Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin December 10, 2010 1 Volume 41 No. 23 faith reliance on a then - current zoning categorization was sufficient to confer a vested right in the ordinance as it existed preamendment. The Background/Facts: Leith of Fayetteville, Inc. and MLC Auto- motive, LLC (the "Dealerships ") were in the business of developing and operating automobile dealerships. In 2000, the Dealerships be- came interested in purchasing a 21 -acre tract of land (the "Property ") in the town. They intended to develop on the Property an auto park consisting of several automobile dealerships. The Property was zoned General Business ( "GB "). At that time, the town's Unified Develop- ment Ordinance (the "UDO ") allowed property in GBs to be used for "Motor Vehicle and Boat Sales or Rental or Sales and Service" ' without a special or conditional use permit. In January 2002, the Dealerships purchased the property for $1,553,90. Between 2001 and 2005, the Dealerships spent an addi- tional $518,156 in preparations to develop the Property. After the Dealerships began the process to obtain the required per- mits, the town rezoned the Property. The new zoning classification no longer permitted motor vehicle sales. The Dealerships sued the town. Among other things, they claimed they had a common law vested right to develop the auto park on the Property. Finding there were no material issues of fact in dispute and decid- ing the matter on the law alone, the trial court issued summary judg- ment to the Dealerships on their claim of common law vested rights. The court concluded that the Dealerships had a vested right to de- velop the auto park on the Property. The town appealed. The Court's Decision: Judgment of trial court revered and remanded. The Court of Appeals of North Carolina concluded that the Dealer- ships did not have a vested right to develop the auto park on the prop- erty. In so concluding, the court found that the Dealerships did not make substantial expenditures in good faith reliance on town approval of their proposed auto park —as required for a vested right to establish. The court explained that generally, "[t]he adoption of a zoning or- dinance does not confer upon citizens ... any vested rights to have the ordinance remain forever in force, inviolate and unchanged." North Carolina does, however, recognize two methods under which a landowner can establish a vested right in an ordinance: "(1) qualify with relevant statutes ...; or (2) qualify under the common law." In this case, the Dealerships only claimed a vested right arising under the common law. The court explained that a party claiming a common law vested right in a nonconforming use of land must show: © 2010 Thomson Reuters 7