Tuesday, September 04, 2007, 8:06 PM

County, Others Had Standing And Denied Due Process In Zoning Case

In Cook v. Union Cty. Zoning Bd. of Adjust. filed today, the COA held that a county and individual land owners had standing to challenge the approval of a Wal-Mart application for a special use permit. The COA also held that the Board denied the petitioners due process in approving a substantially revised application without giving them a chance to present evidence and cross-examine as to the revised application.

In Cook, the Board of Adjustment and Wal-Mart argued that Union County wasn't aggrieved and that the Board was the County's agent and therefore the County had no standing to appeal. The COA disagreed. The COA held that the statute governing challenges to appeals pursuant to county zoning ordinances, 153A-345, does not require a county officer, department, board or bureau to be aggrieved in order to challenge a board of adjustment decision. The COA also noted that a county may be adverse to a board of adjustment, can't reverse the decision of the board of adjustment, and lacks power over a board of adjustment once the County has delegated authority to the board. The COA held that nothing prohibits a county from appealing a decision by its board of adjustment and that Union County had standing here.

The Board of Adjustment and Wal-Mart also argued that all petitioners lacked standing because they were not parties before the Board of Adjustment. The COA rejected that argument, noting that the petitioners participated fully in hearings before the Board and the challenge in superior court. Nothing required the petitioners to become parties, and they had standing to challenge the Board's decision.

The Board of Adjustment and Wal-Mart also argued that the petitioners hadn't preserved their objections to the Board of Adjustment decision. The COA noted that N.C. R. App. 10 requiring objection preservation applies in the appellate division, and nothing required the petitioners here to lodge formal objections in challenging the Board of Adjustment to superior court.

The COA also held that the Board of Adjustment violated the petitioners' due process rights in approving a substantially revised application for a special use permit without, among other things, giving petitioners a chance to cross-examine and proffer evidence on the revised application. The revised application involved moving and reorienting the Wal-Mart store that was the subject of the application to the other side of the tract, reconfiguring traffic patterns, adding a drive-through pharmacy, and changing elevations and parking lots. The COA noted the revised application was substantially different than the initial application, and that while Wal-Mart was allowed to present evidence and roll forward on the substantially different plan, the Board "essentially cut off the rights of the" county and land owners.

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