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Ann joins us as Counsel in our Real Estate and Land Use practice, bringing extensive experience in land use, planning, zoning, and civil litigation.

Before joining Morningstar, Ann served as Town Attorney for Chapel Hill and as a tenured professor at the UNC School of Government, where she taught and advised North Carolina judges. Her background gives her a unique perspective on the legal challenges faced by real estate developers, municipalities, and property owners.

“Ann’s expertise in land use, municipal law, and civil litigation makes her an exceptional addition to our team,” said Jason Barron, Partner and Integrator at Morningstar. “Her insight and guidance will be invaluable to clients navigating planning, zoning, and land use issues.”

Our Real Estate and Land Use group continues to grow — now 12 attorneys strong — helping clients move projects forward across North Carolina.

We’re thrilled to have Ann on board and look forward to the experience and perspective she brings to the team.

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Insight by Morningstar Law Group Partner Jeff Roether

On December 13, 2024, the Supreme Court of North Carolina issued a ruling in Schooldev East, LLC, v. Town of Wake Forest (Case No. 268A22) which reaffirmed North Carolina’s public policy in favor of “the free and unrestricted use and enjoyment of land” and the protection of property rights in general.

Background

In 2019, Schooldev East, LLC (“SE”), applied to the Town of Wake Forest (the “Town”) for a major subdivision plan permit and a major site plan permit with the intention of constructing a charter school on a thirty-five-acre parcel of land.

The Town’s planning board and board of commissioners held joint hearing on the application where SE presented evidence to support the application, in specific, evidence as to SE’s compliance with the Town’s uniform development ordinance (the “UDO”) section 3.7.5 which contained provisions regarding the “construction of off-premises sidewalks, multi-use paths[,] or greenways to existing networks” and “[c]onnectivity…to surrounding residential areas”. SE presented evidence that it would construct a multi-use path along the front of the property connecting the project to a neighboring park and to a future subdivision across the road. During the hearing, no evidence in opposition to SE’s application was presented.

Despite this, the planning board voted to recommend denial of the application. The board of commissioners then deliberated, considering matters beyond the scope of the evidence presented, and subsequently voted to deny the application, justifying the denial in large part on the board’s determination that the project would not provide sufficient connectivity with all surrounding neighborhoods.

SE appealed, first to the Wake County Superior Court and then to the North Carolina Court of Appeals, both of which upheld the decision of the board of commissioners. SE then appealed to the North Carolina Supreme Court.

Analysis

The primary issue addressed by the Court was whether the applicant introduced sufficient evidence to establish the UDO’s requirement of “connectivity” to “surrounding residential areas.” The Town argued that the UDO required connection to “all” surrounding residential neighborhoods. SE argued that the UDO only required some connection to surrounding residential neighborhoods—which its application provided for—but not to all surrounding residential neighborhoods.

The Court determined that the ordinance did not expressly require connection to “all” surrounding areas. The UDO text required only connectivity “to surrounding residential areas” without any further qualification. Without express unambiguous language requiring complete connection, the Court found no basis for the denial. The Court further noted that state law prohibits the Town from compelling the applicant to provide off-premises improvements, which shows additional uncertainty as to whether the word “surrounding” was include non-contiguous properties.

As a result of the UDO’s ambiguity, the Court relied upon long-standing North Carolina precedents for the correct interpretation of land use ordinances. Under North Carolina law, any “well-founded doubt” as to the meaning of a land use ordinance must be resolved in favor of the “free use of property.” See Yancey v. Heafner, 268 N.C. 263, 266 (1966). The Court stressed that “[t]his is no arbitrary canon of construction,” but rather a reflection of “our state’s longstanding public policy favoring the ‘free and unrestricted use and enjoyment of land.’” Id at 21.

Therefore, the Court reversed the decision of the Court of Appeals and remanded the matter to the Town to approve the applications

Conclusion

While North Carolina’s protection of property rights is not a new development, this case is an important reminder that all doubts are to be resolved in favor of the “free use of land.”. Cases such as this continue to light the way for property owners looking to utilize their property as best they can, and serves as a reminder to local governments that clarity is best for all parties involved. As the Court observed in School Dev East, property owners “should not need law degrees to figure out what local government ordinances allow them to do with their own land.” Schooldev East, LLC, v. Town of Wake Forest, 386 N.C. 775, 789 (2024).

The post Toward the Free Use of Land: SchoolDev East, LLC v. Town of Wake Forest appeared first on Morningstar Law Group.

Le’Ron Byrd is a seasoned commercial and business litigation attorney who helps clients—ranging from businesses to nonprofits—navigate complex civil disputes. From state and federal court litigation to nationwide post-judgment collection and construction-related matters, Le’Ron brings strategic insight and strong advocacy to every case.

Hunter Winstead is a land use attorney who guides developers through zoning and permitting challenges across North Carolina. With a strong foundation in real estate litigation and experience as legal counsel to Chief Justice Paul Newby, Hunter combines sharp legal acumen with creative problem-solving to help clients build with confidence.

We’re thrilled to have Le’Ron and Hunter on board! Welcome to the team!

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We’re thrilled to welcome Matthew Blewitt to the Morningstar Law Group team! As a seasoned commercial litigation attorney in Raleigh, Matthew brings a wealth of experience and a client-centered approach to every case. His dedication to achieving favorable outcomes for clients, from Fortune 500 companies to local businesses, makes him a valuable addition to our firm. Welcome, Matthew!

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Petitioner Sgt. Jatonya Clayborn Muldrow worked as a plainclothes officer for the St. Louis Police Department for nine years in its specialized Intelligence Division.  During this time, she showed strong performance, worked with high-ranking officials, and had a consistent weekday schedule, along with access to FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.  In 2017, the Intelligence Division commander transferred Muldrow out of the unit and into a uniformed position and replaced her with a male officer.  Though her rank and pay remained the same in her new role, her perks, scheduling, responsibilities, status, and professional relationships did not.   

Muldrow sued the City of St. Louis under Title VII, claiming that the transfer was a discriminatory employment action.  The District Court held, and the U.S. Court of Appeals for the Eighth Circuit affirmed, that Muldrow was required and had failed to show “significant” change in her working conditions, because the transfer caused only minor changes that did not reduce her title, salary, or benefits.  The case made it to the Supreme Court, which ultimately vacated the lower courts’ judgment, holding that a job transfer can be deemed discriminatory even if the employee’s pay and title remain the same, and that a loss of perks, change of duties, and transfer to a position of less favorable status are enough to demonstrate the level of harm required for a discriminatory employment action.  The Court found that the language of Title VII only required Muldrow to show that the transfer brought about some “disadvantageous” change in an identifiable term or condition of her employment based on her protected characteristic(s), and that Muldrow was not required to show an elevated threshold of harm or that the injury incurred satisfied a “significance” test, as “Title VII’s text nowhere establishes that high bar,” and requiring such would demand more of Title VII plaintiffs than the law as written requires.  Accordingly, while Muldrow represents a victory for Title VII claimants, it also represents another victory for the principles of textualism in statutory interpretation, whereby courts must interpret and apply a statute’s express and plain language and may not add limitations or additional proof requirements not contained within the text.  

When making employment decisions, employers should remember that keeping an employee’s title/rank the same and/or maintaining their salary at the same level, while making other changes to their role, compensation opportunities, or benefits, will not be enough alone to stave off a discrimination claim.  All changes will need to be considered.  In addition to Title VII discrimination claims, the Muldrow standard of harm could also apply to discrimination claims in the context of ADA accommodation discrimination and failure to accommodate claims.

If you have any questions, please do not hesitate to contact our firm. 

Special Thanks to Legal Intern, Alexandra Carmack

The post Employment Law Alert: “Materially Significant Disadvantage” No Longer Required for Race or Gender Discrimination Claims (Muldrow v. St. Louis) appeared first on Morningstar Law Group.

Ongoing Litigation:  On July 3, 2024, the United States District Court for the Northern District of Texas postponed the effective date of the Final Rule.  The Court is currently hearing the case filed against the FTC by Ryan LLC and its intervenors (Chamber of Commerce of the United States of America, Business Roundtable, Texas Association of Business, and Longview Chamber of Commerce), and the judge has announced that she intends to issue a decision about whether to permanently enjoin the rule by August 30, 2024.  While the current preliminary injunction applies only to the named Plaintiffs, Judge Brown’s final decision on August 30^th may apply to non-parties as well under Fifth Circuit precedent.  The presiding Judge requested that the parties brief the issue of nationwide application of the injunction before she issues her merits disposition.  Ryan LLC v. Federal Trade Commission.  There are differing opinions among experts as to whether a federal circuit court has the authority to enter a nationwide injunction, so it’s possible the case could ultimately go to the Supreme Court, leaving a nationwide stay of enforcement in the grey zone for a longer period. 

Opponents of the rule argue that the FTC has exceeded its rule-making authority conveyed by the Administrative Procedure Act (APA) and intruded on an area usually legislated by state governments.  They claim that non-competes safeguard companies’ trade secrets, protect them from client losses, and ultimately help workers by increasing retention of highly trained employees.   

Proponents (workers’ rights organizations, etc.) claim that non-competes are exploitative, that non-disclosure and solicitation agreements are sufficient to protect businesses, and that banning non-competes will increase workers’ wages, innovation from locked up talent, and new startups. 

Either Way, the Ball Bounces:  Regardless of the outcome in the Texas Court, it is likely that there will be continued activity on this issue as public support for advancing workers’ bargaining positions is growing.  If the Final Rule is invalidated, it’s likely that the FTC will propose a new version that more closely mirrors certain existing state laws, which limit the applicability of non-competes, for example, with salary thresholds.   

Looking Ahead: Now is a good time to reassess your approach to restrictive covenants in case the Final Rule is not blocked.     

• Focus non-compete requirements on categories of workers with intimate access to competitive information and relationships, and the types of covenants that protect those assets.   

• Be sure covenants are narrowly tailored for enforceability based on the Final Rule’s language, and severable so that language found to be invalid will not invalidate other language.   

• Since non-competes with senior executives (those with over $151,164 annual compensation and in a policy making position for the business) and those entered in the context of a bona fide sale of a business interest (requiring sufficient bargaining power in the transaction) will be grandfathered, but new ones prohibited, make sure you have those in place before the Final Rule’s new effective date (TBD). 

• Stay up-to-date with the ongoing litigation surrounding the Final Rule, particularly the decision set to come August 30, 2024, and prepare to notify employees that their non-compete covenants will be unenforceable if the Court is unable to block the FTC’s non-compete ban

Should you need assistance with any of these matters, please do not hesitate to contact our firm.

Special Thanks to Intern, Alexandra Carmack

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