Zoning-case winner still exposed to legal bills

Jan. 05, 2014 @ 05:12 PM

N.C. Supreme Court justices recently declined to review a lower-court decision that left a Durham man who defeated the city/county planners in a zoning lawsuit on the hook for $93,022 in legal bills.

Their refusal left intact a N.C. Court of Appeals panel ruling that said Robert Izydore can’t use the state’s Administrative Procedures Act to ask for city compensation of his expenses.

Izydore’s attorney, Hayes Hofler, acknowledged the high court’s seven justices had been unlikely to wade into the case, despite his arguments the Court of Appeals decision amounted to “remov[ing] the keys to the courthouse from private citizens.”

The three-judge Court of Appeals panel that ruled on the case was unanimous in saying the city didn’t have to pay. That meant the Supreme Court had free rein to take the case or not.

An appeal of divided panel rulings is automatic.

“The odds are never good they will accept a case for discretionary review,” Hofler said, adding that he and Izydore are now “working on some things to ameliorate” his burden.

Izydore, who lives on Oberlin Drive, went to court to overturn decisions by City/County Planning Director Steve Medlin and Durham’s Board of Adjustment that would have allowed a developer to build two houses instead of one on a lot in his neighborhood.

The case turned on whether the subdivision’s original plat entitled the developer to build two houses, or whether decades-old restrictive covenants in effect limited it to one.

Two judges sided with Izydore in saying the covenant-driven lot-size restrictions should hold. But when he asked the city to compensate him for his legal bills, visiting Superior Court Judge Carl Fox and eventually the Court of Appeals said no.

Hofler argued that the Administrative Procedures Act, which allows fee awards in cases won against state agencies, should apply because North Carolina regards cities and towns as arms of state government.

But Senior Assistant City Attorney Emanuel McGirt told the Supreme Court the judges who’d previously weighed in were correct in rejecting that argument.

He said there’s no precedent in North Carolina for awarding legal fees to someone who’d won the reversal of a Board of Adjustment decision.

And cities aren’t acting for the state in zoning cases because the N.C. General Assembly “has delegated the zoning power to municipalities,” McGirt he said.