Local governments often must act on site plans and building-permit requests from businesses that make necessary products but that aren’t regarded as desirable neighbors. A recent N.C. Supreme Court ruling in a case involving Hillsborough highlights the need for localities to address such applications fairly and according to existing established procedures.
In its decision, the court held that the town acted improperly by not acting on a proposed asphalt plant’s site plan but instead banning new operations of that type from the town and its extraterritorial zoning jurisdiction.
On Jan. 21, 2003, Douglas Robins applied to build an asphalt plant on five acres of land he was buying specifically for the purpose. The property was situated in unincorporated Orange County but was within Hillsborough’s extraterritorial zoning jurisdiction. The parcel was zoned as “general industrial,” which under Hillsborough’s zoning regulations would allow asphalt plants to be built there subject to site-plan review by Hillsborough’s Board of Adjustment.
The Board of Adjustment held hearings on the site plan Feb. 12, March 12, and April 9,2003 but did not act. A fourth hearing on the matter was scheduled for April 30, 2003.
That public hearing, and a decision on Robins’ site plan, never happened. On April 22, Hillsborough’s Town Board passed a moratorium suspending “the Review, Consideration and Issuance of Permits and Applications for Manufacturing and Processing Operations Involving Petroleum Products,” including asphalt plants. Though the moratorium applied to all pending applications and prohibited the filing of new ones, Robins’ application was the only one of its type, and thus the only application affected by the moratorium. The public hearing April 30 also was canceled.
The moratorium was to remain in affect until Dec. 31, 2003. In November 2003, Hillsborough amended its zoning ordinances to completely ban new asphalt plants and other facilities involved in manufacturing or processing petroleum products from the town. The ordinance took effect on March 31, 2004; the town council also extended the moratorium to that date.
Robins, who had spent about $100,000 on the proposed asphalt plant before it was rejected by the town board, challenged the town’s actions in the courts, including appealing after Superior Court Judge James Spencer ruled in the town’s favor. A majority of a three-judge panel of the N.C. Court of Appeals ruled in favor of Robins, holding that the town’s actions were improper. The appeals court majority also found the ordinance of questionable constitutionality, in banning asphalt plants from the town.
“Courts in other jurisdictions require a municipality to demonstrate a much greater substantial relationship between the ordinance and the public welfare where a total prohibition of a lawful activity is involved rather than an ordinance which merely confines a use to a particular district,” Judge John Tyson wrote for the appeals court.
Judge Barbara Jackson, however, dissented from the majority’s holdings. She noted that under North Carolina case law, citizens have no general right to have zoning ordinances remain forever the same. And she found that the exceptions under which created vested rights did not apply to Robins, exactly because Hillsborough had not acted on his proposed site plan or issued a building permit when it enacted its moratorium and later ban.
The N.C. Supreme Court rules
Hillsborough, in turn, appealed the case to the N.C. Supreme Court. Because of Jackson’s dissent, the high court was required to take the case.
In a unanimous ruling of the six justices who participated in the case (the case was heard before Justice Robin Hudson joined the court in January), the Supreme Court held that Hillsborough’s actions were improper, though for somewhat different reasons than found by the Court of Appeals.
The Supreme Court noted the facts in the case were much like those it had addressed in a 1974 case, Humble Oil & Ref. Co. v. Bd. of Aldermen. That case involved another Orange County municipality, Chapel Hill.
“Instead of following the proper procedures by which the Board of Adjustment would have rendered an up or down decision on plaintiff’s application, defendant, acting through its Board of Commissioners, passed the moratorium and eventually amended the ordinance, effectively usurping the Board of Adjustment’s responsibility in the matter,” Justice Edward Brady wrote for the high court.
“In essentially dictating by legislative fiat the outcome of a matter which should be resolved through quasi-judicial proceedings, defendant did not follow its own ordinance pertaining to the disposition of site specific development plans, thus leaving the Town Board no defense to the charge that its actions were arbitrary and capricious.
“We hold that when the applicable rules and ordinances are not followed by a town board, the applicant is entitled to have his application reviewed under the ordinances and procedural rules in effect as of the time he filed his application. Accordingly, plaintiff was entitled to receive a final determination from defendant regarding his application and to have it assessed under the ordinance in effect when the application was filed.”
The Supreme Court offered no opinion as to whether Robins’ site plan should be approved by the Board of Adjustment.
By deciding the case on the narrow issue of Hillsborough’s following or not following its own existing zoning procedures, the Supreme Court need not and did not address the issue of whether the subsequent ban on new asphalt bans was constitutional. In fact, it overturned that portion of the Court of Appeals ruling addressing that issue.
“Because of our holding, we need not address the portion of the Court of Appeals opinion concerning the constitutionality of the amended zoning ordinance except to note that the Court of Appeals unnecessarily addressed the issue,” Brady wrote.
“Because plaintiff is entitled to have his application decided under the ordinance in effect at the time he filed his application, the amended ordinance does not apply to his proposed activity. Accordingly, we vacate that portion of the Court of Appeals opinion.”
The case is Robins v. Town of Hillsborough, (154A06).
Michael Lowrey is associate editor of Carolina Journal.