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Legislature Adopts New Laws Governing Land Use Appeals to Superior Court

Governor Perdue recently signed Senate Bill 44, which is intended to clarify the existing laws governing quasi-judicial land use appeals to Superior Court. The most common type of quasi-judicial land use decisions are those from local Boards of Adjustment or other local government bodies that deal with zoning variance requests or special use permits that allow a particular use in a zoning district. Appeals to the Superior Court are based solely on the record established before the local government body. Therefore, it is very important for any applicant or opponent to make sure sufficient evidence is presented at the local government level prior to initiating an appeal to Superior Court.

Senate Bill 44 sets forth numerous new regulations regarding, among other things, standing, supplementation of the record on appeal, and what is considered competent evidence before the local government decision-making body. Below is a brief summary that highlights important provisions of the new law and the impacts it could have on developers, neighboring property owners and local governments:

A. Standing

Senate Bill 44 codified and clarified what some have considered inconsistent and conflicting case law regarding who is entitled to appeal and/or be a party to an appeal of a quasi-judicial decision made by a local government entity. The new law sets forth specific requirements for standing and allows the following people and/or groups to appeal quasi-judicial decisions by local governments:

(1) Any person who has an ownership interest, leasehold interest or interest created by easement, restriction or covenant in the property that is the subject of the land use decision;
(2) Any person with an option or contract to purchase the property that is the subject of the land use decision;
(3) Any person who was an applicant before the decision making body;
(4) Any person who will suffer special damages as a result of the land use decision;
(5) An association of property owners so long as one of the members of the association has standing to appeal and the association was not created in response to the particular development or issue that is the subject of the appeal; and
(6) A city whose decision-making body has made a decision that the council believes improperly granted the permit or approval.

The new law also makes clear that a respondent is only required to file an answer to the appeal if the respondent contends that any of the petitioners lack standing to bring the appeal.

These new standing laws in quasi-judicial appeals are intended to clarify recent appellate decisions that have attempted to address standing issues. See Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 669 S.E.2d 279 (2008). The effect of these amendments may, however, grant standing to a broader range of people. As a result, there could be an increase in the number of quasi-judicial appeals from local boards of adjustment or other quasi-judicial decision-making bodies. Therefore, with the expansion of those allowed to challenge these types of quasi-judicial decisions, developers and property owners should make sure to present adequate evidence at the quasi-judicial hearing in order to protect any favorable decision on appeal. Likewise, local governments and their quasi-judicial decision-making bodies should make adequate findings of facts that support their conclusions of law and carefully prepare the record to the Superior Court.

B. Supplementation of the Record

The Superior Court is only allowed to review the record established at the local government hearing for errors of law or insufficient evidence. Senate Bill 44 does, however, allow the record to be supplemented to the extent the record is not adequate to allow a determination as to (1) whether a petitioner or intervenor has standing; (2) whether the local government decision-making body was not sufficiently impartial to comply with due process principles; (3) whether the local government decision-making body violated constitutional provisions; and (4) whether the local government body exceeded its statutory authority or the authority granted to it by ordinance. The purpose of these provisions is to allow evidence into the record that sometimes is not known until after the quasi-judicial hearing is conducted such as evidence of bias or constitutional violations, including procedural due process violations.

C. Competent Evidence

Senate Bill 44 also clarifies existing case law with respect to what should be considered competent evidence by the local government decision making body. The bill makes clear that evidence that is not admissible pursuant to formal rules of evidence may be considered if (1) the evidence is admitted without objection or (2) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision-making body to rely upon it. The bill also codifies existing case law and excludes from competent evidence any opinion testimony from lay witnesses regarding whether the use of property in a particular way would affect the value of other property, whether an increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety and any other matters about which only expert testimony would generally be allowed.

While the case law prior to Senate Bill 44 was generally clear on issues related to competent evidence, the new law only further stresses the importance of making sure the proper experts attend the quasi-judicial hearing to provide this type of specialized testimony. Typically, a local real estate agent or appraiser is adequate to provide testimony regarding value, and obviously a traffic engineer would be adequate to provide testimony pertaining to an increase or decrease in vehicular traffic and its effect on public safety.

Establishing a solid record before any local government quasi-judicial body is an important step in ensuring success on appeal to the Superior Court. Poyner Spruill regularly represents developers, neighboring property owners and local governments in these types of quasi-judicial hearings.

Senate Bill 44 becomes effective January 1, 2010, and applies to all quasi-judicial decisions rendered on or after that date. A complete copy of the bill can be found at:

http://www.ncga.state.nc.us/Sessions/2009/Bills/Senate/PDF/S44v7.pdf

© 2009 Poyner Spruill LLP. All rights reservedNational Law Review, Volume , Number 239
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About this Author

Chad W. Essick, Real Estate Attorney, Poyner Spruill Law Firm
Partner

Chad primarily represents land owners and developers before local Boards of Adjustment, Planning Commissions, City Councils, and County Commissioners on matters related to zoning, permitting, variances, annexations, special use permits, site plans, subdivisions and road closings. He also represents land owners, developers and local governments in state and federal court on a myriad of land-use, zoning and real estate issues, including vested rights, constitutional matters, zoning ordinance interpretations, local government authority and title issues. He also has...

(919) 783-2896
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