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Two Recent
Land Use Cases Address Revocation of Permits and the Composition of the
Board of Adjustment in Granting Special Use Permits
Last week the North Carolina
Supreme Court affirmed the Court of Appeals’ 2002 decision holding that
a permit issued based upon a mistake of law may be revoked. In Eastern
Outdoor, Inc. v. Board of Adjustment of Johnston County, 2003 N.C.
LEXIS 1099 (October 2, 2003), the Johnston County Planning Department
issued two land-use permits to Eastern Outdoor for the erection of
billboards in two sites in an area zoned "AR/R-40." The builder
began construction for placement of the billboards. After construction was
begun, the Planning Director revoked the permits when he realized the
billboards were located in the AR and R-40 zoning districts, where they
were not permitted.
Eastern Outdoor appealed the
Planning Director’s revocation to the Board of Adjustment, arguing that
the County was equitably estopped from revoking the permits. The Board of
Adjustment found that the permit had been issued based on a mistake of law
and as plainly set out in N.C. Gen. Stat. §153A-362, could be revoked.
(N.C. Gen. Stat. §153A-362 states; "A permit mistakenly issued in
violation of an applicable State or local law or local ordinance or
regulation may be revoked.") It affirmed the Planning Director’s
actions.
On further appeal, the
Planning Director’s actions were affirmed.
In another recent decision,
the Court of Appeals clarified the effect of a change in the composition
of a board of adjustment during a hearing for a special use permit. In Cox
v. Hancock, No. COA02-1143 (October 7, 2003), the Respondents sought a
special use permit to build a 130-unit apartment complex. The hearing for
the special use permit was adjourned at 11:30 P.M. to be continued at the
meeting of the Board during the next month. Before the next meeting, one
member who had been present at the first portion of the hearing resigned.
Additionally, two new members, who had not been present at the first
meeting, attended the second portion of the hearing held at the second
meeting. The record of the first meeting, as well as all of the exhibits
from the hearing, were made available to the new members.
After the public hearing was
concluded at the end of the second meeting, the special use permit was
issued. The petitioners, neighbors of the project, appealed asserting that
the change in the board violated their due process rights. The trial court
and the Court of Appeals disagreed. The court noted that the petitioners
were given the opportunity for the presentation of evidence and
cross-examination of witnesses at both hearings and held that the change
in membership did not compromise either party’s due process rights. The
Court explained:
"Th[e] access to the
minutes and exhibits from the earlier meeting, combined with the
extensive presentation of evidence and cross-examination at the [second]
meeting asserts that petitioners were provided with due process. The
change in Board membership had no effect on petitioners’ ability to
present their arguments against the building project to the Board."
If you have any questions regarding this
article, please contact Kacey Sewell Ragsdale at 919.783.2957 or ksewell@poyners.com
or Robin Tatum at 919.783.2931 or rtatum@poyners.com.
This publication is
published by Poyner & Spruill LLP to provide general information about
significant legal developments. Because the facts in each situation vary,
the legal precedents noted herein may not be applicable to individual
circumstances.
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