As a young attorney I thought appellate decisions that weren’t published were the ones that established no precedent or posed no new facts to which old law could be applied.  Twenty-five years later I’ve realized that some cases aren’t published because the facts and applicable law are so muddled that the court just isn’t sure if its decision is right. 

            Whatever the reason, three unpublished cases have appeared on the Court of Appeals website.  Each is enlightening in its own way.

            Side Bar: A “published” opinion becomes law.  It has precedential value in that it establishes a new principle of law or proclaims how the law should be interpreted when the same fact pattern in the present case reappears in another context.  The case can be cited in briefs as precedent another court should follow.  An “unpublished” opinion – officially – has no precedential value.  A trial or appellate court can ignore it.  Nonetheless, it’s difficult for a reviewing court to overlook an unpublished opinion, especially when there are no other cases on point.  These three “unpublished” cases were “published” on the Court of Appeals website but under the “unpublished” case section.  In essence, that means that they’ll never be printed in the permanent, hardbound books on library shelves, if those books are even still printed.  End Side Bar.

Whose owns the sewage problem?

            A case out of Alleghany County (McCann v. Town of Sparta) does more than spell out, in simple language, when a municipality is liable to a homeowner for a sewage backup.  It’s also a wonderful illustration of the value of hiring a lawyer when you sue somebody, but especially a town.

            In this case a residential tenant reported a sewage backup that flooded the floor.  The town’s maintenance department, upon notice and inspection, immediately visited the house and determined that there was a blockage in the line.  They used the town’s Jet Vac sewer machine rodder to free the clog (most likely from grease) and didn’t charge the tenant or owner a dime. The owner, nonetheless, decided to sue.  He also assumed, wrongly, that the case would be so simple that he would not need an attorney.

            The trial court entered summary judgment for the town in spite of the plaintiff’s last minute attempts to continue the hearing because, as the plaintiff belatedly realized, he was unprepared and needed a lawyer. He appealed the case to the Court of Appeals, which unmercifully dismissed some of his claims because they were not properly noticed to the court on appeal. In fact, most of the court’s opinion concerns the plaintiff’s procedural gaffes.

            Regarding the ultimate issue, though, the court stated “A municipal corporation which either constructs sewer lines or adopts sewer lines constructed by third persons becomes responsible for maintenance and liable for injuries resulting from lack of due care in upkeep. . . . However, a municipal corporation is not an insurer of the condition of its sewerage system, and liability may only arise where the municipality has [actual] or constructive notice of an obstruction or defect and fails to act.”

            The evidence before the court was that the tenant was seldom home, the blockage had occurred days earlier than reported, and that the town had no previous awareness of a problem.  Judgment in favor of the town (and the value of a lawyer to advise you when not to sue somebody) affirmed.

Ride ‘em Cowboy

            Fast growth areas tend to be magnets for land use litigation, and Union County is no exception. (In the last four years alone I’ve worked on matters in the Town of Wesley Chapel, the City of Monroe and in the county itself, two of which went to the Court of Appeals).

             Marsh v. Union County Board of Adjustment involved the appeal of a farmer who applied for and received a special use permit to use his 300 acre farm for rodeos.  The Board of Adjustment placed nine conditions on his permit, one of which was a limit of four rodeos per year and another was to have two road accesses.

             Within four months Mr. Marsh had failed to construct his second access and decided that the four-rodeo limit was just words on paper.  The zoning administrator recommended that the BOA revoke the special use permit, and it did. Mr. Marsh sued the county, arguing that he never needed a special use permit in the first place and that rodeos fell under the standard exception that counties are not allowed by state law to regulate bona fide farm activities.

            After the Board revoked his permit, Mr. Marsh, in ride-alone-under-my-own-law fashion, decided that the Board had no authority to revoke the permit he contended he was never required to have.  He sued and he lost, but he didn’t appeal.  He did, however, continue to hold rodeo events.

             The county issued more NOVs.  Although the decision doesn’t say so, I will go onto a limb here and assume that the NOVs contained daily and cumulative fines because Mr. Marsh hired a lawyer to sue again and to raise some of the same issues.

             The trial court held and the Court of Appeals affirmed that Mr. Marsh had his opportunity to fully litigate these issues the first time and therefore was “estopped” from asserting the Board’s lack of regulatory authority.  Unfortunately, because the estoppel argument stuck, the Court didn’t need to rope the other steer in the corral, the one dealing with whether a rodeo is a bona fide farm activity.  But since I suspect that you are dying to know the answer, I’ll step in and tell you what the Court didn’t.

             It’s not.

             Under N.C.G.S. §153A-340, a county may not regulate bona fide farm activities through its zoning ordinance.  As a rule of thumb, if it’s not a plant or animal that you sell at a market, it’s not a bona fide farm activity.  My first oral argument before the North Carolina Supreme Court involved just this issue.  Back in the mid-nineties, a landowner in Randolph County was allowing his land to be used for the remediation of petroleum-contaminated soil, mainly from gas station sites.  The dirty soil was spread onto the land and microbes were applied that broke the petroleum down. Colloquially, the process was called “land farming.”  Because it had “farming” in its description, the county decided that it was exempt from zoning regulations.  On behalf of the neighbors I claimed that it was inherently an industrial activity outside the definition of a bona fide farm and therefore not allowed in this zoning district.  Courts at three levels agreed with me.

             A rodeo is inherently a sporting event.  Although animals bred and raised on farms might be used in the sport, the activity has nothing to do with breeding, raising and selling those animals.  Rather, what is sold is a ticket to enjoy a couple of hours of fun and cotton candy, and that’s not farming.

             Now, had the rodeos truly been marketing and promotional activities to attract buyers for horses, cows and vegetables grown on Mr. Marsh’s farm, his claim might have had merit. Those facts, however, were not before the court.

 Lumber Yard Redux

             Three years ago the N.C. Court of Appeals handed down a “spot zoning” case in which neighbors (McDowells and Winslows) of a Randolph County lumber yard (McDowell Lumber) sued the county over it’s rezoning of a portion of the property to an industrial district (McDowell v. Randolph County, 186 N.C. App. 17, 649 S.E.2d 920 (2007).

             The same plaintiffs returned, seeking to compel McDowell Lumber to comply with certain UDO requirements related to placement of buildings after its land was rezoned to an industrial district but before the court struck down the industrial designation as illegal spot zoning.  Reducing the facts to the bare bones, the Randolph County Board of Adjustment determined that the lumber company was now a legal non-conforming use and the new buildings did not constitute an expansion of an illegal non-conforming use.  The County claimed that the petitioners – who lived next door – lacked standing.

             On appeal, the merits of the case were not reached because the court concluded that the next door neighbors who complained about the noise and dust from newly constructed buildings had no standing to complain.

             For years we witnessed the bar to establish standing in land use cases rise a notch or two by each successive appellate opinion.  It almost got to the point where you had to have a real estate appraiser appear at the zoning hearing to put on evidence of your right to be there because of a substantial diminution of your property if the decision is favorable to the applicant.  Attorneys learned that your first line of defense was to challenge the next door neighbor’s right to be in court in the first place because of various technical arguments related to standing.

             The bar was re-lowered in Mangum v. Raleigh Bd. of Adjustment (2008).  However, in McDowell (redux) it went back up.  These plaintiffs actually did have an appraiser at the original hearing who testified about plaintiffs’ loss of property value, but because the appraisal addressed the entire lumber yard operation instead of the buildings complained of, plaintiffs lost on standing.

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