N.C. law allows for the creation of historical districts, which can require that a certificate of appropriateness be obtained before certain types of changes are made or a new building is built. In a recent ruling, the state’s second highest court found that Beaufort’s Historic Preservation Commission went too far in its efforts to prevent a three-story building from being erected.

In 2000 and 2001, Carl Meares researched the possibility of building a combination commercial and residential structure in Beaufort’s historical district. After consulting with state and local officials, he bought three lots for $595,000. In November 2001, Linda Dark, chairwoman of Beaufort’s Historic Preservation Commission, gave Meares a set of guidelines that included a 35-foot height limit.

By 2003, Meares was working on a three-story building design and presented a sketch to Dark in October of that year.

Soon thereafter, the commission adopted, without previous public notice, a “technical correction” to its Historic District Design Guidelines. This involved adding a new guideline, Historic District Design Guideline 8. This guideline stated that:

8) The vistas of Beaufort’s waterfront play a crucial role in defining the character of Beaufort’s Historic District. Therefore, under no circumstances shall any proposed building visually encroach in height or scale upon the remaining public landscapes of Beaufort’s Historic District. . . . These include . . . views of the historic district, particularly Front Street . . . unless it can be demonstrated that a historically significant building previously existed on the site of the proposed building. The new building shall be consistent in height and scale with the pre-existing historic structure.

Meares’ proposal was ultimately rejected in October 2004 based in part upon this new guideline. Meares sued, contending that the new guideline was unlawful and void as a matter of law. Superior Court Judge John E. Nobles agreed, and struck down the provision in a ruling April 2007. The commission and Beaufort then brought the matter before the Court of Appeals.

“Defendants argue their authority to establish Guideline 8 of the Beaufort Historic District Design Guidelines is conferred by the North Carolina General Statutes,” Judge Wanda Bryant wrote for a unanimous three-judge panel of the Court of Appeals. “We disagree.”

Bryant noted that Guideline 8 requires that new structures not be incongruent with a historically significant structure that previously existed on the site. The state law that establishes historical districts, however, mentions only landmarks and districts.

“Thus, Guideline 8 is more restrictive than is allowed pursuant to the authority delegated by the General Assembly. Accordingly, we hold the trial court did not err in ruling the HPC’s Guideline to be unlawful and void as a matter of law.”

The town and board also argued that the case should have been dismissed as not justifiable, not an issue that it’s appropriate for the courts to address. The town argued that since Meares’ proposal does not meet a setback requirement in the town’s zoning ordinance — thus can’t be built as such — whether the HPC acted appropriately didn’t really matter, and the court shouldn’t address the issue.

This line of reasoning did not persuade the Court of Appeals, which ruled in the case on Oct. 7.

“Defendants do not allege and, after our review of the Beaufort zoning ordinance, we do not hold the issuance of a [certificate of appropriateness] by the HPC is dependent upon the issuance of a zoning certificate,” Bryant wrote. “Thus, the controversy surrounding the HPC’s denial of Meares’ [certificate of appropriateness] application remains.”

The Court of Appeals also issued a separate ruling in a companion case. On Feb. 15, 2006 Meares filed a certificate of appropriateness application for an alternative design on the same site. The Historic Preservation Commission refused to consider this second application while Meares’ court challenge of his original application was still pending. On March 30, 2006, Meares sought a writ of mandamus, a judicial order to force the commission to consider his second application.

On May 31, 2007, Nobles ruled in Meares’ favor on this matter. Because county law requires that a certificate of appropriateness be issued if the commission doesn’t act within 60 days, Nobles directed the commission to do so. The HPC also challenged this ruling.

“Acknowledging the undisputed expiration of the sixty-day window for HPC discretionary review without action and pursuant to the Beaufort Zoning Ordinance and Beaufort HPC Rules of Procedure, we hold the approval of Meares’ second COA application and issuance of the COA was a ministerial duty appropriately compelled by the trial court’s writ of mandamus,” Bryant wrote for the Court of Appeals. “Accordingly, defendants’ assignment of error is overruled.”

The appeals court rejected 11 other arguments that the writ of mandamus was inappropriate.

N.C. Court of Appeals of decisions are binding interpretations of state law unless over-ruled by the N.C. Supreme Court. Because the ruling by the three-judge panel of the appeals court was unanimous, the high court is not required to hear the case should the commission and Beaufort further appeal.

The cases are Meares v. Town of Beaufort, COA07-889 and Meares v. Town of Beaufort, COA07-882.

Michael Lowrey is an associate editor of Carolina Journal.