Commercial Zoning

State Court of Appeals Speaks On Intersection Between Standing and Limitations Period As To Challenging Zoning Ordinances

Challenges to the validity of zoning ordinances are subject to a two-month statute of repose, set out at N.C.G.S. Section 160A-364.1. We’ve previously covered this important topic here, including the statute’s prohibitive application to even allegedly ultra vires exercises of the ordinance-making power (that is, challenges that the ordinance is not actually a zoning ordinance).

In Templeton v. Town of Boone, plaintiffs — trustees serving a trust owning land in the Town of Boone — claimed that zoning ordinance amendments adopted by the Town are “facially defective, vague and unenforceable” and that the Town’s adoption of these ordinance amendments amount to a “deprivation of [plaintiffs’] rights and privileges as property owners.” The plaintiffs brought what the Court referred to as constitutional and statutory claims. The ordinance amendments at issue addressed viewshed (Viewshed Protection Ordinance) and property sloping (Steep Slope Ordinance).

The Court of Appeals first tackled the issue of standing, affirming dismissal of plaintiffs’ constitutional (facial) claims. The Court held, “Without an allegation that the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs, plaintiffs have failed to demonstrate that they have ‘sustained an injury or [are] in immediate danger of sustaining an injury’ from enforcement of the ordinance amendments against them.” Quoting Grace Baptist Church v. Oxford, 320 N.C. 439, 444 (1987).

As to plaintiffs’ stautory (as-applied) claims, the outcome is more nuanced with respect to standing. I’ll briefly summarize:

  • On plaintiffs’ statutory challenges to the Steep Slope Ordinance, the Court found affirmed a lack of standing because “Plaintiffs’ complaint makes no allegation that the slope value of the property owned by [plaintiffs] is 30% or greater and subject to this ordinance.”
  • On plaintiff Bird’s statutory challenge to the Viewshed Ordinance, the Court reversed on the issue of standing “to bring further statutory challenges to the Viewshed Protection Ordinance” because “there is an allegation that the trust property was ‘subjected to’ the Viewshed Protection Ordinance.”
  • Conversely, the Court found no standing on the part of plaintiff Templeton to bring a statutory challenge to the Viewshed Ordinance because plaintiff Templeton “does not make factual allegations which would support a finding that plaintiff Templeton’s property is ‘directly and adversely affected[,]’ … by the Viewshed Protection Ordinance.”
  • Ok, for those keeping score, so far it’s Plaintiff Templeton/no standing at all, Plaintiff Bird/standing to bring only statutory (but not constitutional) challenges. And the lesson? Plead with particularity at the Complaint stage when challenging zoning ordinances.

    Now, the Court next addressed the application of N.C.G.S. 160A-364.1, the statute of repose. Plaintiff Bird contended that the statute of repose cannot bar claims because “the Viewshed Map plaintiff Bird saw at the public hearing on 25 September 2006 showed that the trust property was not located in an area affected by the ordinance, but defendant subjected it to the ordinance later without notifying her and that is why she delayed in filing her action.” The Court, however, disagreed. Citing Thompson v. Town of Warsaw, 120 N.C. App. 471 (1995), the Court concluded that “even if defendant failed to properly notify plaintiffs pursuant to Chapter 160A, plaintiff Bird’s claims are still barred by the applicable statute of limitations.”

    Final score: Plaintiff Templeton/no standing at all, Plaintiff Bird/standing to bring statutory challenges but those challenges are barred by the statute of repose.

    In an interesting dissent, perhaps her last before elevating to the Supreme Court, Judge Barbara Jackson supported the majority’s application of the statute of repose but “takes issue” with the standing analysis. Judge Jackson contends that the Court “errs by considering the standing requirements for facial constitutional challenges in the same light as those required for as-applied constitutional claims.” Specifically, Jackson warns: “[A] requirement that the ordinance be enforced [as a necessary condition to standing] before a property owner may challenge it could allow a municipality to evade statutorily-mandated procedural safeguards by waiting to enforce an ordinance until two months after its adoption, thereby immunizing itself pursuant to the statute of limitations.”

    This decision could have broader implications in developing litigations. We shall see.

    Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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