{ "id": 4079207, "name": "WILLIAM H. \"BILL\" WILSON Petitioner v. CITY OF MEBANE BOARD OF ADJUSTMENT, THE CROWN COMPANIES, LLC, Intervenor, Respondents", "name_abbreviation": "Wilson v. City of Mebane Board of Adjustment", "decision_date": "2011-05-17", "docket_number": "No. COA10-971", "first_page": "176", "last_page": "184", "citations": [ { "type": "official", "cite": "212 N.C. App. 176" } ], "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": "658 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640638, 12640639 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/658/0485-01", "/se2d/658/0485-02" ] }, { "cite": "362 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640561, 12640460 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0667-01", "/se2d/657/0373-02" ] }, { "cite": "652 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639684 ], "year": 2007, "pin_cites": [ { "page": "298", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0284-01" ] }, { "cite": "620 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634071 ], "year": 2005, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0014-01" ] }, { "cite": "187 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371651 ], "year": 2007, "pin_cites": [ { "page": "20", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0001-01" ] }, { "cite": "702 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "76", "parenthetical": "\"We need not specifically address what types of government approval, short of a permit, are sufficient for the common law vested right analysis because Browning-Ferris establishes that expenditures in reliance on letters such as these are not sufficient to give rise to a vested right.\"" } ], "opinion_index": 0 }, { "cite": "233 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "661", "parenthetical": "\"[T]he permit must have been lawfully issued in order for the holder of the permit to acquire a vested right in the use.\"" } ], "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": "\"[T]he permit must have been lawfully issued in order for the holder of the permit to acquire a vested right in the use.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0630-01" ] }, { "cite": "138 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "263 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566824 ], "year": 1964, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0037-01" ] }, { "cite": "79 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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": "484 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "414", "parenthetical": "quoting McKinney v. City of High Point, 239 N.C. 232, 237, 79 S.E.2d 730, 734 (1954)" }, { "page": "414", "parenthetical": "internal citations omitted" }, { "page": "414" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709198 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "171", "parenthetical": "quoting McKinney v. City of High Point, 239 N.C. 232, 237, 79 S.E.2d 730, 734 (1954)" }, { "page": "171-72" }, { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0168-01" ] }, { "cite": "173 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354061 ], "year": 2005, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0594-01" ] } ], "analysis": { "cardinality": 752, "char_count": 19293, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.12986259044446222 }, "sha256": "8777105827d40aa9513b5cd177755a1fd5d170e6f9d47e66f0710cce83fa9d06", "simhash": "1:36bf63aa0c89cf01", "word_count": 3177 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "WILLIAM H. \u201cBILL\u201d WILSON Petitioner v. CITY OF MEBANE BOARD OF ADJUSTMENT, THE CROWN COMPANIES, LLC, Intervenor, Respondents" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nPetitioner appeals the trial court\u2019s Judgment affirming the decision of the City ofMebane Board of Adjustment (\u201cthe Board\u201d), which approved the issuance of a building permit by the City of Mebane to The Crown Companies, LLC (\u201cCrown\u201d). Petitioner alleges the trial court erred as a matter of law in affirming the Board\u2019s decision, which found that Crown had acquired a common law vested right to proceed with the development under zoning ordinances that are no longer in effect. Petitioner further alleges the trial court\u2019s decision was arbitrary and capricious, as it was not supported by substantial evidence. We do not reach all issues raised by Petitioner, because we agree with his contention that Crown did not acquire a common law vested right and therefore reverse the trial court\u2019s Judgment.\nI. Factual & Procedural History\nThis dispute arises out of the approval of a commercial development for a Walgreens retail store adjacent to a residential neighborhood in the city of Mebane, North Carolina (the \u201cWalgreens Project\u201d). Petitioner Bill Wilson (\u201cWilson\u201d) is the owner of a residential property located at 815 S. Fifth Street in Mebane. At this address, Wilson owns a lot that is zoned for residential use, upon which sits a 1950\u2019s four-bedroom house. Wilson purchased the property in 2005 and, that same year, sought to have it rezoned for commercial use. The City of Mebane denied his request.\nIn late 2006, Crown, a commercial real estate development company, became interested in developing the area of land adjacent to Wilson\u2019s property. Crown sought to build a Walgreens retail store on the site.\nThe Crown property is approximately 1.62 acres and is comprised of three parcels. At the time Crown purchased the property, two of the three parcels were zoned for business use, while the eastern-most parcel \u2014 the parcel adjacent to Wilson\u2019s property \u2014 was zoned for residential use.\nSince 2002, the City of Mebane (\u201cthe City\u201d) had two separate zoning and landscaping ordinances in effect that applied to both the Crown and Wilson properties: the Landscape Standards Ordinance (\u201cLSO\u201d) and the Mebane Zoning Ordinance (\u201cMZO\u201d). The LSO required a vegetation buffer to be placed between incompatible land uses. Specifically, section 3(f) of the LSO called for a 50-foot buffer between commercial and residential uses. The City adopted an amendment to the LSO in 2003 that exempted developments of less than five (5) acres of land from the 50-foot buffer requirement (the \u201cfive-acre exemption\u201d).\nAs Crown began its planning for the Walgreens Project, Daniel Barnes (\u201cBarnes\u201d), an engineer for and principle of Crown, had a series of conversations with the City of Mebane Planning Administration. In December of 2006, Barnes met with Montrina Hadley (\u201cHadley\u201d), the Mebane Planning Director, and presented Crown\u2019s initial plan for the Walgreens Project. From this first meeting with Hadley, it was apparent to Barnes that Crown\u2019s plan for the Walgreens site was in conflict with the zoning ordinances in effect at that time, the LSO and the MZO. Specifically, Barnes knew it would be difficult to accommodate the 50-foot buffer on the perimeter of the Walgreens site for the benefit of adjacent residential lots. Additionally, the site plan required that thirty percent (30%) of the building that would house the Walgreens store would sit on the eastern-most parcel, which was zoned for residential use and borders Wilson\u2019s property. Barnes was reassured, however, that because Crown\u2019s property was approximately 1.62 acres, certain zoning requirements, including the 50-foot buffer, could be waived pursuant to the five-acre exemption provided in the LSO.\nAfter this initial meeting, Crown continued to pursue the development of the Walgreens Project and considered purchasing Wilson\u2019s property in order to accommodate a 50-foot buffer. In April 2007, Wilson \u2022 and Crown entered into a purchase agreement whereby Crown acquired the right to purchase Wilson\u2019s property.\nIn May 2007, however, Barnes concluded that purchasing Wilson\u2019s property was prohibitively expensive. Barnes submitted a revised site plan to Hadley reflecting Crown\u2019s decision not to acquire Wilson\u2019s land and requested Hadley\u2019s opinion.as to the possibility of acquiring a waiver for the 50-foot buffer. Bames also inquired as to whether Crown should seek rezoning of the residential-zoned parcel adjacent to Wilson\u2019s property, and upon which thirty percent of the Walgreens building would sit. Hadley replied that she discussed the issue with her staff; she recommended that Crown apply to have the residential parcel rezoned and indicated that a waiver for the 50-foot buffer would be granted.\nIn December 2007, Crown informed Wilson that it would not exercise its option to purchase his property. Crown, however, continued with its development efforts. During the next year, Barnes submitted four versions of the site plan to Hadley\u2019s office for approval on 23 January 2008, 19 May 2008, 23 June 2008, and 17 November 2008.\nAt the same time Crown was moving forward with its development plan, the City of Mebane adopted a new set of zoning ordinances, the Unified Development Ordinance (\u201cUDO\u201d). The UDO was adopted on 4 February 2008 and is a consolidation of the then-existing ordinances, the LSO and the MZO. While the majority of the LSO survived the consolidation into the UDO, the LSO\u2019s five-acre exemption for the 50-foot buffer between incompatible land uses was not incorporated into the UDO. Additionally, UDO section 1-2(A) states that any portion of a City ordinance that relates to land use and is inconsistent with the UDO is repealed.\nWhen the UDO was adopted, Crown had not yet received approval on its site plan nor received a building permit. Three days after the adoption of the UDO, on 7 February 2008, the City\u2019s Planning Department Technical Review Committee (\u201cTRC\u201d) met to review Crown\u2019s January 2008 site plan. The notes from this meeting indicate the plan had not been approved. The TRC met again on 4 June 2008 to review Crown\u2019s second revised plan. The notes from this meeting also indicate Crown\u2019s plans had not been approved. On 30 January 2009, Hadley stated in an email to Wilson\u2019s attorney that the site plan and building plans were still in review status and that no approvals or permits had been issued. Additional TRC meetings were held, and the record shows that Crown did not receive approval of its plans and a building permit until 24 February 2009.\nOn 3 March 2009, Wilson appealed the issuance of the Crown building permit to the Board. Wilson alleged the ordinance that controls the Crown development project is the UDO, adopted more than one year before the building permit was issued. Wilson alleged the buffer specified on the Crown site plan and approved by the Planning Administration was in violation of the UDO buffer requirements. Alternatively, he argued, if Crown\u2019s site plan was controlled by the LSO, the plan is in violation of the LSO, as the approved buffer does not \u201cpreserve the spirit of the Ordinance,\u201d as required by section 2(d) of the LSO.\nThe Board conducted a hearing on the matter on 4 May 2009 and issued its decision the same day. The Board denied Wilson\u2019s appeal, concluding that Crown had acquired a common law vested right to proceed with the development project pursuant to the requirements of the LSO and the MZO, which were in effect before the adoption of the UDO. On 4 June 2009, Wilson petitioned the Alamance County Superior Court for a writ of certiorari to review the Board\u2019s decision pursuant to N.C. Gen. Stat. \u00a7 160A-388 and UDO \u00a7\u00a7 8-13 and 11-7; the writ of certiorari was issued on 22 July 2009. Crown filed a motion to intervene, which was granted on 4 August 2009.\nAfter a hearing on the merits, the Superior Court upheld the Board\u2019s decision in its Judgment issued 18 May 2010. The .trial court\u2019s findings of fact included, inter alia:\n7. The review process for the Proposed Walgreens began in the first week of December 2006. . . . The first submittal [of the site plan] was made January 23, 2008, the second submittal was made May 19, 2008 and the fourth submitted on November 17, 2008. The final site plan was approved, the building permit application approved and fees paid on February 23, 2009. . . .\n8. At all times during the review of the Proposed Walgreens, the City of Mebane applied the LSO to the project having taken the position that Crown had a vested right to proceed under the LSO rather than the UDO which was enacted on February 4, 2008.\n9. Crown Development made substantial expenditures in good faith and in reliance upon valid governmental approvals and action.\nBased upon its findings, the trial court concluded, as a matter of law, the Board\u2019s decision was supported by substantial evidence and it committed no error of law in determining Crown acquired a common law vested right to proceed under the LSO and was entitled to a building permit. From this Judgment, Wilson appeals.\nII. Jurisdiction and Standard of Review\nJurisdiction in this Court is proper pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2009) (stating a right of appeal lies with this Court from the final judgment of a superior court \u201centered upon review of a decision of an administrative agency\u201d). We review the trial court\u2019s decision for errors of law de novo. Hilliard v. N.C. Dep\u2019t of Corrections, 173 N.C. App. 594, 596, 620 S.E.2d 14, 17 (2005).\nIII. Analysis\nA. Common Law Vested Right\nIn his first argument on appeal, Wilson alleges the trial court erred, as a matter of law, in finding that Crown acquired a common law vested right to proceed with the Walgreens Project under the LSO and the MZO. We agree.\nAs we stated in Browning-Ferris Indus. of S. Atl., Inc. v. Guilford County Bd. of Adjustment, generally \u201c \u2018[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.\u2019 \u201d 126 N.C. App. 168, 171, 484 S.E.2d 411, 414 (1997) (quoting McKinney v. City of High Point, 239 N.C. 232, 237, 79 S.E.2d 730, 734 (1954)). North Carolina law recognizes two methods by which a landowner may, however, obtain the legal right to continue a land development project contrary to an ordinance that is currently in effect; such rights may vest in a landowner by common law or by statute. Id.\nIn the present case, Respondents do not argue that Crown acquired the right to proceed with the Walgreens Project under the LSO and the MZO by virtue of a statute. Our analysis will therefore focus on whether Crown obtained a common law vested right to proceed with the Walgreens Project under the pre-UDO Ordinances.\nA common law fight to proceed with a development plan under a prior ordinance may vest in a party when:\n(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 ...\n(2) the obligations and/or expenditures are incurred in good faith,\n(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. . .\nand (4) the amended ordinance is a detriment to the party.\nBrowning-Ferris, 126 N.C. App. at 171-72, 484 S.E.2d at 414 (internal citations omitted) (emphasis added). The landowner has the burden of establishing it has satisfied the elements for common law vested rights. Id. at 172, 484 S.E.2d at 414.\nIn the present case, Wilson challenges three out of the four elements arguing the expenditures Crown made for the Walgreens Project were not made in reliance on a valid building permit, were not made in good faith, and that Crown would not suffer any detriment by complying with the amended ordinance.\nThe timeline of pertinent events in the record establishes that Crown\u2019s expenditures, made prior to the enactment of the UDO, were not made in reasonable reliance on and after the issuance of a valid building permit. The events are summarized in the trial court\u2019s Judgment as follows:\nThe review process for the Proposed Walgreens began in the first week of December 2006. . . . The site plan for the Walgreens Project was drawn on November 30, 2007 and the plan sealed on December 17, 2007. The first submittal was made January 23, 2008, the second submittal was made May 19, 2008 and the fourth submitted on November 17, 2008. The final site plan was approved, the building permit application approved and fees paid on February 23, 2009. (Emphasis added.)\nAdditionally, during the Board\u2019s hearing, the City stipulated that the 23 February 2009 issuance of the building permit was the \u201cfinal act establishing approval\u201d of Crown\u2019s site plan.\nAssuming arguendo that Crown made \u201csubstantial expenditures\u201d prior to the adoption of the UDO, the City did not issue a permit for the Walgreens Project until more than one year after the enactment of the UDO on 4 February 2008. As our Supreme Court concluded in Warner v. W & O, Inc., expenditures made by the landowner prior to issuance of a permit were \u201cmanifestly not made in reliance on the permit thereafter issued.\u201d 263 N.C. 37, 41, 138 S.E.2d 782, 786 (1964); see also David W. Owens, Land Use Law in North Carolina 150 (2006) (\u201cexpenditures made to secure government approval are not considered\u201d as expenditures made in reliance upon government approval). Therefore, Crown failed to establish one of the elements necessary to acquire a common law vested right.\nThe City issued a permit for Crown\u2019s Walgreens Project based on the premise that the controlling ordinances were the LSO and the MZO. Because we have determined Crown did not acquire a common law vested right to proceed with its development plan under the LSO and the MZO, the permit was void ab initio. Additionally, any expenditures made by Crown after the issuance of the permit could not serve as a basis for a vested right. See Mecklenburg County v. Westbery, 32 N.C. App. 630, 635, 233 S.E.2d 658, 661 (1977) (\u201c[T]he permit must have been lawfully issued in order for the holder of the permit to acquire a vested right in the use.\u201d).\nRespondents\u2019 argument that Crown relied upon the City\u2019s assurances that the 50-foot buffer requirement would be waived is unavailing. While we do not conclude the City\u2019s assurances to Crown amounted to conditional approvals of the site plan, this Court rejected reliance on such actions in Browning-Ferris. 126 N.C. App. at 172, 484 S.E.2d at 415 (rejecting the plaintiffs\u2019 argument that substantial expenditures in reliance on the pre-amended ordinance, a letter from the town\u2019s planning director giving assurances of approval, or the planning department\u2019s conditional approval of the site develop-merit plan gave rise to a common law vested right to proceed with construction in contravention of the then-enacted ordinance); MLC Auto., LLC v. Town of S. Pines, \u2014 N.C. App. \u2014, \u2014, 702 S.E.2d 68, 76 (2010) (\u201cWe need not specifically address what types of government approval, short of a permit, are sufficient for the common law vested right analysis because Browning-Ferris establishes that expenditures in reliance on letters such as these are not sufficient to give rise to a vested right.\u201d)\nRespondents claim in their brief that our courts have permitted other towns to \u201ctake the approach taken by the City of Mebane,\u201d but fail to cite to a single case in which our courts have done so. Rather, our case law makes clear, where a permit is required, expenditures made prior to the issuance of a permit are not considered in the common law vested rights analysis. Respondents\u2019 argument is dismissed.\nBecause we conclude Crown\u2019s expenditures for the Walgreens Project were not made in reasonable reliance on and after the issuance of a valid building permit, we need not reach Wilson\u2019s challenge to the other elements necessary to acquire a common law vested right. Similarly, because we conclude Crown does not have a common law vested right to proceed with its development project under the LSO and the MZO, we need not address Wilson\u2019s alternative argument that the buffer approved in Crown\u2019s development plan violates the LSO in that it fails to preserve the \u201cspirit of the Ordinance\u201d as required by section 2(d) of the LSO.\nB. Mootness\nRespondents contend that this appeal is moot because, before the filing of this appeal, the City of Mebane adopted amendments to the UDO that would entitle Crown to the building permit that was issued. We cannot agree.\nA matter is rendered moot when \u201c(1) the alleged violation has ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.\u201d Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 20, 652 S.E.2d 284, 298 (2007) (citation and quotation marks omitted), appeal dismissed, disc. review denied, 362 N.C. 177, 658 S.E.2d 485 (2008).\nAs discussed above, the permit issued under the requirements of LSO and the MZO for Crown\u2019s development plan was void ab initio. There is no evidence in the record that Crown\u2019s development plan was approved under the UDO. Thus, the City\u2019s amendments to the UDO could not have eradicated the effects of the violation and Respondents\u2019 argument is dismissed.\nIII. Conclusion\nWe conclude the expenditures on the Walgreens Project made by Crown, prior to the enactment of the UDO, were not made in reasonable reliance on and after the issuance of a valid building permit. Accordingly, Crown did not acquire a common law vested right to have its development plan evaluated under the LSO and the MZO. The building permit issued by the City of Mebane was void ab initio. The trial court\u2019s Judgment is\nReversed.\nJudges CALABRIA and STROUD concur.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Andrew J. Petesch, Attorney for Petitioner-Appellant.", "Bateman Law Firm, by Charles Bateman, Attorney for Respondent-Appellee City ofMebane Board of Adjustment.", "Wishart Norris Henninger & Pittman, P.A., by June K. Allison, Attorney for Intervenor-Respondent-Appellee The Crown Companies, LLC." ], "corrections": "", "head_matter": "WILLIAM H. \u201cBILL\u201d WILSON Petitioner v. CITY OF MEBANE BOARD OF ADJUSTMENT, THE CROWN COMPANIES, LLC, Intervenor, Respondents\nNo. COA10-971\n(Filed 17 May 2011)\n1. Zoning\u2014 prior ordinance \u2014 common law vested right\nExpenditures on a real estate development project prior to the enactment of a Unified Development Ordinance were not made in reasonable reliance on and after the issuance of a building permit. Respondent Crown did not acquire a common law vested right to have its development plan evaluated under the prior ordinances.\n2. Appeal and Error\u2014 mootness \u2014 zoning\nAn appeal from a zoning decision was not moot even though amendments to a zoning ordinance before the appeal was filed would have entitled respondent Crown to a building permit for its development. A permit issued under the prior ordinance was void ab initio and the amendments would not have eradicated the effects of the violation.\nAppeal by Petitioner from Judgment entered 18 May 2010 by Judge Ronald Stephens in Alamance County Superior Court. Heard in the Court of Appeals 26 January 2011.\nAndrew J. Petesch, Attorney for Petitioner-Appellant.\nBateman Law Firm, by Charles Bateman, Attorney for Respondent-Appellee City ofMebane Board of Adjustment.\nWishart Norris Henninger & Pittman, P.A., by June K. Allison, Attorney for Intervenor-Respondent-Appellee The Crown Companies, LLC." }, "file_name": "0176-01", "first_page_order": 186, "last_page_order": 194 }