This past week, the Supreme Court of North Carolina handed down a decision in Morris Communications Corp. v. City of Bessemer City Zoning Board of Adjustment. At its core, the Morris Communications matter is about what constitutes “work” under a local zoning ordinance–the term is not defined, but used–to determine whether the advertising company possessed a vested right to relocate its billboard in the City. The City contended “work” to mean “actually something moving on the ground … [c]onstruction.” Morris Communications, on the other hand, insisted work “encompasse[d] the broader range of activities necessary to complete the sign relocation [such as] negotiations with NCDOT and [property owner] Dixon” and “acquisition of a county building permit.”
The City’s Board of Adjustment agreed with the City, and prohibited the advertising company from relocating its billboard. Upon a petition for certiorari, the trial court affirmed the local board of adjustment. The Court of Appeals, in a divided opinion, affirmed the trial court. In his dissent, Judge Robert C. Hunter believed “that the term ‘work’ does not necessarily mean that a physical alteration must occur at the site.”
Supreme Court’s Decision
The Supreme Court reversed. In doing so, the Supreme Court reinforced the “rule of construction” that “zoning ordinances are strictly construed in favor of the free use of real property is appropriately applied.”
However, the Supreme Court’s decision also appears to depart from or implicitly overrule other principles of land use law. As an initial matter, the Morris Court states: “As with any administrative decision, determining the appropriate standard of review to be applied when reviewing a board of adjustment decision depends on ‘the substantive nature of each assignment of error.” This moves away from the notion that a board of adjustment decision as to an appeal from a zoning administrator’s determination is quasi-judicial in nature, not administrative. Harden v. City of Raleigh, 192 N.C. 395 (1926); Bessemer City Code, Section 4.5.2 (“The consideration and final decision on any application for an appeal, variance, special exception, conditional use permit or interpretation, as provided above, shall be made by the Board of Adjustment only after a quasi-judicial public hearing has been properly advertised and convened.”).
Shameless plug: for a brief review of the distinction between these two types of land uses decisions–the third being “legislative”–you can visit our recent article here.
In addition, the Supreme Court agreed with the contention that “the Court of Appeals erred in determining the BOA’s interpretation was entitled to deference under de novo review.” But NCGS 160A-393(k)(2), to which the Court does not cite in its analysis, details the “Scope of Review”: “When the issue before the court is whether the decision‑making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision‑making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate.”
I’m an admitted fan of the billboard case–they are always full of real estate, local government and constitutional issues–but there is much here for any land use practitioner to mull. Enjoy.
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.