Agenda - Planning Commission - 02/06/1996

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Page 8-4 December 15, 1995 Z.B. returned to the lower court. The lower court was to send the matter to the board to rehear Schwartz's case. The board's decision to deny Schwartz's certificate was based on its deter- mination {hat Schwartz did not suffer an undue hardship. However, whether he suffer~:t a hardship was not the issue before the board. Whether he suf- fered difficulty was relevant only if Schwartz sought a variance, which he did not. He a~ked for a permit based on a nonconforming use that existed from 1971 -- 1F years before the new ordinance was passed. If the board found his property tO be a valid nonconforming use, Schwartz could be entitled to a certificate:~of occupancy. Since the board did not address that issue, the case was returned for it to hear evidence about the property's nonconforming use. State ~!. Ladue Professional Buildi~g h~c., 395 S..W. 2d 316 (1965). LimitatioOs Period - Town Board Doesn't Notify Public of Decision Thomt~,son v. Town of Warsaw, 462 S.E. 2d 691 (North Carolina) 1995 Wilkin~ wanted to build an industrial garage and maintenance building in a resid~?tial neighborhood of the town of Warsaw, N.C. At a meeting on Aug. 8, 19~88, the town board gave him permission to do so, calling its deci- sion a "va!lance." The board did not give any public notice either before or after that ~eeting. Under :~e town's zoning ordinance, only the Board of Adjustments could issue varig, tces from zoning requirements. A state statute gave parties nine months to challenge the validity of any zoning amendment a city adopted pursuant tc another state statute that contained notice requirements. Severa'. years later, Wilkins started to build. Thompson and others then found out, bout the town board's actions and, on May 4, 1993, sued the town. Thompson[said the town board's decision effectively rezoned Wilkins' prop- erty and ar~ended the ordinance, even though the town board called it a vari- ance. Thorg. pson asked the court to stop the town from allowing the town board's dedision to stand and from allowing Wilkins to operate the garage. The town claimed Thompson's case was barred because he sued more than nine months after the amendment was adopted. The town asked the court for ju[dgment based only on the parties' pleadings, without taking any further evidence. The court granted the town's request. Thomp~_on appealed. DECISION: Affirmed. The lo~er court properly granted the town judgment because a prior appeals court decis!on in a different case made the nine-month limitations period apply even ithough the town did not give the notice state law required. Any case challefl~ging the amendment's validity had to be filed within nine months of its adoptlion, and Thompson did not file his case until almost five years later. "Because we are bound by this Court's precedent, the trial court cor- rectly entered judgment on the pleadings." Pi~ehm'stArea RealO, Inc. v. Village of Pine/mrst, 394 S.E. 2d 25] (1990).