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March 18, 2022
Appeals of Administrative Development Decisions
Adam Lovelady
Seemingly clear, objective development regulations may be the subject of debate
and interpretation. Is that new business unlawful? Was the notice of violation
correctly issued? Does the proposed development meet the applicable
standards? Did the administrator correctly interpret the regulation? Each of these
scenarios may raise disputes.
To resolve such disputes, appeals of administrative development decisions are
assigned to the local board of adjustment. State law sets forth the procedures and
standards for those appeals. This blog outlines those rules.
Principles and Purposes
No development regulation can address every possible scenario. Properties are
unique, landowners are creative, and land uses evolve. Not only that, but no
ordinance is perfect. Inevitably there are ambiguities, contradictions, and gaps.
Public officials are called to apply these imperfect regulations to an array of
scenarios and the correct application is not always clear. Sometimes reasonable
people may disagree about the proper interpretation of an ordinance. Sometimes
the public official did not have access to complete information at the time of
determining the violation. In such cases, an appeal can help resolve the
disagreement.
What’s more, these imperfect regulations affect rights and liberties. Business
owners and religious groups, homeowners and residents, farmers and developers
—they all have a deep interest in the productive use of their own land, protection
of their investments, minimizing of nuisances, and ensuring equal treatment
under the law. These rights are enshrined in the US Constitution through the Fifth
Amendment protection against deprivation of property rights without due
Co a te s' Ca n o n s
N O R T H C A R O L I N A L O C A L G O V E R N M E N T L A W B L O G
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process of law. Appeals to the board of adjustment are grounded in that
Constitutional assurance of due process and practical reality that ordinances are
not always clear.
An appeal is not the right process for everything, however. If an owner wants a
waiver of a requirement because the strict application of the rules will cause
hardship, that owner should seek a variance, not an appeal. And, if a citizen is
simply looking for a change to the rules, that requires an ordinance amendment,
not an appeal.
With those principles in mind, let’s turn to the details for appeals of administrative
development decisions.
Zoning and More
The provisions for administration of development regulations—including
administrative decisions and appeals—are outlined in Article 4 of Chapter 160D.
G.S. 160D-405 states that for local development regulations, appeals of
administrative decisions made by staff shall be made to the board of adjustment.
So, administrative decisions for zoning, subdivision, and other development
regulations are appealed to the local board of adjustment. The statute does allow
that such appeals may be assigned to other boards if authorized by statute or
local ordinance. So, for example, an appeal of a minor work permit in a historic
district might be assigned to the local preservation commission rather than the
board of adjustment. If the ordinance assigns any appeals of administrative
decisions to another board, that board must follow quasi-judicial procedures just
the same as the board of adjustment (G.S. 160D-405(a)).
Certain development regulations have separate appeals procedures. Minimum
housing codes, authorized in Article 12 of Chapter 160D, must follow specified
procedures for notice, administrative hearings, and final orders. Moreover, G.S.
160D-1208 outlines the authority and procedures for appeals of minimum housing
decisions to the housing appeals board. Similarly, the appeals procedures for local
stormwater regulations and erosion and sedimentation control regulations are
outlined in separate statutes. For those topics—minimum housing codes,
stormwater, and erosion and sedimentation control—appeals of administrative
decisions do not go to the board of adjustment unless explicitly stated in the local
ordinance (G.S. 160D-405(a)).
The Decision
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“Determination”
In order for an administrative decision to be appealed, the public official must
have made an official determination—a written, final, and binding order,
requirement, or determination (160D-405(d) & -102(10)).
Examples of final, binding determinations include a formal notice of violation, a
zoning compliance permit, a formal ordinance interpretation, and other final,
written decisions. A formal determination that a particular activity is permitted in
a zoning district is an appealable determination (S.T. Wooten Corp. Board of
Adjustment, 210 N.C. App. 633, 711 S.E.2d 158 (2011)). Additionally, a written
determination that the owner has complied with applicable height limits is
appealable (Meir v. City of Charlotte, 206 N.C. App. 471, 698 S.E.2d 704 (2010)).
Some staff actions are not formal determinations so they are not subject to appeal
to the board of adjustment. If a written statement affects no rights and is merely
advisory in nature, it is unlikely to be appealable. A letter that merely states the
basic zoning district of a property is not a binding decision; it is merely a recitation
of the current rules. A written statement about how the ordinance might be
interpreted in the future is not an appealable decision (In re Appeal of the Society
for the Preservation of Historic Oakwood, 153 N.C. App. 737, 571 S.E.2d 588 (2002)). A
written communication that amounts to nothing more than a recommendation
at a preliminary stage of the permit review process is not a final, binding decision
(Ashe Cty. v. Ashe Cty. Plan. Bd., 376 N.C. 1, 852 S.E.2d 69 (2020); Wilson v. Mebane
Board of Adjustment, 212 N.C. App. 176, 710 S.E.2d 403 (2011)). Inaction by staff is not
a decision that can be appealed, but a party may seek a court order to require staff
action that is not discretionary.
The administrator cannot defer a question to the board prior to making a staff
decision. When a decision is assigned to staff, the administrator must make the
decision and then allow the appeal to the board of adjustment. (Tate v. Board of
Adjustment, 83 N.C. App. 512, 350 S.E.2d 873 (1986)).
Notice of the Decision
Pursuant to G.S. 160D-403, the local government official who made the decision
must provide written notice of the decision to the property owner and the
requesting party, if different from the owner. This written notice may be provided
by personal delivery, email, or first-class mail. The timing of notice is important, as
that starts the clock running for the time of appeal.
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A property owner or developer who wants to start the clock for neighbor appeals
can establish constructive notice for the neighbors by posting a sign on the
property in question pursuant to G.S. 160D-403(b). The sign must clearly state
“Zoning Decision” or “Subdivision Decision” in letters at least six inches high and
provide a way to contact an official about the decision. The sign must be posted
for at least ten days, and the person posting the sign must provide verification of
such posting to the official who made the decision. An ordinance may require
such posted notice of decisions, but if not specified in the ordinance, it is an
option for the property owner. Note that this sign to establish constructive notice
is separate from the routine notice required in advance of any quasi-judicial
hearing, including an appeal of a staff decision.
Filing an Appeal
Deadline for Appeal
Parties have thirty days from notice of the decision to appeal (160D-405(d)). For a
party receiving written notice from staff, the thirty-day period begins with receipt
of the notice. Notice sent by email or hand delivery is presumed received on the
date it is sent or delivered. With regard to mailed notice, it is presumed to be
received on the third business day following deposit of the notice for mailing. For
other parties, the thirty-day period begins with any notice—actual or constructive
—of the decision. That notice could be a letter from the property owner, a posted
sign as discussed above, the beginning of construction on the site, or some other
means of learning about the decision. If a party fails to appeal within thirty days,
the board of adjustment cannot hear the appeal.
Standing to Appeal
State law allows an appeal of administrative decision by a person with legal
standing. As outlined at G.S. 160D-1402(c), that includes an individual with an
ownership interest in the subject property, the applicant for a permit or recipient
of a notice of violation (if different from the owner), the local government, any
person who will suffer special damages from the decision, and certain
associations that have members who will suffer special damages.
For some of these parties, standing is clear. The applicant, the owner, and the local
government are easily identified as parties with standing to appeal. Determining
whether a neighbor will suffer special damages requires more, as discussed in this
blog on standing in quasi-judicial hearings. In short, the courts look at factors
such as proximity, property value impacts, and additional adverse impacts (noise,
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pollution, traffic, etc.) to determine special damages. The application form for an
appeal may request information to confirm legal standing, and at the hearing, the
question of standing is a threshold matter for the board to determine. If the
person filing the appeal lacks standing, the board lacks authority to hear the
appeal.
Notice of Appeal
A person seeking to appeal an administrative decision must file a notice of appeal
with the local government clerk or other official as designated by the local
government ordinance. The notice of appeal must state the grounds for appeal.
Local governments commonly have a form or application for appeals of
administrative decisions. Once a complete application is filed properly, staff is
obligated to put the request on the agenda for the board; staff cannot make
decisions on legal questions, such as standing (Morningstar Marinas/Eaton Ferry,
LLC v. Warren Cty., 368 N.C. 360, 360, 777 S.E.2d 733, 734 (2015)).
Stays of Enforcement and Permitting
For an appeal of an enforcement action, the appeal stays enforcement. Civil
penalties and other enforcement actions are paused for the duration of the
appeal. However, if the enforcement official certifies that “a stay would cause
imminent peril to life or property or, because the violation is transitory in nature, a
stay would seriously interfere with enforcement of the development regulation,”
then enforcement is only stayed by a restraining order (G.S. 160D-405(f)).
For an appeal of an approved development permit, the appeal “does not stay the
further review of an application for development approvals to use the property.”
But, the person appealing the permit or the local government may request that
the board of adjustment stay any final decision on the development approval
applications, including building permits (G.S. 160D-405(f )).
Quasi-Judicial Procedures
An appeal of an administrative development decision must follow quasi-judicial
procedures, as outlined at G.S. 160D-406. Among other things, notice must be
mailed and posted on the property; witnesses must provide sworn testimony and
factual evidence; and the board must base its decision upon competent,
substantial, relevant evidence in the record. Politics and personal preference are
not legitimate bases for the decision.
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Administrator Compiles the Record
In advance of the hearing the official who made the decision being appealed
must compile the record upon which he or she based the decision, including all
applicable documents and exhibits. The administrator must provide that record to
the board and a copy of the record to the individual appealing the decision and
the property owner, if different.
Administrator Appears as a Witness
As required by G.S. 160D-406(e), the public official who made the decision being
appealed “shall be present at the evidentiary hearing as a witness.” If the
individual who made the decision is no longer employed by the local government,
then the individual currently occupying that position must appear as a witness.
This role of appearing as a witness is different from the staff role in other types of
quasi-judicial decisions. In a variance case or special use permit case a staff person
may serve as a clerk and/or witness providing support and analysis for the board,
but in appeals of staff decisions the staff person acts as a party defending an
interpretation of the ordinance. This leads to heightened concerns of ex parte
communications between the board and the staff person. Local government staff
often interact with board members outside of meetings. In the case of a staff
person as party, they should be careful not to discuss the substance of the appeal
with board members outside of the hearing
This dynamic of staff-person-as-party also may complicate the role of the local
government attorney who is called in to advise the board and the staff member
who is appearing before the board. For this reason, some local governments
assign separate attorneys, one for staff and one for the board, for appeals of staff
decisions.
Additional Evidence
In some cases, the party making the appeal, or that party’s attorney, may submit
in advance a written analysis (essentially a legal brief ) for board consideration. If so,
copies should be provided to the board and the parties just as the rest of the
record is provided.
The extent to which new evidence is needed or appropriate depends on the case.
In some cases, the parties may agree to the basic facts (proposed building,
applicable section of the ordinance, etc.) but disagree on the legal question of
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how to interpret the ordinance correctly (for example, does the proposed building
qualify as a single-family home?).
In other cases, the board may need to supplement the record with additional facts
in order to make the decision. In an appeal of a notice of violation, for example, the
parties may dispute whether and when a certain land use occurred on the
property. The property owner may have documents or testimony that challenges
the record provided by staff. The evidentiary hearing may elicit additional
evidence for the record, and the board must resolve contested facts in its decision.
The chair of the board of adjustment is authorized to issue subpoenas to compel
the production of evidence. A party may make a written request to the
chairperson explaining why a subpoena is necessary to compel certain witnesses
or evidence, and the chairperson shall issue the subpoena if he or she determines
it to be relevant, reasonable in nature and scope, and not oppressive (160D-
406(g)).
Legal Interpretations
Commonly a dispute over an administrative decision is a dispute over
interpretation. For more guidance on interpretation, take a look at this blog on
Interpreting the Zoning Ordinance.
Decision and Appeal
The board of adjustment must decide an appeal within a reasonable time. As with
any quasi-judicial decision, the board’s decision must be based on competent,
material, and substantial evidence in the record. The board must determine any
contested facts and apply relevant legal standards. The board has all of the powers
of the official who made the decision—they board steps into the shoes of the
administrative staff, so to speak. The board may affirm the staff decision, reverse
the staff decision, or modify the staff decision, and the board may “make any
order, requirement, decision, or determination that ought to be made.”
Appeals of administrative decisions are decided by a simple majority vote. The
decision “shall be reduced to writing, reflect the board’s determination of
contested facts and their application to the applicable standards, and be
approved by the board and signed by the chair or other duly authorized member
of the board.” The decision of the board of adjustment may be appealed to the
superior court in the nature of certiorari pursuant to G.S. 160D-1402.
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Alternatives to the Board of
Adjustment
Instead of taking an appeal to the board of adjustment, the parties to an appeal
may agree to mediation or other alternative dispute resolution. The ordinance
may set standards and procedures to facilitate this process.
When the basis of the appeal is a challenge of the enforceability, validity of the
regulation itself, or the whether the regulation in unconstitutional, is beyond the
statutory authority of the local government, or is an unconstitutional regulatory
taking, a person with standing may opt to bypass the board of adjustment and
take those legal challenges straight to superior court.
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