In Hancock v. City of Monroe, an unpublished opinion decided on November 19, 2019, the Court of Appeals considered whether a commercial tenant’s right to appeal a zoning notice of violation – an “NOV” – had run, where the landlord, alone, received the notice of violation.
Petitioners (the Hancocks and their LLC) leased property to operate a business. While Petitioners operated their business, in January 2017, the City’s zoning enforcement officer sent to the landlord, with a copy to Petitioner LLC, an NOV that the business was an “electronic gaming operation” in violation of the City’s code. The Petitioners and the landlord’s real estate agent discussed the NOV, and the Petitioners resolved to address the NOV through a zoning amendment. Petitioners’ zoning amendment was denied in December 2017.
In December 2017 and January 2018, the City cited the Landlord (with a copy to the Petitioners) for failure to cure the basis for the NOV. More than one year after the NOV was issued, in February 2018, Petitioners appealed the NOV to the City’s Board of Adjustment. The Board dismissed Petitioners’ appeal as untimely, because the City’s ordinance required the appeal “within 10 days from the service date of the notice of violation as indicated on the affidavit of service”; of course, Petitioners’ appeal was filed well beyond that ten (10) day window. The Superior Court affirmed the Board’s dismissal of Petitioners’ appeal of the NOV.
At the Court of Appeals, Petitioners argued again that their appeal was not untimely because (1) the City’s ordinance required that, for a zoning violation, the City “must ‘send a written notice to the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it[,]’ and ‘[a]dditional written notices may be sent at the Administrator’s discretion.’”, (2)the City’s ordinance states that “’[t]he owner. . . of any building or land or part thereof . . . may be held responsible for’ a violation”, and the landlord is the owner, and therefore (3) the landlord is “’the ‘violator[s]’ within the meaning of Section 10.19 [of the City’s code] with respect to the violation’”. The Court of Appeals wouldn’t buy Petitioners’ argument that it, as tenant, had its appeal right tolled because the landlord, alone, received formal notice of the NOV.
At this point, you’re probably asking yourself: but, Petitioners received a courtesy copy of the NOV, so why are we discussing this? And that question is fair. The Court of Appeals saw fit to address the technical argument, rather than wade into the waters of “yeah, but Petitioners knew about it”.
Pay attention to notices of zoning violations, pay attention to deadlines, and, tenants, take care to monitor (whether with lease provisions, and/or with communication with your landlord) governmental notices regarding your premises.
Categories: Zoning Ordinances