Quasi-Judicial Proceedings

Local Ordinance Governing Site Plan Applications: "In Effect At Time of Application" or "Subsequently Adopted"

In 2007, the North Carolina Supreme Court held that an applicant to a local government for approval of a site specific development plan is “entitled to have his application reviewed under the ordinances and procedural rules in effect as of the time he filed his application.” Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007). The brief facts of Robins are that after his application and in the course of mulling Mr. Robins’ application — which proposed the construction of an asphalt plant “directly across” from an existing cement plant — the Town passed a moratorium on the approval of any “processing facility involving petroleum products.” The moratorium contained the following language, which endeavored to put the brakes on Mr. Robins’ application: “This section shall apply to all applications for a permit or approval, including any application which is pending as of the effective date hereof.” According to the highest court, however, a North Carolina local government cannot change the rules midstream. Notably, Robins contains no discussion of “vested rights.”

This past week, the North Carolina Court of Appeals appears to have departed from that line.

In Wilson v. City of Mebane Board of Adjustment, an applicant first submitted his site plan application in January 2008. At the time of that application, the City employed both a Landscape Standards Ordinance (“LSO”) and a Mebane Zoning Ordinance (“MZO”), which were outcome-friendly to the site plan applicant.

In February 2008, after the site plan application had first been filed, the City adopted a Unified Development Ordinance (“UDO”), the application of which would have rendered the site plan illegal. The City eventually approved the site plan in February 2009 pursuant to the MZO and LSO, at which point a building permit was issued. A disgruntled neghbor appealed the issuance of the permit to the Board of Adjustment, alleging that the UDO — rather than the LSO and the MZO — applied to the site plan and so the building permit should not have issued. The Board of Adjustment disagreed, upholding the issuance of the building permit. On a proceeding “in the nature of certiorari,” the Superior Court affirmed the Board and ruled that the Board committed “no error of law” in determining the site plan applicant “acquired a common law vested right to proceed under the LSO and was entitled to a building permit.”

The Court of Appeals reversed the trial court. After thorough analysis with regard to common law vested rights, without reference to Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007), the Court determined that the site plan applicant “did not acquire a common law vested right to proceed with its development plan under the LSO and the MZO.” As a result, the Court concluded, the building permit issued pursuant to the site plan approval “was void ab initio.”

It’s not clear to us at this point whether the Wilson decision marks a departure from the Robins line or whether the former is discernable. Either way, this is an important issue for land use practitioners throughout North Carolina and should be watched with significant interest.

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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