{ "id": 3821442, "name": "S.T. WOOTEN CORPORATION f/k/a S.T. WOOTEN CONSTRUCTION CO., INC., Petitioner v. BOARD OF ADJUSTMENT OF THE TOWN OF ZEBULON and THE TOWN OF ZEBULON, Respondents", "name_abbreviation": "S.T. Wooten Corp. v. Board of Adjustment", "decision_date": "2011-04-05", "docket_number": "No. COA10-515", "first_page": "633", "last_page": "644", "citations": [ { "type": "official", "cite": "210 N.C. App. 633" } ], "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": "627 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635428 ], "year": 2006, "pin_cites": [ { "page": "656", "parenthetical": "quoting Knight v. Town of Knightdale, 164 N.C. App. 766, 768, 596 S.E.2d 881, 883 (2004)" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0650-01" ] }, { "cite": "267 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "575" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549821 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0405-01" ] }, { "cite": "698 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2010, "pin_cites": [ { "page": "709-10" }, { "page": "706" }, { "page": "710" }, { "page": "710" }, { "page": "710" } ], "opinion_index": 0 }, { "cite": "380 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "575", "parenthetical": "under section 160A-388(b)[.] \"Once the municipal official has acted, for example by granting or refusing a permit, 'any person aggrieved' may appeal to the board of adjustment.\"" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527459 ], "year": 1989, "pin_cites": [ { "page": "502-03", "parenthetical": "under section 160A-388(b)[.] \"Once the municipal official has acted, for example by granting or refusing a permit, 'any person aggrieved' may appeal to the board of adjustment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0498-01" ] }, { "cite": "535 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "417" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122115 ], "year": 2000, "pin_cites": [ { "page": "102-03" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0099-01" ] }, { "cite": "592 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "209" }, { "page": "609-10", "parenthetical": "\"Questions of law are to be considered by both the superior court and by this Court de novo.\"" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 603", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919135 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "609" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0603-01" ] }, { "cite": "515 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 426", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220043 ], "year": 1999, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0426-01" ] }, { "cite": "533 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "527-28", "parenthetical": "quoting JWL Invs., Inc. v. Guilford County Bd. of Adjust., 133 N.C. App. 426, 429, 515 S.E.2d 715, 717 (1999)" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496549 ], "year": 2000, "pin_cites": [ { "page": "272", "parenthetical": "quoting JWL Invs., Inc. v. Guilford County Bd. of Adjust., 133 N.C. App. 426, 429, 515 S.E.2d 715, 717 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0269-01" ] }, { "cite": "596 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "883" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8901751 ], "year": 2004, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0766-01" ] }, { "cite": "177 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300859 ], "year": 2006, "pin_cites": [ { "page": "8", "parenthetical": "quoting Knight v. Town of Knightdale, 164 N.C. App. 766, 768, 596 S.E.2d 881, 883 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0001-01" ] }, { "cite": "571 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "591" }, { "page": "591" }, { "page": "591" }, { "page": "589" }, { "page": "591-92" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251535 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "742-43" }, { "page": "742-43" }, { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0737-01" ] } ], "analysis": { "cardinality": 1030, "char_count": 29510, "ocr_confidence": 0.737, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39323586046908526 }, "sha256": "7c78070c38a34f8d2d38a96a8f5e1405a564fc88ced3cef949c1e1c10058b1b2", "simhash": "1:9ba9757244e86d0e", "word_count": 4725 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "S.T. WOOTEN CORPORATION f/k/a S.T. WOOTEN CONSTRUCTION CO., INC., Petitioner v. BOARD OF ADJUSTMENT OF THE TOWN OF ZEBULON and THE TOWN OF ZEBULON, Respondents" ], "opinions": [ { "text": "BEASLEY, Judge.\nS.T. Wooten Corporation f/k/a S.T. Wooten Construction Co., Inc. (Petitioner) appeals the superior court\u2019s order affirming the decision of the Board of Adjustment of the Town of Zebulon (Board) requiring Petitioner to apply for and obtain a special use permit to operate a permanent asphalt plant on its property located within the jurisdiction of the Town of Zebulon (Town). The central issue presented in this appeal is whether a specific statement by the Town Planning Director \u2014 that, pursuant to the Town zoning code, the proposed asphalt operation is a permitted use by right requiring only a general use permit \u2014 is an order, decision, or determination of binding force. See Raleigh Rescue Mission, Inc. v. Board of Adjust, of City of Raleigh (In re Appeal of Soc\u2019y for Pres. of Historic Oakwood), 153 N.C. App. 737, 742-43, 571 S.E.2d 588, 591 (2002). For the reasons discussed herein, we conclude that the 2001 statement of the Planning Director is a determination of binding force, and, because no objection was made to that appealable decision in a timely manner, it is binding on the Town. Therefore, we reverse and remand to the Board for further remand to the Town to allow Petitioner\u2019s operation of the asphalt plant consistent with the Town\u2019s original, binding zoning interpretation that such was a permitted use, eliminating the need for a special use permit.\nPetitioner owns a 63-acre parcel of land located at 901 W. Barbee Street (the Property) within the extraterritorial jurisdiction of the Town. The Property is zoned in the \u201cHeavy Industrial\u201d (IH) district, and Petitioner has operated a concrete plant thereon since 1978. In 2001, Petitioner\u2019s Staff Engineer, Richard Bowen, requested a zoning determination letter from Michael Frangos, the Town\u2019s Planning Director and Land Use Administrator (LUA) at the time, as to whether Petitioner\u2019s IH-zoned Property could be used as an asphalt plant. Mr. Frangos responded by letter dated 22 August 2001, confirming the Town\u2019s extraterritorial jurisdiction over the IH-zoned Property and stating that an asphalt plant was a permitted use within the IH district:\nIn accordance with \u00a7 152.129 [of the Town\u2019s Land Use Ordinance] Permitted Uses, clay, stone, concrete and cement processing and sale is a use permitted by right with only a General Use Permit issued by the Zoning Administrator. It is my interpretation, as such, that asphalt plants fall within this description or are similar enough to be grouped together and are therefore also permitted.\nThe letter also advised that \u201cprior to any construction a site plan must be reviewed by the Zebulon Technical Review Committee and construction plans must be submitted along with an application in pursuit of a building permit.\u201d The Town never appealed Mr. Frangos\u2019 interpretation, and Petitioner proceeded to obtain air quality permits from the State of North Carolina. On 20 November 2001, a representative of engineering company ENSR Consulting and Engineering (NC), Inc. wrote a letter to Mr. Frangos on behalf of Petitioner, requesting that the Town \u201cprovide a zoning consistency determination\u201d to the North Carolina Department of Environment and Natural Resources (NCDENR), Division of Air Quality. This written \u201cRequest for Zoning Consistency Determination\u201d explained that Petitioner was \u201cplanning to permit three hot mix asphalt (HMA) plants at a site located on Barbee Street Extension in Zebulon\u201d and sought, pursuant to statutory requirement, a determination that the proposed asphalt facility was consistent with the Town\u2019s zoning ordinance in effect. Mr. Frangos confirmed to NCDENR\u2019s Regional Air Quality Supervisor, by letter dated 3 December 2001, that Petitioner\u2019s property is zoned IH and that the proposed asphalt facility was permitted as of right:\nPlease accept this letter as confirmation that the Town of Zebulon has received copies of the permit applications for S.T. Wooten Asphalt Mixing Services, LLC .... The site at 901 Barbee Street Extended ... is zoned IH, Heavy Industrial. Therefore such industrial uses and their appurtenant uses are permitted by right.\nAlso dated 3 December 2001, a \u201cZoning Consistency Determination\u201d signed by Mr. Frangos, as \u201cPlanning/Zoning Director,\u201d verified that the proposed \u201cHot Mix Asphalt (HMA) Plant\u201d was \u201cconsistent with applicable zoning and subdivision ordinances.\u201d\nAccording to Petitioner, over the next few years the company, in reliance on Mr. Frangos\u2019 2001 zoning interpretation, obtained necessary state and local permits, including: (a) the requested air quality permits from NCDENR; (b) driveway permits from the North Carolina Department of Transportation (NCDOT); (c) all necessary building permits from Wake County; and (d) all necessary sedimentation and erosion control permits. Petitioner also spent over $300,000 improving the Property for the use of the asphalt plant, including subdividing the Property to separate the asphalt plant area from the concrete plant that had been in existence on the Barbee Street Property since 1978. Petitioner began using its Property for the operation of an asphalt plant when it was awarded an asphalt paving contract by the NCDOT on 29 April 2009. In connection therewith, Petitioner submit- \u2022 ted to Wake County two commercial building permit applications\u2014 one for the portable asphalt plant itself and another for a portable office/lab trailer to be used on the Property \u2014 and a mechanical permit application for electrical work involved in the setup of a portable asphalt plant. On 27 May 2009, the Town of Zebulon Planning Department approved a zoning permit for a \u201cTemporary Asphalt Plant\u201d at the Property, specifying on the Zoning Permit Form that no change of use permit was required. The record also contains a certificate of occupancy issued on 4 June 2009, indicating that all permit requirements were met and occupancy was allowed. From June to October 2009, Petitioner operated a portable or temporary asphalt plant on the Property, and in September 2009, informed Mark A. Hetrick, the Town\u2019s Planning Director at that time, of its intention to replace the portable plant on the Property with a permanent asphalt plant.\nOn 1 October 2009, counsel for the Town notified Petitioner of Mr. Hetrick\u2019s determination that the \u201cultimate approval\u201d of the proposed permanent site for an asphalt manufacturing plant was \u201cstill to be made by the Board of Commissioners by way of a Special Use Permit.\u201d Mr. Hetrick cited \u00a7 152.131 of the Town of Zebulon Land Use Ordinance, which is captioned \u201cPermitted Uses and Specific Exclusions\u201d and provides that\nwhenever a use is proposed to be established which is not specifically listed in the table of permitted uses, but is similar to a permitted use in the district in which it is proposed to be established, then the Board of Adjustment is authorized to issue a conditional use permit ... if it first finds that the use is indeed similar in nature to one or more of the permitted uses in that district. Provided however, that if the Land Use Administrator finds that the use, although similar to other uses in the district, will have a greater impact on the community, then the Board of Commissioners may issue a [special use] permit....\nZebulon, N.C., Zebulon Land Use Ordinance (Zebulon Ordinance) \u00a7 152.131 (2008). Petitioner appealed Mr. Hetrick\u2019s decision requiring a special use permit to the Board of Adjustment on 23 October 2009, and on 17 December 2009, the Board held a hearing on the matter. At the conclusion of the hearing, the Board voted to affirm the 2009 interpretation and deny Petitioner\u2019s appeal by a unanimous vote. Petitioner timely filed a petition for a writ of certiorari to the superior court, and after considering the whole record of proceedings before the Board, reviewing the parties\u2019 submissions, and hearing arguments from counsel, the superior court affirmed the Board\u2019s decision. Petitioner appeals.\nOur General Assembly has authorized judicial review of the decisions of a municipal board of adjustment, providing that \u201c[e]very decision of the board shall be subject to review by . . . proceedings in the nature of certiorari.\u201d N.C. Gen. Stat. \u00a7 160A-388(e2) (2009). A trial court reviewing a board\u2019s decision should:\n\u201c(1) review the record for errors of law; (2) ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.\u201d\nWright v. Town of Matthews, 177 N.C. App. 1, 8, 627 S.E.2d 650, 656 (2006) (quoting Knight v. Town of Knightdale, 164 N.C. App. 766, 768, 596 S.E.2d 881, 883 (2004)). \u201c \u2018If a petitioner contends the Board\u2019s decision was based on an error of law, \u2018de novo\u2019 review is proper. However, if the petitioner contends the Board\u2019s decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the \u2018whole record\u2019 test.\u2019 \u201d Sun Suites Holdings, LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 272, 533 S.E.2d 525, 527-28 (2000) (quoting JWL Invs., Inc. v. Guilford County Bd. of Adjust., 133 N.C. App. 426, 429, 515 S.E.2d 715, 717 (1999)). Upon further appeal to this Court from a superior court\u2019s review of a municipal board of adjustment\u2019s decision, \u201c[t]he scope of our review is the same as that of the trial court.\u201d Fantasy World, Inc. v. Greensboro Bd. of Adjust., 162 N.C. App. 603, 609, 592 S.E.2d 205, 209 (2004). In this Court\u2019s examination of the superior court\u2019s order for errors of law, our \u201cstandard of review is limited to \u2018(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u2019 \u201d Id. (quoting Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 140 N.C. App. 99, 102-03, 535 S.E.2d 415, 417, (2000)).\nAlthough Petitioner\u2019s Petition for Writ of Certiorari to the superior court alleged that the Board\u2019s decision was not supported by competent, material, and substantial evidence and was arbitrary and capricious, these arguments were not properly preserved for appeal. Rather, Petitioner raises two questions of law: (1) whether the Board is bound by the 2001 interpretation of the Zebulon Ordinance because the Town took no appeal therefrom; and (2) whether such interpretation created a common law vested right in Petitioner to operate an asphalt plant on the Property. Where the order affirming the Board\u2019s decision indicates that the superior court \u201cconducted a de novo review of all legal issues and determined that the decision was not based on an error of law,\u201d and Petitioner does not contend that the superior court exercised an inappropriate scope of review, we consider only whether the de novo review was conducted properly. See Fantasy World, 162 N.C. App. at 609, 592 S.E.2d at 609-10 (\u201cQuestions of law are to be considered by both the superior court and by this Court de novo.\u201d).\nWe first address Petitioner\u2019s argument that Mr. Frangos\u2019 2001 interpretation \u2014 that asphalt plants are a permitted use of right within the IH district \u2014 is binding on the Town because it was never appealed. As discussed below, because the LAU\u2019s interpretation of the zoning ordinance was a final decision, it was also appealable; therefore, we agree with Petitioner that Mr. Frangos\u2019 letter became a binding zoning determination to which the Town must adhere.\nIn addition to various specific duties, the Zebulon Ordinance authorizes the LUA to \u201c[a]dvise applicants for development on the merits of proposed applications as well as procedures, rights and obligations under [the Zebulon Ordinance],... [m]ake interpretations on the provisions [therein], and appeal to the Board of Adjustment whenever he or she is unable to make certain determinations.\u201d Zebulon Ordinance \u00a7 152.025(A)-(B). Our General Statutes provide that\nthe board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of that ordinance. An appeal may be taken by any person aggrieved or by an officer, department, board, or bureau of the city.\nN.C. Gen. Stat. \u00a7 160A-388(b) (2009) (emphasis added). The Zebulon Land Use Ordinance likewise provides that \u201c[a]n appeal from any final order or decision of the Land Use Administrator may be taken to the Board of Adjustment by any person aggrieved.\u201d Zebulon Ordinance \u00a7 152.072(A)(1); see also id. \u00a7 152.024(A)(1) (\u201cThe Board of Adjustment shall hear and decide . . . [a]ppeals from any order, decision, requirement or interpretation made by the Land Use Administrator....\u201d). Pursuant to the Zebulon Ordinance, \u201c[a]n appeal made 30 days after the date of the decision or order appealed from will be considered invalid.\u201d Id. \u00a7 152.072(B). Our case law has made clear that for this thirty-day clock to be triggered, \u201cthe order, decision, or determination of the administrative official must have some binding force or effect for there to be a right of appeal under [\u00a7] 160A-388(b).\u201d In re Historic Oakwood, 153 N.C. App. at 742-43, 571 S.E.2d at 591. This Court explained:\nWhere the decision has no binding effect, or is not \u201cauthoritative\u201d or \u201ca conclusion as to future action,\u201d it is merely the view, opinion, or belief of the administrative official. See Midgette v. Pate, 94 N.C. App. 498, 502-03, 380 S.E.2d 572, 575 (1989) (under section 160A-388(b)[.] \u201cOnce the municipal official has acted, for example by granting or refusing a permit, \u2018any person aggrieved\u2019 may appeal to the board of adjustment.\u201d) (emphasis added). We do not believe section 160A-388(b) sets forth an appellate process where no legal rights have been affected by the \u201corder, decision ... or determination\u201d of the administrative official.\nId. at 743, 571 S.E.2d at 591.\nThe parties dispute the applicability of two seminal cases: while the Town attempts to analogize the instant facts to In re Historic Oakwood, Petitioner suggests that the case sub judice is more closely aligned with our recent decision in Meier v. City of Charlotte, N.C. App.-, 698 S.E.2d 704 (2010), where we distinguished the facts of In re Historic Oakwood from those involved there. See Meier,N.C. App. at -, 698 S.E.2d at 709-10 (noting that unlike In re Historic Oakwood, where the subject memorandum \u201chad no binding force and was not appealable to the board of adjustment\u201d because it \u201cdid not affect any of the parties\u2019 legal rights and was nothing more than a \u2018response to a request\u2019 by the City Attorney,\u201d the pertinent language at issue in Meier, contained in a letter from the interim zoning administrator, was \u201cclearly couched in determinative, rather than advisory; terms, compelling the conclusion that it is an \u2018order, decision, requirement, or determination\u2019 of the type that is subject to appeal\u201d to the board of adjustment). After thorough comparison of these two cases and careful scrutiny of the letter Mr. Frangos wrote Petitioner, we are convinced that the 2001 interpretation is more similar to the actual \u201cdecision\u201d rendered in Meier than the \u201cadvisory\u201d response of In re Historic Oakwood.\nIn In re Historic Oakwood, the board of adjustment determined that the residential facility a charitable organization planned to build \u201cfail[ed] to meet multi-family housing requirements because of its proposed use[,]\u201d but this Court reversed the decision based on the board\u2019s lack of jurisdiction to hear the matter. In re Historic Oakwood, 153 N.C. App. at 738, 571 S.E.2d at 589. We considered a memorandum of opinion by a Zoning Inspector issued in response to an inquiry from a Deputy City Attorney as to the contentions of opposing parties in the construction of a multi-family building, where the dispute concerned local zoning provisions. No one contested that the Zoning Inspector was an appropriate administrator to render a binding order on the matter; however, we determined that the memorandum was not binding. Our Court stated that the Zoning Inspector was without decision-making power at the time he issued his memorandum; that the memorandum was advisory, as it was in response to the Deputy City Attorney\u2019s request; and that the memorandum did not affect any rights of the parties. Id. at 743, 571 S.E.2d at 591-92.\nWe distinguished In re Historic Oakwood from Meier, where an adjacent property owner asked the Zoning Administrator to determine whether a construction project complied with the zoning ordinance height requirements. Because of questions presented by both the property owner and the adjacent property owner, a hold was placed on a certificate of occupancy \u201cuntil the zoning-related issues were resolved.\u201d Id. at -, 698 S.E.2d at 706. The Administrator reviewed the construction site and the plans and architectural drawings concerning the structure\u2019s height and location before providing his final interpretation as to compliance with the zoning ordinance. Upon review, we held that the Administrator was exercising the authority delegated to him pursuant to the Charlotte zoning ordinance and thereby made a specific \u201c \u2018order, requirement, decision, or determination within the meaning of . . . the Charlotte Code[,]\u201d as it was a determination made by an official with the authority to provide an interpretation of a specific provision of the zoning ordinance and allowed the property owner to complete the project without the risk that the structure would later be found to be out of compliance. Id. at-, 698 S.E.2d at 710. As such, the Zoning Administrator\u2019s letter \u201cwas subject to appeal to the Board of Adjustment.\u201d Id. at-, 698 S.E.2d at 710.\nHere, Petitioner, the landowner, specifically requested that the Planning Director interpret the Zebulon Ordinance and determine whether an asphalt plant was a permitted use. Mr. Frangos, in his capacity as Planning Director, rendered his interpretation of the zoning ordinance \u2014 that the area was zoned for Heavy Industrial and an asphalt plant was a permitted use. On at least two occasions \u2014 in the letter of 22 August 2001 and in the letter of 3 December 2001 \u2014 Mr. Frangos clearly interpreted the Zebulon Ordinance to allow asphalt plants as a permitted use. Subsequently, and in accord with the Planning Director\u2019s interpretation, Petitioner made application for several permits necessary for the asphalt plant. While the record does not provide the circumstances that led to Petitioner\u2019s request, the evidence indicates that Petitioner relied on Mr. Frangos\u2019 letters as binding interpretations of the applicable zoning ordinance. Mr. Frangos, as the LUA/Planning Director, was expressly empowered by \u00a7 152.025(A)-(B) of the Zebulon Ordinance to provide formal interpretations of the zoning provisions therein, and such zoning interpretations by the LUA may be binding. Thus, unlike In re Historic Oakwood, where an advisory opinion was provided at the request of the City Attorney, Mr. Frangos exercised his explicit authority in providing a formal interpretation of the zoning ordinance to a landowner seeking such interpretation as it related specifically to its property.\nFurther, we cannot readily distinguish the facts in Meier from the instant case as it relates to whether certain language used by an LUA in interpreting an ordinance is binding. Like the interpretation in Meier, Mr. Frangos\u2019 2001 interpretation was a determination that a certain use was permitted under the ordinance, and that the property owner, upon completion of a few items as set out in a letter, would be in compliance with the ordinance. The reasoning of the Court in Meier \u2014 distinguishing In re Historic Oakwood and concluding that the language used by the LUA was an \u201corder, requirement, decision or determination\u201d within the meaning of the Charlotte Code \u2014 is equally applicable to this appeal. \u201c[U]nlike the memorandum at issue in In re Historic Oakwood, [the letter here] involved a determination made by an official with the authority to provide definitive interpretations of the ... zoning ordinance concerning the manner in which a specific provision of the zoning ordinance should be applied to a specific set of facts that was provided to parties with a clear interest in the outcome of a specific dispute.\u201d Meier,-N.C. App. at-, 698 S.E.2d at 710. Here, Petitioner had an interest in the outcome of the request of a zoning consistency determination, and the letter it received was a clear exercise of the LUA\u2019s authority to evaluate and determine to what extent a proposed use complied with the ordinance.\nIn its brief, the Town emphasizes that portion of Frangos\u2019 2001 letter following his interpretation of the asphalt plant as a permitted use, where the Planning Director reminded Petitioner that site plans, construction plans, and building permit applications must be submitted prior to any construction. The Town suggests that this extraneous guidance rendered the 2001 interpretation advisory, as no authorization was given for Petitioner to actually operate the asphalt plant, and non-appealable as without binding force. However, this Court readily disposed of a parallel argument in Meier, where the petitioner contended that treatment of the Zoning Administrator\u2019s letter \u201cas an \u2018order, requirement, decision, or determination\u2019 for purposes of [appeal]\u201d was precluded by a reference therein \u201cto the necessity for a \u2018sealed survey indicating the distances from the structure to the property lines as well as the height of the structure\u2019 as a precondition for obtaining a certificate of occupancy.\u201d Id. at-n.3, 698 S.E.2d at 710 n.3. We separated the interpretation of binding force from the superfluous advice contained within the same letter, as the \u201c[petitioner's argument overlooked] the difference between the purpose for which the interpretation set forth in the [Zoning Administrator\u2019s] letter was provided and the reason that the \u201csealed survey\u201d was required as a precondition for the issuance of a certificate of occupancy:\nAt bottom, the purpose of the \u201csealed survey\u201d requirement was to ensure that the structure was completed in accordance with the site plans and architectural drawings provided in connection with the process that led to the issuance of the inteipretation embodied in the ... letter. In other words, the purpose of the \u201csealed survey\u201d requirement was to ensure that the structure that [the developer] completed had been constructed consistently with the representations that [it] had made. Nothing about the inclusion of the , \u201csealed survey\u201d requirement . . . suggested] that the Planning Department reserved the right to alter the interpretation of the relevant provisions of the zoning ordinance as set out in the [Zoning Administrator\u2019s] letter following receipt of the \u201csealed survey.\u201d\nId. In the same vein, the fact that Mr. Frangos\u2019 letter mentioned that a building permit would be needed before Petitioner could begin construction of an asphalt plant, as expressly required in the Zebulon Ordinance, does not convert his unequivocal, zoning interpretation into an advisory opinion. This guidance to an \u201capplicant[] for development on the . . . procedures, rights and obligations under the [ordinance],\u201d Zebulon Ordinance \u00a7 152.025(A), which the LUA was explicitly authorized to provide, contains no intimation \u201cthat the Planning Department reserved the right to alter the interpretation of the [applicable permitted use] provisions of the zoning ordinance as set out [above] in [Mr. Fragos\u2019] letter following receipt of the [site plans, construction plans, and building permit application].\u201d Rather, Frangos, the LUA in 2001, made a lawful and binding determination that the asphalt plant was a permissible use and such use did not violate the Town of Zebulon Zoning Ordinance; his advice as to a different aspect of the ordinance did not make the preceding formal interpretation on a separate issue advisory; and there is nothing in the record to indicate a change to applicable provisions of the ordinance from 2001 to 2009.\nWhile a review of our case law reveals no set of facts exactly like these in the instant case \u2014 where a LUA with statutory authority to bind the town does so and there is no objection by the town within the required 30-day statutory period \u2014 this Court\u2019s opinion in City of Winston-Salem v. Concrete Co., 47 N.C. App. 405, 267 S.E.2d 569 (1980) provides further guidance. The central issue in that case was whether a zoning compliance determination had been made in 1970 which then affected the propriety of a 1976 zoning determination that the property was in violation of the ordinance. There, the Court acknowledged settled law that a town \u201ccannot be estopped to enforce a zoning ordinance against a violator due to the conduct of a zoning official in encouraging or permitting the violation.\u201d Id. at 414, 267 S.E.2d at 575. However, the Court went on to grant the defendant a new trial based on the trial court\u2019s charge to the jury \u2014 a proper instruction on estoppel followed by an inaccurate statement as to the issues \u2014 deeming it prejudicial to the defendant. Id. at 417-18, 267 S.E.2d at 577. In City of Winston-Salem, because the question of \u201cwhether the zoning official with the power to do so made a determination in [one year] contrary to the determination made [several years later]\u201d was before the jury, the answer to that question would determine whether the city was entitled to enforce the ordinance by injunction. So, it would seem we have a similar situation here. In the instant case, the Town of Zebulon has made a prior determination through its LUA that the use of Petitioner\u2019s property for an asphalt plant is permissible. Because that prior determination was lawful and not in violation of the ordinance, the Town should not now be allowed to enforce a new interpretation of the same ordinance by injunction or otherwise.\nIt is clear that a Town\u2019s appeal of a decision of its LUA may be procedurally awkward. Is it plausible to believe that the LUA would issue an opinion and then advise the Town to challenge his own interpretation through an appeal to the Board of Adjustment? (Indeed, the Town\u2019s counsel explained to the Board that \u201cthere really would not have been a reason for the [T]own to appeal it because the [T] own\u2019s planning director at the time was the one issuing the opinion.\u201d) Yet, awkward procedure notwithstanding, the statute provides for a right to appeal by the Town, and makes no exceptions to that right. Because no appeal was taken from the initial 2001 decision, the window for appealing the decision has long since closed, the matter deemed settled, and the 2001 interpretation became a binding zoning determination that Petitioner may operate an asphalt plant on the Property as a permitted use. Thus, neither did the Town have authority to render a contrary decision or collaterally attack the 2001 interpretation, nor did the Board of Adjustment have jurisdiction to review the issue. As such, we need not review Petitioner\u2019s alternative contention that it had obtained common law vested rights to operate an asphalt plant without a special use permit. The judgment of the trial court should be reversed and remanded for further remand to the Board to reverse LUA Hetrick\u2019s decision that Petitioners needed a special use permit to operate the asphalt plant and to allow the original permitted use for the IH-zoned Property.\nReversed and remanded.\nJudges McGEE and BRYANT concur.\n. The body of this letter, written on Town of Zebulon letterhead, indicates that copies of the letter were sent to Petitioner and Petitioner\u2019s engineering and consulting firm, ENSR.\n. See N.C. Gen. Stat. \u00a7 160A-388(b) (setting out the avenue of appeals from, e.g. LUA decisions by persons aggrieved or city boards, departments, etc., and specifying that \u201cappeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of that ordinance . . . may be taken by any person aggrieved or by an officer, department, board, or bureau of the city\u201d); see also Zebulon Code \u00a7 152.025(A)-(B) (authorizing the LUA to \u201cmake interpretations on the provisions of [the zoning ordinance], and appeal to the Board of Adjustment whenever he or she is unable to make certain determinations\u201d).", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Lacy H. Reaves, Scott A. Miskimon, and J. Mitchell Armbruster, for Petitioner-Appellant.", "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene, Charles George, and Tobias S. Hampson, for Respondent-Appellees." ], "corrections": "", "head_matter": "S.T. WOOTEN CORPORATION f/k/a S.T. WOOTEN CONSTRUCTION CO., INC., Petitioner v. BOARD OF ADJUSTMENT OF THE TOWN OF ZEBULON and THE TOWN OF ZEBULON, Respondents\nNo. COA10-515\n(Filed 5 April 2011)\nZoning\u2014 interpretation of zoning official \u2014 not timely appealed \u2014 binding\nA statement by the Town\u2019s 2001 Planning Director in two letters that a proposed asphalt operation was a permitted use by right requiring only a general use permit was binding on the Town because the Town did not appeal the decision within the required thirty day period.\nAppeal by Petitioner from order entered 8 March 2010 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 2 November 2010.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Lacy H. Reaves, Scott A. Miskimon, and J. Mitchell Armbruster, for Petitioner-Appellant.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene, Charles George, and Tobias S. Hampson, for Respondent-Appellees." }, "file_name": "0633-01", "first_page_order": 641, "last_page_order": 652 }