with a proprietary function, such as attending an event at a governmentally owned facility, then governmental immunity is not available."

This is an easy test to follow where local government buildings are single-purpose, to the extent that certain purposes are governmental (register of deeds or courthouse) while other purposes are proprietary (water).  But, as in Wilson County, multi-purpose office buildings are more often the norm and especially so in rural or non-urban areas.

Applying the Court's analysis from Bynum, in the event of multi-purpose local government office buildings, two different plaintiffs injured at the same time, by the same hazard and at the same building though there for different purposes -- one to record a deed, the other to pay a water bill -- will encounter different legal results in a negligence suit:  the "deed recorder" will encounter immunity, while the "water bill payer" will not encounter immunity.  The Court understood this outcome:  "We do, however, recognize that our reading of the applicable law raises the prospect for potentially troubling results, such as making liability for falls like that suffered by Mr. Bynum contingent upon whether a plaintiff injured in a fall at a county-owned office building used for multiple purposes was on the premises for the purpose of paying a bill for water service or seeking the issuance of a building permit."

But, alas, the Court was more concerned with blanket immunity, where the presence of any governmental activity will "trump" an otherwise proprietary operation.  Again, back to the Court: "[A]n individual injured in a fall while paying a water bill would be able to pursue a damage recovery in the event that the governmentally owned water system was operated from a separate building while having no right to pursue such a recovery in the event that the water system was operated from a building that contained other offices performing clearly governmental functions."

Here, the analytical tie went to the private litigant.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Thursday, July 18, 2013, 11:07 AM

"Code Issues" and the Lone Escalators of Wyoming

After some good legal discussion over the past few weeks, we thought we'd spend this morning talking about the irreverent in the land use arena.  It is Thursday, after all, which means we are heading downhill toward a mid-July weekend.  Is there a better time for the light and irreverent?

There are two escalators in the entire State of Wyoming.  Two.  And both are located in bank branches in Casper, Wyoming.  Well, actually there are four escalators -- in that there are two pairs of stairs, each pair with an "up" and a "down" -- but calling that "four" is like saying there are two faucets in a washroom, one for "hot" and one for "cold".  Still, remember, this is a State with dozens of distinct mountain ranges and a 9,000-foot difference in elevation between its lowest and highest points.  Maybe there are thousands of elevators, instead.  

Moreover, why are the only two escalators stationed in banks?  Is that fact weirder than the fact of only two escalators in the entire State?  These facts may tie for which is weirder.

Why does this matter?  On a personal level, it matters because the Litigator lived in Cheyenne for a year after law school, clerking in the federal courts.  On a professional level, it matters because it's reported in The Atlantic that there may be building code and permitting issues associated with the dearth of escalators. Consider this explanation:
"There are code issues involved with escalators, which make them somewhat less popular," [Dick] Mason [of the Cheyenne City Building Office] noted. "The code does not want openings between adjacent floors that are unprotected." Say there's a fire: stairways offer people enclosed ways to escape buildings, while escalators generally don't. If you're an engineer thinking about the best ways to move people between floors, escalators often lose the contest. Plus, escalators tend to be more expensive to install and maintain than their counterparts.
This makes sense to us from both a business and a legal standpoint.  The development of property and construction of buildings may not be an exact science, but we clearly can see that almost every detail has a reason behind it.  Think about this the next time you consider how important good guidance can be on a large-scale project.  



Next week, maybe we'll explore how many "moving sidewalks" there are in Vermont.  Or in a Dan Hartman album.  The answer to the latter, is one.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Wednesday, July 17, 2013, 3:47 PM

When Does the Relocation of a Public Hearing on a Development Approval Require Additional Notice?

The Theme.
As Justice Brandeis once said, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."  Professor Frayda Bluestein of the UNC School of Government gives good analyses here, here and here of North Carolina legal expectations for public meetings and public hearings in the local government context.

The Question Posed.
Does the relocation of a noticed public hearing to an entirely different, non-government and non-noticed location violate applicable open meetings laws?  It was contended as much in New York, though an appellate court would not bite on the complainant's argument.  

In Frigault v. Town of Richfield Planning Board (May 22, 2013), available here, the New York appellate court determined that moving a public meeting regarding a special use permit due to attendance overflow and limited space in the "noticed" room did not violate New York's Open Meetings Law.





The Case.

We will ignore the other holdings and analyses of the decision -- suffice it to say, the appellate court ultimately annulled the special use permit -- and limit this discussion to the relevant facts to and review of the New York Open Meetings law.

Monticello Hills Wind, LLC applied to the Town of Richfield Planning Board for a special use permit for a construction project.  The Planning Board held a public hearing for the permit application in September 2011.  In November 2011, the Planning Board reviewed the application at a public meeting, which was noticed for a specific location.  However, so many people showed up to the meeting that the room reached its maximum capacity and the meeting was relocated to a local church.  The Board notified those who were present of the relocation as well as placed a note on the Town Hall door for any latecomers to the meeting.


A group of citizens and property owners sued the Board and the developer.  Petitioners claimed that the Board failed to comply with several State and Town laws.  The trial court agreed that the Board violated the State’s Open Meetings Law at the November 2011 meeting.  The trial court determined that the Board should have anticipated the large turnout in November and held the meeting in a larger room, and the Board violated the Open Meetings Law by “relocating the meeting without proper notice.”  As a result, the trial court annulled the special use permit.  


The appellate court reversed, holding that the Board did not violate the New York Open Meetings Law by moving the November 2011 meeting meeting for capacity reasons.  The appellate court cited to the State law requiring that “all reasonable efforts” be made to accommodate and ensure public access to public meetings and hearings.  Once the Board realized that the Town Hall was over capacity, the Board made immediate accommodative efforts by relocating the meeting and notifying the latecomers as well as it possibly could have done.  The appellate court determined that these accommodations were reasonable under the circumstances and the Board did not violate the Open Meetings Law. 


The Takeaway.

While this instance passed muster, local governments and developers alike will care about the validity of meetings on specific projects.  Meeting notice is always a point of careful concern, but it should be a point of ongoing careful concern. 

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

Wednesday, July 3, 2013, 1:48 PM

U.S. Supreme Court Decides Important Development Permitting Case, Extending Regulatory Takings Analysis

You can view our analysis of and take on the decision in Koontz v. St. Johns River Water Management District, 570 U.S. ___ (2013) here.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use 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.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.
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