In a case with common facts but little precedent, the NC Court of Appeals hit a home run this week for both planners and developers against fickle, mind-changing governments in S.T. Wooten v. Zebulon Board of Adjustment.
Facts
S.T. Wooten Corporation makes asphalt. The Town of Zebulon administers a zoning ordinance. When Wooten approached the town in 2001to determine if an asphalt plant was a permitted use in a Heavy Industrial district, the town’s planning director replied by letter that an asphalt plant was permitted. The director’s interpretation of the town’s ordinance was clear and was not hedged, qualified, contingent or squirrelly. No one appealed the planning director’s decision.
And in reliance on this letter, Wooten spent approximately $300,000 on site improvements and in obtaining state and local permits, driveway permits, building permits, sedimentation and erosion control permits.
However, in 2009, a new planning director was in town, and he informed Wooten that the plant’s “ultimate approval” still had not been determined because the town board must issue a special use permit.
Wooten did the right thing. It sought good legal counsel.
Statutory Framework
North Carolina statutes provide an orderly mechanism for determining the meaning of a local zoning ordinance. The custodian of the ordinance is the planning director or zoning administrator. He or she is judge and jury when questions arise about the ordinance’s interpretation. Aggrieved parties can appeal the interpretation to the Board of Adjustment. If the Board does not reverse the decision (they almost never do), citizens can appeal the interpretation to a superior court judge and go from there to the Court of Appeals. Maybe even to the N.C. Supreme Court.
The Opinion
Judge Beasley’s opinion is straightforward and clearly correct. Interestingly, as often as this scenario arises in one form or another, she had only two cases at her disposal for guidance, and neither of those cases presented facts identical to this one.
As she stated, “we conclude that the 2001 statement of the planning director is a determination of binding force, and, because no objection was made to that appealable decision in a timely manner, it is binding on the Town.”
The Home Run
Judge Beasley’s decision was a home run for two reasons.
First, it recognizes, respects and protects the proper role of the planning director. Someone must be “on the ground” to interpret the local ordinance on a daily basis. When he or she speaks, it is the final word, subject only to appeal to the Board of Adjustment pursuant to N.C. Gen. Stat. §§ 160A-388 or 153A-345. Because the town did not appeal its director (as it had a right to do) it cannot undo the decision years later just by issuing a contrary opinion.
Second, developers and private businesses like S.T. Wooten have a right to rely on the decisions and determinations of the person delegated with authority to interpret the local ordinance. In fact, they often have no choice. Gray area determinations have to be made on a daily basis, and if the planning director’s decision is not binding then there is no assurance that the hundreds of thousands of dollars you are spending won’t be lost when a later director arbitrarily makes a different call.
The tragedy
Inside every silver lining there’s a dark cloud, and with S.T. Wooten v. Zebulon Board of Adjustment the tragedy is that is was not published. Although an unpublished opinion can be cited, it doesn’t have the weight or authority that a published opinion does. I hope that Wooten’s attorneys appropriately petition for this case to become part of the library of permanent opinions. It deserves its place.
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