Keys to Winning a North Carolina Conditional Use Permit Fight

Is there a conditional use permit fight down at the local Board of Adjustment (or, maybe, before the City Council)? Whether you are zealously in favor of the proposed land use development or passionately against it, here are a few keys to winning.

Whether a use permit should issue depends on the local zoning ordinance. To win the fight, you have to know what your local zoning ordinance requires. Some North Carolina ordinances are relatively simple. Here's an example where a permit grant only requires proof of five factors:

• The use does not materially endanger the public health or safety
• The use meets all required conditions and specifications -- such as set-backs, height, square footage and other requirements
• The use would not substantially injure the value of adjoining property or, if it does, then the use is a public necessity and
• The use must be in harmony with the area in which it is located
• The use must be in general conformity with the comprehensive plan

But other ordinances add more specific requirements such as: "That the proposed use will not cause undue traffic congestion or create a traffic hazard." Still other ordinances will add more general (and vague) requirements such as: "That the proposed use is appropriately located with respect to transportation facilities, water supply, fire and police protection, waste disposal, and similar facilities." These examples are taken or modified from ones described in PHG Asheville, LLC. v. City of Asheville, 822 SE 2d 79 (NC Court of Appeals 2018).

If you are zealously in favor of the proposed use, you must be prepared to present evidence to prove all of the requirements set forth in the local ordinance. Likewise, if you are passionately opposed to the proposed use, you must present evidence that the proposed use fails to meet all of the requirements.

North Carolina courts require that any and all legal challenges be presented at the earliest possible stage in the proceedings. For example, the example above that requires that the "proposed use be appropriately located" is, on its face, vague and unclear. What is "appropriately located?" It may be possible to challenge the local ordinance on the legal grounds of unconstitutional vagueness. But, to preserve that legal question for the court, that issue must be raised before the Board or the City Council and raised from the start.

North Carolina law mandates that decisions made by Boards of Adjustment or City Councils be made by impartial decision makers. Among other things, this means that the members of the Board or Council should have no preconceived opinions about granting or denying the permit. Likewise, they should have no personal interest in the decision (like owning or being married to a person who owns a neighboring property). So, another key to winning a use permit fight is to know your decision makers. Can any of them be challenged (and asked to remove themselves) on the grounds of bias or self-dealing or self-interest? If so, then remember the previous key. Make an early and robust legal challenge to a decision maker's continued participation in the proceedings and continue the challenge (where appropriate) as the proceedings progress.

To win a permit fight, North Carolina requires that the proponents AND the opponents must present "competent, material, and substantial evidence" on the issues involved. This means hiring and retaining qualified expert witnesses to evaluate the technical issues involved. If the main fight will be over traffic congestion, it is NOT enough to have members of the public express their expectations and fears about how traffic will increase if the permit is granted. If the main battleground is over potential damage to neighboring property values, it is NOT enough to have the property owners give dramatic testimony about how their homes will become worthless. EXPERT witnesses -- like real estate appraisers -- will be required. Likewise, if there is a concern about contamination of the local water supply, qualified experts will be needed (by both sides).

A final key to winning a North Carolina conditional use permit fight is to hire -- at the very start -- experienced North Carolina land use attorneys with deep understanding of North Carolina law.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.