The week before Christmas 2020, I received word from the N.C. Supreme Court that it had denied discretionary review in a case out of Western North Carolina that my client had won in the N.C. Court of Appeals in 2018. We had prevailed at the trial court level in 2017 and before the county’s board of adjustment in 2016 after ten evenings of testimony that began in October of 2015. The appeal pertained to a planning director’s decision in June of 2015 to revoke a land use permit for an asphalt plant.
Before you race to the calculator, I’ll do the math for you. This was a five and a half year journey. Longer than usual, but not uncommon. One couple – later determined not to have had standing – was able to keep the appeal alive.
In 2010 through 2013, I represented a county in eastern North Carolina that rezoned land for a facility that would grow and process chickens, but more importantly that would create 1100 jobs during the worst downturn since the 1930s. The rezoning decision was challenged by a handful of neighbors but paid for by a city in the next county because, as one elected official said, they didn’t want to shoulder the “social costs” of the workers that would move into the area.
We won at every level and in several procedural skirmishes in between, starting in the trial court in 2011 and prevailing in the Court of Appeals in 2012. Then we waited until 2013 for the state Supreme Court to deny the neighbors’ petition for discretionary review.
Another client started its application in early 2015 for a conditional use permit for a large luxury hotel. But the city turned them down in early 2016. Although the players are different, the story line is the same. We prevailed in the trial court in 2017 and in the N.C. Court of Appeals in 2018. We argued the case in the N.C. Supreme Court in early 2020, and received a favorable opinion in April of 2020.
If you assume that high legal fees represent the “cost” of litigation, you’re wrong. Legal fees are an expense. The true costs of zoning litigation can affect entire communities, industries, a company’s existence, or a property owner’s ability to plan, move, or retire.
In the case just completed, the asphalt company waited five and a half years to learn whether its investment was completely lost. For five and a half years it was unable to finish grading its site and constructing its plant. It lost opportunities to use this plant’s location when bidding on projects. It lost opportunities to supply asphalt for highways being constructed in the region. And it had to make strategic long-term business decisions without knowing whether this critically-located site would be part of its regional operations.
In the second example, the chicken processing company gave up and found a shovel-ready site in Texas. In an uncommon display of character, the company CEO flew to North Carolina in his private jet to explain to county officials face-to-face that he could not do business while in litigation, and that the 1100 jobs and increased tax base would go elsewhere.
In the third example, the hotel developer took four and a half years to trudge from a city council hearing to the N.C. Supreme Court, only to prevail three weeks after a global pandemic pretty much shuttered the hotel industry.
Litigation, by its nature, is slow and tedious. Discovery provides lengthy times to produce documents and answers. Many rural counties have months-long intervals between civil court sessions. Appellate courts have crowded dockets, and many of the cases arrive in multiple boxes or their electronic equivalent that take inordinate time to review.
In the meantime – from a developer’s perspective – interest rates are fluctuating, material costs are rising, the political landscape is shifting, the various and fickle supplies and demands that comprise “the market” are changing, and property owners insist on regular payments to keep the offer to purchase active.
Businesses need degrees of certainty to manage cash flow, allocate capital, maintain payrolls, and plan for growth in order to dodge and weave through emerging competition and evolving consumer needs. When you’re in the land development business, litigation over one project can be far more than just litigation over one project.
A party is not helpless, and mediation can resolve litigation in most matters where one is dealing with money or its equivalent. But in zoning litigation, emotions run high. The motivational factors often arise from fears of change in an ever-changing world and emotional attachments to the character of certain areas. Monetary settlements are more difficult.
There are many ways to expedite litigation, beginning with the preparation and filing of pleadings and briefs and discovery in a vaguely described “now” rather than waiting until the 29th day of a 30-day period to act. The first time I did this with great intention (and the last time I ever promised a client a specific result) was 20 years ago when I promised a just-sued client that I’d have them out of court in a month.
I actually got the lawsuit onto the very next docket where it was dismissed within 3 weeks, not four. What I did not anticipate was a more than year long trek to the N.C. Court of Appeals. The trial court’s dismissal was upheld, the opinion (Nazziola v. Landcraft) has been oft-cited, and my then 11-year-old son got to watch my oral argument.
But I also learned something else with this case: be careful not to equate your client’s “win” with a “victory.”
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