Brian has been working for months on the design and construction details for his new neighborhood coffee shop.
He's hired architects and engineers to plan all the details, but during the planning stage, he realized the coffee shop would not be able to open its doors without a special use permit from the Town to allow the café to operate in a residential area. Meetings with the Town planning staff followed, and eventually a hearing in front of the Town Council to argue why the coffee shop would be a benefit to the neighborhood and why it satisfies the required conditions. Brian was convinced the Council would see how amazing his shop would be; but when the time for the vote came, the Council ruled 5-4 against issuing the permit. Now Brian wants to know what options he has to appeal the Council's decision and get his shop approved. More immediately, he needs to know how soon he has to file his appeal.
Time to Appeal
There are two types of zoning decisions. Legislative decisions where the municipality makes a change to the official zoning map or changes the land-use code, and quasi-judicial decisions. A quasi-judicial decision is a ruling on a specific issue, it’s the application of a policy to a specific situation rather than a change to the policy. The Council's decision on Brian's coffee shop was a quasi-judicial decision on a specific permit. An appeal of a quasi-judicial decision must be made within thirty days of the later of when (i) a written copy of the decision is given to the applicant, property owner, and qualifying parties; or (ii) the filing of a decision in an office designated by ordinance. If the decision is mailed but a copy is not filed with the clerk to the board, the period does not begin to run. Similarly, if a formal written decision is not adopted until the minutes of the board meeting are adopted, the time period should not begin to run until a copy of those minutes are mailed to the parties.
The decision is not mailed to everyone who may have spoken in opposition. It is only required to go to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. There may also be a distinction between the mailing date and the receipt date. An earlier version of North Carolina's law governing the issue used the term "delivered," while the modern version suggests the clock begins to run when the notice is mailed. The statute gives the appellant an extra three days if the notice is sent via first class mail instead of email. It's possible that someone who did not receive a mailed copy could rely on the mailings that did occur and use that as a way to extend the thirty-day timer.
If the interested parties requested a copy of the decision, the mailing rule may start the clock, otherwise the municipal decision is "filed" when the minutes from the meeting are adopted. Filing procedures vary from place to place and are a question of fact for a court to decide, so it's important to understand the applicable rules.
As an example, if Brian never received a signed ordinance at the Town Council meeting, the clock likely starts when the ordinance (or a formal decision with the findings of fact) is mailed to the proper parties.
The first step to winning an appeal is filing it on time. By paying close attention to the procedure and hiring experienced legal counsel who understand the rules, an appellant can ensure that they do not lose their day in court before they ever get through the doors.
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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.