New Statutes of Limitation For Zoning Enforcement

Statutes of limitation are laws that place a limitation on the period of time within which a party may commence litigation about certain matters.

They are based upon the concept that there should be some time period during which one must act to assert claims, or those claims should be put to rest.

Statutes of Limitations For Land Use Violation Cases Commenced on or After October 1, 2018

Until the passage of Session Law 2017-10 last year, the North Carolina General Statutes ("NCGS") did not contain a specific time limit for a unit of local government, such as a city or a county, to bring an action (lawsuit) against someone who violates a zoning or land use ordinance. However, that will change for actions commenced on or after October 1, 2018, because Session Law 2017-10 amended NCGS Section 1‑49 and Section 1‑51 effective that date, creating statutes of limitation for units of local government that wish to bring an action against an owner for a violation of a "land‑use statute, ordinance, or permit or any other official action concerning land use carrying the effect of law."

In What Circumstances Will the Limitations of Sections 1-49 and 1-51 Apply?

Under both of the statutes, it's clear that the limitations don't prevent a unit of a city or county from requesting an injunction to prevent conditions or situations that are actually injurious or dangerous to public health or safety.

Under all other circumstances, there will be, effective as of October 1, 2018, limitations on the time within which a unit of local government can bring an action to enforce the zoning ordinances. The limitations will be either five or seven years, based upon the facts which were known to the city or county unit and the visibility of the violation.

Under revised Section 1-49, a seven year statute of limitation applies after the earlier of the following:

  • The violation of the ordinance is apparent from a public right of way.
  • The violation of the ordinance is in plain view from a place to which the public is invited.

Under revised Section 1-51, the time limit for a unit of local government to file an action in court is five years after the first of the following to occur:

  • The facts constituting the violation are known to the governing body or an agent or employee of the unit of local government.
  • The violation can be determined from "the public record of the unit of local government."

Unanswered Questions About Revised Sections 1-49 and 1-51

The 2017 revisions to Sections 1-49 and 1-51 have not yet been interpreted by the courts, and some questions about their application may arise. For example, for purposes of the revised Section 1-49 seven year statute of limitations, there may be room for debate about whether something is or is not apparent from a public right of way or in plain view from a place to which the public is invited.  Because of changes over time, a violation may not always be visible or apparent from a particular place.  Likewise, the nature of an area where the public is invited may change over time as well.

With respect to revised Section 1-51, there may be questions about the types of agents whose knowledge will be attributable to the governing body.

Also, there could be questions raised as to what constitutes a "public record" for purposes of the five-year statute of limitations in revised Section 1-51. The term "public record" is not defined in revised Section 1-51, but is defined elsewhere in the general statutes for certain purposes, and some types of information collected by a unit of local government are not considered "public records"  for the stated purpose.  Whether such a record possessed by the unit of local government trying to enforce a land use ordinance will be considered a "public record" for purposes of Section 1-51 may have to be litigated.

The Importance of Actually Alleging a Statute of Limitation

The effect of the statutes of limitation in revised Sections 1-49 and 1-51 will be to bar a suit or court proceeding to enforce the land use violation brought after the expiration of the applicable number of years. However, a statute of limitation is an affirmative defense which must be raised by the defendant in the case in order for it to be a bar or defense.  If the defendant, who will be the owner of the real property alleged to be in violation, overlooks the defense and does not affirmatively raise it, the defense will not apply.  Further, there may be enforcement mechanisms available to a unit of local government other than bringing a suit to enforce the land use ordinances.  For example, in some situations, the unit of local government may contend that administrative actions such as the imposition of fines or the withholding of building permits are permitted enforcement tools notwithstanding that the statutes of limitation bars court action.

Conclusion

In the event an attempted enforcement action by a unit of local government, whether of a city or a county, which relates to a longstanding land use or condition, is commenced on or after October 1, 2018, the property owner should consider whether the action may be barred by one of the new statutes of limitation due to the knowledge or visibility of the violation for the required period of time.

--
© 2018 Ward and Smith, P.A. For further information regarding the issues described above, please contact Stanley M. Sams.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

We are your established legal network with offices in Asheville, Greenville, New Bern, Raleigh, and Wilmington, NC.

Subscribe to Ward and Smith