We're going to touch on three separate topics today in this
post. First, we'll discuss a recent case
from the North Carolina Court of Appeals regarding legal
nonconforming uses, burdens of proof and lost zoning maps.
Second, we'll take a look at how a
particular North Carolina municipality is attempting to work
microbreweries into its zoning laws. Third,
we'll see what's new with the internationally-reported
Oakwood home dispute, involving a "modern" house in a
Raleigh historic district.
Lost Maps: The Burden of Proving (and Means of Proving) a Legal Nonconforming Use
Landowner's property in the Town of Highlands was
"split-zoned" in 1983, prior to his 1993 purchase, with
the front 230-foot portion zoned for commercial use and the back
portion zoned for residential use. A 1988 zoning map showing
this "split zoning" was made part of the court
record.
In 1990, also prior to landowner's 1993 purchase of the
property, the Town made "comprehensive changes" to the
zoning laws. The Town contended that, with these
"comprehensive changes", landowner's 230-foot
commercial portion of the "split-zoned" property was
reduced to a 150-foot portion (and, accordingly, the residential
portion of the property increased in size). However, the Town
lost the 1990 zoning map showing this change, and it was not a part
of the court record. The only "evidence" of the
zoning change to a 150-foot commercial portion is a subdivision
plat drawn and recorded -- ironically -- in connection with
landowner's 1993 purchase of the "split zoned"
property.
Landowner operates a lawn and landscape business on his
"split zoned" property. In 2009, the Town issued a
notice of zoning violation on account of his commercial use outside
-- to the Town -- the 150-foot portion of his property on which
commercial use is permitted. Landowner appealed to the Board
of Adjustment, which emphasized at the outset that it was
landowner's burden to prove his business was a legal
nonconforming use in light of the 1990 zoning change. In
light of the burden, the Board affirmed the zoning violation and
landowner appealed to the Superior Court, which, in turn, affirmed
the Board's decision. The landowner appealed.
In Shearl v. Town of Highlands, No. COA14-113
(September 2, 2014), the Court of Appeals reversed the trial
court "[b]ecause the burden of proof was inappropriately
placed on [landowner] to establish the location of the zoning line
when he began his nonconforming use."
The Shearl Court first notes:
"Ordinarily, once a town meets its burden to establish
the existence of a current zoning violation, the burden of proof
shifts to the landowner to establish the existence of a legal
nonconforming use or other affirmative defense." The
Court continues: "Here, however, [the Town] has
seriously handicapped [landowner's] ability to prove the
location of the zoning line in 1993 because [the Town] has lost the
Official Zoning Map adopted with the 1990 zoning ordinance....
Thus, [the Town] violated its own ordinance by failing to
keep official zoning maps available for public inspection. [citing
NCGS 160A-77 and 160A-78]."
As far as the subdivision plat, the Town's ingenuity
notwithstanding, the Court gives it the back of the hand as far as
its legal significance: "While we believe that the plat
map has some evidentiary value concerning the location of the line,
it must be weighed against the evidentiary value of the 230-foot
line depicted on the official 1988 Zoning Map [which was in
evidence in the whole record]." Thus, though the matter
is remanded and the Board may hear the matter anew, unless the Town
can come up with the 1990 zoning map, it will be a difficult, if
not impossible, task of proving a zoning violation.
Zoning for Beer
This comes to our attention courtesy of our friend and former
colleague Professor Tyler Mulligan of the U.N.C. School
of Government.
North Carolina is home to more than one hundred breweries, most of
which take hold in the Piedmont and the western part of the State.
Nevertheless, a City in the eastern part of the State --
Wilmington -- is trying to "carve out" some zoning rules
to encourage development of this growing industry.
According to reports, "There are now land use classifications
for microbreweries, which are under 25 thousand square feet, and
small regional breweries, which are under 75 thousand square feet.
Large breweries will still be kept in the industrial
district."
To us, this illustrates well (1) how zoning is a
living, breathing thing, (2) at its best, how zoning serves to
organize, integrate and protect uses of land, and (3) how zoning
can aspire to stimulate, rather than deflate, economic growth.
Oakwood House
We've blogged in the past here about the
Oakwood saga. Well, it's not over. This stage is
over, but the saga is not over. Today, after two long days of argument in late
August, it's reported that the Superior Court has indicated it will rule in
favor of the landowner and the City -- and against the neighbor and
the City's Board of Adjustment -- and will reverse the Board of
Adjustment's decision rescinding the certificate of
appropriateness. In other words, the Board's decision
will be reversed and the certificate of appropriateness, which
entitles homeowners Mr. Cherry and Ms. Gordon to a building permit
for their "modernist" home, will be issued.
The neighbor, Ms. Weisner, has 30 days to appeal the Superior
Court's decision to the Court of Appeals when it is entered,
which the neighbor indicates she "definitely" will do.
In other words, it looks like we're movin' on
up.
A word to Mr. Cherry and Ms. Gordon: wait until the 30 days runs
without an appeal, or the legal proceeding runs its full course,
before you build any more.
"I'd never appeal something against you guys. Well, I'll probably appeal that toupe, Mr. Lion."
Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.
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