Agenda - Planning Commission - 10/09/2014

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September 10, 2014 I Volume 8 ( Issue 17 Zoning Bulletin At some time, four other companies and three individuals purchased land on the Property from Ocean Associates (collectively, along with Ocean Associates, the "Owners"). In 1971, the County adopted a zoning ordinance that zoned the Own- ers' Property as RA-20, allowing residential and agricultural uses and only limited business uses. In 1975, the County adopted a new, similar ordinance. In 1989, the County enacted a Unified Development Ordinance ("UDO"). The UDO zoned the Owners' Property R02, which did not al- low most business uses. Under the UDO, the business and commercial uses intended by the Owners would not be permitted. Despite the ordinances adopted in 1971, 1975, and 1989, the Owners believed that they would be allowed to commercially develop their property. In 2004, the Owners decided to move forward with develop- ment of the business lots on the Property. The County then informed the Owners that such uses would not be permitted. The Owners asserted that they had vested rights to use their property in that manner. The County disagreed, asserting that the UDO barred such uses. The Owners filed a complaint in court against the County, County Com- missioners, and the comrnissioners in their official capacities (the "County Defendants"), seeking declaratory judgment that they had vested rights to develop their property commercially, among other things. The County Defendants filed a motion to dismiss for lack of subject matter jurisdiction. They argued that the Owners failed to exhaust ap- plicable administrative remedies before the County Board of Adjustinent and that therefore the court lacked subject matter jurisdiction to hear the complaint. The superior court allowed the County Defendants' motion to dismiss for failure to exhaust administrative remedies. The Owners appealed. DECISION: Judgment of superior court reversed in part, and remanded. The Court of Appeals of North Carolina held that the Owners did not fail to exhaust administrative remedies. The court explained that, as a general rule, if a statute provides an ef- fective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts. In such a case, if a plaintiff fails to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed. Also, generally, constitutional claims are not subject to administrative remedies, said the court, and thus failure to pursue the administrative remedy when pursuing a constitutional claim is not fatal to the constitutional claim. Here, the court held that the Owners were not required to exhaust administrative remedies where they were pursuing a vested rights claim, which was a constitutional claim, and where boards of adjustment do not 8 2014 Thomson Reuters