I. NORTH CAROLINA SUPREME COURT

1).  Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007)

In 2003, a dispute arose between Douglas M. Robins and the Town of Hillsborough when the Town adopted a moratorium (and later amended its zoning ordinance), which effectively denied Robins’ pending application for approval to construct and operate an asphalt plant. On January 26, 2007, after appeals to state superior court and the court of appeals, the North Carolina Supreme Court rendered its decision in Robins v. Town of Hillsborough. The Court held that when a town board deviates from its own ordinances and procedural rules, an applicant is not only entitled to have his or her application reviewed, but also to have it reviewed under the ordinance and procedural rules in effect at the time the application was filed.

Robins contracted to purchase a parcel of land within Hillsborough’s extraterritorial jurisdiction in January of 2003. He intended to install an asphalt plant on the site and the parcel was appropriately zoned “general industrial.” After contracting to purchase the land, Robins submitted an application for approval of his site specific development plan to the Town Board of Adjustment (“BOA”) on January 21, 2003. The first BOA hearing to consider Robins’ plan took place on February 12, 2003 and additional hearings occurred in March and April. In April, consideration of the application was once again continued. Eight days before the next BOA hearing, the Town Board of Commissioners (“Town Board”) adopted a moratorium, which suspended the review and issuance of permits for, among other facilities, asphalt plants.

Robins was then notified that, pursuant to the moratorium, the hearing to consider his application was cancelled. In November of 2003, the Town Board adopted an amendment to the Town’s Zoning Ordinance that expressly prohibited asphalt plants and similar facilities in the Town and its extraterritorial jurisdiction. This amendment extinguished Robins’ opportunity to have the BOA review his application and consider it for approval. Shortly thereafter, Robins challenged the Town’s actions in Superior Court. The trial court granted summary judgment in favor of the Town, determining that the enactments of the moratorium and amendment were lawful and that Robins was not entitled to the review of his application under the pre-moratorium ordinance. Robins appealed that decision to the N.C. Court of Appeals.

In a split decision, the Court of Appeals concluded that Robins was entitled to the review of his application under the pre-moratorium ordinance and reversed the trial court’s ruling. In its analysis, the Court of Appeals noted that Robins had the right “to rely upon the language of the ordinance in effect at the time he applied for the permit” and “[t]o hold otherwise would allow compliance with regulations and permitting to become a moving target to ever changing revisions and amendments.” In her dissent, Judge Jackson contended, among other things, that Robins had no vested right, either by statute or by common law, to construct an asphalt plant on that property and, therefore, was not entitled to review under the pre-moratorium ordinance.

On the basis of a dissent in the Court of Appeals, the Town appealed the majority’s decision to the N.C. Supreme Court. The Court began its analysis by stating that neither statutory nor common law vested rights concerns applied to this case because “our vested rights decisions have considered whether a plaintiff has a right to complete his project despite changes in the applicable zoning ordinances.” Instead, the Court looked to its decision in Humble Oil & Refining Co. v. Board of Alderman, which held that, pursuant to its own procedural rules, the town board was bound to refer applications for special permits to the town’s planning board prior to granting or denying any application. 284 N.C. 458, 202 S.E.2d 129 (1974). In reaching that decision, the Humble Oil court opined that a town board’s adherence to its own procedural rules is the only way an applicant can be “accorded due process and equal protection” and, conversely, the only way a town board can “refute a charge that [its actions] constituted an arbitrary and unwarranted discrimination against the property owner.”

With the teachings of Humble Oil in mind, the Robins court focused on language in Hillsborough’s own Zoning Ordinance and the Board of Adjustment’s own Rules of Procedure, finding that relevant portions provide that the BOA shall hear and rule upon applications for site specific development plans. Moreover, according to its own rules, the BOA must make its decision in a timely fashion, which is, at the latest, “not more than thirty (30) days from the date of the last hearing of the matter under consideration.” With these self-imposed requirements at the forefront of its consideration, the Court reiterated its words in Humble Oil: “The procedural rules of an administrative agency are binding upon the agency which enacts them as well as upon the public . . . . To be valid the action of the agency must conform to its rules which are in effect at the time the action is taken.”

While the Court acknowledged that town boards are generally comprised of layman who cannot reasonably be held to the same standards as judicial bodies, it simultaneously asserted that those boards, when acting in a quasi-judicial capacity, may not omit any essential element of a fair trial. Among those essential elements, decisions of town boards (1) must be supported by competent, material, and substantial evidence introduced at a public hearing and (2) must not be arbitrary and capricious. The Court found that the Town Board’s enactment of the moratorium and amendment circumvented the BOA’s own procedural rules, leaving the Court with no decision to review and the Town with no defense to Robins allegations that its actions were arbitrary and capricious. Accordingly, the Court determined that Robins was entitled to have the BOA review his application under the zoning ordinance in effect at the time he filed his application and to render a decision supported by competent findings of fact.


II. NORTH CAROLINA COURT OF APPEALS DECISIONS – 2007/2008

1).  Chapel Hill Title & Abstract Co. v. Town of Chapel Hill, 660 S.E.2d 667 (N.C. App. 20 May 2008) (No. COA07-1292)

Property owner owned a vacant lot in the town. The lot was subject to an ordinance regulating development in a Resource Conservation District (RCD). A portion of the property was within the RCD. The vacant lot owner applied for a building permit to construct a house on part of the property located outside the RCD. The town granted the building permit. However, when construction began, the neighboring property owners successfully enjoined the construction as being in violation of certain restrictive covenants. The vacant lot buyers purchased the lot subject to the adjustment board granting a variance to build within the RCD. The Board of Adjustment eventually denied the variance and the petitioners appealed. The Orange County Superior Court entered a judgment that reversed respondent adjustment board's decision denying petitioners’ request for a variance and remanded the case to the Board of Adjustment with instructions to issue the requested variance.

On appeal, the majority held that the effect of restrictive covenants is not a proper consideration in the context of a variance request. The fact that a building permit had been issued demonstrated that the RCD alone was not the reason that the property could not be built upon.
Judge Tyson filed a dissent and this case is currently on appeal to the Supreme Court.

2).  City of Wilmington v. Hill, 657 S.E.2d 670 (N.C. App. 4 March 2008) (No. COA07-11)

A property owner applied for a permit to build a garage apartment on his property. After he applied, he was notified that his property violated the city's land development code which requires the owner of a garage apartment to reside either in the main residence or the garage apartment. Subsequently, the City cited the owner for violating this portion of the Code. The owner failed to pay any of the assessed civil penalties and the City brought an action to enforce and collect the penalties. Eventually, after litigating in small claims court, the district court declared the part of the ordinance he was charged with violating, requiring owner occupancy, to be unconstitutional. It also voided his citations. The City appealed.

On appeal, the Court of Appeals found (1) that the owner was not required to exhaust administrative remedies before filing his court challenge to the ordinance, (2) the part of the ordinance requiring owner occupancy was unconstitutional because it impermissibly regulated his lawful ownership of the property rather than use of it, and (3) to the extent the Code section regulated owner occupancy, it was beyond the authority of N.C. Gen. Stat. § 160A-383 (2007) to regulate property, as it did not regulate the health, safety, or general welfare of the property.

3).  Blue Ridge Co., LLC v. Town of Pineville, 655 S.E.2d 843 (N.C. App. 5 February 2008) (No. COA07-206)

Petitioner property owner applied to respondent town's planning board for approval of a residential subdivision. The property owner sought approval of a 102-lot residential subdivision. The property owner's undeveloped land was adjacent to a residential neighborhood of about 50 homes. The planning board denied the application. On appeal, the town council denied the application. The town council found that the property owner did not meet the requirements of Pineville Subdivision Ordinance § 6.150 due to overcrowding of schools, increased traffic, and incompatibility with the existing neighborhood. The property owner appealed to the Superior Court and under N.C. Gen. Stat. § 160A-371, the Superior Court reversed the town's denial and remanded for a new hearing.

On appeal, the Court of Appeals determined that the trial court did not err in reversing the town council's decision to deny the subdivision application because the property owner complied with the general and technical requirements of the ordinance. Substantial evidence did not support the denial, because (1) an untimely letter regarding the overcapacity of schools did not provide an adequate guiding standard, (2) the ordinance did not expressly require a school impact study, (3) any conclusion that an increase in traffic would cause safety concerns was speculative, and (4) the proposed subdivision conformed with the town's existing plan and policies for subdivisions. The trial court's remand for clarification of subjective criteria in the ordinance was reasonable.

4).  McDonald v. City of Concord, 655 S.E.2d 455 (N.C. App. 15 January 2008) (No. COA07-113)

A county applied for a conditional use permit (CUP) for the construction of a law enforcement center (LEC). The county's proposed LEC included a sheriff's operations/administration building, an annex, a jail house, and a support building on slightly more than 10 acres in the city. The zoning commission of the City of Concord approved the CUP, and the city council granted the permit. A group of individuals appealed the decision via writ of certiorari and the superior court upheld the city's decision.

On appeal, the Court of Appeals determined that the city produced substantial evidence that the LEC conformed with the surrounding neighborhood under the city's Unified Development Ordinance because the historical use, size, and style of the buildings proposed matched the historical use, size, and style of the existing buildings in the city center zoning district, which had always abutted residential areas. There was evidence that many of the buildings in the neighborhood involved governmental activities, the area surrounding the LEC had maintained a jail for nearly two centuries, and the area adjoining the residential areas would remain undeveloped. The city council did not act in an arbitrary or capricious manner in granting the CUP, because there was no evidence that the city council's decision was whimsical or taken in bad faith.

5).  Weaverville Partners, LLC v. Town of Weaverville Zoning Bd. of Adjustment, 654 S.E.2d 784 (N.C. App. 15 January 2008) (No. COA07-185)

The developer's application sought a special exception permit to build a 96 unit apartment complex on three parcels of land, which totaled approximately 12 acres. The board denied the request for the permit, concluding that the proposed project did not comply with several subparagraphs of an ordinance. The Buncombe County Superior Court reversed the Board’s decision and the Town Board of Adjustment appealed.

On appeal, the board asserted that the trial court erred in applying a de novo standard of review. The court found that in its conclusions of law, the trial court considered the matter anew and re-weighed the evidence, which was a proper application of the de novo standard of review. Further, in finding that the board's decision denying the permit was not supported by competent, material, and substantial evidence, the trial court did not substitute its judgment for that of the board. Rather, the trial court properly reviewed all the evidence in the record, but did not weigh the credibility of the evidence to reach that conclusion. The court further found that the trial court properly concluded that the evidence presented to the board rebutting the developer's prima facie entitlement to the permit was not supported by competent evidence.

6).  Rakestraw v. Town of Knightdale, 654 S.E.2d 825 (N.C. App. 15 January 2008) (No. COA07-866)

Plaintiffs filed an action against defendant town in which they sought a declaratory judgment that a rezoning ordinance was void and of no effect. The Wake County Superior Court granted defendant's motion for summary judgment and denied plaintiffs' motion for summary judgment. It dismissed the action with prejudice and plaintiffs appealed.

On appeal, the Court of Appeals rejected plaintiffs' argument that the town failed to give notification of public hearings as required by its unified development ordinance (UDO). Two newspaper publications were legally sufficient as long as no substantial change to the proposed ordinance occurred as it moved toward passage and those interested parties were informed when additional meetings would be held. Plaintiffs presented no evidence to the contrary. A sign stating, "Public Hearing Property Notice," and giving a telephone number for further information satisfied the UDO. Furthermore, the posted notice was sufficient under N.C. Gen. Stat. § 160A-384(c) (2007) as part of the overall notice scheme; other methods were designed to give more specific information. Next, in the absence of fraud, under § 160A-384(a), an affidavit by defendant's zoning technician that she had mailed written notices was deemed conclusive that defendant had complied with mail notification requirements. Finally, the court rejected plaintiffs' argument that N.C. Gen. Stat. § 160A-384(c) did not permit exceptions or decreased standards. Plaintiffs had not shown that the ordinance, which listed such exceptions, was invalid.

7).  Habitat for Humanity of Moore County, Inc. v. Bd. of Comm’rs, 653 S.E.2d 886 (N.C. App. 18 Dec. 2007) (No. COA07-406)

Petitioner applicant sought a conditional use permit (CUP) to develop a 75-lot subdivision. Respondent board of commissioners found that the proposed development would meet the requirements of the R-30 zoning under the town’s unified development ordinance; however, the Town denied the application. Petitioner appealed to Superior Court. The Moore County Superior Court reversed and remanded the matter back to the commissioners for issuance of the CUP. The commissioners appealed.

On appeal, the commissioners argued that the applicant lacked standing to seek a permit because it was not the owner of the property and the application was not signed by the owner. The appellate court disagreed, because (1) the applicant’s executive director testified at the public hearing that petitioner had a contract to purchase the property; (2) the commissioners did not request additional evidence of the applicant’s authority to submit the application, but found the application to be complete. Further, there was evidence that the applicant had an option to purchase the property at the time it submitted the application. The gist of the opponents' objection to the application was that they did not want the rural nature of their property to be compromised by a subdivision. However, under North Carolina law, the fact that the proposed development in a CUP application had not already taken place on the land was insufficient to rebut a prima facie showing of harmony, which the applicant had made.

8).  Marriott v. Chatham County, 654 S.E.2d 13 (N.C. App. 4 Dec. 2007) (No. COA07-326)

The county adopted a Subdivision Ordinance which required the submission of a sketch plan, a preliminary plat and a final plat. The adjacent owners requested that the Planning Board require the developers to prepare an environmental impact assessment (EIA) in connection with the developments. The Planning Board determined that an EIA was unnecessary. The adjacent owners then sought a writ of mandamus to compel the county to adopt minimum criteria to be used in determining whether developers had to submit an EIA. The appellate court held the county never enacted minimum criteria under its ordinance as required by N.C. Gen. Stat. § 113A-8(c). To grant the relief requested would be to violate the doctrine of separation of powers. The injury was not the failure to require the study, but the failure to adopt minimum criteria. The only remedy available was to have the courts invalidate the provisions of the Subdivision Ordinance that did not comply with the provisions of N.C. Gen. Stat. § 113A-8(c). If that portion of the ordinance was invalidated, then there was no requirement of an EIS, and the remedy would not redress the alleged injuries. Thus, the adjacent owners lacked standing.

9).  Mangum v. Raleigh Bd. of Adjustment, 652 S.E.2d 731 (N.C. App. 20 Nov. 2007) (No. COA06-1587)

The Raleigh Board of Adjustment issued a special use permit for the operation of an adult establishment. Adjacent and neighboring property owners objected to the adult club and appealed the decision via writ of certiorari to the Superior Court. The trial court found that, as adjacent and nearby landowners, the owners fell within the class of property-owners expressly granted protection by the city code and had standing to seek review of the board's decision despite not showing that the proposed club would have an adverse impact on surrounding property owners.

On appeal, the Court of Appeals found that the trial court erred in denying respondents' motion to dismiss. The city code provisions relied upon by the trial court did not address the issue of standing to contest a zoning decision. Rather, the right to petition a trial court for a writ of certiorari was governed by N.C. Gen. Stat. § 160A-388(e2) (2007). Moreover, mere ownership of adjoining property was insufficient to establish standing. The owners did not allege that they would suffer special damages distinct from the rest of the community by the granting of the special use permit. The owners did not present any evidence that the value of their properties would decrease as a result of the issuance of the special use permit. Moreover, evidence of inadequate parking and concerns about increased crime too general and speculative to support a finding of an injury.

In June 2008, the Supreme Court granted discretionary review of this case it is currently pending before the Court.

10).  Lancaster v. N.C. Dep’t of Env’t & Natural Res., Div. of Waste Mgmt, 652 S.E.2d 359 (N.C. App. 6 Nov. 2007) (No. COA 06-1304)

The owner inherited property from his father, who owned and operated underground storage tanks (USTs) on the property. Tests revealed high levels of benzene and other gasoline constituents due to leakage. The EMC concluded that the owner's liability arose because he owned the USTs until their removal in 1994. The EMC concluded that this made petitioner an owner under 15A N.C. Admin. Code 2N .203, and that as an owner, he had to comply with the comprehensive site assessment (CSA) requirements of 15A N.C. Admin. Code 2L.0115(f). On appeal, the court found that it was bound by the EMC finding that the discharges occurred in 1989 and 1991. 15A N.C. Admin. Code 2L.0115(f), which was the basis for the owner's fine, did not refer to owners as defined in 15A N.C. Admin. Code 2N .203. The owner could not be a responsible party under 15A N.C. Admin. Code 2L.0115(f) or a person conducting or controlling the discharge under 15A N.C. Admin. Code 2L.0106(c) because the discharges occurred before he acquired the property. As such, he had no obligation to file a CSA and did not violate15A N.C. Admin. Code 2L.0115(f).

11).   Watts v. North Carolina Department of Environmental and Natural Resources, 641 S.E.2d 811 (N.C. App.) (No. COA 06-299), disc. review denied 2007 WL 3146271 (N.C. 11 October 2007) (No. 191A07), review on add’l issues denied 2007 WL 3146274 (N.C. 11 October 2007) (No. 191A07)

Plaintiff entered into a contract to purchase an undeveloped lot in Montgomery County. A condition of the contract was that the land was suitable to support an onsite wastewater system. After inspection of the site, an agent of the Montgomery County Health Department (“Health Department”) and the North Carolina Department of Environmental and Natural Resources (“NCDENR”) issued an improvement permit authorizing construction of a three-bedroom home on the lot. In reliance upon the permit, Plaintiff purchased the lot. After beginning site preparation, Plaintiff changed the configuration of his original site plan. In order to get approval for this change, Plaintiff was required to apply for a new permit. Inspection of the lot for this permit revealed that the land had never been suitable to support an onsite wastewater system and, as such, the Health Department revoked the original permit. Plaintiff requested a retest of the property, and the retest confirmed that the property was unsuitable for a wastewater system. Plaintiff filed an action under the North Carolina Tort Claims Act against the agent, the Health Department and NCDENR, alleging that Defendants had negligently inspected and issued an improvement permit for his lot. The complaint was heard by the North Carolina Industrial Commission. The Deputy Commissioner dismissed the claim against the agent, but held the Health Department and NCDENR jointly and severally liable for damages to Plaintiff. NCDENR appealed the decision of the Deputy Commissioner to the full Industrial Commission, which affirmed the Deputy Commissioner’s findings, conclusions and awards of damages. NCDENR appealed the full Commission’s decision and order to the Court of Appeals.

The Court of Appeals affirmed the Commission’s conclusion that the Health Department owed Plaintiff a duty of care in properly assessing the property before issuing a permit, and that the Health Department breached that duty of care when they admittedly negligently issued a permit to Plaintiff. The Court determined that the public duty doctrine did not bar Plaintiff’s claim because the “special duty” exception to that doctrine applied, that is, that the governmental entity at issue created a special duty by promising protection to an individual which was not forthcoming, and the individual’s reliance on that promise of protection is causally related to damages suffered. The Court noted that while the Commission failed to conclude specifically that the special duty exception to the public duty doctrine applied, the Commission’s conclusion was affirmed because it was adequately supported by the facts.

12).  Casper, et. al. v. Chatham County, et al, 651 S.E.2d 299 (N.C. App. 16 October 2007) (No. COA 07-271)

Developer sought rezoning and a conditional use permit for a thirty acre retail site in Chatham County. The property was rezoned to allow the development. Adjacent property owners filed suit. However, the plaintiffs failed to allege that they were aggrieved parties and to state in their pleadings that they would suffer special damages. The trial court’s decision that plaintiffs failed to establish standing was upheld on appeal. The Court of Appeals affirmed that standing is rooted ultimately in pecuniary loss to property value.

13).  McDowell, et. al. v. Randolph County, 649 S.E.2d 920 (N.C. App. 18 September 2007) (No. COA06-1533)

Plaintiffs lived next door to McDowell Lumber Company that had been operating on its site for several years. A portion of the lumber company property was zoned LI (light industrial) and the remainder was zoned RA (residential agricultural). The lumber company was deemed a legal non-conforming business. Despite the fact that it was a legal non-conforming business, Randolph County allowed the company to obtain building permits and to expand its operations further into the portion of the property zoned RA. In 2004 the lumber company applied to change its zoning classification from LI and RA to conditional use heavy industrial. The trial court declared that the county’s rezoning constituted illegal spot zoning and, therefore, was null and void.

On appeal Randolph County alleged laches. The Court of Appeals disagreed, stating that “the mere passage or lapse of time is insufficient to support a finding of laches. …the delay must be shown to be unreasonable and must have worked to the disadvantage, injury or prejudice of the person seeking to invoke it.” The court found that neither the lumber company nor the county had demonstrated prejudice.

With respect to the spot zoning determination, the county admitted that the rezoning was spot zoning, but contended that it was “legal” as opposed to “illegal” spot zoning. The Court of Appeals used the standard four factors in analyzing the spot zoning issue - (size of tract, compatibility of the rezoning with the comprehensive plan, the benefits and detriments to the owners, neighbors and surrounding community, and relationship of the new uses with the uses currently present on adjacent tracts). The Court of Appeals found that the rezoning was “in direct contravention of [the county’s] comprehensive plan. The court also noted that the positive impact on the entire community would not be considered because no such evidence was in the record before the Planning Board, and it was too late on appeal to present evidence related to investment, payroll, economic activity, and benefit to the tax base. The most important factor, however, seemed to be the neighbor’s evidence regarding noise, air pollution, and truck traffic. For example, at the hearing, the next door neighbor (whose house was twenty feet from one of the lumber company’s new buildings) complained that there were times she was unable to hear her television and that she would have problems talking on the phone because the party on the other end could not hear her over the noise in the background. The stark contrast in character of the uses and the fact that the benefits and detriments had no mitigating factors was critical to the court’s analysis.

14).  Childress, et al v. Yadkin County, 650 S.E.2d 55 (N.C. App. 18 September 2007) (No. COA 06-1467)

Yadkin County rezoned 51 acres from rural agricultural to restricted agricultural. Plaintiffs alleged that the rezoning constituted illegal spot zoning and constituted impermissible contract zoning. On de novo review of the trial court’s grant of summary judgment in favor of the County, the Court of Appeals held that spot zoning was not invalid per se in North Carolina so long as the zoning authority made a clear showing of a reasonable basis for such distinction. The Court held that the board had a reasonable basis for making the zone change. The Court held that the re-zoning would benefit the community by allowing the growth of the area to be regulated, that the re-zoned property was compatible with the county's comprehensive plan for the area, and that a tract of land zoned as restricted residential was compatible with the surrounding agricultural tracts. Plaintiffs had also argued that the re-zoning constituted impermissible contract zoning. Because plaintiffs failed to produce any evidence of a contract or bilateral obligation between defendants, the Court rejected the arguments as to this issue.

15).  Pitt County v. Dejavue, et al, 650 S.E.2d 12 (N.C. App. 04 September 2007). (No. COA 06-838)

Plaintiff, Pitt County, adopted an ordinance regulating sexually oriented businesses and sought a declaratory ruling that several sexually oriented businesses were unlawfully operating unlicensed businesses in the county. In October 2002, the county adopted an ordinance to regulate sexually oriented businesses “for the purpose of preventing harmful secondary impacts such as neighborhood blight, increases in crime, and decreases in property value . . ..” No such business could operate within one quarter mile of a home, church, or school or residential zoning district. All existing businesses were rendered legal non-conforming, but given a one-year amortization to find another location if it was within one quarter mile of any of these establishments. The trial court took notice that in 2005, the North Carolina General Assembly determined that “sexually oriented businesses can and do cause secondary impacts on neighboring properties.” N.C. Gen. Stat. § 160A-181.1 (2005). Testimony at trial focused not upon the fact of sexually oriented business content, but upon undue adverse secondary impacts.

Defendant businesses argued that the trial court erred by applying an intermediate scrutiny when resolving their constitutional challenge instead of applying strict scrutiny because, as they allege, the zoning ordinance was “content-based.” The Court of Appeals disagreed, finding that the evidence supported the county’s assertion that the ordinance was “content-neutral.” A zoning ordinance that regulates sexually oriented businesses is content neutral when it is unrelated to the suppression of free expression and its purpose is to eliminate undesirable secondary effects of the sexually oriented business. “Put another way, the ordinance does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which the United States Supreme Court has previously recognized or caused by the presence of even one such establishment.”

16).  Cook, et al and Union County v. Union County Board of Adjustment and Wal-Mart Stores East, 649 S.E.2d 458 (N.C. App. 04 September 2007) (No. COA06-1153)

Wal-Mart applied for a special use permit to construct a 200,000 square foot retail store in Union County. The Union County Board of Adjustment issued the permit. Union County, joined by several neighbors, appealed the Board of Adjustment’s decision to Superior Court which vacated the issuance of the special use permit. The county and neighbors claimed they were denied due process and Wal-Mart challenged the county’s and the citizens’ standing to appeal.

On the issue of standing, the court noted that standing is a question of law and reviewable de novo. The decision was based upon the 2003 statutes (N.C.G.S. 153A-345), which clearly provide that any department board or bureau of the county may take an appeal of a Board of Adjustment decision. The court also found that there was sufficient evidence in the record to show devaluation of the citizens’ property and therefore, found that they had standing to appeal.

The court also found that the board of Adjustment denied citizens’ due process rights when it allowed Wal-Mart to present a revised site plan which was substantially different from the original site plan insofar as it completely reoriented the building, parking lot, retention pond, and changed the traffic patterns. By denying the citizens an opportunity to present their own evidence or challenge the revised site plan submitted by Wal-Mart, they were denied an opportunity to be heard. The Board’s decision was not justifiable under its own rules or under the principals of due process.

17).  Town of Green Level v. Alamance County, 646 S.E.2d 857 (N.C. App. 17 July 2007) (No. COA 06-1304)

The Town of Green Level sought to expand its exterritorial jurisdiction (ETJ) into parts of unincorporated Alamance County. A county citizen’s group emerged to fight the ETJ expansion and sought refuge from the county. North Carolina law provides that no city may extend exterritorial powers into any area of a county where the county is enforcing 1) a zoning ordinance, 2) subdivision regulations, and 3) enforcing the state building code. Green Level conceded that the county was enforcing subdivision regulations and the state building code. The issue was whether or not it was properly enforcing a zoning ordinance.

The Town of Green Level enacted its ETJ ordinance on April 22, 2004, three days after Alamance County had amended its 1997 Watershed Protection Ordinance which, according to Alamance County, constituted a zoning ordinance. The Town of Green Level filed a declaratory judgment action seeking a determination that the county’s 2004 ordinance as enacted arbitrarily and capriciously and that the 1997 ordinance related to water supply watershed protection did not constitute zoning. The Court of Appeals held that the 1997 Water Supply Watershed Protection Ordinance was not a zoning ordinance because it did not comply with N.C. Gen. Stat. § 153A-344(a)(2005) which requires a proposed zoning ordinance in full text and with maps showing proposed district boundaries in order for a county to exercise zoning authority. There were no maps and no detailed textual instructions underlying the Watershed Protection Ordinance. Therefore, the Watershed Protection Ordinance did not constitute a “zoning ordinance.” The Court of Appeals also held that the county acted arbitrarily and capriciously because the 2004 ordinance was not adopted for the specific statutory purposes of promoting health, safety or welfare.

18).  Stealth Props., LLC v. Town of Pinebluff Bd. of Adjustment, 183 N.C. App. 461, 645 S.E.2d 144 (2007)

Petitioner bought property intending to build a modular home on the site for resale. Petitioner believed the property was zoned R-20 which allowed a fifteen (15) foot setback. The property was actually zoned R-30 which required a twenty-five (25) foot setback. There was some dispute in the record as to whether the petitioner was ever made aware of these requirements. Nonetheless, after receiving a zoning compliance letter, petitioner began construction and the project was inspected by the Town on numerous occasions during construction. At no point was there ever any mention of a setback violation, however, the Petitioner was denied its request for a Certificate of Occupancy as a result of its failure to meet the twenty-five (25) foot setback requirement.

Petitioner applied to the Board of Adjustment for a variance from the twenty-five foot requirement. The board found that, because the property was zoned R-30, a 25-foot setback was in fact required. On review via writ of certiorari, the trial court held that the board's denial of the variance was not supported by substantial competent evidence.

The appellate court agreed. On appeal, there was no record of what occurred at the hearing before the board due to a faulty tape recorder. However, the board's finding that the zoning ordinance at issue was unambiguous in stating that the property was zoned R-30 and required 25-foot setbacks was clearly unsupported by the record. To the contrary, the Unified Development Ordinance stated that all lots in an R-30 zone must have at least 30,000 square feet. The owner's property consisted of only 24,844 square feet, which meant the property should have been classified as R-20, which only required a 15-foot setback. Accordingly, the trial court did not err in concluding that the denial of the variance was not supported by substantial competent evidence. Further, because the board's action was unsupported by competent substantial evidence, the action was arbitrary. However, the Court held that the trial court erred in addressing the ordinance, and had no power to actually issue the variance itself.

19).  Turik v. Town of Surf City, 182 N.C. App. 427, 642 S.E.2d 251 (2007)

The Town issued a building permit for the construction of a duplex. A neighbor notified the inspections department that the pilings for the duplex violated the setback requirement. A request for a variance of 8% from the setback requirement was thereafter submitted. The request for variance was granted, and the superior court affirmed. Petitioners-adjacent landowners appealed.

On appeal, the Court of Appeals affirmed. The Court observed that the property owners followed the necessary procedures to obtain a building permit before beginning the construction of the duplex and the hardship was not one of their own making. Likewise, the Board's decision was based upon competent evidence and was not arbitrary or capricious. The Court also held that the superior court did not substitute its own judgment for that of the Board's, but essentially repeated the Board's findings and summarized the procedural history of the case. There was sufficient evidence to support the Board's finding that literal enforcement of the Zoning Ordinance would result in an unnecessary hardship for the owners. The variance would allow the owners to continue their construction project that was started only after obtaining a legitimate construction permit. Further, the Court noted there was no indication that granting the variance would harm neighboring properties or structures, neither would the variance give any special privileges to the owners.

20).  Sandy Mush Properties, Inc. v. Rutherford County, 181 N.C. App. 224, 638 S.E.2d 557 (2007)

This is the second time this matter has been before the Court of Appeals. After the Court of Appeals issued its May 2004 decision, plaintiffs, upon being notified by the County that their building permit had expired sought a declaration and an injunction allowing them to continue construction of an office building on the property and subsequently filed an amended complaint seeking a determination that they had statutory and common law vested rights to use that property for a quarry. In its December 2005 order, the trial court made the following conclusions of law:

• The 12-month statutory period prescribed under N.C.G.S. § 153A-358 for continuing the validity of a building permit issued on October 1, 2001 was tolled by the August 25. 2002 Summary Judgment; such period, therefore, has not expired and the building permit is valid.
• Subsequent to the effective date of the ... [o]rdinance, use of the property for mining and rock quarrying was no longer consistent with local zoning ordinances.
• Notwithstanding the previous issuance of a building permit for the construction of certain buildings which were to be used ancillary to a mining and rock quarry operation on the property, the issuance of the building permit did not create a statutory vested right giving . . . Plaintiffs a right to mine and quarry the property.

The trial court certified the order for immediate appeal pursuant to G.S. IA-1, Rule 54(b), and both parties appealed.

In January 2007, the Court of Appeals affirmed. The Court held that it was undisputed that defendants issued building permits for the construction of a modular office building, an office building and a metal building and that plaintiffs intended to use the buildings in conjunction with a proposed quarry on the property. Because plaintiffs had appealed an order that prevented them from building, this tolled the statutory time period in which plaintiffs could resume construction under their office building permit. The only building permit that remained valid was the office building permit, and it was the only permit that could give rise to a vested right to mine the property. However, the building permit only authorized the construction of an office building and therefore did not establish a statutory vested right to mine the property.

Petitions for discretionary review were filed in February 2007 and are pending before the N.C. Supreme Court (No. 67P07).