Agenda - Planning Commission - 03/06/2008

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January 10, 20081 Volume 21 No.1 f) an "environmental impact assessment" (EIA). However, after some deliberation, the board determined that an EIA was not necessary. The residents sued the county in court, seeking to stop the devel- opment and force the county to amend its ordinance. The residents wanted the county to create minimum criteria to be used to deter- mine under what circumstances developers should be required to submit an EIA. The county asked the court to dismiss the case, claiming that the residents lacked standing and failed to state a claim upon which re- lief could be granted. To have standing, the residents had to show that an injury had occurred, the county was responsible for the in- jury, a form of relief existed that the court could grant, and there was a likelihood of success at trial on the merits of their claim. The court found that it lacked jurisdiction to decide the case, stating that the residents "[sought] a remedy which the court [was] with- out the authority to grant." The residents appealed. DECISION: Affirmed. (''') (,) The residents claimed that two separate ordinances required the county to adopt minimum criteria for determining whether an EIA was necessary. The first provided, in part, that: "the Plan- ning Board may require the subdivider to submit an environmen- tal impact statement with the preliminary plat if the development exceed[ed] two acres in area, and if the Board deem[ed] it nec- essary for responsible review due to the nature of the land to be subdivided, or peculiarities in the proposed layout." The second was enacted pursuant to the North Carolina Environmental Policy Act (Act), and it provided, in part, that: "Any ordinance adopt- ed pursuant to this section shall establish minimum criteria to be used in determining whether a statement of environmental impact is required." The appeals court noted that it was undisputed that the county never adopted minimum criteria under its ordinance as required by the Act. While the county claimed that it was at its discretion to enact these criteria or not, the court disagreed, stating that: "a zon- ing ordinance or an amendment ... which [was] not adopted in ac- cordance with the enabling statute [was] invalid and ineffective." Counties did have discretion in choosing wl;ether to adopt an ordinance pUrsuant to the Act, and also in determining what mini- mum criteria to adopt. However, because the county here adopted an ordinance without establishing the criteria, the ordinance did not comply with its enabling state law. Nonetheless, "[t]he courts [had] absolutely no authority to control or supervise the power" 7 123