Every now and then an appellate court issues an opinion that makes you rise from your chair and whisper “DAA-uhm,” although I was slightly more expressive when I read the recent NC Court of Appeals case Templeton et. al. v. Town of Boone.
Templeton’s procedural history is circuitous, but the Cliff Notes version of the decision itself is straightforward. Even if a town has just rezoned your property against your wishes, you, as the fee-title-holding-tax-paying property owner, do not have automatic standing to challenge the rezoning unless you use all sorts of magic words and phrases in your complaint to prove that your property was just rezoned and the town has begun to enforce the ordinance against you.
DAA-uhm on each point.
Let me say it another way in case I wasn’t clear. A local government can change the uses allowed on your land in what might be characterized as a hostile rezoning, but if you aren’t presently seeking permits or trying to change uses, or if the town sits idly by and takes no affirmative steps to enforce the ordinance for a mere two months, then the statute of limitations will pass and you are forever barred from challenging what could have been a patently illegal or unconstitutional abuse of power. And if you can jump through that hurdle, then the court will parse the ordinance to see if you have precisely alleged that you own the land just rezoned.
Waiter . . . check please!!
What is Standing?
“Standing” is the right to ask a court to determine a legal dispute in which you have suffered a wrong. If you are party to a contract that was breached, you have a right to sue. If you are a third party unaffected by the contract’s performance, you don’t.
In cases where zoning decisions are litigated, standing has long been the subject of debate because a plaintiff’s connection to rezoned land can lie somewhere between marginal and manufactured. For example, as I write this I’m heavily involved in litigation where most of the plaintiffs live a straight-line-crow-flying distance of two to two and ½ miles away from the land just rezoned. Among their numerous complaints is that somebody else, the landowners themselves who wanted the rezoning, were entitled to a certain type of notice from the government. The two-plus-miles-away neighbors think they have standing to question whether somebody else’s rights were abridged. (In my legal opinion, only the owners of the rezoned tract have a right to question whether an ordinance adopted for their protection was followed, but we’ll find out later what a court thinks).
But back to the point, North Carolina has a long and still-growing body of law on the rights of certain neighbors of the rezoned tract to challenge a government’s decision in court. In all of those cases our courts have had to determine if an adjoining or nearby owner has a right to challenge the decision.
However, if it is your own land that has been rezoned, your standing to challenge the decision has always been assumed. Some might even say it is axiomatic. I certainly do.
But wait. There’s more.
I spoke with both attorneys. Susan Burkhart, outside counsel for the Town of Boone, is known to be an outstanding attorney in an outstanding firm, and she got an outstanding result for her client. By email, Susan explained that Mr. Templeton was found not to have standing because, in reality, his property really was not affected by the ordinance.
If she’s right, then that’s another problem. The opinion doesn’t say that. It says Mr. Templeton alleged he owned land that was affected by the zoning ordinance, and that basic allegation wasn’t good enough. The court therefore dismissed the case because Mr. Templeton’s pleadings were deficient. It was not dismissed because other facts proved that his allegation was wrong. Thus, Templeton stands for the proposition that a landowner does not have automatic standing to challenge the rezoning of his own property unless he uses the right words and phrases in his pleadings.
Have we Ever Gotten Standing Right?
Our courts have struggled with standing for decades. And if Templeton is an indication, we’re making matters worse, not fixing them.
For starters, our analytic structure is schizophrenic. When someone seeks to change a parcel’s zoning status, our statutes presume that adjoining property owners have a stake in the matter and require that they be notified in writing within prescribed times. The property must be posted to inform neighbors of the request. The same citizens are given a right by statute to express opinions or to provide evidence at a mandated public hearing.
But after the decision has been made, the same neighbors who had been presumed to have a stake must now prove to the court that they have a right to be a plaintiff.
Our analytic structure is also backwards. Standing should reflect an assessment of a rezoning’s effect on neighbors after a board’s decision is made. Standing should not be determined by the zoning board members’ mental processes in getting there. Nonetheless, we actually have different standards for determining standing depending upon whether the board was acting in a quasi-judicial fact-finding capacity versus a legislative capacity, even if the effect on neighbors is identical.
If the decision is quasi-judicial, statutes require a plaintiff to be “aggrieved” and to allege “special damages.” If the decision is legislative, plaintiffs must demonstrate they were “directly and adversely” affected, which sounds like “aggrieved” to me, but let’s not get lost in the abstracts and instead consider an example that illustrates the point.
Suppose County A allows fast food restaurants by a special use permit, while 50 yards away across the county line in County B the same type of store is allowed through a legislative zoning process. Same street, same use, same neighborhood, same adjoining neighbors, but because the approval process is different in each county a court must apply different standards to decide whether neighbors have standing. And in this (sort of extreme) example, the couple who lives in between could have standing to challenge one but not the other.
The loss of value “rabbit”
For 40 years we wandered in the desert of lost property values being the only factual basis providing standing to challenge quasi-judicial decisions. Like hounds prematurely freed from our leashes, we spent 40 years chasing a single rabbit through the legal thicket.
Even if health and safety were explicit standards before the board, it would make no difference that a proposed and extremely loud race track would harm the health of most patients in the hospital next door. The hospital would have standing only if its property value would be diminished. It would make no difference that a proposed cell tower at the end of an airport’s runway would pose significant safety hazards to pilots and passengers alike. The airport could only challenge the rezoning if its airport property would thereby be decreased in value.
The basis for this myopic exclusion of all other factors was an N.C. Supreme Court decision, Jackson v. Guilford County, a 1969 case that was published the same month that Sesame Street made its TV debut.
Although one never fully knows all the facts from reading the court’s opinion, neighbors in Jackson alleged that a proposed trailer park would harm their property values. The court stated, “. . . the owner of adjoining or nearby lands, who will sustain special damage from the proposed use through a reduction in the value of his own property, does have a standing to maintain such proceeding.”
So . . . the neighbors’ basis was affirmed. The court never ever ever said that loss of property values was the sole basis upon which a party could establish standing. Nonetheless, the line you just read in the preceding paragraph was expanded to the point where you practically had to hire an appraiser to appear and testify in a garden variety rezoning case if you wanted to preserve the right to litigate the decision.
“Mother May I”
When I was a kid we played a game called “Mother May I” where the designated “mother” would stand on one side of the yard and the rest of the kids on the other. “Mother” would arbitrarily and sequentially tell each person whether they could approach using whatever number of baby steps, giant steps, leaps or hops the mother chose. But if they didn’t use the phrase “Mother may I?” before starting, they had to return to the beginning.
At some point in our 40 year wanderings courts began to look increasingly hard for magic words and phrases to see if plaintiffs had precisely alleged “special damages” or harm. Did plaintiffs say “Mother may I?”
The Mangum Case
The North Carolina Supreme Court recently determined that plaintiffs had standing in a Raleigh Board of Adjustment strip club case to challenge a decision using parking, stormwater and other allegations (i.e. not property values) as a basis for standing. Mangum v. Raleigh Bd. of Adjustment was Moses leading us out of the desert.
The Mangum court also reminded lower courts that North Carolina is what is called a “notice pleading” state where citizens aren’t required to play “Mother may I” to gain access to our state’s judicial system. Or, as the Mangum court phrased it:
“[I]t is the essence of the Rules of Civil Procedure that decisions be had on the merits and not avoided on the basis of mere technicalities.” To deny a party his day in court because of his “imprecision with the pen” would “elevate form over substance” and run contrary to notions of fundamental fairness.”
The Templeton court, however, wasn’t satisfied with the Mangum decision or notice pleading. It said:
“Even though plaintiffs’ complaint alleges that plaintiff Templeton is the owner of real property ‘affected by the zoning ordinances adopted by the Town of Boone . . .’ the complaint makes no specific allegation that plaintiff Templeton’s property is located within 100 feet of a major traffic corridor or that any portion of his property could be seen from a major traffic corridor. Therefore . . . [the] complaint does not make factual allegations which would support a finding that plaintiff Templeton’s property is ‘directly and adversely affected . . .’ Accordingly, we hold that plaintiff Templeton has not made sufficient allegations to carry his burden to establish standing to bring his statutory claims against the Viewshed Protection Ordinance adopted by defendant . . . and those claims are properly dismissed.”
Three points. First, if you follow the nuances of legislative and quasi-judicial decisions, you might have noted that Mangum was a quasi-judicial decision affecting one tract of land while Templeton was a legislative zoning text amendment affecting a broad area. Two, so what? Notice pleading is notice pleading no matter the nature of the case origin. And three, in “notice pleading” a plaintiff makes a bare bone allegation to put somebody on notice of a claim. If the claim has no merit, our rules are framed so that the case is dismissed after a substantive review of the facts or legal claims, not whether certain magical words and phrases were used at the pleading stage.
The injustice of “unripeness”
The last party I would join is one that has “tea” in the title. But that might just be the last party in town, and I’m looking for an invitation.
The ultimate mischief of the Templeton case is that is does not recognize a landowner’s standing in a zoning case as accruing the moment the legal status of the landowner’s land has changed. Instead, it says that a claim is not “ripe” for judicial review until the government begins to enforce the law, as though the law was passed for sport and never was intended to be enforced anyway. In doing this, Templeton establishes a clear mechanism whereby a city or county can utilize whatever unconstitutional or illegal processes it wants in the adoption of a zoning ordinance that denies owners substantial rights related to use of their land. And as long as the city or county waits two months while the statute of limitations passes before it takes any action to enforce the new law, nobody will be around to challenge the ordinance for that very reason – the statute of limitations has now passed.
So, what’s next?
Under our procedural rules, when a three-judge Court of Appeals panel is split, a party can automatically appeal its decision to the state’s Supreme Court.
In this case the court was divided thanks to a fairly tightly worded dissent by Judge Jackson who correctly noted the problem in allowing governments to wait plaintiffs out until the two-month statute of limitations has passed. Although Judge Jackson weighs in first with an academic discussion of standing in various types of constitutional challenges, she absolutely nails her point by referencing an earlier unpublished opinion in which a plaintiff was found not to have standing to challenge a new ordinance because it had not yet been injured through denial of a permit or other form of ordinance enforcement. But when the same plaintiff returned to court after an enforcement action had been completed, the plaintiff was told that the two month statute of limitations had passed.
In other words, you’re screwed because our courts don’t grant you standing to sue before two months, and you’re screwed because our statutes don’t allow you to sue after two months. But screwed is screwed and there’s no legal term that will better suffice.
Unfortunately, the Templeton plaintiffs did not appeal, and the Court of Appeals decision stands.
Where do we go from here?
Big question. And the big answer in my humble opinion is that we – the broad “we,” as in North Carolina – will only truly emerge from this wilderness when we adopt new and comprehensive legislation that simplifies and clarifies standing. In other words, we can’t just keep tweaking the ever-growing body of case law that is increasingly confusing and conflicting. The only way to fix it is to completely rewrite it.
People who live anywhere from next door to more than two miles away will always claim that their sky is falling because this use or that has been allowed. But our standards for determining standing in all land use cases should be common. They should be clear. And they should be written to keep out the pretenders while inviting the truly interested citizen to have a seat at the judicial table.
To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column. To be alerted when a new post is published, simply click the “sign me up!” button above. If you learned something, please forward this link to others who also might benefit.]