I divide my life into two parts – the period when the comic strip Calvin & Hobbes graced my morning newspaper . . . and all other times.
In June 1992 I clipped (and still have) a strip where Calvin declares “This town just ain’t big enough for the both of us.” But in the next panel he ponders what to do to win control because his mom won’t let them play with guns. Hobbes, his pet tiger, immediately announces his solution, proclaiming “I get to be the zoning board.”
The “zoning board” in every state that I am aware of, is a generic term for one of three creatures: the advisory planning board, the elected body making a zoning decision, and the Board of Adjustment.
Side Bar. If you’re feeling mischievous and want to see a planner or land use attorney cringe like some folks do when fingernails are scraped across a blackboard, repeatedly pluralize the term by calling it the Board of Adjustments. There is no “s” on the end of “Adjustment,” and the correct plural form is with an “s” after “Board,” with the sole exception being when you use its acronym, “BOA”, in which case the plural is “BOAs.” End Side Bar.
I’ve never done a calculation, but a high percentage of appellate cases in North Carolina are from Boards of Adjustment. The most recent opinion is the August 17 Meier v. Charlotte Zoning Board of Adjustment which, though not momentous, provides a glimpse into one of the key roles of BOAs.
Boards of adjustment are created by statute. For cities, the statute is G.S. 160A-388, and for counties it’s 153A-345. Their duties are specifically enumerated, and one of those duties is to serve as a local appeals court when someone charged with interpreting the local zoning ordinance interprets it in a way you believe is incorrect.
Attorneys expect to lose these appeals at the board of adjustment and tend to view them as just a necessary step to proceed to the next level of appeal into superior court, where the superior court judge acts as an appellate judge reviewing the board’s decision.
As a general rule, when it comes to appeals of a zoning administrator’s decision, BOAs are not considered level playing fields. Why? Because except for a very few large cities where board compositions include attorneys and developers and former planners, boards of adjustment tend to be comprised of well-meaning men and women with low to moderate civic profiles who, the day before their appointment, had never heard of the board of adjustment, knew nothing about zoning or zoning principles or concepts, had never read their own town’s zoning ordinance, and had never sat on a board with power to control peoples’ destinies and fortunes. Everything they know, as a board member, was taught to them by the planner assigned to the BOA. They learn to follow the planner’s lead. In many cases they’re scared not to. And when the board’s planner or his/her department is challenged, they circle the wagons.
Which is not to say that planners are usually wrong. As another general rule, planners often have to make a decision based upon an ordinance lacking in clarity and that was not written with the presented facts in mind, and they usually do a pretty darn good job.
The recently decided Meier case involved a man (Mr. Meier) who thought a house being built next door was too tall, so he challenged the height by contacting the Charlotte planning department.
Mr. Meier sought an ordinance interpretation on the proper method of calculating a building’s height from Keith MacVean, then the zoning administrator. Mr. MacVean responded with a letter interpreting the ordinance. Mr. Meier, however, didn’t appeal Mr. MacVean’s opinion on how the ordinance should be interpreted until after 30 had passed. The BOA dismissed the appeal as having been untimely filed, but a superior court judge, on appeal, held that the appeal was timely. The Court of Appeals reversed the superior court judge and found that the BOA correctly dismissed the case because the appeal was untimely.
The case affirms a well-known principle. If someone charged with interpreting a zoning ordinance makes an actual and identifiable interpretation, and the local ordinance tell you how long you have to appeal to the board of adjustment, then “the appeal period begins to run as soon as the aggrieved party receives actual or constructive notice of the interpretative decision.”
Color Commentary
Attorneys make way too much money off of property owners who failed or never took Human Relations 101 and who choose to fight “legal” battles or start nitpicky wars with the folks next door whose driveway connects, who they see everyday when watering the shrubbery, and whose children come over to play. In my humblest opinion, these battles are never worth it. Never.
Additionally, this is yet one more well-written and well-structured opinion by Judge Ervin, son of a former judge of the United States Court of Appeals for the 4th circuit and grandson of a former justice of the N.C. Supreme Court (and U.S. Senator). His opinion is also filled with numerous footnotes that lay bread crumbs for lawyers like me who need to interpret in later cases exactly what was decided. We need more judges like him.
Second Side Bar. In case you wonder if the last paragraph is self-serving, Judge Ervin falls into the category of acquaintances who, if I saw him out of context, I would extend the courtesy of reminding him my name. He has never decided one of my cases, and I have no cases in the Court of Appeals at this time. End Second Side Bar.
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