When can a landowner challenge the constitutionality of a local ordinance? Not often, if a recent decision by North Carolina’s second-highest court stands. Indeed, a strongly worded dissent suggests that citizens may have little ability to challenge newly passed ordinances if local governments delay enforcing them until after a two-month statute of limitations has expired.
On Oct. 2, 2006, Boone’s town council adopted a steep slope ordinance and modified its existing viewshed protection ordinance. Jeffrey Templeton and Elizabeth A. Colonna Bird filed suit challenging the town council’s actions. A superior court judge threw out their suit, finding that they had failed to state a claim upon which relief could be granted.
Templeton and Bird challenged this ruling and brought the matter before the Court of Appeals, arguing that the ordinances violated their constitutional rights to procedural due process and substantive due process, were an unconstitutional taking of property, and a violated their rights “to use their land” under Article 1, Section 19 of the North Carolina Constitution. The two also contended that the town did not follow proper procedure in adopting the ordinances.
The appeals court rejected the constitutional claim, finding that Templeton and Bird did not having standing to challenge the ordinances. The court based its decision on the 1987 N.C. Supreme Courts ruling in Grace Baptist Church v. Oxford. In that case, the high court held that “[i]n order to challenge the constitutionality of an ordinance, a litigant must produce evidence that he has sustained an injury or is in immediate danger of sustaining an injury as a result of enforcement of the challenged ordinance.”
The court said Templeton and Bird did not present evidence of any such injury or immediate threat of injury.
“Plaintiffs’ complaint simply states that plaintiffs own or have an interest in property within an area of town that will be affected by the subject zoning ordinance amendments,” wrote Judge Donna Stroud for the court.
“Without an allegation that the subject zoning ordinance amendments will be or have been enforced against property owned by plaintiffs, plaintiffs have failed to demonstrate that they have ‘sustained an injury or [are] in immediate danger of sustaining an injury’ from enforcement of the ordinance amendments against them.”
Moreover, under North Carolina law there is a two-month statute of limitations to challenge the constitutionality of a zoning ordinance. Lawsuits brought after that time will be dismissed. It’s also well settled under state law that merely being a taxpayer or a citizen of a certain municipality does not allow a challenge to a zoning ordinance. Instead, to obtain standing, a plaintiff must have “a specific personal and legal interest in the subject matter affected by the zoning ordinance and . . . is directly and adversely affected thereby.”
Judge Barbara Jackson agreed that Templeton and Bird did not have standing, but for different reasons. She also questioned the logic behind the majority’s holding.
“I think that a requirement that the ordinance be enforced before a property owner may challenge it could allow a municipality to evade statutorily-mandated procedural safeguards by waiting to enforce an ordinance until two months after its adoption, thereby immunizing itself pursuant to the statute of limitations,” she wrote.
In Jackson’s view, the court’s majority misapplied the N.C. Supreme Court’s holding in Grace Baptist Church v. Oxford, a case about the selective enforcement of a zoning ordinance. There are, she notes, two types of constitutional challenges: as-applied and facial.
Facial challenges argue that a statute or ordinance is unconstitutional on its face. But, Jackson said, it’s appropriate for a party to show injury or danger of injury when it contests whether an ordinance is unconstitutional as applied to the party bringing suit.
A “facial challenge to an ordinance’s validity or, as the majority discusses, challenges to the procedures ensured by statute or local ordinance should not depend upon threatened enforcement,” she wrote.
In support of her argument, she pointed to Judge Greene’s dissent in Messer v. Town of Chapel Hill, a 1997 Court of Appeals decision.
Green wrote, “the plaintiffs contend that any application of the ordinance is unconstitutional because their property rights were violated the very moment the government enacted the ordinance, without regard to how it may be applied.
“This constitutes a ‘facial challenge’ as opposed to an ‘as applied challenge.’”
The majority created the possibility that unconstitutional ordinances might escape challenge if the locality enacting them waits at least two months before beginning enforcement, Jackson said..
The situation has come up before. Challenges against a Nags Head zoning ordinance were dismissed because no harm was demonstrated and then later because the statute of limitations had expired.
Even so, Jackson said she also would dismiss the suit, because the parties did not make a facial challenge to the constitutionality of the ordinance. And, as the majority noted, Bird filed her claim after the statute of limitations had expired and Templeton failed to provide specific details in his claim to establish standing.
The case is Templeton v. Town of Boone (09-1332).
Michael Lowrey is an associate editor of Carolina Journal.