{ "id": 11709198, "name": "BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC., Petitioner v. GUILFORD COUNTY BOARD OF ADJUSTMENT and KAY CHEMICAL COMPANY, ENDURA PRODUCTS, INC., FOUNDATION SERVICES, INC., GBA SYSTEMS, GOLDEN STATE FOODS CORP., and P.M. TUBE & SPECIALTY, INC., CHARLES and CATHERINE MEARS, LOUISE J. RICE, MRS. CLINTON R. TUCKER and LARRY E. TUCKER, Respondents", "name_abbreviation": "Browning-Ferris Industries of South Atlantic, Inc. v. Guilford County Board of Adjustment", "decision_date": "1997-05-07", "docket_number": "No. COA96-750", "first_page": "168", "last_page": "172", "citations": [ { "type": "official", "cite": "126 N.C. App. 168" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "419 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "landowner has vested right in ordinance provision under which special use permit had been issued" } ], "opinion_index": 0 }, { "cite": "415 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "774", "parenthetical": "landowner has vested right in ordinance provision under which special use permit had been issued" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313897 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "192", "parenthetical": "landowner has vested right in ordinance provision under which special use permit had been issued" }, { "parenthetical": "landowner has vested right in ordinance provision under which special use permit had been issued" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0187-01" ] }, { "cite": "397 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527139 ], "year": 1990, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0541-01" ] }, { "cite": "553 P. 2d 546", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "pin_cites": [ { "page": "551", "parenthetical": "preliminary governmental approval not sufficient to support vested right" } ], "opinion_index": 0 }, { "cite": "138 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "786", "parenthetical": "expenditures made prior to issuance of permit \"not made in reliance on the permit\"" } ], "opinion_index": 0 }, { "cite": "263 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566824 ], "year": 1964, "pin_cites": [ { "page": "41", "parenthetical": "expenditures made prior to issuance of permit \"not made in reliance on the permit\"" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0037-01" ] }, { "cite": "233 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "661", "parenthetical": "a mistakenly-issued permit cannot give rise to a vested right" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552846 ], "year": 1977, "pin_cites": [ { "page": "635", "parenthetical": "a mistakenly-issued permit cannot give rise to a vested right" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0630-01" ] }, { "cite": "215 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "77", "parenthetical": "permit not required for vesting if permit not required under law in effect at time of expenditures" } ], "opinion_index": 0 }, { "cite": "287 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564022 ], "year": 1975, "pin_cites": [ { "page": "501", "parenthetical": "permit not required for vesting if permit not required under law in effect at time of expenditures" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0493-01" ] }, { "cite": "344 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "317 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771671 ], "year": 1986, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0051-01" ] }, { "cite": "170 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "909" }, { "page": "909" }, { "parenthetical": "requiring building permit" } ], "opinion_index": 0 }, { "cite": "276 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559989 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "54" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0048-01" ] }, { "cite": "79 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "734" } ], "opinion_index": 0 }, { "cite": "239 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626349 ], "year": 1954, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0232-01" ] }, { "cite": "465 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917055 ], "year": 1996, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0346-01" ] } ], "analysis": { "cardinality": 626, "char_count": 11738, "ocr_confidence": 0.756, "pagerank": { "raw": 2.918394390945323e-07, "percentile": 0.8463279133262209 }, "sha256": "936aff5dd6e012284598cb80ef58e832fa29b0d5c104b385bf384ee9aaf3a232", "simhash": "1:47b03543a660927a", "word_count": 1905 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, M., and McGEE concur." ], "parties": [ "BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC., Petitioner v. GUILFORD COUNTY BOARD OF ADJUSTMENT and KAY CHEMICAL COMPANY, ENDURA PRODUCTS, INC., FOUNDATION SERVICES, INC., GBA SYSTEMS, GOLDEN STATE FOODS CORP., and P.M. TUBE & SPECIALTY, INC., CHARLES and CATHERINE MEARS, LOUISE J. RICE, MRS. CLINTON R. TUCKER and LARRY E. TUCKER, Respondents" ], "opinions": [ { "text": "GREENE, Judge.\nBrowning-Ferris Industries of South Atlantic, Inc. (BFI) appeals the Superior Court\u2019s 11 April 1996 order (order) affirming the Guilford County Board of Adjustment\u2019s (Board) decision that the 23 March 1995 amendment (amendment) to the Guilford County Development Ordinance (Ordinance) requiring special use permits for transfer stations on property zoned Heavy Industrial (HI) applies to BFI\u2019s proposed solid waste transfer station.\nOn 13 June 1994 James D. Elza (Elza), Director of the Department, informed BFI that a tract of land containing approximately 9.66 acres of land (Little Santee tract) was zoned HI and that a transfer station \u201cis \u00e1 permitted use in the HI zone.\u201d Elza further informed BFI that the Little Santee tract was \u201calso in a watershed and will need to meet the watershed requirements as well as driveway, parking, landscaping and other requirements of the [Ordinance].\u201d\nBFI applied to the North Carolina Department of Environment, Health and Natural Resources (DEHNR) in July of 1994 to obtain a transfer station permit. In August of 1994 BFI submitted to the Guilford County Planning and Development Department (Department) a site development plan as required by Section 3-11.2 of the Ordinance. DEHNR issued the transfer station permit on 8 November 1994. The Guilford County Technical Review Committee (TRC) reviewed the site development plan and neither approved or rejected the plan. BFI resubmitted a revised set of site development plans on 21 November 1994. On 2 December 1994 BFI purchased the Little Santee tract. In February 1995 DEHNR revoked the transfer station permit because it had not fulfilled all the Ordinance\u2019s requirements.\nOn 21 February 1995 the Board determined that transfer stations were permitted by right in HI zones. On 14 March 1995 the TRC \u201cconditionally approved\u201d the site development plan \u201csubject to\u201d twelve conditions and BFI was further instructed to \u201c[rjevise and resubmit all drawings for complete plan.\u201d On 22 March 1995 BFI resubmitted a revised plan. On 23 March 1995 the Guilford County Board of County Commissioners (County) adopted an amendment to the Ordinance (effective upon passage) providing that the construction and operation of a transfer station would require \u201ca special use permit,\u201d a permit not required under the pre-amended Ordinance. On 18 May 1995 Elza (in a letter) informed BFI that the 22 March 1995 plan \u201cdid not comply with the [Ordinance requirements that it meet all approval conditions as listed by the [TRC] on March 14, 1995.\u201d Elza then stated (in the letter) that he could not \u201cissue a final approval.\u201d\nOn 19 May 1995, the North Carolina Department of Justice ruled that because the transfer station permit \u201cwas issued without an appropriate zoning approval letter from Guilford County, the permit was void from the time of issuance.\u201d On 20 June 1995 the Board determined that Elza\u2019s decision was \u201cimproper\u201d and found as fact that on 22 March 1995 BFI had fulfilled all conditions enumerated by TRC when it granted conditional approval on 14 March 1995. On 20 June 1995 the Board rejected BFI\u2019s claim that it had acquired a common law vested right to construct and operate a transfer station on the Little Santee tract without obtaining a special use permit. In support of its ruling the Board found that \u201c[n]o valid permits had been approved for this project and . . . BFI has not demonstrated . . . that they have spent money following the issuance of a conditional approval of the [site development plan].\u201d BFI appealed the Board\u2019s decision to the Superior Court which upheld the Board\u2019s decision in a 11 April 1996 order.\nThe record reveals that BFI had incurred expenses as of 23 March 1995 in the approximate amount of $582,000: $520,000 for land purchase and related fees, $49,000 for engineering consultation, $5,000 for design expense, and $8,000 for miscellaneous expenses.\nThe issue is whether BFI has a vested right to proceed with the construction and operation of a transfer station on the Little Santee tract under the pre-amended Ordinance.\nBFI argues that the Board \u201cmisapplied the vested rights standard and erred as a matter of law.\u201d Accordingly, this Court\u2019s review of the Board\u2019s decision is de novo. Ballas v. Town of Weaverville, 121 N.C. App. 346, 349, 465 S.E.2d 324, 326 (1996).\nIn this case before BFI constructed the transfer station on the Little Santee tract or was issued a building permit authorizing such construction, the County amended the Ordinance to require the issuance of a special use permit prior to the construction and operation of the transfer station. The special use permit was not a requirement of the pre-amended Ordinance. BFI argues that it is not required to obtain a special use permit under the amended Ordinance because it has a vested right to proceed with the development of the transfer station pursuant to the pre-amended version of the Ordinance. The basis of the argument is that it has expended $582,000 in the purchase and development of the transfer station site in good faith reliance on the pre-amended Ordinance, the 13 June 1994 letter from Elza, and the conditional approval of its site development plan.\nAs a general proposition \u201c[t]he adoption of a zoning ordinance does not confer upon citizens . . . any vested rights to have the ordinance remain forever in force, inviolate and unchanged.\u201d McKinney v. City of High Point, 239 N.C. 232, 237, 79 S.E.2d 730, 734 (1954). North Carolina does, however, recognize two methods for a landowner to establish a vested right in a zoning ordinance: (1) qualify with relevant statutes: N.C.G.S. \u00a7 153A-344.1 (1991) (counties), N.C.G.S. \u00a7 160A-385.1 (1994) (cities and towns); or (2) qualify under the common law, Town of Hillsborough v. Smith, 276 N.C. 48, 54, 170 S.E.2d 904, 909 (1969); N.C.G.S. \u00a7 153A-344.1(f)(2); N.C.G.S. \u00a7 160A-385(f)(2). In this case, BFI argues that it is entitled to a vested right pursuant to the common law and we address only that issue.\nThe common law vested rights doctrine is \u201crooted in the \u2018due process of law\u2019 and the \u2018law of the land\u2019 clauses of the federal and state constitutions\u201d and \u201chas evolved as a constitutional limitation on the state\u2019s exercise of its police power[s].\u201d Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 62, 344 S.E.2d 272, 279 (1986). A party\u2019s common law right to develop and/or construct vests when: (1) the party has made, prior to the amendment of a zoning ordinance, expenditures or incurred contractual obligations \u201csubstantial in amount, incidental to or as part of the acquisition of the building site or the construction or equipment of the proposed building,\u201d Town of Hillsborough v. Smith, 276 N.C. at 55, 170 S.E.2d at 909; (2) the obligations and/or expenditures are incurred in good faith, Id.-, (3) the obligations and/or expenditures were made in reasonable reliance on and after the issuance of a valid building permit, if such permit is required, authorizing the use requested by the party, Id. (requiring building permit); In re Campsites Unlimited, 287 N.C. 493, 501, 215 S.E.2d 73, 77 (1975) (permit not required for vesting if permit not required under law in effect at time of expenditures); Mecklenburg County v. Westbery, 32 N.C. App. 630, 635, 233 S.E.2d 658, 661 (1977) (a mistakenly-issued permit cannot give rise to a vested right); Warner v. W & O, Inc., 263 N.C. 37, 41, 138 S.E.2d 782, 786 (1964) (expenditures made prior to issuance of permit \u201cnot made in reliance on the permit\u201d); see Avco Com. Developers v. South Coast Reg. Comm\u2019n, 553 P. 2d 546, 551 (1976) (preliminary governmental approval not sufficient to support vested right); and (4) the amended ordinance is a detriment to the party. See Russell v. Guilford County, 100 N.C. App. 541, 545, 397 S.E.2d 335, 337 (1990); see also David W. Owens, Legislative Zoning Decisions (Institute of Government, 1993). The burden is on the landowner to prove each of the above four elements.\nIn those situations where multiple permits are required preliminary to the issuance of the building permit, and substantial obligations and/or expenditures are incurred in good faith reliance on the issuance of those permits, the party does acquire a vested right in those provision(s) of the ordinance or regulation pursuant to which the preliminary permit(s) was issued. See Cardwell v. Smith, 106 N.C. App. 187, 192, 415 S.E.2d 770, 774, cert. denied, 106 N.C. App 187, 419 S.E.2d 569 (1992) (landowner has vested right in ordinance provision under which special use permit had been issued).\nIn this case there is no evidence that BFI obtained a building permit and thus it is not entitled to a vested right to proceed with the construction and operation of the transfer station consistent with the pre-amended Ordinance. In so holding we reject the arguments of BFI that substantial expenditures in reliance on the pre-amended Ordinance, the 13 June 1994 letter from Elza or the conditional approval of the site development plan gives rise to a vested right to construct and operate a transfer station. BFI\u2019s claim of a vested right is also properly rejected for another reason. There is nothing in this record to show that BFI would be prejudiced or harmed if the amended Ordinance is held to apply to its efforts to construct and operate the transfer station. The mere requirement (in the amended Ordinance) that BFI acquire a special use permit prior to construction and operation of the transfer station is not itself supportive of an argument that BFI has been prejudiced by the amended Ordinance.\nThe trial court correctly affirmed the decision of the Board.\nAffirmed.\nJudges MARTIN, M., and McGEE concur.\n. A transfer station is a facility where garbage collection vehicles empty the garbage they have collected locally. The garbage is then transferred into larger vehicles for transportation to a landfill.\n. The Ordinance requires that no \u201cbuilding permit shall be issued\u201d until a site development plan has been approved. Ordinance, \u00a7 3-11.1 (B).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Petree Stockton, L.L.P., by Richard E. Glaze, Stephen R. Berlin, and Donald M. Nielsen, for petitioner-appellant.", "Office of the Guilford County Attorney, by Jonathan V. Maxwell, and J. Edwin Pons; Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., William G. Ross, and John R. Archambault; and Patton Boggs, L.L.P., by James S. Schenck, IV, for respondent-appellees." ], "corrections": "", "head_matter": "BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC., Petitioner v. GUILFORD COUNTY BOARD OF ADJUSTMENT and KAY CHEMICAL COMPANY, ENDURA PRODUCTS, INC., FOUNDATION SERVICES, INC., GBA SYSTEMS, GOLDEN STATE FOODS CORP., and P.M. TUBE & SPECIALTY, INC., CHARLES and CATHERINE MEARS, LOUISE J. RICE, MRS. CLINTON R. TUCKER and LARRY E. TUCKER, Respondents\nNo. COA96-750\n(Filed 7 May 1997)\nZoning \u00a7 57 (NCI4th)\u2014 transfer station \u2014 amendment of zoning ordinance \u2014 substantial expenditures \u2014 no common law vested right\nPlaintiff did not have a common law vested right to construct and operate a solid waste transfer station under defendant county\u2019s pre-amended zoning ordinance without acquiring a special use permit as required by an amendment to the ordinance, although plaintiff had incurred land purchase and site development expenses of $582,000 and had received conditional approval of its site development plan prior to the amendment, where plaintiff had not acquired a building permit prior to the amendment, and the record did not reveal that plaintiff was prejudiced or harmed by the special use permit requirement.\nAm Jur 2d, Zoning and Planning \u00a7\u00a7 646-648.\nAppeal by petitioner from order filed 16 April 1996 in Guilford County Superior Court by Judge Sanford L. Steelman, Jr. Heard in the Court of Appeals 26 February 1997.\nPetree Stockton, L.L.P., by Richard E. Glaze, Stephen R. Berlin, and Donald M. Nielsen, for petitioner-appellant.\nOffice of the Guilford County Attorney, by Jonathan V. Maxwell, and J. Edwin Pons; Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., William G. Ross, and John R. Archambault; and Patton Boggs, L.L.P., by James S. Schenck, IV, for respondent-appellees." }, "file_name": "0168-01", "first_page_order": 206, "last_page_order": 210 }