Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 10, 2010 I Volume 4 I No. 3 was complete and in compliance with all applicable requirements of the land use ordinance. The Background/Facts: Northwest Property Group, LLC ("North- west") sought to develop a 7.1 acre tract of property (the "Property") in the town. Northwest applied to the town's board of aldermen (the "Board") for a conditional use permit (the "CUP"). The Board concluded that Northwest's„ application was complete and "complied with all applicable requirements of the [town's] Land Use Ordi- nance" (the "Ordinance"). It approved the CUP, subject to 37 conditions. Northwest filed a petition in Superior Court, contesting the validity of 14 of those conditions. Among other contentions, Northwest con- tended that because the Board found its application complied with all requirements of the Ordinance, the Board was required to issue the CUP without the challenged conditions. Northwest argued that the Board could only attach a condition to the CUP if it first established a basis for denial of the permit. Only then could the Board "adopt appropri- ate conditions so as to allow approval of the permit," said Northwest. In other words, argued Northwest, where "the ,Board is faced with an application that is facially complete, in compliance with the ordinance, and not subject to denial ... the Board has no alternative except to grant the permit unconditionally." Northwest maintained that the Board "lost its authority to adopt additional conditions" to the CUP given the facts that: the Board found Northwest's application was complete and in compliance with the Ordinance; and the Board did not make findings justifying denial of the application. Disagreeing with Northwest, the Superior Court upheld the Board's decision to adopt the challenged conditions. Northwest appealed. The Court's Decision: Judgment of the Superior Court reversed on oth- er grounds. The Court of Appeals of North Carolina held that the Board did not lose its authority to adopt additional conditions after voting that Northwest's ap- plication complied with all applicable requirements of the Ordinance. In so holding, the court disagreed with Northwest's argument that "the only purpose of the conditioning authority granted by the [O]rdi- nance was to bring an otherwise non -compliant application into compli- ance." The court found that, under the Ordinance, permit approval and conditioning were two different things. The "relevant provisions of the [O]rdinance" treated as "two separate and distinct issues":. (1) "wheth- er to approve a request for the issuance of a [CUP]"; and (2) "whether to condition an awarded [CUP]." The section of the Ordinance that ad- dressed permit approval did not "in any way address the issue of con- ditions." Attachment of additional conditions was addressed in another, separate section of the Ordinance. Likewise, that section permitted, but did not require, the Board to consider the issue of whether to adopt con- ditions prior to deciding whether to approve or disapprove a proposed © 2010 Thomson Reuters 5 53