Sometimes a property owner or developer will need special permission from a local board to undertake a project in compliance with “land use” laws. In North Carolina, when that permission requires the board to apply subjective legal standards to the facts presented, a “quasi-judicial proceeding” is required. Many applicants in land-use requests – and even many boards, especially in small towns – are not familiar with the term “quasi-judicial,” much less its ramifications. But these types of proceedings create hazards for the unwary that can make or break a desired outcome.

Land-use decisions in North Carolina fall into one of a few categories. For example, whether a tract of land will be rezoned from one type of zoning to another is usually a “legislative” decision. In other words, it’s basically a political decision that a town council will make, based whether the council thinks it’s a good idea. Council members will decide the matter, for the most part, based on their own judgment and opinions that they receive from citizens. Another category of land-use decision is an “administrative” decision. For example, a town may have a rule that involves objective criteria – such as a maximum height for a building, or a minimum setback from the road. Typically, a town employee can decide whether the rule is satisfied, since there should be little debate about criteria that are readily measurable or confirmable. In between legislative decisions and administrative decisions are quasi-judicial proceedings, in which a board will hear evidence regarding the request and decide whether the evidence meets the subjective standards for approval. For example, a board may be authorized to grant a request only upon a finding that it does not “materially endanger public or health or safety” or “substantially injure the value of adjoining property.”

The type of board that will hear a quasi-judicial proceeding is often a Zoning Board of Adjustment, but may be the Town Council or Planning Board, depending on the town’s local “ordinances.” Often, the board may consist of volunteers with no legal expertise or significant training in planning and land development. In a quasi-judicial proceeding, the board will be required to take evidence in accordance with the law and then weigh the evidence to determine whether a request meets the standards in the ordinance. In short, the board plays a role very similar to a judge in court; thus, the term “quasi-judicial.”

Quasi-judicial proceedings are used for decisions such as: variances (where the applicant seeks an exception to a land-use rule); special use permits (where a certain type of “use” is allowed in a zoning district only with special permission); certificates of appropriateness (where a property can only be modified in a way that is consistent with the era of a historic neighborhood); and appeals of decisions by town staff. Quasi-judicial proceedings will involve a hearing that occurs after notice is provided to the applicant and other directly affected property owners. Both proponents and opponents of the request should come to the hearing well-prepared. Important considerations include:

· Standing: Whether you are a party with “standing” will determine the extent of what you can do at the hearing. If you’re not a property owner or resident in the vicinity of the property in controversy, you might not have standing.

· Standards: What are the applicable standards that must be met for the request to be approved? Don’t develop a strategy until you know the rules of the game (which will may involve researching the town ordinances).

· Experts: To prove (or disprove) the applicable standards, will you need an expert witness, or can a layperson provide an opinion? In particular, an expert may be needed on issues such as whether a project will decrease neighborhood property values or create an unsafe amount of additional traffic.

· Procedure: What are the details of how the hearing will be conducted? What opportunities are there to present evidence, conduct cross-examination, make objections, or argue in support of your position?

· Appeal: How and when must any appeal be undertaken?

Attending a quasi-judicial proceeding without being prepared for a “court-like” experience is a mistake. While the board may be generous with an unprepared applicant in a small unopposed matter, adequate preparation and knowledge of the quasi-judicial process are crucial in a matter that is hotly contested or has high financial stakes. Regardless of whether you support or oppose the request, obtaining counsel with experience in representing local governments and/or developers in land-use matters is a sound investment.

---

Elliot Fus has served as town attorney for several North Carolina municipalities and has represented private parties in land use matters. He is a member of the N.C. Association of Municipal Attorneys and leads the firm’s Litigation Practice Group.

Lenders that provide motor vehicle financing typically place a lien against the title to a motor vehicle in order to secure payment of the financing. If a borrower fails to make payments, or otherwise defaults under a financing agreement, the lender generally has the right to repossess the motor vehicle to protect its interests. However, under well-established North Carolina law, a lender may not “breach the peace” when exercising the right to repossess a motor vehicle. A breach of the peace can arise if a lender cuts a lock to open a gate to gain access to the motor vehicle or if a repossession occurs over the objection of a borrower who is present when the motor vehicle is repossessed. How can a lender faced with these circumstances repossess a motor vehicle without breaching the peace?

Fortunately, North Carolina statutes provide a procedure that assists a lender in this situation. The procedure is called “claim and delivery” in North Carolina. In other states, the procedure is called a replevin action. In brief, claim and delivery is a pre-judgment procedure that permits a lender to obtain an Order of Seizure from the Clerk of Court in the county where the motor vehicle is located directing the Sheriff of the relevant county to seize the motor vehicle from the borrower. The lender is required to file a complaint alleging a breach of the financing agreement and requesting an order of possession for the motor vehicle and a money judgment for the amount due under the financing agreement. A hearing before the Clerk of Court is scheduled and the borrower must be provided at least 10 days’ notice of the hearing. At the hearing, if the Clerk finds that there is a default under the financing agreement and that the lender is entitled to possession of the motor vehicle, the Clerk will issue an Order of Seizure. After the Sheriff seizes the motor vehicle, the Sheriff has to hold the motor vehicle for three days before releasing it to the lender. This three-day holding period permits the borrower to post a bond to protect the lender’s interest and regain possession of the motor vehicle. If no bond is posted, the motor vehicle is released to the lender, who is free to liquidate it consistent with its financing agreement and state law.

With motor vehicles becoming more and more expensive, lenders must look carefully at options for preserving their rights in collateral for their financing contracts. Motor vehicles depreciate rapidly and are subject to damage when being used. One advantage of a claim and delivery is that it is a prejudgment remedy, meaning that it can be pursued as soon as a lawsuit is filed. It should be noted that the claim and delivery process is not limited to motor vehicles. It can be used whenever possession of personal property is in issue.

Consulting an attorney with extensive experience in collateral protection procedures is prudent. The attorneys in Blanco Tackabery’s Litigation Practice Group have handled hundreds of claim and delivery actions throughout the State of North Carolina and can capably assist a client in protecting its interest in personal property collateral.

---

James Vaughan has more than 30 years of experience and primarily devotes his practice to representing financial institutions, companies and individuals as creditors in bankruptcy cases, in state and federal court litigation and in commercial loan workouts. Jim has represented secured lenders, unsecured lenders, landlords, equity interest holders and other parties in interest in many Chapter 11 cases as well as thousands in Chapter 7 and Chapter 13 cases.

Recent changes to North Carolina guardianship law strengthens the rights of respondents and wards, while potentially increasing the burden on petitioners, guardians, guardian ad litem, and others. 

In 2021, The New York Times released the headline-seizing documentary film Framing Britney Spears. The film explored the so-called “#FreeBritney Movement”—a term used to describe a loosely organized effort by Spears’ dedicated and vocal fanbase to end a California conservatorship that empowered Spears’s father, as conservator, to exercise significant control over her personal and financial affairs. A similar grassroots movement arose among the fans of former Nickelodeon star Amanda Bynes and culminated in termination of a nearly decade-long California conservatorship that likewise constrained keys aspects of her individual decision-making.

California is, however, hardly alone among jurisdictions that prescribe procedures and mechanisms for wresting control from individuals deemed incapable of managing aspects of their lives. In North Carolina, such arrangements are called guardianships, rather than conservatorships. Effective January 1, 2024, several key legislative changes altered aspects of the statutory regime governing North Carolina guardianships. Many of these changes appear to be motivated by a desire to ensure that respondents in guardianship proceedings (i.e., those who may ultimately be adjudicated as incompetent) are better apprised of their rights and subject to fewer limitations on their individual liberty.

For example, the guardianship statutes now make clear that a person will not be adjudicated as an incompetent and subjected to a guardianship “if, by means of a less restrictive alternative, he or she is able to sufficiently (i) manage his or her affairs and (ii) communicate important decisions concerning his or her person, family, and property.” This idea was implicit in the law of guardianship prior to the recently enacted legislative changes but is now made explicit. The statute also includes an express definition of the term “less restrictive alternative”:

An arrangement enabling a respondent to manage his or her affairs or to make or communicate important decisions concerning his or her person, property, and family that restricts fewer rights of the respondent than would the adjudication of incompetency and appointment of a guardian. The term includes supported decision making, appropriate and available technological assistance, appointment of a representative payee, and appointment of an agent by the respondent, including appointment under a power of attorney for health care or power of attorney for finances.

In other words, and as but one example of a potential “less restrictive alternative,” if a person executed a durable power of attorney prior to experiencing any issues impacting his or her competency, the existence of that durable power of attorney might be viewed as obviating the need for an adjudication of incompetency and the appointment of a guardian of the estate or general guardian for the principal under the power of attorney, even if the person might otherwise meet the criteria to qualify as an incompetent adult.

The new law also requires the petition in any guardianship proceeding to affirmatively include a “statement identifying what less restrictive alternatives have been considered prior to seeking adjudication and why those less restrictive alternatives are insufficient to meet the needs of the respondent.”

Another significant update concerns the respondent’s right to receive a mandatory, conspicuous notice that advises the respondent, without limitation, of the following:

– The right to counsel of choice;

– The right to be represented by a court-appointed guardian ad litem;

– The right to receive notice of any hearings and copies of documents filed in the proceeding;

– The right to gather and present evidence;

– The right to a hearing before being adjudicated as incompetent;

– The right to have a jury determine the issue of competency;

– The right to ask for a non-public hearing;

– The right to communicate his or her wishes regarding the exercise of any of his or her rights and the selection of any potential guardians; and

– The right to appeal.

A respondent is also now entitled to be notified about the rights he or she will have in the event that a court ultimately adjudicates the respondent as an incompetent ward, including, without limitation, the following:

– The right to a qualified and responsible guardian;

– The right to request that the administration of the guardianship be transferred to a different county of venue;

– The right to request that he or she be restored to competency;

– The right to request a review or modification of the guardianship; and

– The right to vote.

A guardian ad litem appointed to represent the respondent’s best interests must explain these rights to the respondent if the respondent requests such explanation during the guardian ad litem’s personal visit with the respondent. In any proceedings following an adjudication of incompetency in which a guardian ad litem is appointed for the incompetent ward, the guardian ad litem is likewise under a continuing, mandatory, affirmative duty to explain these rights. Finally, the written notice advising the respondent of these rights mut be served on the ward alongside the petition and notice of hearing.

In keeping with the general tenor of many of these updates, the law also now expressly states that, in the case of adults, “guardianship should always be a last resort and should only be imposed after less restrictive alternatives have been considered and found to be insufficient to meet the adult’s needs.”

If you need legal assistance in instituting a North Carolina guardianship proceeding as a petitioner or defending against a proceeding or seeking modification of an existing guardianship as a respondent, ward, or other interested person, attorneys at Blanco Tackabery may be able to help you navigate the complexities of this unique legal area. Similarly, if you have been appointed as the guardian for an incompetent ward and need advice concerning administration of a guardianship and compliance with your fiduciary obligations, please reach out to us today.

 

---

Chad Archer brings extensive expertise in state and federal litigation and was recently named to Business North Carolina’s Legal Elite Honorees 2024 as well as the 2024 edition of The Best Lawyers: Ones to Watch® in America. In his civil litigation practice, he advises clients on a wide range of issues, including trusts and estates, appeals, contract disputes, commercial and corporate disputes, complex business litigation and employment disputes.