Zoning Appeals and Statutes of Limitation

             If you’ve ever wondered what frightens lawyers and keeps them up at night I can describe it in three words: statutes of limitations.

             A “statute of limitation” is a fancy way of describing a deadline to file a lawsuit.  That’s all it is.  The problems with these deadlines are that 1) they sometimes are unclear and 2) they are totally and completely inflexible.

             For example, the deadline to file an action challenging a legislative zoning decision is two months.  How clear is that?  “Two months” can’t be a shorthand way of saying “60 days” because 60 days is just as short and it’s much better defined. And if your action begins in January, do you get an extra two – or three – days to compensate for February’s short month?  Actually, nobody knows.

             With quasi-judicial decisions, the rule is not the vague “one month” but the precise 30 days, and it’s codified in N.C. Gen. Stat. § 160A-388(e2) as follows:

 “Any petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the board at the time of the hearing of the case, whichever is later.”

             The N.C. Court of Appeals recently published a case clarifying when the 30 days begins to run and affirming the strict 30 day cut-off when appealing from a quasi-judicial decision. 

             In McCrann v. Village of Pinehurst, The Village Chapel requested a special use permit to construct a “learning center.”  The relevant dates (all in 2010) are as follows:

 July 2 and 6 – Pinehurst Village Council hearing dates

August 24 – Village Council votes to issue the permit but doesn’t yet prepare an order

August 25 – Petitioner McCrann leaves voicemail with Pinehurst’s attorney requesting a copy of the written order

August 30 – special use permit filed and copies mailed and faxed to Mr. McCrann

September 30 – Petitioners filed a Petition for Writ of Certiorari

             Ouch. 

             August has 31 days, which means that August 30th to September 30th is 31 days, not 30 days.  Within 2 weeks the Village and The Village Chapel filed responses alleging that the appeal was time barred. (This is when a lawyer immediately calls his “carrier.”)

             Petitioners contended 1) that they “substantially complied” with the 30 day statute of limitations and 2) that because lawyers for all parties had been so cordial and professional that the Village and Village Chapel should be “estopped” from suddenly playing what might seem, to some, to be hardball.

             The Court of Appeals was not in a mood to oblige.  It noted that the statute was not followed in two key ways.  First, no request was made in writing to the chairman or secretary at the time of the hearing, which operates to grant an additional three days.  And second, they filed their petition a day late and several thousands of dollars in attorneys’ fees short. “Substantial compliance” might be a good defense for breach of contract, but it doesn’t get you around a statute of limitations deadline.

             The court noted that “statutes of limitation are inflexible and unyielding.  They operate inexorably without reference to the merits of plaintiff’s cause of action.”  Also, “the purpose of a statute of limitations is to afford security against stale demands.”

             In other words, dead is dead. (There is no “mostly dead” the term coined by Billy Crystal’s character Miracle Max in The Princess Bride.)

             As to the highly original and first-time asserted but-we-were-all-playing-so-nicely-in-the-sandbox defense, the court had limited patience and simply noted that estoppel has a specific definition and this wasn’t it.  Case dismissed.

             Two other comments.

             First, the toughest part of being an appellate judge is deciphering the facts. Briefs often are written by lawyers who don’t know how to tell a story and who immediately convert numerous organizations and parties to confusing acronyms.  Timelines are screwy and there is no common plot to which factoids can be attached. (And in land use cases, the facts can be, well, boring to all but the parties involved).  Once the facts are figured out, the law is often not that hard.

             The facts in this case are uncommonly easy to read and understand, and I’m sure Judge Stephens sat at her desk with the usual printed Record on Appeal and parties’ briefs and thought to herself “I might get home in time for dinner tonight.”

             And second, it is always appropriate to disclose any personal connection I have to an opinion I write about.  In this case the The Village Chapel was represented by four outstanding lawyers who also are my colleagues in the SML Raleigh office: Clyde Holt, Dave Neill, Brad Risinger and Matt Leerburg.

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