The state’s second-highest court has rejected an attempt by the Moore County town of Pinebluff to prevent a local Habitat for Humanity group from building a 75-home subdivision. The N.C. Court of Appeals held that the town had improperly found the development not to be in harmony with the surrounding area.
The appeals court ruling comes despite a lower-court order in favor of Habitat for Humanity that was written on the stationery of the Habitat for Humanity’s lawyer.
In June 2006, Habitat for Humanity of Moore County applied for a conditional-use permit to develop a 75-house subdivision in Pinebluff. The town’s planning board recommended approval in July 2006 and the town’s board of commissioners conducted a public hearing on the permit request in August.
At a hearing Sept. 21, 2006, the board found Habitat for Humanity’s application to be both complete and meeting the requirements of R-30 zoning under the town’s unified development ordinance. The board voted to reject Habitat for Humanity’s application, however, finding that the homes would not be in harmony with the surrounding community.
The nonprofit organization challenged the rejection in the courts. On Jan. 4, 2007 Superior Court Judge James Webb ruled that the town had improperly turned down Habitat for Humanity’s application and ordered the town to issue the permit.
Pinebluff appealed Webb’s ruling, bringing the case before the state’s second highest court. On appeal, Pinebluff contended that Habitat for Humanity lacked standing, that it is was not really affected by the decision, and thus could not challenge it because it did not actually own the property at the time. The town argued that while having a contract to purchase land might be sufficient, Habitat for Humanity had failed to present evidence of such a contract to the town.
The Court of Appeals was not swayed by the arguments. “We hold that Habitat had standing in this matter, and that the trial court correctly concluded that it had jurisdiction over the parties and the subject matter,” Judge Sanford Steelman wrote for the appeals court.
Steelman noted that Elizabeth Cox, Habitat’s executive director, had testified at the August public hearing that the organization had contracted to buy the land. The board itself found the application to be complete and did not ask for additional evidence of Habitat’s authority to submit the application.
“Although Commissioners correctly note that the property owner did not sign the application, this is irrelevant in light of their finding that Habitat’s application was complete. Further, the record contains evidence that Habitat had an option to purchase the property at the time it submitted the application,” Steelman wrote.
Under N.C. case law, if a proposed utilization of a property is listed as a conditional use for its zoning districted, it is presumed to be in harmony with the surrounding area unless evidence is presented to suggest otherwise.
In Pinebluff’s case, four local residents spoken against Habitat for Humanity’s proposed subdivision. “The gist of the opponents’ objection is that they did not want the rural nature of their property to be compromised by a subdivision,” Steelman wrote.
“However, under North Carolina jurisprudence, the fact that the proposed development in a [conditional use permit] application has not already taken place on land is insufficient to rebut a prima facie showing of harmony. Thus, to the extent that the objections to the proposed development centered on the fact that the land had not already been developed, these objections were insufficient to rebut Habitat’s prima facie showing of harmony.”
The Court of Appeals also made note of a questionable practice in the lower- court ruling that did not affect the appeals court reasoning: Webb’s ruling was filed, printed and signed on the stationery of Habitat for Humanity’s lawyer.
“Without deciding whether this practice violates either the Code of Judicial Conduct or the Revised Rules of Professional Conduct, we strongly discourage lawyers from submitting or judges from signing orders printed on attorneys’ ruled stationery bearing the name of the law firm. Such orders could call into question the impartiality of the trial court,” the ruling said.
N.C. Court of Appeal rulings 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 Court of Appeals was unanimous, the high court is not obligated to hear the case even should Pinebluff further appeal.
The case is Habitat for Humanity Of Moore County, Inc. v. Board of Commissioners of Town Pinebluff, (07-406).
Michael Lowrey is an associate editor of Carolina Journal.