Unconstitutional Vagueness in Land Use/Zoning Ordinances and Why it Matters?

As with any other type of laws, land use and zoning ordinances must comply with constitutional requirements that the ordinance not be vague. This requirement flows from the constitutional right of due process. Among the people's right to due process is the right to know, with a degree of certainty, what is required by the law. Historically, the vagueness doctrine arose in relation to criminal law. Due process requires that a criminal law must be sufficiently explicit to inform those who are subject to the law what conduct on their part will make them chargeable for a crime. As the United States Supreme Court stated over 100 years ago: "And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." International Harvester Co. v. Kentucky, 234 U.S. 216 (1914).

North Carolina also has a constitutional due process requirement and it applies equally to North Carolina statutes including county and municipal land use and zoning laws.

Vagueness can be found in a number of different ways (although vagueness always flows from the words and definitions provided in the statute). For example, vagueness has been found where what is required by the law cannot be physically or mathematically known. A seminal North Carolina case involving this is State v. Vestal, 189 SE 2d 152 (NC Supreme Court 1972). In that case, the ordinance at issue required that, for scrap and junk yards, "a solid fence or wall not less than 6 feet in height shall be erected not less than 50 feet from the edge of any public road adjoining the yards." The ordinance was challenged on the basis of vagueness and the North Carolina Supreme Court agreed. The problem was with the words "edge of any public road." As the court stated:

"The term "public road" includes, of course, both paved and unpaved roads. In oral argument, counsel for the State suggested that the edge of a road is the edge of the traveled portion thereof. In the case of an unpaved road, however, this will vary from time to time. Other possible interpretations include: the outer edge, the shoulder, the outer edge of the side ditch, the edge of the pavement in the case of a paved road, the outer boundary of the right of way. Between these possible constructions, the court is not permitted to make a selection."

The court held that the ordinance "must be deemed unconstitutionally vague" and the court refused to enforce the ordinance. The court stated that due process requires that a landowners "may not be required to guess at the required location of his fence at the risk of a fine or imprisonment if he guesses wrong ..."

By contrast, no unconstitutional vagueness was found in the case of State v. Jones, 281 SE 2d 91 (NC Court of Appeals 1981). In that case, the landowner operated an automobile junkyard. The landowner challenged these parts of the ordinance:

• That the yard be surrounded by an opaque fence or by a wire fence and vegetation which will reach a height of six feet at maturity and shall be planted so that a continuous unbroken hedge will exist
• That the owner must utilize "good husbandry techniques with respect to said vegetation, including but not limited to, proper pruning, proper fertilizer and proper mulching"
• That the junkyard not be within 100 yards of the centerline of a public road

The owner of the junkyard argued that the first part requires the owner to guess at the type of tree to plant and the manner of planting. The court disagreed and stated that "[w]e believe men of common intelligence would know the type of hedge that is required by this ordinance." As for the second requirement, the junkyard owner argued that, to comply, a landowner would have to guess at what "good husbandry" meant. Again, the court rejected the argument. As for the third argument, the court noted that the centerline of a road is easily measured and does not vary. Thus, the case was different from the Vistal case.

Vagueness can also be found in the use of unclear and undefinable terms in an ordinance. For example, in Blue Ridge Co., LLC v. Town of Pineville, 655 SE 2d 843 (NC Court of Appeals 2008), the Town's zoning ordinance required, among other things, that all "... proposed subdivisions should be planned so as to facilitate the most advantageous development of the entire neighboring area." The court held that the words "most advantageous development" was too vague to be enforced.

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.