Stay What? Placing Development on Hold While Appeals Are Pending
"Controversy regarding a new house in a Raleigh historic district has garnered national and even international attention. Work on the house came to an abrupt halt when permits for it were revoked. A key element of the controversy – sparking outrage from the casual observer — is the fairness of having work on a nearly complete house halted. A number of press reports characterized this as the board of adjustment (BOA) yanking the proverbial regulatory rug from underneath the owner.
The substantive question of whether this particular house design is appropriate for the site and procedural issues about the BOA review are now before the courts. But what about the fairness of halting work so late in the construction process, after so much money has been sunk into the house?
Should construction on the house have been stopped immediately upon the appeal being filed? Is the choice left to the owner to proceed after an appeal has been made? Do the neighbors or the city have a role in making that choice? Who bears the risks and costs of proceeding or halting development? In short, how and when is development work or enforcement put on hold pending an appeal?"...
"Once a person appeals an interpretation to the BOA, the parties have notice that the original decision may be invalidated on review, but permittees are free to proceed at their own risk with the project unless an injunction or stay is issued..."
"If there is no injunction and substantial work proceeds while the appeal is pending, does that create any vested rights? No. If the development approval is subsequently revoked, none of the work done creates any statutory or common law vested rights. That is true whether the original decision is reversed by the BOA or later by the courts. A person who proceeds while an approval is being contested is doing so at their own financial and legal risk. Godfrey v. Zoning Board of Adjustment, 317 N.C. 51, 64 n. 2, 344 S.E.2d 272, 280 n. 2 (1986)...."
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