tag: North Carolina Land Use Litigator: March 2014

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Friday, March 21, 2014, 11:24 AM

N.C. Court of Appeals: Zoning Administrator Cannot Determine Standing to Appeal

In 2013, the General Assembly revamped the laws governing zoning boards of adjustment in North Carolina in S.L. 2013-126, entitled "An Act to Clarify and Modernize Statutes Regarding Zoning Boards of Adjustment".  The appellate case we'll discuss today interprets the laws existing prior to that revamping, but with lasting application to the powers of a zoning administrator in the context of handling an appeal of his or her land use decision.

Some Background
Morningstar, a full service marina, operates off Lake Gaston.  Across Lake Gaston, some 145 feet across Lake Gaston, from the Morningstar marina is some land owned by East Oaks, LLC.  East Oaks sought a conditional use permit to build townhouses on the property, an application it subsequently withdrew after someone (we'll never, ever know who) determined the proposed development was permitted under the Warren County zoning laws without the need for a conditional use permit. Accordingly, the Warren County zoning administrator issued a formal determination to East Oaks, LLC regarding its townhouse use.

Morningstar, however, disagreed with the formal determination, claiming that neither the proposed townhouses nor a proposed driveway were permitted under the zoning laws.  Morningstar appealed the townhouse determination and asked the zoning administrator to issue a formal determination regarding the driveway, as well (he'd already decided the townhouse issue).  As to the driveway determination, the zoning administrator refused.

First Appeal - The Townhouses
The Board of Adjustment heard Morningstar's appeal, and reversed the zoning administrator's determination regarding the townhouses.  East Oaks, LLC appealed that determination to the Superior Court though, curiously, Morningstar -- victorious before the Board of adjustment -- did not participate in the appeal to Superior Court.

The Superior Court issued a "consent order" between East Oaks (as petitioner before the Superior Court) and the County (as respondent), which included a conclusion of law that Morningstar "is not a 'person aggrieved'" such that the Board of Adjustment "had no jurisdiction or authority to hear" Morningstar's appeal of the zoning administrator's decision about the townhouses.

Again, we'll point out that Morningstar did not participate in this appeal to Superior Court and, thus, was not a party to the consent order determining its rights (or lack thereof) as a "person aggrieved" (or non-aggrieved, as it were). Interesting.

Second Appeal - The Drive
After seeking a writ of mandamus (it's getting heated, folks), which it ultimately dismissed, Morningstar received a formal determination from the zoning administrator regarding the drive, with which Morningstar also disagreed.  Morningstar then sought to appeal the zoning administrator's formal determination about the drive.

The zoning administrator, however, would not place Morningstar's appeal on the Board of Adjustment's agenda.  Why?  Well, it's simple: based on the "consent order" above, to which Morningstar was not a party, the zoning administrator took the position that Morningstar did not have standing to appeal the formal determination regarding a drive 145 feet across the lake.

Morningstar sought a writ of mandamus, which the Superior Court issued to compel the zoning administrator to place Morningstar's appeal on the Board of Adjustment's agenda.  The County appealed.  

The Court of Appeals
The Court of Appeals, deciding the case pursuant to since-repealed NCGS 153A-345, determined that the zoning administrator has a "statutory duty to transmit Morningstar's appeal to the [Board of Adjustment]" and that "the existence - or nonexistence - of standing is a legal determination" for the Board of Adjustment, NOT for the zoning administrator.

The Court begins with a quote to the since-repealed statute:  "The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which action appealed from was taken."  NCGS 153A-345.  The current laws also contain similar, mandatory language that the Court of Appeals finds dispositive in the old law:  "The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the action appealed from is taken."  NCGS 160A-388(b1)(5).

Closing the loop, the Court goes further with regard to the zoning administrator's limited powers:  "Neither N.C. Gen. Stat. § 153A-345 nor any other provision of North Carolina law confers upon a zoning administrator the power to make a legal decision as to whether a party seeking to appeal to the BOA from a zoning decision is a 'person aggrieved' for standing purposes."  The new laws do not now vest a zoning administrator with such power, either.

So, we can safely view Morningstar Marinas/Eaton Ferry, LLC v. Warren County No. COA13-458 (March 18, 2014) as current law.

The Dissent
Judge Elmore dissents, noting that the relatively recent case Smith v. Forsyth County, 186 N.C. App. 651 (2007) vests the zoning administrator "with authority to refuse to transmit an appeal to the BOA if the appealing party’s application is devoid of any allegations of special damages, namely a decrease in property" and with authority to "unilaterally dismiss the appeal for want of standing".

The majority distinguishes Smith: "We cannot agree with the dissent that our holding in Smith somehow confers a gatekeeper role onto zoning officers given that such a role is nowhere conferred by statute or, for that matter, identified in our decision in that case. Rather, we believe that Smith is consistent with the notion that it is the BOA that has the duty of determining whether a party has made the requisite showing of standing such that the merits of the appeal may be reached.

It remains to be seen if Warren County appeals.

"You did not allege special damages, so I will not transmit your appeal.  Get out!"

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.

John Cooke and Mike Thelen Author Paper on Public-Private Collaboration In North Carolina

Next Friday, March 28, 2014, John Cooke will present a paper on public-private collaboration in North Carolina.  The paper will address strategies for succeeding in such instances of collaboration as well as some legal tools available to the local governments and private parties seeking to collaborate in North Carolina.

John and Mike Thelen authored the paper, which John will present to the Joint Annual Meeting of the Government and Public Sector Section and Zoning, Planning and Land Use Section of the North Carolina Bar Association.

You can access the full details of the Joint Annual Meeting in this brochure.


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.

Thursday, March 20, 2014, 3:32 PM

Historic Districts and Certificates of Appropriateness: Raleigh's Latest Land Use Soap Opera

A compelling land use row is well underway right here in Raleigh.  It allows commentary over anything from aesthetics, to history and historical context, to equity and fairness, to neighborly (or unneighborly) behavior, to the public perception of legal processes.  We'll spend our time on the legal processes.

Basically, here's what you need to know.   Oakwood is self described as "a nineteenth century neighborhood and historic district located near downtown Raleigh, North Carolina. The neighborhood includes hundreds of homes in a variety of architectural styles."  

The Oakwood neighborhood is in a local historic district as defined by the City's Unified Development Ordinance, which means the neighborhood is and the properties therein are subject to the jurisdiction of the Raleigh Historic Development Commission (RHDC).  The RHDC is charged with issuing certificates of appropriateness for work done in Oakwood, decisions on which are appealable to the City’s Board of Adjustment. 

The Certificate 
Oakwood residents Louis Cherry, a local architect, and his wife applied for and were awarded a certificate of appropriateness to build their “modernist” home in Oakwood.  Yes, Mr. Cherry’s design is not Victorian but neither are the host of other styles making up the rich skyline of Historic Oakwood. 

The Appeal
The day after the certificate issued by the RHDC, a neighbor notified Mr. Cherry that she would appeal the issuance of the certificate of appropriateness.  Shortly thereafter, that neighbor and fellow Oakwood resident filed a timely appeal of the issuance.  “Timely” is key.

"We Build Build Build Build Build the Whole Day Through"
Despite the timely appeal by the dissenting neighbor, Mr. Cherry obtained a building permit and began construction of his “modernist” home.  Construction continued.  And it continued.  Then, the Board of Adjustment heard the appeal and ultimately reversed the RDHC’s decision to issue the certificate to Mr. Cherry.  

A simple timeline sums up succinctly the significant milestones:
September 2013: RHDC approves a Certificate of Appropriateness for a new home on 516 Euclid St.
October 2013: Resident and neighbor Gail Weisner files an appealLouis Cherry begins pulling the permits needed for construction, and begins construction.
January 2014: Board of Adjustment defers the case in order to have more time to review the evidence.
February 2014: Board of Adjustment votes 3 to 2 to reverse the decision by the RHDC.
March 2014: Board of Adjustment will legally certify its findings. Any construction on the house must stop.

It’s reported to be Mr.Cherry’s view that the City needs “to honor their permit not to protect us but to protect the integrity of their approval process”.  The Land Use Litigator understands that some visible local people have started a fund to provide for Mr. Cherry's defense or otherwise publicly expressed their support for the home and in criticism of the Board of Adjustment decision.  For its part, the City announced today that it will, itself, appeal the Board of adjustment’s decision so that an “objective third party” can look at the issue.  This saves Mr. Cherry and his wife from the time and expense.

It is unclear to us why Mr. Cherry built and built and built with knowledge of the pending appeal of his certificate, and it’s even less clear to us why Mr. Cherry thinks the City should now take the reigns from him against its own Board of Adjustment.  Again, Mr. Cherry:  “We thought the worst thing that could happen was it would be remanded back to the RHDC and they may have had to have some review of those proceedings….  And if it had to go back to the RHDC any errors would be corrected. We were encouraged to begin construction and told we didn't have to go to the appeal meeting and that we were being notified as a courtesy.” 

That's one notion.  The other is to call a land use lawyer when you see the opposition mounting before your certificate is even debated by the RHDC.

"An ounce of prevention is worth a pound of cure, Mr. Cherry."

Now, it's national news.  See the Washington Post's take here, which uses the phrase "Frank Lloyd Wrong".  You simply have to read it.

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.
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