North Carolina Land Use Litigator

SCOTUS Scores Win for Property Owners, Requiring Judicial Review In Face of EPA "Compliance Orders" Made Pursuant to Clean Water Act

2012-03-23T10:28:00.012-04:00

Some Background
Petitioners Sacketts own property in Bonner County, Idaho. While constructing a home on that property, the Sacketts "filled in part of their lot with dirt and rock". The problem, however, according to the EPA, is that the Sacketts' property "contains wetlands within the meaning of [federal law]" and those wetlands "are adjacent to Priest Lake [which is] a navigable water within the meaning of [the Clean Water Act]".

If the EPA determines, as it did with regard to the Sacketts, that any person is in violation of the Clean Water Act, the EPA shall either issue a compliance order or initiate an enforcement action. Should the EPA succeed in an enforcement action, without having first issued a compliance order, the fine shall "not exceed [$37,500] per day". Should the EPA issue a compliance order and the order is not abided, and the EPA subsequently commences an enforcement action and succeeds in the action, the fine is doubled.

The Case
Back to the Sacketts, and Sackett et al. v. Environmental Protection Agency, et al. (March 21, 2012). The EPA did not commence an enforcement action against the Sacketts but rather issued a compliance order, which rendered "Findings and Conclusions". The Sacketts were not afforded, and did not participate, in any kind of hearing or other process prior to the EPA's issuance of the compliance order.

The Sacketts, who disagreed with the EPA's "Findings and Conclusions" that their property is subject to the Clean Water Act, requested a hearing. The EPA denied the request. At that point, the Sacketts brought a lawsuit in federal court seeking declaratory and injunctive relief. The Sackett's complaint contended that the compliance order was "arbitrary [and] capricious" under the Administrative Procedure Act, and that the compliance order deprived the Sacketts of their due process rights.

The Government, on the other hand, contends that the compliance order is not final, as defined by the APA, such that there is no jurisdiction for review. And, even assuming the decision is final under the APA, the Clean Water Act "precludes judicial review" such that the Sackett's lawsuit is not proper. From a policy perspective, militating against judicial review of compliance orders until enforcement is sought, the Government argued that "Congress passed the Clean Water Act in large part ot respond to the inefficiencies of then-existing remedies for water pollution [and] [c]ompliance orders ... can obtain quick remediation through voluntary compliance".

The trial court dismissed the Sackett's complaint, and the court of appeals affirmed.

The Opinion
The Government takes the loss and property owners notch the victory, though not on due process grounds. Rather, the Court concludes that property owners are entitled to a hearing on compliance orders under the APA.

In his majority opinion, Justice Scalia reasons that the compliance order has "all the hallmarks" of a final agency decision under the APA: (1) it determined "rights and obligations", (2) legal consequences flow from the compliance order--namely, fines, and (3) the compliance order "marks the consummation of the EPA's decisionmaking process.

The Court also concludes that the Clean Water Act does not preclude judicial review, reasoning that "[t]he APA's presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all." The Court continues, "There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review--even judicial review of the question whether the regulated party is within the EPA's jurisdiction".

But will the Court regret its decision to open the floodgates of judicial review and occupy the EPA with litigation in almost every instance of regulatory decisionmaking? One might think the Court doesn't believe that's what is sown: "Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity."

Right, THOSE cases.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.

New Hampshire Supreme Court Rules That Lowering Pond's Water Level Not a Taking of "Constitutional Dimension"

2012-02-13T11:56:00.011-05:00

"Eminent domain" is defined as the power vested in a sovereign to take, to authorize the taking of, or to damage, the private property of owners without their consent for a public purpose upon the payment of just compensation. Think, "Your yard will now become a public opera venue".

"Inverse condemnation", which is well-established in North Carolina, allows that a landowner may initiate an action to seek compensation for a taking whenever his property is taken for a public purpose though no declaration of "eminent domain" power has been made by the sovereign. In English, it is a device that forces the sovereign--a local government, e.g.--to exercise its eminent domain power even though it may have no desire to do so. Think, "We didn't turn your yard into an opera venue, but we did turn the space next to your yard into an opera venue and you're now able to enjoy this season's 'The Rake's Progress' for free. Over and over again. Nevertheless, quit bugging us for money and pay for your own move."

The New Hampshire Issue
The plaintiffs, residents of Lyme, New Hampshire, own land abutting a pond that is controlled by the State. Additionally, the pond is part of a local park. The pond's water level is controlled by a beaver dam, into which pipes have been placed to facilitate water level control. Some of those pipes are located on plaintiffs' property, and were constructed without proper permits.

In 2008, the Town of Lyme changed its water release policy allowing the Town to, in effect, lower the pond's water level. The Town did, ultimately, lower the pond's water level.

In 2009, the plaintiffs filed a petition in equity and writ of mandamus alleging that the Town's actions as to the pond's water level violated certain state statutes, the public trust doctrine, the Town's own zoning ordinance, and a conservation easement. Plaintiffs also alleged that the Town trespassed on private property, "created and maintained a private nuisance" and committed a taking.

The trial court granted the Town's and State's motions to dismiss, and an appeal to the New Hampshire Supreme Court followed. Professor Zalkin covers the decision here, as well.

Nuisance Claim
In December 2011, the Supreme Court affirmed the dismissal of the nuisance claim. On the bases that "[m]ere annoyance or inconvenience will not support an action for a nuisance", and that "depreciation in land values 'is ordinarily accorded little weight by the courts in nuisance cases'", the Supreme Court determined that the allegations fell short of demonstrating that "the Town's 'activity [with regard to the pond's water level] substantially and unreasonably interfere[d] with the use and enjoyment of their property'".

Takings Claim
By far the more interesting claim, the Supreme Court nonetheless also affirmed dismissal of plaintiffs' "inverse condemnation" action.

The Supreme Court concluded: "the allegations fail to support a claim that lowering the water level of Post Pond substantially interfered with or deprived the petitioners of the use of their property, in whole or in part".

More pointedly, the Court scolded that "[m]erely alleging that the Town lowered the water level so as to 'compromiss[] [their] access to water' and 'interfere[] with [their] enjoyment of [their] property' is not sufficient to demonstrate that a taking of a constitutional dimension has occurred".

***

As a procedural sidenote, the plaintiffs attempted to argue that what the courts had interpreted as a petition for a write of mandamus was, in actuality, a claim for declaratory judgment; presumably because the legal standard is lower, but that's not clear. The Supreme Court gave this argument the "back of the hand", however, and construed plaintiffs' submission as a petition.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.

N.C. Court of Appeals Addresses "Standing" to Challenge Zoning Decisions, and the Manner of Interpreting "Permitted Uses"

2012-02-07T12:49:00.016-05:00

The North Carolina Court of Appeals handed down a decision today affecting the "standing" of neighbors to challenge zoning approvals as well as the interpretation of permitted uses spelled out--or not spelled out, as the case may be--in a zoning ordinance.

The facts of Fort, et al. v. County of Cumberland and TigerSwan, Inc. are fairly straightforward.

TigerSwan submitted a site plan to Cumberland County seeking approval for the location of a "training facility" on a piece of land in the County. The land is zoned "A1 Agricultural District" by the County's zoning ordinance.

TigerSwan classified the proposed "training facility" as a "firearms training facility" and the evidence presented in the appeal established that TigerSwan intends to provide "instruction to military, law enforcement, and security personnel in topics such as weapons training, urban warfare, convoy security operations", and "[w]arrior [c]ombatives" in order to "teach, coach, and mentor tomorrow’s soldiers". TigerSwan also intends to provide "courses on topics such as first aid, firearm and hunting safety, and foreign languages for adults and children".

Included in the list of permitted uses for land zoned A1 Agricultural District are "SCHOOLS, public, private, elementary or secondary". The Cumberland County Zoning Administrator approved TigerSwan's site plan by "classifying the business as 'private school'".

Neighboring landowners appealed the Zoning Administrator's decision to the County's Board of Adjustment, citing increased noise, potential stray gunfire and groundwater lead contamination from discharged gun rounds.

The Board of Adjustment voted unanimously that the neighbors had standing to challenge the site plan approval, but the Board could not reach the necessary 4/5 supermajority vote to overrule the Zoning Administrator's approval of the site plan.

The landowners petitioned the Superior Court for a writ of certiorari. As did the Board, the Court agreed with the Board that the neighbors had standing but held that the training facility is a permitted use in the zoning district.

Court of Appeals on "Standing" to Challenge a Zoning Approval.
At issue, the neighbors submitted lay testimony and lay affidavits for purposes of showing "special damages" to meet the "standing" standard articulated in Magnum v. Raleigh Bd. of Adjustment (2008).

The Court of Appeals affirmed the trial court's decision as to standing. Deflecting an argument that "lay testimony" is not proper to determine standing before the Board of Adjustment, the Court made clear that the prohibition against "lay testimony" in N.C.G.S. 160A-393(k)(3) applies only to a Court's review of the substance of the Board's decision, not to any "standing" analysis.

In other words, the Court concludes that lay testimony is "competent" to confer standing for purposes of 160A-393 however it is "incompetent" for purposes of reviewing the substance of a Board decision in the nature of certiorari pursuant to 160A-393.

Whether "Training Facility" Is a Permitted Use.
The Board concluded, and the trial court agreed, that the "training facility" is permitted as a "private school" in the property's zoning district. The Court of Appeals, however, reversed, concluding the "training facility" to be an impermissible use.

Applying the "rules of statutory construction" and looking to the the "spirit and goal" of the zoning ordinance at issue, the Court of Appeals analyzed the "permitted use provision at issue. Notably, the Court stated, "[W]e find instructive this Court's use of the long-standing rule of statutory construction: 'expressio unius est exclusio alterius', meaning the expression of one thing is to the exclusion of another." In other words, depending on the application of this rule, silence could be interpreted as prohibition. Also notably, the Court made no mention of another axiom as to the narrow interpretation of zoning laws as a "derogation of rights".

The Court concluded, "Training Facility is not a permitted use as it is not a public or private, elementary or secondary school".

The Fort, et al. decision marks a more liberal approach to a "standing" analysis for purposes of challenging a zoning decision, though a more strict approach to interpreting a zoning ordinance.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

Federal Court Mulls While Village Court Rules Municipal "Tree Law" Unconstitutional, Despite Presumption of Validity

2012-02-06T15:29:00.008-05:00

As readers of this blog know, we'll sometimes reach to "other places", outside North Carolina, for some interesting land use law developments. Readers will also know that I, in particular, like to reach back to Rockland County, New York, the place of my birth.

This latest news is fun and educational.

The Village of Montebello is located in the Town of Ramapo, about 45 minutes north of The Bronx, New York. I would describe Montebello as "rustic suburban"; "rural" is aspirational and, frankly, unfair. In any event, rustic suburban Montebello enacted in 2005 a "Tree Law", the only such law in Rockland County. Pursuant to that local "Tree Law", property owners are restricted as to the removal of trees from their property. The "Tree Law" can be found here, specifically at Section 176.

Mr. and Mrs. Novie moved into the Village in 2004. In 2009, Mr. and Mrs. Novie applied for and received permission from the Village authorities, pursuant to the "Tree Law", to remove 3 dead trees and 3 living trees from their property. The Village alleged that the Novies removed 12 trees, and cited the Novies for violating the "Tree Law". In February 2010, the Novies and the Village settled on a $250 fine and assurances of no further violation, such as an assurance may be.

In 2010, Mr. and Mrs. Novie applied to remove 15 trees from their property. The Village did not "expressly 'deny'" the Novies' application, according to the Novies, and they proceeded to cut certain of those 15 trees. The Village ordered the Novies to go before the Planning Board, at which point the Village fined the Novies in excess of $1500 for violating the "Tree Law".

In December 2010, the Novies filed a federal lawsuit against the Village and "its boards and agents" contending the "Tree Law" is unconstitutional. Specifically, the Novies allege:

"[T]aken together, the Village's ordinances constitute an interference with their constitutional right of contract for the purchase of a suburban residence without unreasonable regulation, and constitutes both a regulatory and possessory taking of [Novies'] real property without just compensation through the Village's de facto creation of a conservation easement upon the entirety of [Novies'] back yard. [Novies] also allege unconstitutional selective enforcement."

The federal case is still pending in the S.D.N.Y. In the meantime, however, a Village Justice--hearing an appeal of the fines levied against the Novies--ruled from the bench this past week that the "Tree Law" is unconstitutional. The Village court is quoted as stating, "[Notwithstanding the usual presumption of constitutionality afforded to municipalities, in this case the Village's law was clearly unconstitutional, and 'not a close call'."

You've seen us blog before about the presumptions benefiting a municipal government and their legislative acts; but you also seen us blog about litigants overcoming those presumptions in a variety of cases.

Whatever the case, in the Village of Montebello as concerns the trees, it's Property Owners-1, Municipal Government/Trees-0.

We'll see how the federal court "tree-ts" these issues.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

The Clock On Certain North Carolina Development Approvals, Previously "Paused", Has Now Been "Un-Paused"

2012-01-18T17:49:00.011-05:00

In November 2010, we blogged here about the North Carolina General Assembly's action to extend the "tolling" or "suspension" of the expiration of certain development approvals in light of the poor economic climate. The logic, as far as we can tell, made sense: certain development approvals are for a time certain, the economic climate is such that much development is on "hold", we'd like these entities, individuals and local governments to have the opportunity--subject to local government agreement (local governments could opt out of the legislation, which some did)--to develop as they had planned once the economy improves.

Well, the extension of this "tolling" period has, itself, expired as of January 1, 2012 and the North Carolina General Assembly has not "re-loaded" the tolling weapon as it did in 2010. Professor David Owens of the North Carolina School of Government summarizes the effect of this pocket veto in his recent blog post.

What this means is, essentially, the tolling by the earlier laws of any development approvals has now ended and the clock has, again, begun to tick on those projects having previously enjoyed a little "free" hiatus. Local governments and developers/the developing, alike, should take note of any projects affected by this non-move and determine next steps.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

South Carolina Supreme Court Upholds Zoning Ordinance: Cites Importance of Controlling "Mass Student Congestion"

2012-01-09T09:55:00.008-05:00

Appellant owns a piece of property located within the City of Columbia, South Carolina, zoned RD-DP. Pursuant to that zoning, only one "family" may occupy a single dwelling unit. More importantly, the zoning ordinance defines a "family" as: "an individual, or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit."

Columbia, of course, is a college "town". Well, it's much more than a college "town", but it IS the home of the University of South Carolina-Columbia. As such, the property at issue was occupied by four unrelated individuals, all of whom were undergraduate students at the University. According to the Court, the "occupants were friends, shared meals and expenses, and operated as a single household."

Upon inspection, the City's zoning administrator concluded that four unrelated individuals living together violated the applicable zoning ordinance. The Board of Zoning Appeals affirmed.

The occupants appealed to the circuit court, challenging the constitutionality of the zoning ordinance. Following a hearing, the circuit court held that the ordinance is constitutional; it does not violate the occupants' due process rights.

In McMaster v. Columbia Board of Zoning Appeals, the Supreme Court of South Carolina affirmed the circuit court and upheld the ordinance. In doing so, the Court applied the following presumption: "A municipal ordinance is a legislative enactment and is presumed to be constitutional. [E]very presumption will be made in favor of the constitutionality of a legislative enactment; and a statute will be declared unconstitutional when its invalidity appears so clear as to leave no room for reasonable doubt that it violates some provision of the Constitution. [T]he power to declare an ordinance invalid because it is so unreasonable as to impair or destroy constitutional rights is one which will be exercised carefully and cautiously, as it is not the function of the Court to pass upon the wisdom or expediency of municipal ordinances or regulations."

Following the landmark decision in Village of Belle Terre v. Boraas, the Court found a "rational relationship between the Ordinance's definition of 'family' and the legitimate governmental interests the Ordinance seeks to further."

And the "governmental interests" at issue? The Court describes the City's need to "control[] the undesirable qualities associated with 'mass student congestion'." Read: fraternity houses.

There is much deference due a local government's legislative decision. However, will the ordinance survive if applied to a more sensitive matter? There isn't much sympathy, I'd wager, for the chaps of Sigma Chi.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

Charlotte Occupiers Burn U.S. Flag, Charged With "Careless Use of a Fire"

2012-01-02T09:16:00.008-05:00

Four men associated with the Occupy Charlotte movement were arrested for burning a U.S. flag in Occupy's uptown-area campsite.

No, flag burning is not illegal. The Supreme Court's 5-4 decision in Texas v. Johnson made this clear: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the experission of an idea simply because society finds the idea itself offensive or disagreeable."

However, the four Occupiers are not to be charged with "burning an American flag." Rather, according to news reports, the men violated a law prohibiting the "careless use of a fire" because they burned the emblem without the use of a fire pit, a misdemeanor. It's not clear from reports as to whether the law violated is part of the North Carolina Fire Code, a local modification thereof or a purely local ordinance. Whatever the case, as we've seen in past cases, it can sometimes be that an ordinance of seemingly general applicability can run into legal obstacles when enforced in seeming conflict with First Amendment rights.

Therein lies the interest to readers of this feed: most any local law can tread in perfectly legal though seemingly complicated waters, whether land use laws or otherwise.

We'll see if free expression groups take this one up.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

Local Government Planning Board Approves Disputed Development Because "Applicant Is Within His Legal Rights"

2011-12-28T10:12:00.007-05:00

The history of Patrick Farms in the Town of Ramapo, New York, is just too long and sordid to tell. In fact, there are forces at play--religious, political, environmental--that would make an Oliver Stone movie look Spielbergian in nature. Nevertheless, a good primer on the history can be found here, at the "Preserve Ramapo" web site. Yes, this is slanted in its view. But, unfortunately, there is no "Do Not Preserve Ramapo" web site to counterbalance.

In any event, of immediate interest to us at the North Carolina Land Use Litigator is not only the evolving outcome of this goat rodeo, but the comments of local government officials accompanying the outcome.

This week, the Town of Ramapo Planning Board approved the construction of nearly 500 housing units on the rural Patrick Farm site outside the Village of Pomona. Again, without getting into the specifics of the opposition, suffice it to say that there is much opposition. However, the heart of the matter can be found in this quote from the Chairman of the Town of Ramapo Planning Board: "As long as the applicant is within his legal rights and all of the agencies are on board with it, what legal right do we have to turn [the application] down?"

Does this sound like political cover? Sure. And perhaps it is, to an extent. But this is also a legal truism that all developing entities and local governments should heed. In the face of an administrative land use decision, in which the local government is not vested with discretion, the applicant's compliance with the objective criteria will almost certainly entitle the applicant to approval.

Mike Thelen is a lawyer in Womble, Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

Womble Carlyle to Sponsor Team In Mongol Rally 2011

2011-07-20T17:39:00.006-04:00

Womble Carlyle is proud to announce that it will be sponsoring Team Reckless Abandon in the Mongol Rally, which begins July 25.

The Mongol Rally is a diminutive-car road rally that begins in Europe and ends in Ulan Bator, Mongolia, taking place over a period of four weeks. The Firm's support of Reckless Abandon benefits Water.Org, a U.S.-based nonprofit organization committed to providing safe drinking water and sanitation to people in developing countries. A link to Team Reckless Abandon can be found here.

Follow Team Reckless Abandon, learn more about the race or make a charitable donation by traditional website or on Twitter.

Zoom!

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

The Lighter Side of Land Use Law: Lawn "Car"naments and Lawn "Veg"aments

2011-07-15T10:08:00.009-04:00

In a departure from the usual information, which we thoroughly enjoy though which we also acknowledge can sometimes border on the dry, we bring you two hot land use topics of the type you'd learn about in the last 2 minutes of your local evening news broadcast. You know, like "Local boy wins rock eating contest" or "Dog takes wheel to save seized driver from crash".

"Hey, you can't park that here."
"We're not parking it. We're abandoning it."
--Stripes (1981)

First , on the local side, we're hearing that the Town of Chapel Hill -- the bucolic municipality of the flagship campus for the University of North Carolina and its thousands of students -- intends to crack down on an increasing problem: lawn parking. Apparently municipal neighborhoods with high student populations, and the apartment complexes and multifamily units meant to house these future Zuckerbergs, are showing a penchant for lawn parking where driveways are too small or street parking is prohibited.

It seems the Town's Land Use Management Ordinance, parking and drive areas are restricted to 40% of the front yard areas and requires an all-weather surface covering or a gravel covering. One report quotes the Town's Housing and Neighborhood Services Planner as saying, "[The parking and drive areas ordinance] is really designed to get at those properties that cover their lawn with parking and the feeling that it gives to the entire neighborhood when you have a property like that." We can't really argue with the aesthetic intention, assuming its consistent with the police powers, but is the Town simply risking a bunch of gravel-covered "lawns"?

Second, from another swing state, we're reading that a Michigan woman is facing a misdemeanor trial over a vegetable garden located in her front yard. The City of Oak Park land use ordinance permits a front yard to display "suitable, live, plant material." The City, however, does not find a series of walled vegetable plots to be "suitable" under the land use code. The property in debate is pictured with this post.

Julie Bass, the landowner, who will not back down, has already received a warning, a ticket, and is now charged with a misdemeanor. With the story having gone viral, we're of the belief that Ms. Bass will, um, squash the City's stance. Lettuce have that pun without any groans, huh?

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

Citing Due Process Violations, Residents/Business Challenge Award of Special Use Permit for the Relocation of Homeless Shelter

2011-07-12T13:48:00.011-04:00

The Town of Chapel Hill and the Inter-Faith Council for Social Service ("IFC") are embroiled in litigation, brought by residents of and the owners of a shopping center located within a Town neighborhood, over the award of a special use permit to the IFC for the location of a new men's homeless shelter.

Specifically, the neighbors and shopping center allege that some members of the Town council developed pre-conceived notions and conclusions about the special use permit before the quasi-judicial hearing could be conducted and all evidence could be considered.

In a response filed late last week, the Town responded that the council had developed no such thing, and a statement in advance of the quasi-judicial proceeding that the Town council would support setting a "deadline for the IFC homeless shelter to vacate the old municipal building downtown and move to its new location on Homestead Road" does not amount to an improper pre-determination to award the special use permit in violation of due process rights.

The blog Chapel Hill Watch provides a more fulsome background into the facts, here. While we find the discussion contained therein to be interesting, we cannot vouch for the accuracy of the statements.

We'll follow this litigation as it develops.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

South Carolina Enacts New "Point of Sale" Law

2011-06-30T09:01:00.006-04:00

Morris Ellison, a prominent lawyer in our newly-christened but long-established Charleston office, has authored a very informative piece on the implications of a new "point of sale" law for individuals or businesses owning commercial real property in South Carolina.

The piece on South Carolina's "point of sale" law, which requires tax reassessment of properties whenever a sale has occurred, can be viewed here.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

North Carolina Land Use Litigator Added to Albany Law School Professor's "Blogroll"

2011-06-24T10:42:00.005-04:00

We've made the permanent "Blogroll" on Albany Law School Professor Patricia Salkin's nationally-recognized and nationally-canvassing land use blog, "Law of the Land." Dean Salkin's biography can be found here, and her wonderfully insightful blog can be accessed here.

As a native New Yorker--Rockland County, if you're curious--I take this personally.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

North Carolina Supreme Court Issues Land Use Ruling Bearing On Local Ordinance Interpretation and View of Zoning Restrictions

2011-06-24T09:14:00.015-04:00

We've blogged in the past here and here about billboard laws in North Carolina. This post concerns billboards, yes, but it's more about the Supreme Court's most recent edict on land use.

This past week, the Supreme Court of North Carolina handed down a decision in Morris Communications Corp. v. City of Bessemer City Zoning Board of Adjustment. At its core, the Morris Communications matter is about what constitutes "work" under a local zoning ordinance--the term is not defined, but used--to determine whether the advertising company possessed a vested right to relocate its billboard in the City. The City contended "work" to mean "actually something moving on the ground ... [c]onstruction." Morris Communications, on the other hand, insisted work "encompasse[d] the broader range of activities necessary to complete the sign relocation [such as] negotiations with NCDOT and [property owner] Dixon" and "acquisition of a county building permit."

Procedural History
The City's Board of Adjustment agreed with the City, and prohibited the advertising company from relocating its billboard. Upon a petition for certiorari, the trial court affirmed the local board of adjustment. The Court of Appeals, in a divided opinion, affirmed the trial court. In his dissent, Judge Robert C. Hunter believed "that the term 'work' does not necessarily mean that a physical alteration must occur at the site."

Supreme Court's Decision
The Supreme Court reversed. In doing so, the Supreme Court reinforced the "rule of construction" that "zoning ordinances are strictly construed in favor of the free use of real property is appropriately applied."

However, the Supreme Court's decision also appears to depart from or implicitly overrule other principles of land use law. As an initial matter, the Morris Court states: "As with any administrative decision, determining the appropriate standard of review to be applied when reviewing a board of adjustment decision depends on 'the substantive nature of each assignment of error." This moves away from the notion that a board of adjustment decision as to an appeal from a zoning administrator's determination is quasi-judicial in nature, not administrative. Harden v. City of Raleigh, 192 N.C. 395 (1926); Bessemer City Code, Section 4.5.2 ("The consideration and final decision on any application for an appeal, variance, special exception, conditional use permit or interpretation, as provided above, shall be made by the Board of Adjustment only after a quasi-judicial public hearing has been properly advertised and convened.").

Shameless plug: for a brief review of the distinction between these two types of land uses decisions--the third being "legislative"--you can visit our recent article here.

In addition, the Supreme Court agreed with the contention that "the Court of Appeals erred in determining the BOA's interpretation was entitled to deference under de novo review." But NCGS 160A-393(k)(2), to which the Court does not cite in its analysis, details the "Scope of Review": "When the issue before the court is whether the decision‑making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision‑making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate."

I'm an admitted fan of the billboard case--they are always full of real estate, local government and constitutional issues--but there is much here for any land use practitioner to mull. Enjoy.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

New Article In Land Use Quarterly, Published By the Zoning, Planning and Land Use Section of the North Carolina Bar Association

2011-06-13T11:56:00.005-04:00

We've recently placed the lede article in the latest edition of the Land Use Quarterly, which is published by the Zoning, Planning and Land Use Section of the North Carolina Bar Association. The piece is entitled "The Administrative Land Use Decision As Both Sword and Shield" and can be found here.

The article serves to walk through the higher points of North Carolina caselaw governing administrative land use decisions, including practice pointers for local governments and for the commercially or residentially developing throughout North Carolina.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

North Carolina Court of Appeals Upholds Annexation Ordinance, Articulates Standard of Judicial Review

2011-06-08T09:12:00.011-04:00

In May 2009, the City of Wilmington adopted an ordinance annexing an area known as Monkey Junction. The original annexation proposal provided for the addition of personnel and "necessary corresponding equipment" to accommodate and facilitate the annexation of new land into the City. Moreover, the City projected $0 in cost for extending services to Monkey Junction in fiscal year 2010, but did project revenues and expenditures for fiscal years 2011 through 2014.

In July 2009, unhappy with the annexation plan, Plaintiffs filed a petition seeking judicial review of the ordinance. Plaintiffs alleged that (1) the City failed to substantially comply with the requirements of NCGS §160A-47 to set forth the method by which the City planned to finance the extension of services to Monkey Junction for the fiscal year the annexation became effective, and (2) that the City failed to comply with NCGS §160A-49 by denying City residents and persons resident or owning property in the annexation area the opportunity to be heard at the public hearing.

The trial court granted the City's motion for summary judgment. Plaintiffs appealed.

In Royal Palms MHP, LLC v. City of Wilmington, the North Carolina Court of Appeals affirmed summary judgment in the City's favor.

In doing so, the Court spelled the judicial manner of reviewing an annexation ordinance. First, the Court noted that NCGS §160A-50(f) provides the paradigm governing judicial review of an annexation ordinance. Relevant provisions provide that review shall be conducted by the court, which may hear oral arguments and receive written briefs, and "may take evidence intended to show (1) That the statutory procedure was not followed, or (2) That the provisions of G.S. 160A-47 were not met, or (3) That the provisions of G.S. 160A-48 have not been met."

The Royal Palms Court then quoted from well-held caselaw regarding the practical application of the above paradigm and the limited breadth of judicial review: "The scope of judicial review of an annexation ordinance adopted by the governing board of a municipality is prescribed and defined by statute.... These statutes limit the court's inquiry to a determination of whether applicable annexation statutes have been substantially complied with. When the record submitted in superior court by the municipal corporation demonstrates, on its face, substantial compliance with the applicable annexation statutes, then the burden falls on the petitioners to show by competent and substantial evidence that the statutory requirements were in fact not met or that procedural irregularities occurred which materially prejudiced their substantive rights. 'In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A–48 ... ?'"

Challenging an annexation ordinance can be complicated work and, like most land use processes, must be addressed swiftly and in a technical manner. The hurdles articulated in Royal Palms reinforce that difficult lesson.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

General Assembly Mulls Limitations Period Against Challenges to Validity of Zoning Ordinances

2011-05-24T08:53:00.021-04:00

We've blogged in the past here and here about the two-month statutes of repose applicable against challenges to the validity of zoning ordinances, and we presented a paper -- with shameless self-promotion here -- on this same topic to the North Carolina Bar Association Local Government Section and the Zoning, Planning and Land Use Section.

In a nutshell, the currently-existing statutes of repose bar all comers aiming to challenge a zoning ordinance once the ordinance is two months past its date of adoption. Attempts to circumvent this bright line have met limited and varying success, which we addressed to the North Carolina Bar Association. Again, see us here.

With the introduction of House Bill 806, which made its debut some three days prior and which we briefly discussed before our colleagues at the North Carolina Bar Association, the North Carolina General Assembly is looking toward revision of those statutes of repose. At its core, the latest version of the revised statutes of repose would do as follows:

(a) Two Months, At Least for Some. Keep in place a strict two-month window within which to challenge "the validity of any ordinance adopting or amending a zoning map or approving a special use, conditional use, or conditional zoning district rezoning request."

(b) Two Years and Accrual Is Anyone's Guess. But for those actions outlined in (a) above, any other challenge to the "validity of any zoning or unified development ordinance ... shall be brought within two years of the accrual of such action." The General Assembly also attempts to define accrual in House Bill 806, which the current law sets at the date of ordinance adoption: "Such an action accrues when the party bringing such action first has standing to challenge the ordinance."

(c) The "End Around". While a head-on challenge to the validity of a zoning ordinance may be barred by either (a) or (b) above, the revised statute would be clear that these statutes of repose/limitation do not "bar a party in an action involving the enforcement of a zoning or unified development ordinance from raising as a defense to such enforcement action the invalidity of the ordinance."

These are significant changes to a paradigm some originally believed so beneficial that the original 9-month "window" was subsequently shortened to 2 months in duration, with accrual at the date of adoption.

On May 13, 2011, the Senate received House Bill 806 from the House. Then, on May 16, 2011 and after passing its first reading, House Bill 806 was referred to the Senate Committee on State and Local Government.

We'll continue to monitor this legislation.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

Local Ordinance Governing Site Plan Applications: "In Effect At Time of Application" or "Subsequently Adopted"

2011-05-23T09:23:00.016-04:00

In 2007, the North Carolina Supreme Court held that an applicant to a local government for approval of a site specific development plan is "entitled to have his application reviewed under the ordinances and procedural rules in effect as of the time he filed his application." Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007). The brief facts of Robins are that after his application and in the course of mulling Mr. Robins' application -- which proposed the construction of an asphalt plant "directly across" from an existing cement plant -- the Town passed a moratorium on the approval of any "processing facility involving petroleum products." The moratorium contained the following language, which endeavored to put the brakes on Mr. Robins' application: "This section shall apply to all applications for a permit or approval, including any application which is pending as of the effective date hereof." According to the highest court, however, a North Carolina local government cannot change the rules midstream. Notably, Robins contains no discussion of "vested rights."

This past week, the North Carolina Court of Appeals appears to have departed from that line.

In Wilson v. City of Mebane Board of Adjustment, an applicant first submitted his site plan application in January 2008. At the time of that application, the City employed both a Landscape Standards Ordinance ("LSO") and a Mebane Zoning Ordinance ("MZO"), which were outcome-friendly to the site plan applicant.

In February 2008, after the site plan application had first been filed, the City adopted a Unified Development Ordinance ("UDO"), the application of which would have rendered the site plan illegal. The City eventually approved the site plan in February 2009 pursuant to the MZO and LSO, at which point a building permit was issued. A disgruntled neghbor appealed the issuance of the permit to the Board of Adjustment, alleging that the UDO -- rather than the LSO and the MZO -- applied to the site plan and so the building permit should not have issued. The Board of Adjustment disagreed, upholding the issuance of the building permit. On a proceeding "in the nature of certiorari," the Superior Court affirmed the Board and ruled that the Board committed "no error of law" in determining the site plan applicant "acquired a common law vested right to proceed under the LSO and was entitled to a building permit."

The Court of Appeals reversed the trial court. After thorough analysis with regard to common law vested rights, without reference to Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007), the Court determined that the site plan applicant "did not acquire a common law vested right to proceed with its development plan under the LSO and the MZO." As a result, the Court concluded, the building permit issued pursuant to the site plan approval "was void ab initio."

It's not clear to us at this point whether the Wilson decision marks a departure from the Robins line or whether the former is discernable. Either way, this is an important issue for land use practitioners throughout North Carolina and should be watched with significant interest.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

Paper Presented On the Judicial Treatment of the Two-Month Statutes of Limitations and Repose Applicable Against Challenges to Zoning Ordinances

2011-04-20T10:49:00.006-04:00

This past week, I presented a paper entitled "Absolute Bar, a Roll of the Dice, or Somewhere in Between: Divining Application of the Two-Month Statute of Repose" at the joint annual meeting of the Zoning, Planning and Land Use Section and the Government and Public Sector Section of the North Carolina Bar Association. A link to the informational materials, including topical lineup and date of statewide replays of that seminar, can be found here.

I co-authored the piece with Anna Short, a lawyer in our Raleigh office.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

North Carolina Court of Appeals Addresses Whether An Administrative Land Use Decision Is An Order, Requirement, Decision or Determination

2011-04-20T09:06:00.023-04:00

The following blurb will appear in a paper I authored for circulation in this month's Land Use Quarterly, a publication of the North Carolina Bar Association's Zoning, Planning and Land Use Section. A link to the Section's homepage can be found here. This particular discussion addresses a recent, unpublished decision of the North Carolina Court of Appeals addressing the finality of an administrative land use "decision" that it is binding, ripe for appeal, and gets running those applicable limitations periods. See N.C.G.S. §§160A-388(b); 153A-345(b).

In S.T. Wooten Corporation v. Bd. of Adjustment of the Town of Zebulon, No. COA10-515 (April 5, 2011), the North Carolina Court of Appeals addressed whether "a specific statement by the Town Planning Director [and Land Use Administrator]—that, pursuant to the Town zoning code, the proposed asphalt operation is a permitted use by right requiring only a general use permit—is an order, decision, or determination of binding force."

In the summer of 2001, the Town’s then-planning director issued a writing “confirming the Town’s extraterritorial jurisdiction … and stating that an asphalt plant was a permitted use,” which no one appealed. The local official echoed this decision three months later in a writing to N.C.D.E.N.R. regarding air quality permitting and the corporate landowner continued to spend money and pursue entitlements.

In May 2009, the Town approved a zoning permit for a temporary asphalt plant, specifying that “no change of use permit was required.”

Then, in October 2009, the Town’s current planning director notified landowner that “the ‘ultimate approval’ of the proposed permanent site for an asphalt manufacturing plant was ‘still to be made by the Board of Commissioners by way of a Special Use Permit.’” Wisely, despite its belief that the 2001 decision could be the only “final” decision, the landowner appealed the 2009 writing to the board of adjustment, which affirmed the current planning director. The trial court upheld the board’s decision in the Town’s favor.

In an unpublished decision, the S.T. Wooten court reversed the trial court and held that the unappealed 2001 decision by the Town planning director “became a binding zoning determination to which the Town must adhere.” The court determined that the 2001 decision is “more similar to the actual ‘decision’ rendered in Meier [v. City of Charlotte] than the ‘advisory’ response of In re Historic Oakwood.” Looking to the Meier framework, the court articulated that (i) the planning director was “empowered” by local law to render the 2001 interpretation, (ii) the landowner “specifically requested” the permitted use interpretation, (iii) the planning director “clearly interpreted” the zoning ordinance on “at least two occasions,” and (iv) the landowner relied on the planning director’s 2001 interpretation.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

Unique Event! Join NC Attorney General Roy Cooper & Womble Carlyle for the CLE Symposium for Top NC Legal Counsel on May 5

2011-04-12T13:46:00.001-04:00

Womble Carlyle CLE Symposium for Top NC Legal Counsel
A full-day CLE event for in-house counsel
May 5, 2011 -- 8:30-4:30 p.m.
10 CLE Sessions, Lunch and Keynote Address by North Carolina Attorney General Roy Cooper

On May 5, Womble Carlyle will offer CLE sessions on such topics as:

political contributions/lobbying

data management

economic development

crisis/catastrophic event planning

employee defection/personnel departures

outsourcing agreements

intellectual property minefields

legal project management

the China market

‘green’ strategies

Event information

Location: Proximity Hotel
704 Green Valley Road
Greensboro, NC 27408
(800) 379-8200
http://www.proximityhotel.com/
Reference this event when booking overnight stay to receive special rate.

RSVP: There is no fee to attend but seating is limited.
Please RSVP by Friday, April 22nd, using one of the following methods:
phone: (336) 433-5699
email: greensbororsvp@wcsr.com

Click here for information on the ten panels that are being offered to top legal counsel in North Carolina.

Register today!

North Carolina General Assembly Mulling Legislation Governing Location and Maintenance of Electronic Billboards

2011-03-28T18:12:00.010-04:00

The North Carolina General Assembly is mulling two bills at the committee phase -- Senate Bill 183 and House Bill 309 -- that would allow outdoor advertisers to replace existing outdoor billboards with electronic ones, would allow placement of those electronic billboards every 1500 feet, and would expand the area from 250 feet to 400 feet around those outdoor billboards that could be cleared of trees or other vegetation. As drafted, the bills would affect interstate highways and federally assisted roads such as U.S. 64 and 70 in Wake County (home of Raleigh) and U.S. 74, N.C. 49 and 521 in Mecklenburg County (home of Charlotte).

According to news outlets, the bills have met mixed reviews.

We'll keep an eye on this evolving legislation.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

North Carolina Court of Appeals Addresses Challenge to Legislative Zoning Decision Regarding Location of Pawn Shops

2011-03-28T08:48:00.010-04:00

In 2006, the Raleigh City Council began considering a zoning ordinance which would serve to restrict pawn shops to certain locations within the City. At that time, pawn shops were permitted in the Business, Thoroughfare, Industrial-1, Industrial-2, Buffer Commercial, Neighborhood Business, and Shopping Center zoning districts.

On 17 February 2009, after conducting 14 meetings to discuss the issue over approximately two and one-half years, the City Council enacted an ordinance restricting pawn shops to the Business, Thoroughfare, Industrial-1, and Industrial-2 zoning districts; in other words, the new zoning ordinance carved "Buffer Commercial, Neighborhood Business, and Shopping Center" zoning districts from the permitted areas. Those pawn shops already in existence were allowed to remain in their current locations.

On 17 April 2009, plaintiffs -- a group of pawn shops and pawn shop owners -- filed an application and order extending time to file a complaint with the trial court, which was granted. On 1 May 2009, plaintiffs filed a complaint for declaratory judgment and a motion for preliminary injunction alleging, inter alia, that the new zoning ordinance was arbitrary and capricious. On 1 March 2010, the City filed a motion for summary judgment, which the trial court granted.

On appeal, plaintiffs primarily argue that the trial court erred in granting summary judgment because there were material issues of fact pertaining to the reasonableness of enacting the ordinance and whether the enactment was arbitrary and capricious. Plaintiffs contend that "the ordinance does nothing that the existing ordinances governing pawn shops did not already accomplish."

In an unpublished decision captioned Beck v. City of Raleigh, the Court of Appeals affirmed the trial court's decision. The Court noted that "allegations that the City Council's decision was unreasonable, or arbitrary and capricious, does not create a factual dispute," which should suffice and should probably end the analysis. Indeed, why not dismiss at the Rule 12(b) stage rather than wait for Rule 56 summary judgment? Nevertheless, citing to Graham v. City of Raleigh, 55 N.C. App. 107, 284 S.E.2d 742 (1981) ("When the action of the legislative body is reviewed by the courts, the latter are not free to substitute their opinion for that of the legislative body so long as there is some plausible basis for the conclusion reached by that body."), the Beck Court continued with a relatively brief but fulsome recitation of facts in the record to demonstrate "a 'plausible basis' for the enactment of the ordinance, and the decision to enact the ordinance was not arbitrary and capricious." In doing so, the Court made clear that "[t]he plausible basis standard does not require a substantial amount of evidence to support the City Council's [legislative] determination."

Lastly, the Court addressed plaintiffs' contention that the zoning ordinance amounted to "exclusionary zoning," which occurs when a municipality impermissibly uses its zoning power to prevent a lawful type of land use from locating within its borders. The Court notes that "North Carolina has not specifically recognized a cause of action for exclusionary zoning" but rather such arguments have been addressed in the State "under the Equal Protection Clause." Finding that plaintiffs' have not made an equal protection argument, the Beck Court affirms summary judgment on this claim, as well. Again, why hadn't the parties addressed this claim at the Rule 12(b) stage?

Municipalities are afforded significant discretion in discharging their legislative functions. And according to Beck, it seems that any municipality should meet contentions to the contrary at the Rule 12(b) stage insofar as allegations of arbitrary and capricious behavior are wholly questions of law. For their part, those challenging municipal zoning and other legislative decisions should take care to plead specifically and with a full enough record before the municipality to meet the inevitable dispositive briefing.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

Town of Chapel Hill Vets the Issue of Food Trucks

2011-03-04T16:22:00.008-05:00

When I was practicing in New York, my law firm's office -- which sat across the street from Rockefeller Center and within a short walk (even by New York standards) of popular restaurants like Ben Benson's Steakhouse, 21 Club, Bar Americain, Rue 57, and BLT Steak -- probably sent more of a lunch crowd to food trucks than to brick and mortar buildings. Halal meats, hot dogs, fresh juices, gyros, and even German food fell off the back of rolling lunch counters.

This issue remains hot in the progressive, culturally diverse and increasingly bustling Triangle of North Carolina. We've posted in the past here and here on food trucks, permits, and food truck permits (that last one is for the "word cloud").

It seems Chapel Hill is taking some very serious steps on the food truck topic. The challenge, as always, is balancing what the people want (choice) with what local businesses need (standards and predictability). Is there a happy balance? We don't know. But one of our favorite local papers -- The Independent Weekly -- gives us a very good roundup of where the issue rests in Chapel Hill and where it may go in Raleigh.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

North Carolina Senate Votes On Moratorium Over Local Government Annexation

2011-03-04T10:05:00.008-05:00

We've blogged in the past about the relatively controversial topic of annexation here and here.

In North Carolina, local governments may incorporate, or annex, tracts of land within the city or county limits regardless of the unincorporated landowner's support or resistance to the movement. Having spent some time working for the federal court in Wyoming, in my younger days, I know something about the core belief in remaining "off the grid" -- whether for tax purposes, philosophical purposes, or otherwise.

Yesterday, the North Carolina Senate voted 38-11 in favor of Senate Bill 27, which will place a moratorium on local government annexation powers until July 1, 2012. According to Senator Andrew Brock, the Bill's sponsor, the purpose of the moratorium is to grant a "time-out" and allow interested parties the opportunity to work out any necessary changes in the State annexation law.

And for those annexation processes already in motion? The Bill is express:

Annexation Process Commenced, But Not Yet Adopted
"If any annexation proceeding has been initiated under those Parts prior to the date this act becomes effective but the annexation ordinance has not yet been adopted, any provision of law requiring any action or notice by the municipality or any person within a certain period of time is tolled during the suspension of authority provided by this section."

Annexation Ordinance Adopted, But Not Yet Effective
"An annexation ordinance adopted under Part 2 or 3 of Article 4A of Chapter 160A of the General Statutes that has an effective date on or after the day this act becomes law shall not become effective until July 1, 2012, unless the municipality by ordinance adopts a new effective date later than July 1, 2012, for the annexation ordinance."

Finally, any litigation pending in State court challenging an annexation is stayed upon enactment of the general law.

Senate Bill 27 will face one more vote in the State Senate before advancing to the House of Representatives. We will keep an eye on this interesting piece of legislation.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.