McCrann v. VILLAGE OF PINEHURST
216 N.C. App. 291
| N.C. Ct. App. | 2011Background
- Petitioners challenged Village Chapel’s special use permit for a learning center granted by Pinehurst after hearings July 2 and 6, 2010.
- The Pinehurst Village Council unanimously granted the permit on August 24, 2010; no written order was prepared at that meeting.
- A written order granting the permit was issued August 30, 2010 and mailed to interested parties.
- McCrann requested a copy of the final order by voicemail on August 25, 2010, to Newman, who had represented Pinehurst.
- The written order was delivered to Petitioners on September 2, 2010, and Petitioners filed a petition for judicial review on September 30, 2010.
- The trial court denied relief as untimely, and Petitioners appeal arguing substantial compliance or estoppel, or timeliness under N.C. Gen. Stat. § 160A-388(e2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition was timely under § 160A-388(e2). | McCrann’s voicemail request tolled start. | No toll; not in writing or to proper official, or at hearing. | No; petition untimely under § 160A-388(e2). |
| Whether substantial compliance tolls the filing period. | Oral request substantially complies with requirements. | Substantial compliance not applicable to this statute. | Rejected; not timely or proper method; not substantial compliance. |
| Whether estoppel bars strict application of the statute. | Cooperation between counsel creates estoppel. | Estoppel not applicable; no concealment or reliance to prejudice Petitioners. | Rejected; estoppel not established. |
| Whether the court should apply flexible or discretionary remedies due to cooperative counsel. | Rejected; statutory deadlines are inflexible; no discretionary nunc pro tunc relief. |
Key Cases Cited
- Ad/Mor v. Town of Southern Pines, 88 N.C.App. 400 (1988) (statute of limitations tolling discussed in context of timely filing)
- Congleton v. City of Asheboro, 8 N.C.App. 571 (1970) (statute of limitations is a strict bar; no discretion to extend)
- Reidy v. Whitehart Ass'n, 185 N.C.App. 76 (2009) (timeliness is jurisdictional; strict enforcement)
- Butler v. Bell, 181 N.C. 85 (1921) (statutes of limitations are inflexible; measures repose)
- Hayes v. Town of Fairmont, 130 N.C.App. 125 (1998) (estoppel discussed in context of timeliness)
- Spencer v. Spencer, 156 N.C.App. 1 (2003) (substantial compliance for non-jurisdictional rule)
- Pollock v. Parnell, 126 N.C.App. 358 (1997) (substantial compliance context in appellate rules)
- Anuforo v. Dennie, 119 N.C.App. 359 (1995) (substantial compliance analysis)