Agenda - Planning Commission - 07/09/2009

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I I I I I I I I ( ) \ I I I I Zoning Bulletin April 25, 20091 Volume 3 I No.8 r-- (') The court said that landowners ill the area of a county affected by a zoning ordinance had standing to challenge the ordinance. based on procedural defects in its enactment. Here the Ordinance regulated rilUlti- family dwellings in the county. The court rejected the county's conten- tion that because Lott had not sought to use its property for a multi- family dwelling use, it was not an "aggrieved party" with standing. It was true that in "as-applied" challenges-those based on <'arbitrariness, equal protection, or constitutionality as applied to the [challenger]'s land"-the challenger would only have standing if it could show that it had "an immediate risk of sustaining an injury." However, here, Lott had not brought an "as-applied" challenge. And therefore Lott did not need to show-as the county had argued-that it was "injured" because its plans for development were affected by the Ordinance. Rather, since L6tt's challenge was an attack on the validity of the Ordinance, Lott would have standing if it co'uld show that:. it had "a specific personal and legal interest in the subject matter affected by the [Ordinance] and ... [was] directly and adversely affected [by it]." Here the Ordinance con- tained regulations of land that were contingent upon the elevation and use of the land. Lott's land was located at an elevation above 2500 feet above sea level, and was suitable for multi-family dwelling use. There- fore, concluded the court, Lott's "use of its land was limited by the zon- ing regulations." Accordingly, Lott had standmg to challenge the validity of the Ordinance. The court further held that because public hearing on consideration of the Ordinance was not advertised in accordance with statutory require- ments, the Ordinance was invalid. See also: Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421 (1992), writ allowed, 331 N.C. 553, 417 S.E.2d 799 (1992). See also: Village Creek Property Owners' Ass'n, Inc. v. Town of Eden- ton, 135 N.C. App. 482, 520 S.E.2d793 (1999). Case Note: The court further noted that to require a challenger "to demonstrate a direct injury in order to challenge a zoning regulation would allow. counties to make zoning decisions without complying with ...statutory requirements." . ~--'-d) Case Note: The county had argued that because the Ordinance was adopted pursuant to N.C. Gen. Stat. ~ 153A-121 (which provided for the adoption of ordinances in the exercise of the county's gen- eral police power), the requirements of N.C. Gen. Stat. ~ 153A-323 (which set forth notice. requirements for adoption of ordinances un- @ 2009 Thomson Reuters 9 37