tag: North Carolina Land Use Litigator: June 2014

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Monday, June 30, 2014, 4:39 PM

Land Use Litigator Publishes In Other Fora: N.C. and American Bar Association Pieces

Mike Thelen, co-editor and co-author of this blog, recently published a long form piece with the Real Property Section of the North Carolina Bar Association.  The piece is entitled "Rub a Dub Dub, the Clean Water Act Might Regulate Your Tub".  The article is viewable here, and it discusses the recently proposed rule changes affecting the Clean Water Act.

In addition, the American Bar Association's Real Property, Trusts and Estates Section syndicated a past post we did on the Supreme Court of the United States' March decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (March 10, 2014).  The Section's eReport, in which our piece was reprinted, can be viewed here.  We're honored at the distinction.


I think we'll give the typewriter a break in the coming weeks.

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.

Wednesday, June 25, 2014, 4:41 PM

Land Use Litigator Video Series: John Cooke and Mike Thelen Talk Quasi-Judicial Proceedings

In this latest short video, John Cooke and I talk about quasi-judicial land use proceedings.  These are mini-trials, remember, where legal, local government and land use acumen are highly valued.

Enjoy the video here.

"All in favor of reversing the zoning administrator, say 'aye'."

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.

Monday, June 23, 2014, 3:03 PM

Land Use In Action: Raleigh and Other Dynamic Metros At the Forefront of the "Great Inversion"

Our regular readers will know that we will, at times, take a step back from the legal side of things to look at the practical side of things.  After all, in the words of Paul Collier, "Most conduct is guided by norms rather than by laws."  So, let's check out a fascinating norm.

A recent report from The Atlantic by the unparalleled Richard Florida, digesting a report from William Frey with The Brookings Institute, concludes that between 2010 and 2013 (notably, including post-Great Recession numbers gathered after the recognized first "retirements" in 2011 of the Baby Boom generation) 19 of the 51 largest metro areas in the United States saw greater population growth in "core" or "primary cities" than in suburb areas.  Mr. Florida calls this "good news for urbanists and city boosters".

We cite this information neither as "urbanists" nor as "city boosters", but as a group of lawyers keenly aware of and decidedly interested in geographic population (the "where" in development) and economic population (the "what" in development) shifts in the United States and in North Carolina.  What's more, the study highlights "high-tech, knowledge economy hub" Raleigh-Cary -- the Land Use Litigator's physical home -- alongside D.C., San Jose, Austin, Denver and Seattle.

This kind of development creates countless opportunities and challenges for governments and businesses alike, all of which are charged with some interest in the laws, regulations, impacts and environments that aim to shape or will result from these seismic shifts dubbed "the great inversion" by Alan Ehrenhalt.

The Atlantic article can be read here, and William Frey's report can be accessed on The Brookings Institution website here.

These cities are exciting places to be, right now, and will serve as the engines of the American economy in the coming generation.  We're pleased to be a part of this.


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, June 19, 2014, 3:33 PM

Land Use Treats: Judicial Treatment of Landfills and Strip Clubs

It's the summer, and it's hot.  It's been 90-plus all week in Raleigh and my phone tells me there is no chance of a cooling today or tonight.  I thought we'd take this chance to dip into something a little different, something off the path from the latest of the North Carolina Court of Appeals or the North Carolina General Assembly.

So, how about something from the Pennsylvania courts involving a landfill?! Or nuns versus strip clubs in Illinois!  That'd be fun!

One Man's Garbage Is Another Municipality's "Structure"
Let's start with the landfill.  In Tri County Landfill, Inc. v. Pine Township Zoning Board Hearing, No. 176 C.D. 2013 (November 2013) the Commonwealth Court of Pennsylvania, an appellate court, recently addressed a relatively simple question: is a landfill a structure, such that it is subject to certain zoning laws.

Really, this is an interesting case.  We'll spare most of it because the part we find interesting is only a portion of the case and the decision.  What's interesting is that we at the Land Use Litigator think it very cleanly and effectively illustrates what "land use law" can encompass as well as the value of a good land use lawyer.

Let's start with the zoning ordinance at issue.  "Section 402.2 of the zoning ordinance sets forth the maximum height requirements for the R-1 district, and it states that 'principal structures shall not exceed 40 feet in height.'"  This is important for the landfill because the maximization of air space, or height, is critical to a landfill.  40 feet is, as far as we can tell, simply not enough height for a landfill to operate in an economically prudent manner.

"The zoning ordinance defines a 'structure' as: 'A combination of materials forming a construction for occupancy and/or use including among  other[s], a building, stadium, gospel tent, circus tent, reviewing stand, platform, staging, observation tower, radio tower, water tank, trestle, pier, wharf, open shed, coal bin, shelter, fence, wall and a sign.'"  The municipal planning code more broadly defines "structure" as "any man-made object having an ascertainable stationary location on or in land or water, whether or not affixed to the land."

Thus, if a landfill is a "structure" as defined by the zoning laws, it cannot exceed 40 feet in height.

Let's move to the arguments.  On the one hand, from the landfill operator who does not wish to define its landfill as a "structure":  the zoning ordinance contains a non-exhaustive list of examples of structures, which does not specifically include landfills, and is thus ambiguous and therefore to be "liberally construed to allow the broadest possible use of land" such that the landfill is not subject to the 40-foot height requirement.  Moreover, "the enumerated examples [of structures in the zoning ordinance] all have an ascertainable stationary location, on a limited construction site, and a structural element that is affixed to the ground or man-made materials designed to provide engineering support .... and each enumerated item could be razed and removed from the site on which it is constructed, leaving the ground behind generally as it existed before the structure was built", while a landfill is not such a "structure".  In other words, "I mean, the zoning law identifies kinds of 'structures', to say nothing of a landfill, and, as we all know in our guts, a 'structure' is a building or a bridge or a Ferris wheel but it's not a hole in the ground in which to pile refuse."

On the other, from the municipality: "[A] modern landfill such as that proposed here, is not simply a dump or a pile of dirt, slag, gravel or anything similar. Rather, a modern landfill is a highly sophisticated, highly engineered structure consisting of, among other things: (1) a smooth soil bed; (2) a non-woven geotextile fabric liner; (3) a thick, high density polyethylene (HDPE) liner; (4) a secondary liner; (5) two layers of drainage net between the two liners; (6) another layer of non-woven geotextile fabric; and, (7) 18 inches of stone. Incorporated within the liner system is a leachate collection system, including at the lowest level, a sump pump, which pumps the leachate into a storage tank. In addition to all these systems, there is a landfill gas extraction system constructed within the landfill."  In other words, to paraphrase, "C'mon.  It's a structure.  Not a naturally-occurring hole in the ground filled with refuse."

The appellate court affirmed the lower court, concluding that a landfill is a "structure" as defined by the zoning ordinance and, therefore, cannot exceed 40 feet in height.

Seems a benign, targeted ordinance text amendment would have made a little more sense, on the front end, rather than a lawsuit.  At 40 feet, we assume the landfill can, physically, but simply will not, economically, locate.

The Order of Perpetual Twerking
How about the Sisters of Saint Charles Borromeo (and non-clergy neighbors) versus Get It Entertainment, LLC d/b/a "Club Allure"?

The lawsuit was filed last Friday, June 13, 2014, in Cook County, Illinois, seeking the court to void a Village of Stone Park, Illinois rezoning of the property allowing the "strip tease club" to locate as a violation of State due process strictures, to declare that the "strip tease club" runs afoul of the State law "mandat[ing] a 1,000 foot buffer zone between such an adult entertainment facility and places of worship or schools", and to enjoin the "strip tease club" from operating as a nuisance.

The suit was filed by the Thomas More Society in the behalf of the Sisters of Saint Charles, whose convent houses 20 women and three places of worship.  

The Village and the "strip tease club" have not yet responded to the suit.  But that doesn't mean the sides have not been vocal.  Let's litigate in the media!

"Strip tease club" attorney:  The suit is more about moral views than about light or noise.

The Village attorney: The state law regarding 1,000 foot buffers is unconstitutional, in violation of First Amendment principles, because it is overly broad and would eliminate any site in the tiny Village from hosting a strip club.

The nuns' attorney:  "I think most people would find that offensive, to put a strip club next to a home for sisters."

The story is getting all kinds of press, some viewable here and here.

See, land use law involves all kinds of businesses -- from landfills to, um, cabarets -- and even implicates morality.  Fancy!

"She can fly, but no more than 40 feet above the ground.  It's a zoning law."

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.

Wednesday, June 11, 2014, 1:53 PM

Land Use Innovation: Raleigh Joins Urban Centers Employing "Parklets"

Raleigh, North Carolina -- the Land Use Litigator's home base -- has officially entered the fray of urban centers embracing the planning and business value of urban "parklets".  The City is now accepting applications from private citizens, foundations and businesses to create your very own parklet.  The City's program comes to life after the completion of a feasibility study, viewable here.

What's a "parklet"?  A parklet is a small segment of a right-of-way, usually a parallel parking spot on a public road, that has been temporarily converted from automobile use to a cordoned-off space for pedestrian-only use as "open space" in the way a public park is used as open space.  Parklets will locate and can last in duration depending on the program in place.

Parklets have been popping up in a number of cities, from San Francisco (generally regarded as the American pioneer), to New York, to Los Angeles, to Oakland, to Philadelphia, to Chicago.  To some, these tiny domains of style and expression signal the surging urban value of pedestrianism over vehiclism.  To others, they signal an important, pro-open space counterpoint to the growing urban infill movement.  To still others, they represent an economic opportunity, the chance to leverage a business-friendly, urban-life-is-seamless land planning environment into publicity, an attractive sidewalk speedbump and/or added seating space.      

Raleigh is jumping into the fray at the right time, it seems.  Some best practices have already emerged.  According to www.governing.org, "Parklets work best in front of businesses such as coffee houses and pizza places, which thrive on walk-up customers.  [Parklets] need to be placed on streets with relatively low speed limits, and they are too obstructive to work on corners.  They should be visually distinct: San Francisco requires that any benches or chairs in a parklet look different from the seating at the adjacent business, to reinforce the idea that these are public spaces rather than an extension of a private cafe or coffee house.  Similarly, those cafes aren't allowed to serve customers sitting in the parklets."

In Raleigh, parklets are only allowed in Downtown Overlay Districts and adjacent Pedestrian Business Overlay Districts, as those are defined and mapped by the City's "new" zoning laws, and are established for one year.  An application must be filed with the City, and it must include a petition signed by 75% of property owners/leaseholders on the applicable block face.  The applicant is responsible for paying the "parking encumbrance fee", which means the applicant will bear the cost of renting the parking space or spaces for the year period covered by the permit.  The full monty of requirements, allowances, limits and other things is viewable on the City's website here.

This program is interesting to us because it represents the dynamism we're seeing in American urban planning, the intersection of land use and business opportunities, and the interesting tension over automobiles as the urban density and infill cycle climbs back to an apex.  Opportunities for business, using the land use shovel, will continue to grow.  The savvy will take proper advantage.

"Parklet closes at dusk.  At which point, you may take three steps to the left, which is not closed at dusk."

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, June 10, 2014, 11:05 AM

North Carolina Trial Court Rules Unconstitutional State Law Transferring Ownership of City's Water System

Last summer, we blogged here about the dispute between the North Carolina General Assembly -- okay, the "State" -- and the City of Asheville over the State's efforts to transfer ownership and operation of the City's water system to the hands of a Metropolitan Water and Sewerage District.  By sale?  No.  By state law.

You can view Session Law 2013-50, which we'll call the "Water Act", here.  

Not much has happened from a practical standpoint since we last blogged--the State and the City have agreed to extend the TRO issued by the Wake County Superior Court, which prevented the application of the law, pending some litigation steps.  However, much has happened since we last blogged from a litigation standpoint--pleadings have been amended, discovery has taken place (and been disputed), and dispositive motions have been filed and argued before the Superior Court.

Yesterday, the Wake County Superior Court issued a final ruling in the City's favor.  Essentially, the Court concluded as a matter of law that (1) the Water Act is a local act running afoul of the North Carolina Constitution, (2) the Water Act runs afoul of the North Carolina Constitution and its guarantees to equal protection of the law, (3) the Water Act is not a valid exercise of the sovereign powers to condemn or take property, (4) in the alternative to conclusion (3), in the event the Water Act is a valid exercise of the sovereign taking power, the City is entitled to just compensation in excess of one hundred million dollars ($100,000,000.00).

You can view the Court's ruling here.  The Court anticipates the State's appeal: "This procedure makes good sense because this case, no matter what the outcome, will be appealed to the appellate division". We're not so sure, however.  The State had its day in Court.

In the meantime, we'll keep pace with the flow.

"Wonder Twins power, activate!"  
"Form of, municipal water system!"  
"Form of, legislative fiat transferring ownership of that water system!" 

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.

Wednesday, June 4, 2014, 4:09 PM

John Cooke and Mike Thelen Host "Land Use Series" Video Spot: "What Is Zoning, Exactly?"

Join John and Mike in a short, 10-minute video discussion as they address those burning questions like "How do zoning regulations generally work?" and "How are zoning laws in North Carolina adopted, amended or repealed?" and "How is zoning enforced?"


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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