Grandfather Village v. Worsley, 111 N.C. App. 686, disc. rev. denied, 335 N.C. 237 (1993)

Defenses to a zoning enforcement action must be brought before the board of adjustment in an appeal from the administrative action and cannot be raised for the first time in defense of an enforcement action.

In November 1990, the Grandfather Village zoning administrator requested Worsley to remove two portable signs at a convenience store and advised Worsley that the village would assess a civil penalty of $50 for each day of continuing violation if the signs were not removed within 60 days. In February 1991, the administrator issued a citation to Worsley and assessed a $50 penalty. In March 1991, the administrator notified Worsley that continuing penalties had reached $700 and indicated that Worsley could appeal to the board of adjustment within 30 days. Worsley purported to give notice of appeal to the board of adjustment more than 30 days after this last notice. The village then brought this civil action seeking civil penalties and injunctive relief. Worsley answered and counterclaimed for wrongful assessment of civil penalties. The trial court dismissed the counterclaim and entered summary judgment in favor of the village.

On appeal, the Court of Appeals first noted that G.S. 160A-388(b) governs appeals from a decision of a zoning administrator. Once the administrator cited Worsley and assessed a civil penalty, Worsley had a right to appeal the decision to the board of adjustment. Under the Grandfather Village Zoning Ordinance, such an appeal is to be made within 30 days after notice of the decision or determination is received. Since Worsley failed to file a notice of appeal to the board of adjustment within the required 30 days, he waived any right to raise in superior court defenses he might have had to the assessment. Thus Worsley cannot collaterally attack the determination of the zoning administrator in this action.
[Land Use; Appeal from Administrative Action]