When it comes to appellate litigation there are holdings (which are fodder for legal treatises) and there are lessons (which become fodder for life in the real world). Last week the N.C. Court of Appeals issued an unpublished opinion in Jobe, et. al. v. Town of Haw River that has a clear holding and a clearer lesson.  Let’s visit.

 The facts

             A citizen in the Town of Haw River (in Alamance County) wanted to construct a “construction and demolition debris recycling center and concrete plant.”

             Have you spotted any red flags on the horizon yet?  If not, they get bigger.

             The case was a mess from the beginning.  The town’s planning board held a public hearing a mere six days after the application for a special use permit was filed.

             Then, without posting the property as clearly required by Haw River’s zoning ordinance, the Town Council conducted a public hearing in September where it decided 1) not to swear in speakers and 2) just to listen to opponents.  It then decided to hear from the applicant a month later in October.  Opponents were given no opportunity to cross-examine the applicant or to offer rebuttal evidence at the second town council hearing as clearly allowed by statute and substantial legal precedent. [According to appellant’s attorney, it was even worse.  The hearing was “closed” after the end of the September meeting and never reopened when the council met again in October, yet it continued to hear evidence.]

             Neighbors appealed the town’s approval to superior court claiming failure to follow the notice requirements in the zoning ordinance and a complete absence of competent, material and substantial evidence upon which the town could have based its decision.  Surprisingly, no error was found. More importantly, the court failed to proclaim which standard of review it was using on each claim (as required).

             There are colloquialisms that would better describe this process.

 The holding

             On appeal to the Court of Appeals, the Court focused first on the fact that it was incapable of doing its job until it knew what standard of review was applied to the claim of legal error (which should have been de novo review, a non-deferential standard) and which standard of review was applied to the neighbors’ claim that the decision was not supported by evidence in the record (which should have been “whole record review,” a standard that defers to the board’s decision).

             Then the court said in four paragraphs what I can summarize in four words as its basis for issuing an opinion anyway: “Oh what the heck!” 

             It was clear in the record that public notice – as required by the local zoning ordinance – was not provided, thereby invalidating the town’s decision no matter which standard was used.  Second, it was nonetheless clear in the record that findings from the first hearing were not made upon sworn testimony, thereby rendering them incompetent.  Therefore the court reversed the trial court and upheld the neighbors’ appeal.

 The lesson

             As I said at the beginning, there’s a holding and there’s a lesson.  This case actually teaches two lessons.  First, when you seek approval of landfills, waste-related uses, asphalt and concrete plants and the like, neighbors who dislike a decision to approve will appeal.  Expect it.

             Which leads easily to the second lesson.  You can line up your votes politically and “win” before the local town board or county commission, but if you didn’t follow the ordinance and dot your “I’s” and cross your “T’s”, you’ll lose everything in court that you got from the board.  The body of case law that a board has no leeway to depart from its own ordinance is strong.

             It’s not unusual for cases to return a second time.  Can this applicant return for a second bite at the apple?  Possibly, depending upon what the local ordinance says.  Although a board sitting as a quasi-judicial body is generally bound to make the same findings and conclusions in the future that it made previously upon the same facts, it’s not clear from this decision what evidence was and was not presented.  Stay tuned.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.