The following blurb will appear in a paper I authored for circulation in this month’s Land Use Quarterly, a publication of the North Carolina Bar Association’s Zoning, Planning and Land Use Section. A link to the Section’s homepage can be found here. This particular discussion addresses a recent, unpublished decision of the North Carolina Court of Appeals addressing the finality of an administrative land use “decision” that it is binding, ripe for appeal, and gets running those applicable limitations periods. See N.C.G.S. §§160A-388(b); 153A-345(b).
In S.T. Wooten Corporation v. Bd. of Adjustment of the Town of Zebulon, No. COA10-515 (April 5, 2011), the North Carolina Court of Appeals addressed whether “a specific statement by the Town Planning Director [and Land Use Administrator]—that, pursuant to the Town zoning code, the proposed asphalt operation is a permitted use by right requiring only a general use permit—is an order, decision, or determination of binding force.”
In the summer of 2001, the Town’s then-planning director issued a writing “confirming the Town’s extraterritorial jurisdiction … and stating that an asphalt plant was a permitted use,” which no one appealed. The local official echoed this decision three months later in a writing to N.C.D.E.N.R. regarding air quality permitting and the corporate landowner continued to spend money and pursue entitlements.
In May 2009, the Town approved a zoning permit for a temporary asphalt plant, specifying that “no change of use permit was required.”
Then, in October 2009, the Town’s current planning director notified landowner that “the ‘ultimate approval’ of the proposed permanent site for an asphalt manufacturing plant was ‘still to be made by the Board of Commissioners by way of a Special Use Permit.’” Wisely, despite its belief that the 2001 decision could be the only “final” decision, the landowner appealed the 2009 writing to the board of adjustment, which affirmed the current planning director. The trial court upheld the board’s decision in the Town’s favor.
In an unpublished decision, the S.T. Wooten court reversed the trial court and held that the unappealed 2001 decision by the Town planning director “became a binding zoning determination to which the Town must adhere.” The court determined that the 2001 decision is “more similar to the actual ‘decision’ rendered in Meier [v. City of Charlotte] than the ‘advisory’ response of In re Historic Oakwood.” Looking to the Meier framework, the court articulated that (i) the planning director was “empowered” by local law to render the 2001 interpretation, (ii) the landowner “specifically requested” the permitted use interpretation, (iii) the planning director “clearly interpreted” the zoning ordinance on “at least two occasions,” and (iv) the landowner relied on the planning director’s 2001 interpretation.
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.