Agenda - Planning Commission - 07/09/2009

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j . j ~ ;(\i ., .i ii Ii Ii ii Ii i: p Ii i! I' Ii I, J: /~ :I ) \. if n I, j \: i' i r I. I. I' 1: li ii 1: II Ii i' ! i \; I! i' j! i l: I I i ) ~/ Zoning Bulletin May 25,20091 Volume 31 No. 10 PRS appealed. The primary issue on appeal was the proper measure- ment of the 2,000-foot buffer required by the city's zoning code. The Board had found that because a karate school was located within 2,000 feet of PRS's property line, a variance was required for the issuance of a special permit. The code expressly addressed the method of calculating distances from adult establishments. It said that when computing distances, the "entire property" of the adult establishment was to be included. The Board had interpreted that to mean that measurements were to be taken from the "entire lot" upon which the adult establishment sat. The Board had alSO' included the entire lot upon which the karate school sat when it calcu- lated the distance between PRS' lot and the school. PRS conte~ded that: the Board did not use proper measurements; the karate school was not located within 2,000 feet of its property line; and therefore PRS did not need a variance. DECISION: Reversed and remanded. The Court of Appeals of North Carolin.aheld that the Board erred in its calculation of the distance between PRS's property and the kara- te school. It further held that the proper measure for the 2,000-foot re- quired buffer was from PRS's "entire property" to that part of the build- ing regularly used by the karate school in furtherance of its instruction, which was closest to PRS's property. The court reached its conclusion by looking at the plain language of the city's zoning code. The court assumed, for argument's S<J.ke, that the Board properly interpreted the ordinance when it computed the distance of the "entire property" of the adult establishment by taking measure" ments from the "entire lot" of the proposed establishment. However, the court found that the Board's measurement from the karate school was incorrect. The Board should not have also included the "entire lot" upon which the karate school sat when it calculated the distance between PRS' lot and the school. The code defined specialty school only as a "place of reghlar sessions of teaching for avocational activities. . . -." Given that language, the court .found the proper measurement for the 2,000-foot buffer was to "the location where the regular teaching sessions t[ook] place." Thus, the court said measurements should have been taken from the physical structure of the karate school (i.e., the school's rented space in a building) and not the entire property on which the school sat. Since evidence showed that the building in which the karate school was located was more than 2,000 feet from PRS' "entire property/, PRS did not need a variance to obtain a special permit. See also: Westminster Homes, Inc. v. Town of Cary Zoning Ed. of Ad- justment, 354 N.c. 298, 554 S.E.2d 634 (2001). @ 2009 Thomson Reuters - I 5 45