Senate Bill 704 — Careful Aim But Narrow Miss

On May 4th the N.C. legislature passed Senate Bill 704 (Session Law 2020-3) to address a broad array of problems created by COVID-19. Bill section 4.31(a) amended the Emergency Management Act to add new section 166A-19-24 to authorize local governments to conduct remote meetings during declarations of emergency. Although the detailed procedural requirements create traps […]

Returning to “Normal” Public Hearings – Doing it Right

This past Thursday I appeared before the Asheboro City Council in a quasi-judicial hearing for a conditional use permit. The city’s new template for safe hearings is worth other governments’ consideration. No more than 10 people were allowed in chambers at one time. Only the mayor and four council members – enough for a quorum […]

A New Must-Read Case on Quasi-Judicial Proceedings

Last week the N.C. Court of Appeals published yet another opinion (PHG v. City of Asheville) that (1) further defines the template for deciding quasi-judicial zoning applications and (2) curtails the all-too-frequent seduction of board members to slip into legislative shoes while wearing a (quasi) judicial robe. Full disclosure: I argued PHG to the Court […]

A New Game Changer Zoning Case

I published this post last January but my law partners – who won the case – asked me to take it down. Why? Because the other parties asked the N.C. Supreme Court to review the decision and one of the bases for higher review is a case’s significance. And since I had described this decision as one […]

Case Law Update – Solar Farms (Again), the Prima Facie Case (Again), and Other Fun Facts (Again)

Yet another Court of Appeals case, Ecoplexus v. Currituck County, examined the denial of a solar farm and applied the same principles as in Dellinger v. Lincoln County and Innovative 55 v. Robeson County, but with some interesting twists. Facts Ecoplexus arises from Currituck County, a county that is now widely known as, well, I’ll […]

Case Law Update – When a Zoning Board’s Decision Becomes Binding Legal Precedent

A recent N.C. Court of Appeals decision expanded upon and clarified when a prior quasi-judicial decision is binding on future boards. Disclosure: It was my privilege to have served as co-counsel at the board level and as lead litigation counsel for the petitioners in this case. While I don’t believe the commentary below exhibits bias, […]

Case Law Update – When It Helps to Read the Statute

Quasi-judicial proceedings are quite common in land use decisions.  They are proceedings where the local board loosely follows the rules of the courtroom in order to determine if the applicant has presented sufficient evidence on which the board can make the necessary findings to issue a variance or a special use permit or to overturn […]

Morrisville Tower Case Revisited

            Law is not unlike archery.  You can hit the bullseye, the third ring, or miss the target altogether.  In my recent post on the Morrisville cell tower case (American Tower v. Town of Morrisville) I thought I had hit the bullseye.              Subsequently, comments from and discussion with members of the land use bar […]

Case Law Update – Cell Towers, SUPs and Impossible Standards

            A recent Court of Appeals opinion, American Towers v. Town of Morrisville, simultaneously provides a good road map for interpreting evidence in quasi-judicial proceedings, shows how utterly maddening it can be to practice before local government boards, and illustrates how difficult-to-meet standards can be made impossible-to-meet when interpreted by boards and courts.              Before […]

Case Law Update – “What Ifs” Are Not Evidence

              A recent unpublished Court of Appeals opinion – which I think should have been published – illustrates a common evidentiary issue in quasi-judicial proceedings and discusses a not-so-common procedural issue related to appeals from local zoning boards.  It’s the latter, procedural issue for which publication might have been merited.                  Sidebar: Court of […]

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