Posted by: Patricia Salkin | January 22, 2013

North Carolina Appeals Court Says Board Should Have Granted Variance so Applicant Could Comply with Other Laws

MNC Holdings, LLC and its predecessors have operated a medical waste incinerator in the Town of Matthews since the 1980s. At the time, the property was zoned heavy industrial, but in 1991 the Town annexed the property and rezoned it to single-family residential, a designation which requires that MNC obtain a variance from the Town to make any alterations to the facility.

In the years since the rezone, the U.S. Environmental Protection Agency and the North Carolina Department of Environment and Natural Resources (DENR) have substantially updated air quality standards and air regulations on medical waste incinerators; regulations which MNC’s facility no longer complied with. Some of the newer regulations, enacted in 2009, were not scheduled to take effect until 2014, however the Town sought to shorten the time required for MNC to comply by petitioning the DENR to advance MNC’s required compliance date to October 2012. Shortly thereafter, MNC filed a variance request from the Town, urging that “extensive and accelerated modifications to its facility would be necessary in order to comply with the new regulations in this shortened timeframe.” However, after considering MNC’s variance request, the Town’s zoning officer denied it, arguing that the Town’s zoning did not allow the requested alterations. MNC then appealed to the Town Zoning Board, which voted unanimously to uphold the zoning officer’s decision. MNC then filed a writ of certiori for judicial review of the denial. It was granted, a hearing was held in January 2012, and, in March 2012, the trial court issued its decision, overturning the Town’s variance denial. The Town here appeals.

When the appeal was made, the Town emailed its notice of appeal to MNC. After the deadline for mail service of the notice of appeal had expired, MNC filed a motion to dismiss the Town’s appeal for failure to timely serve a notice of appeal. The motion to dismiss the appeal was denied; it is renewed on this appeal, as the basis for arguing that the appellate court had no jurisdiction to hear the case. On the matter of service of notice, the court ultimately held that, while service of notice by email does not comply with North Carolina procedures, the error was not jurisdictional and the court still ultimately had jurisdiction to hear the Town’s appeal.

On the matter of the Town’s variance denial, the Town argued that the trial court had applied the improper standard of review. However, the appellate court affirmed the trial court’s application of de novo review, which it noted may include full reconsideration of the case and possible substitution of its own interpretations or conclusions. In this case, the lower court’s task was to interpret a provision of local law which stated that “[n]o structural alterations are allowed to any structure containing a nonconforming use except for those required by law or an order from the office or agent authorized by the Board of Commissioners to issue building permits to ensure the safety of the structure.” The Town and MNC had two vastly different interpretations of this law. The Town argued that it allowed only variances to improve the safety of the structure; since MNC’s requested alterations were not meant to upgrade the safety of the structure but instead to comply with EPA and DENR air regulations, they were not allowed. MNC, on the other hand, asserted that since the alterations are required in order for it to comply with federal and state air regulations, the variance should be issued for alterations required by law. The trial court agreed with MNC’s interpretation, holding that the purpose of the provision was to allow for variances to issue where the alterations requested were required by law. The appellate court agreed, concurring with the trial court’s rejection of the Town’s narrow interpretation of the statute and upholding the trial court’s substitution of its own interpretation for the Town’s on review. The appellate court also noted that town ordinances are meant to defer to state and federal laws; where state or federal laws require upgrades to a property, such ordinances should be interpreted liberally to make room for those laws.

For all of those reasons, the appellate court upheld the trial court’s decision to overturn the Town’s variance denial.

MNC Holdings, LLC v. Town of Matthews, 735 S.E. 2d 364 (NC App. 11/20/2012)

The Opinion can be accessed at:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s


%d bloggers like this: