Quasi-Judicial Proceedings

North Carolina Court of Appeals Trips Over Incomplete Local Government Record and Finds Factual Issues In Claim for Prescriptive Easement

Yesterday morning, the North Carolina Court of Appeals handed down two decisions of particular interest in the land use context. The first decision, in CRLP Durham, LP v. Durham City/County Bd. of Adjustment, addresses the importance of a full record for judicial review in the nature of certiorari of a site plan decision. The second, styled Deans v. Mansfield, discusses prescriptive easements. We’ll digest these in turn.

CRLP Durham, LP v. Durham City/County Bd. of Adjustment
Developer submitted a site plan for the development of its 42.76 acre parcel. Neighboring Landowner took issue with the “proposed use” of the development (apartments, mostly) as well as the developing parcel’s claim to a “cross-access connection” without limitation. The Planning Department sided with the Developer, however, and the Neighboring Landowner appealed to the Board of Adjustment. The Board of Adjustment upheld the Planning Department’s decision, and Neighboring Landowner sought judicial review of the Board’s decision in the nature of certiorari.

Durham County’s Planning Director testified before the Board that the “development plan in question” was approved in 2000, under what was then called the Merged Zoning Ordinance (“MZO”). But, the MZO was supplanted in 2006 by Durham’s adoption of a Unified Development Ordinance (“UDO”). Amidst this confusion, the Board based its decision on the application of the UDO “presumably because it assumed … that the UDO completely ‘supplanted’ the MZO in 2006.” But this is not clear.

This confusion left the Court of Appeals in a state. Which ordinance–the MZO or the UDO–was in effect at the time of the Board of Adjustment’s decision? Turns out the record certified from the local government was not complete enough for the Court to render a decision. We quote from the opinion:

“From the record before us, we cannot, without engaging in speculation, determine whether the MZO or the UDO is the applicable municipal ordinance as petitioner failed to include in the record on appeal any portion of the UDO containing language stating when or if the UDO “superseded” the MZO or language from the UDO explaining its applicability to development plans approved under the MZO. As the record before us does not permit a proper examination of the issues before us, we must dismiss petitioner’s appeal.”

The full decision can be found here. The lesson is that the practitioner should think as much about his record as about his brilliant legal contentions. The devil, after all, is in the details.

Deans v. Mansfield
Neighboring Landowners claimed a prescriptive easement through a subdivision to access a main road. Neighboring Landowners sued in 2002, and, upon settlement, Subdivision Developer executed a restrictive covenant providing for ingress and egress over the dirt road for the enjoyment of Neighboring Landowners.

In 2006, Subdivision Developer sent the Neighboring Landowners a letter asking them to voluntarily cease from using the “existing soil road” for ingress and egress. It seems Neighboring Landowners refused. Then, in 2009, Neighboring Landowners filed suit against Subdivision Landowners claiming a prescriptive easement. This appears to be a repeat of the lawsuit filed and settled back in 2002.

The Court walked through the necessary elements of proving a “prescriptive easement”: (1) adverse use, meaning without the landowner’s permission, (2) that is open and notorious such that the true owner of the land may have notice of the adverse use, (3) that is continuously used for more than twenty years, and (4) the way used must be “confined to a definite and specified line.” The Court also considered defenses to the claim of a “prescriptive easement,” including (1) the issue of whether Neighboring Landowners may “tack” onto the time period of prior owners for satisfying the twenty-year standard and (2) the issue of whether Neighboring Landowners abandoned the easement.

Upon thorough analysis, the Court found factual issues aplenty and reversed the grant of summary judgment in favor of the Subdivision Landowners. This is hardly surprising in light of the factually intensive standards at play in proving, or disproving, easements. The decision is available here.

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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