Petitioner, who owned property upon which he already operated a cement plant, requested a zoning determination letter from the Town Planning Director at the time, Mr. Frangos, as to whether the property could be used as an asphalt plant. The Town Planning Director informed Petitioner in a letter that an asphalt plant was similar enough to the uses specifically laid out as permissible in that zoning district to be permissible as well. The Town of Zebulon did not appeal this determination, and when Petitioner applied for an air quality permit, they contacted the Frangos inquiring as to whether the plant was a permissible use, to which the he answered affirmatively. In the meantime Petitioner spent over $300,000 improving his land in preparation for the plant. He got a permit from the Town for a temporary asphalt plant, and eventually informed the current Town Planning Director, Mr. Hetrick, that he intended to make his asphalt plant permanent. Hetrick told Petitioner that approval for his permanent asphalt plant depended on the Board of Commissioners issuing a special use permit. Petitioner appealed this determination, and the Board (of Adjustment) denied the appeal. The superior court affirmed the Board’s decision, and the North Carolina Appeals Court reversed, holding that Frangos’ determination was of binding force and because no objection was made in a timely manner, it is binding on the Town.
The Town contended that Frangos’ letter was merely advisory, but the court disagreed. Petitioner had specifically requested that Frangos interpret the ordinance and determine whether it was a permitted use, and Frangos had statutory authority to provide formal interpretations of the zoning provisions. Therefore Petitioner had an interest in the outcome of the request and Frangos exercised his explicit authority to evaluate and determine whether a proposed use complied with the ordinance. The court relied on precedent to conclude that his interpretation that the asphalt plant was a permissible use was a final determination that was appealable within the time frame set forth in the statute (30 days). Because no appeal was made within that time, the determination became binding on the town. The court further emphasized that the determination was lawful at the time and so the Town should not be able to enforce a new interpretation of the same ordinance by injunction or otherwise. As a result, this court reversed, ordered the lower court to further remand the judgment to the Board to allow the original permitted use for the property.
S.T. Wooten Corp. v. Board of Adjustment of the Town of Zebulon, 2011 WL 1344129 (N.C. App., 4/5/11)
The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC01MTUtMS5wZGY=
