Earlier this week the North Carolina Court of Appeals decided two companion cases with the same name, each arising from the same development in Polk County. McMillan et. al. v. Town of Tryon was filed after the town approved the Tryon County Club’s petition to rezone property from a “P-1 open space zone” to “R-4 Conditional Use Zone” which would allow single family homes and duplexes.


             Initially, the trial court dismissed the petitioners’ claim because they lacked standing to bring the case.  Legal determinations of standing in land use cases are farcical at best.

             “Standing” is a legal concept that requires a party to have a stake in the matter sufficient to allow them to initiate a legal challenge. It’s a principle born of common sense and practicality.  Without it, the number of suits filed for sport and entertainment by uninvolved meddlers would explode.

             In land use cases, for reasons I have never understood, counties and towns actually can change the standard for determining standing in local cases merely by determining whether the decision to allow a particular use is a legislative or quasi-judicial decision. Additionally, when standing is not even an issue before the board requiring evidence to be presented, courts nonetheless look to evidence in the record on this issue – evidence that one was not required to supply at that stage.  And North Carolina courts for decades merely repeated aphoristically the broad standards of previous cases without analyzing the principles of standing.

             My favorite example pertains to a conditional use permit in Boone where a developer wanted to place a 96 bed assisted living facility literally at the end of the Boone Airport runway.  Even though “material danger to health and safety” was a CUP standard and several pilots testified as to the danger to their lives if the use were allowed, prevailing cases would have indicated no standing because such evidence did not relate to property values.

             In the first McMillan v. Tryon case, the Court of Appeals overturned the trial court and found standing because one witness testified about inadequate roads to support school buses, noise, traffic, problems with septic tanks and springs, etc., and because the North Carolina Supreme Court has only recently, in Mangum v. Raleigh Bd. of Adjustment, allowed such testimony to invoke standing. [Disclosure: two of my partners argued the case for petitioner that led to an appropriate and much-needed expansion of this standard]

 Quasi-Judicial Sausage

             Otto Von Bismarck was alleged to have compared the ugliness of making laws with the same messiness required to make sausage.

             Quasi-judicial proceedings in land use cases in North Carolina could be added to the list.  Our appellate courts for decades have struggled with what they are, when they are required and whether certain procedures are allowed.

             The issue in McMillan was whether the decision should have been legislative or quasi-judicial when by case law rezonings are legislative yet the local ordinance required the rezoning decision, which was accompanied by a conditional use permit, to be quasi-judicial.

             The Court noted that the Tryon procedure was to engage in sequential decisions, with the first being the decision to rezone and the second being the decision whether to issue a conditional use permit.  It noted:

             “Although Chrismon, Massey and Summers make clear that a completely legislative process may be employed when a county or municipality seeks to use  conditional use zoning, if a political subdivision chooses to adopt a consolidated quasi-judicial process in conditional use zoning, we recognize that process as another valid means to exercise the valuable flexibility conditional use zoning offers when regulating land use.”

             In 2005 the General Assembly did a minor overhaul of zoning legislation, and in 2009 it enacted S44 which codified the case law rules governing quasi-judicial proceedings.  These types of hair-splitting confusions and appeals, nonetheless, will continue.