Skip to content

Case Law Update – When It Helps to Read the Statute


Quasi-judicial proceedings are quite common in land use decisions.  They are proceedings where the local board loosely follows the rules of the courtroom in order to determine if the applicant has presented sufficient evidence on which the board can make the necessary findings to issue a variance or a special use permit or to overturn a decision made by a planning staff member.

However, until a mere four years ago there were no codified rules for appealing these decisions into superior court.  None.  We basically knew that we had to file a petition for a writ of certiorari, a request that the court order the government to send its record up for judicial review.   But how you filed the petition and who were the parties and who issued the writ, and whether it could be issued ex parte and whether there were times you could go outside the record were undetermined and unknown.  It was difficult to argue that somebody did an appeal the wrong way.

Then, in 2009 (thanks mainly to the efforts of my friend and the first dean of N.C.’s land use bar, Mike Brough) the General Assembly enacted G.S. 160A-393.  “393” as it is colloquially called, spells out the rules for appealing QJPs from the local board to superior court.

But now that we have clear rules . . .  it’s advisable to follow them.

A recent unpublished opinion from the N.C. Court of Appeals (Philadelphus Presbyterian Foundation, et. al. v. Robeson County), makes it clear that the penalty for not following the rules can be dismissal of your case. In Philadelphus, several citizens protested the issuance of a conditional use permit to Buie Lakes Plantation, LLC, for the construction of a sand mining and processing facility.

Petitioners named the Board of Adjustment, the Board of Commissioners and Robeson County as respondents, even though neither of the boards were proper parties.  However, they failed to name the applicant, which was a necessary party.

Pursuant to G.S. 160A-393(e), “if the petitioner is not the applicant . . . the petitioner shall name the applicant as a respondent.”  When the matter came on for hearing, the county moved for dismissal because the petitioners failed to name a necessary party as required by the rules.  The judge agreed and dismissed their case.

Rules (and statutes) matter.

One particular thing about this case caught my eye, a second thing reminds us why the quality of judges matters, and a third thing excited me because it was a rare judicial acknowledgement of the hybrid nature of these types of proceedings.

First, what caught my eye was that the Court quoted as one authority the case Ball v. Randolph County, a case I was grateful to win for my client, Mr. Ball, in 1998.  The case was my first opportunity for oral argument before the N.C. Supreme Court.  While it’s not the first time the case has been cited by an appellate court, it’s nice now and then to feel as though you’ve made a contribution to the jurisprudence of the state.  (I’m also grateful that sixteen years later, Randolph County is my client, not my opposing party)

Second, if you read lots of appellate opinions you learn to appreciate the quality of judges and the differences in their styles.  This opinion was written by Judge Jim Ervin from Morganton, son of a former 4th Circuit Judge and grandson of a former U.S. Senator and N.C. Supreme Court Justice.  Judge Ervin’s opinions often resemble mathematical equations.  He provides all the legal and factual building blocks needed in simple and direct statements, and then explains how the only position logically reachable is the one he reaches.  Lawyers trying to decipher how he reached his position never have to guess.

Sidebar: The Court of Appeals judge who is arguably the judge most appreciated by the land use bar is Judge Robert N. Hunter (from Greensboro). Judge Hunter has shown time and again that he is sensitive to the use and abuse of power in the hands of local governments who would use delineated powers expansively rather than within appropriate limits and with caution.  Judges Ervin and Hunter are running for the same seat on the N.C. Supreme Court. It is too bad both of them cannot win.  End side bar.

Third, I was excited to read this sentence: “Although the filing of a certiorari petition certainly bears some resemblance to the institution of a civil action . . . the analogy between an appeal and a request for certiorari review . . .  is clearly the correct one.”

The context of the above sentence was a discussion of the reviewing court’s jurisdiction to hear an appeal when the notice of appeal was not timely filed.  But the importance of that sentence is this: lawyers handling these types of cases (I seldom have fewer than five going at any point in time) often are without a clear road map for handling nuanced procedural matters that were not anticipated and therefore not covered by “393.”  Until “393” is expanded, we need to know whether we look to the Rules of Civil Procedure (used in the trial courts) or the Rules of Appellate Procedure (used on appeal from trial courts) as our guide for how to proceed in those situations not anticipated by the statute.

I have argued in the past that QJPs are NOT governed by the Rules of Civil Procedure.  Rather, these proceedings are governed exclusively by “393,” and the Rules of Civil Procedure are used only in those situations clearly specified in the statute.

Whether I am right or wrong is a question to be answered one day by a statutory revision or a case that wends its way though the appellate process.

For email alerts on new posts, click the “sign me up” button above.  Scroll down to read recent posts.  Click on topics of interest in the right hand  column for other posts.

Will I die in a Mediocre City?


Several years ago a Guilford County Commissioner told me, chuckling, that he had just heard Jim Melvin, Greensboro’s former mayor, defend some of his ideas for Greensboro’s downtown improvements by saying this: “I don’t want to die in a mediocre city.”

The sentiment resonates.

Last week WordPress sent me my blog statistics for 2013.  Among other data (e.g. this blog was read by folks in 67 countries, thanks mainly, I’m sure, to Google and key search terms), I learned that my post with the most hits was “Fixing a Screwed Up City,” an essay on the travails of my hometown, High Point, and the city’s decision to hire Andres Duany, called the “father of new urbanism,” to develop a master plan to fix High Point’s woes.

As I stated in that post,

“High Point’s population doubles during each of the fall and spring International Home Furnishings Markets.  As a wholesale trade show event, none of the furniture showrooms, which occupy a vast majority of the downtown space, is open to the public either during or between markets.

 In other words, we have a downtown that is permanently closed to the citizens of the city.

 On top of that we have little to no downtown public space, one way streets designed to move cars as quickly as possible from points A to B without an ability (or interest) to stop at points in between, a Main Street with an average actual speed between 45 and 51 mph depending upon time of day, and our hottest entertainment area is an outparcel-heavy district on Highway 68, three miles from downtown.

  “Screwed up,” perhaps, is a polite understatement.

One year earlier, my most read post was titled “Death of a Hero,” a tribute to Max Heller, the former business leader and mayor who led the sleepy textile city of Greenville, South Carolina into a period of renaissance that no southern city has yet to fully emulate.

The differences between High Point and Greenville are many, but the main difference is this: Greenville has been led by risk-takers with a vision.  High Point seems to be occupied by a critical mass of citizen-naysayers who fight any vision other than “what is.”  When your downtown is permanently closed to the citizens of your city, an alarm bell should go off that something is wrong and must change.

Allow me to be repetitive.  Other cities take steps to give people reasons to visit their downtown.  In High Point the issue is not just finding a reason. The real problem is finding a business that hasn’t intentionally locked us out.  Except for one hotel and one isolated restaurant, I cannot think of a single building on Main Street in our downtown that, come Monday morning, I would be allowed to enter.  I’m an outcast in my own city, and unless you own one of the downtown furniture showrooms, you are too.

In stunning contrast, when I visit my law firm’s Greenville office later this month I will join a parade of people on its Main Street trying to decide which of the many restaurants and stores to walk into for lunch or coffee.

As the Duany plan I earlier wrote about has materialized, it has rightfully been subjected to questions and criticisms.  That’s not the problem.

The problem is that for decades High Pointers have complained that we have no downtown similar to other cities.  No entertainment and restaurant district inside the city other than (1) strip areas farther north on our Main Street cluttered with signs on poles and over-head wires and (2) areas that are technically inside the city but which are closer to Greensboro than the city’s core.  Now that we’ve hired a world-renowned urban planner to give us ideas, the carping and whining seems to have gotten louder, only now the object of scorn is the plan for improvement.

The Sunday before Christmas, the retired editor of the High Point Enterprise wrote a long column that supported nothing about the Duany plan, did not acknowledge the in-your-face problem with how this city has developed, and offered no alternative vision.  Rather, he presented a series of petty, nit-picking, disgruntled comments. His column referenced the Duany plan complaints he heard at various Christmas gatherings, and it followed months of letters to the editor decrying the Duany group ideas and the costs of implementation.

This was not an isolated occurrence.

When Nido Qubein became president of High Point University in 2005, the city fought his efforts to transform a sleepy regional college into a major employer and driver of cultural life in the city.  Rezoning neighboring rent houses for gorgeous new campus buildings and the erection of a billboard on campus were hard fought battles.  When growth came fast, the university was actually asked to declare the outer boundaries of its expansion and to promise never to go beyond them.

The public’s opinion about HPU has changed.  But my point is that, as a city, our natural bent was to fight this vision and change until the results were too compelling to deny.

Great cities – like great institutions and great people – don’t become great by accident.  Greatness requires vision, hard work, risks, and the ability to acknowledge and learn from failure and move on.

Greenville has taken many chances, and in the process it has nurtured a culture of “yes, we can do this.”  High Point has business leaders and council members capable of leading in this type of environment. But too often it seems they swim against the tide of a local culture sadly epitomized by our former editor who thinks that throwing rocks and complaining is, in some twisted way, a contribution to the city’s success.

HPU’s president, Nido Qubein, spoke at a Chamber of Commerce event a few years ago and said (in paraphrase) something like this: A community is like a business.  Sometimes it has to change its culture in order to move forward, but a city can’t change its culture until it changes its attitude.

For High Point to do what Greenville and Wilmington and Salisbury and Charlotte and Greensboro and Winston-Salem and Asheville and even Fayetteville have done, it needs a new culture and a new attitude.

I don’t want to die in a mediocre city, either.

For email alerts on new posts, click the “sign me up” button above.  Scroll down to read recent posts.  Click on topics of interest in the right hand

column for other posts.

Case Law Update – Making the Case for a Cell Tower


Just before Christmas the N.C. Court of Appeals issued an opinion that illustrates the necessity of presenting facts to support your case when the board is considering a special or conditional use permit.  Opinions, speculations, conjectures and surmises, the Court properly reminds us, are not evidence.

In Blair Investments, LLC v. Roanoke Rapids, the city council denied a petition from U.S. Cellular to place a cell tower on the petitioner’s property based on findings that the tower would endanger public health and safety and not be in harmony with the area.

The record of proceedings contained the following evidentiary basis for these findings: (1) the leased lot has, in the past, been unkempt, smelled bad, is filled with garbage, and supports a run-down building; (2) one neighbor merely inquired about the “possible negative health and environmental side effects;” (3) another neighbor did not believe there was a need for a cell tower at this location; and (4) yet another neighbor stated that while she is not opposed to cell towers, she didn’t want to be able to see them.

Judge Steelman’s opinion is a concise treatise on the structure of quasi-judicial proceedings and the requirement that findings supporting or denying a special use permit must be based on competent, material, and substantial evidence appearing in the record.

On appeal, the trial court upheld the town’s denial despite the fact that there was nothing in the record to support the council’s findings.  The Court of Appeals reversed.

This opinion reminds me of a case from 2011 (Premier Plastic Surgery v. Town of Matthews) in which Judge Robert N. Hunter  showed limited patience with a Board of Adjustment that wanted to reach a certain result but didn’t have evidence to support it.  The Board’s findings, Judge Hunter correctly observed,  were “presented with no reasoning,” “merely conclusory,” “mere conjecture,” and based in “opinion.” [Disclosure: The COA remanded that case to the Board, which ignored Judge Hunter’s opinion in its second decision and order.  I represented the the petitioners in the appeal of the second decision, which has now been remanded to the Board for a third chance to get it right.  Among the superior court judge’s findings is that the Board ignored Judge Hunter’s opinion.]

Other Issues

My first question was “where were the lawyers?” and I start with U.S. Cellular.  Granted, there could have been much more legal involvement at the board level than meets the eye, but the opinion doesn’t suggest it.

It doesn’t appear from the opinion that an attorney at the board level or Court of Appeals level reminded the board or informed the court that three of the opposing neighbors’ opinions were legally irrelevant.  The Telecommunications Act of 1996 and N.C.’s Wireless Telecommunications Facilities Act of 2007 prohibit local governments from (1) basing health and safety decisions on the effect of radio frequency emissions and (2) from considering whether a tower is needed based on demand (N.C. G.S. 160A-400.52).

Second, it is the role of the town attorney to make sure a board does not base its findings on speculative comments and opinions (the common term is “generalized fears”).

My second observation is that the applicant’s evidence on whether the tower would harm adjoining property values was quite weak.  The Court determined, however, that the applicant provided the minimum evidence necessary to establish a prima facie case that it had met its burden of proof on each ordinance requirement, thus shifting the burden to the opponents.

G.S. 160A-393(k)(3) states that the opinion testimony of a lay person is not competent evidence to prove that a proposed use will harm the value of other properties.  What is missing from the statute – but which I argue is a compelling interpretation – is that the reciprocal situation would also be true: an applicant’s use of opinion testimony that a use will not harm adjoining or nearby properties is equally incompetent.  I’ve never seen a local ordinance that establishes a presumption of no harm, thus shifting the burden to opponents as a matter of law. The burden initially rests with the applicant to make the case that a use will not harm property values.  It appears that the lack of evidence on this issue was not raised by either side and therefore was not before the court.

Finally, this appears to be a classic case of an elected body having discomfort with (or contempt for) its quasi-judicial function.  Elected bodies are accustomed to making decisions in a legislative manner where council members’ feelings and opinions and even biases can be the sole basis for how they vote.  It is common that elected bodies are reluctant to give up the practically unbridled power that comes with legislative decision-making so that facts and procedures (and lawyers for the parties) control how they must vote.

For email alerts on new posts, click the “sign me up” button above.  Scroll down to read recent posts.  Click on topics of interest in the right hand

column for other posts.

Searching for a Taller Glass of Water


“Water, water everywhere . . . .”  Except Cleveland County, that is.  And Cleveland’s attempt to increase its water supply is an ongoing effort (and battle) that I’ve been watching out of the corner of my eye for a few years. It’s not that I’m interested in Cleveland County.  It’s that Cleveland’s troubles are played out all over the world on a daily basis and are worth understanding.

Whether you’re discussing population growth or economic growth (two sides of one coin), two questions are necessarily raised.  One, do you have the transportation systems in place (or planned).  And two, do you have the necessary water supply in place (or planned).

For 13 years, the Cleveland County Water District, backed by local economic development professionals and business owners, has been trying to dam the First Broad River north of Shelby to create a 24-mile reservoir.  According to the Water District’s website, by year 2060 the county will need 8 million gallons per day (MGD) to meet average daily use and 11.5 MGD to meet peak use. But they only have 6 MGD capacity.

The arithmetic is compelling.

Opponents, on the other hand, are fighting to preserve the community character and the land and small farms that would be acquired (through condemnation, if necessary) to make way for the impoundment.  They are content with life as they know it and not so enthralled with life as economic boosters envision it to become.

The number of reservoir supporters increased in each of 2002 and 2008 when drought conditions challenged the district’s ability to supply water.  A raw water pump station in the First Broad River won’t work, supporters claim, because drought conditions reduce the flow to nothing.

The proposed reservoir is one of only two being planned in the state.  The last one to be completed – the Randleman Reservoir in the Triad – was opened in 2010 after decades of planning and political squabbling and legal battles.

Like a traveler in the desert, the less water you have the more it becomes your focus.  The comment that the “haves” and “have nots” of the 21st century will be determined by possession of adequate water instead of wealth is intuitively true even if, by now, a bit over-stated. The ultimate terrorist weapon is one that will leave a nation in tact but destroy its water supply.

I’m no stranger to water fights.  In the early nineties I represented the Town of Spruce Pine (McDowell County) that went bone dry twice during droughts in the 1980s.  After a long search for a new water supply, their best option was to construct a raw water intake in the Tow River across the county line in Avery County.  However, the relatively new water supply watershed laws meant that a new “critical area” would be created.  Despite the fact that silvicultural activities (tree and shrub farms) were exempted, Avery County went apoplectic that Spruce Pine would take actions that would create even hypothetical land restrictions, and they fought this intake all the way to the state Supreme Court.

We  won.

The skirmishes in the Cleveland County saga have been interesting to watch.  NCDENR decided to sit on the sidelines, angering the opponents.  The US Army Corps disqualified the water district’s consultant over a conflict of interest and has taken the position that there are less costly alternatives, angering the proponents.

Perhaps the most undiscussed (or unseen) elephant in the room is the unavoidable truth that the Cleveland Water District battle raises.  There is a point at which economic and population growth will eventually outstrip our state’s available resources. No, it probably won’t happen in this century, but as the decades pass the more we will be forced to discuss it and deal with it.


You may wonder why today, of all days, I’ve written about the Cleveland water situation.

The answer is that I have a lot of interests and preoccupations that border on total nerdiness, and watching rainfall averages is one of them.  On any given day I can tell you the phase of the moon, the times of high and low tide on whatever coast I’m near, and the number of inches above or below the average annual rainfall for my region. Each day this month I watch to see if we’ll end 2013 as much as eight inches of rainfall above our annual average.  And this morning the precipitation tables got me thinking about places that are more susceptible to the effects of rainfall below the annual average.

A year from now, we could be eight inches below average.  So could Cleveland County.  But our new regional water supply was finished in 2010.

For email alerts on new posts, click the “sign me up” button above.  Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts.

Rezoning the World’s Most Expensive Trailer Park


Last week I caught a story on one of my many news feeds. The fact that it came out of California – and the Napa Valley – makes it even more interesting, because it shows how much Silicon Valley titans will pay to spend a night in a trailer park.

It also illustrates how, in zoning, nomenclature often trumps rational thinking.

The story was ostensibly about a company that paid $55 million for a 50 guest room luxury resort that catered to the deep-pocketed California moguls and celebrities who would pay up to $3,500 per night while they toured the Napa Valley wineries. You can do the ciphering even without a calculator – that’s $1.1 million per room.

             In modern teenage parlance that I hear less these days than a few short years ago: “Duuuude!!!!” (I’ve always translated that in my post-50 brain as “wow!,” but if I’ve sadly missed the meaning, please don’t tell me)

But there was another story buried within.  The property was zoned agricultural, and [I’m using some license here], in the infinite wisdom unique to Californians considering the use of land, it was suitable for the transient vehicles of an RV Park but not for a highly manicured luxury resort.  Because of the intractable nature of those West Coast denizens when it comes to changing zoning classifications, each of the luxury rooms was built upon a chassis much like a mobile home. Apparently, that was the only way it could be done. Where a true mobile home would use plastic skirting to hide the wheels, they used “decking” and other attachments.

A little creativity can go a long way.  And now if I can only figure out how to disguise a multi-acre recycling facility as a single family home, one of my next zoning battles will be solved.

Author’s Update

Thank you to folks who have kindly asked “where have you been?”  Posting land use commentary and updates on recent cases and legislation takes time.  It also takes a certain amount of energy after eleven o’clock at night, something that comes in shorter supply with each passing year.  The bad news is that it has now been three months since I last posted on this site. This is the longest hiatus I’ve ever had in the nearly five years I’ve been writing this blog. The good news is that my recent (and grueling) work schedule indicates a return to a much stronger economy.  Also, there just haven’t been any new cases coming out of our appellate courts worth commentary. But they’re coming, and as I crawl back into my saddle I’ll keep you up-to-date.

For email alerts on new posts, click the “sign me up” button above.  Scroll down to read recent posts.  Click on topics of interest in the right hand column for other posts.