The following was published in Land Use Law Quarterly a newsletter from the North Carolina Bar Association's Zoning, Planning, & Land Use Section (Volume 12, Number 2).

A Land Use Practitioner representing opposition intervenors in a quasi-judicial land use matter is best served to present any evidence of special damages during the quasi-judicial hearing in order to preserve standing for future appeals.

Indeed, as shown in the North Carolina Court of Appeals recent opinion in Cherry v. Weisner, 15 COA 155 (February 16, 2016), if the Land Use Practitioner fails to introduce evidence to establish the grounds for standing as established by N.C. Gen. Stat. § 160A-393 during the quasi-judicial hearing, the Land Use Practitioner may not get the opportunity to introduce that evidence later.

In Cherry, a property owner who lived across the street from a vacant lot in the Oakwood Historic District sought to oppose the issuance of a Certificate of Appropriateness for the construction of a modern house on the vacant lot. During the hearing before a committee of the Raleigh Historic Preservation Commission, the opposition owner focused her evidence on the impact the modern house would have on the neighborhood as a whole, rather than on her particular property. Despite this evidence, the Raleigh Historic Preservation Commission granted the Certificate of Appropriateness. The opposition owner then sought to appeal the granting of the Certificate of Appropriateness to the Raleigh Board of Adjustment.

Prior to the Board of Adjustment hearing on the appeal, the opposition property owner was required to complete and file an application to the Raleigh Board of Adjustment, which application had a section where the appellant was to “[e]xplain to the Board how you are an aggrieved party.” The Court of Appeals opinion does not mention it, but according to the briefs filed by the parties, the application went on to have specific questions to answer about being an aggrieved party and there was not a section that required or requested evidence of special damages suffered by the appealing party. Despite a Motion to Dismiss the opposition property owner’s appeal, the Raleigh Board of Adjustment reversed the Raleigh Historic Preservation Commission’s granting of the Certificate of Appropriateness without ever expressly ruling on the Motion to Dismiss. The owner of the vacant lot and the City of Raleigh then appealed the Board of Adjustment’s ruling to Superior Court.

Prior to the Superior Court hearing, the opposition property owner sought to supplement the Record with two affidavits that provided evidence on the issue of standing. The Superior Court refused to allow the opposition property owner to supplement the Record and overturned the Board of Adjustment’s ruling based on a finding that the opposition owner had not proven standing to appeal.

In its opinion in Cherry, the Court of Appeals upheld the Superior Court’s rulings. Interestingly, the Court of Appeals cited N.C. Gen. Stat. § 160-393(j) for the proposition that a trial court “may, in its discretion, allow the record to be supplemented” when there is an issue of whether an intervenor has standing. Despite providing this citation, the Court of Appeals found that the Superior Court had not abused its discretion in refusing to allow the Record to be supplemented in this case. The Cherry court noted that the additional affidavits may not have been sufficient to turn the tide on the standing ruling even if admitted, but also said that the Court was not required to allow the motion to supplement because it had been filed nine months after the Board of Adjustment application was filed and because the Record was already sizeable.

The lasting effect of Cherry is that a land use practitioner should not rely on the ability to supplement the Record under N.C. Gen. Stat. § 160-393(j) because the decision to allow supplementation is in the discretion of the Court.

Moreover, it is going to be even more difficult for practitioners who get involved in land use matters after the quasi judicial hearing has already occurred to prepare their case because they may not have the ability to supplement the Record to fill in gaps with respect to standing (or other evidentiary shortcomings). Arguably, the property owner in Cherry could not have presented new evidence on standing even at the hearing before the Raleigh Board of Adjustment or in the Application because N.C. Gen. Stat. § 160-393(i) specifies the Record is limited to evidence from the quasi-judicial hearing. Thus, a practitioner isn’t even 100 percent safe to wait until the appeal to the Board of Adjustment to introduce the necessary standing evidence. Rather than rely on having an ability to actually present new evidence on standing when arguing the appeal, the land use practitioner would be better served to go ahead and present the standing evidence before the quasi-judicial board. The risk of going through these steps is that you may distract the quasi-judicial board from its focus on the actual property at issue, but that risk in most cases is not as significant as the risk of losing the right of appeal.