Agenda - Planning Commission - 10/15/2015

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Zoning Bulletin September 10, 2015 I Volume 9 1 Issue 17 The Background/Facts: In August 2012, Philip M. Behe (aka "Matt Behe") and his father, Philip L. Behe, purchased a 107.6 -acre tract of land (the "Property") in Reidsville, Rockingham County (the "County"). Matt Behe sought to subdivide approximately two acres of the parent tract for a kennel to be used as a bird training facility. He filed an application with the County to rezone the two -acre tract from Residential Agricultural to Highway Commercial -Conditional District. The County Planning Staff recommended approving the rezone applica- tion subject to nine conditions. The County Planning Board approved the rezone. Ultimately, the County Board of Commissioners (the "BOC") ap- proved the zoning amendment, including the nine conditions recom- mended by the Planning Staff. In October 2013, Good Neighbors of Oregon Hill Protecting Property Rights ("Neighbors") sought legal action, asking the superior court to find that the rezoning ordinance adopted by the BOC was void and of no legal effect. Among other things, Neighbors claimed that the rezoning consti- tuted illegal spot zoning. The County denied the allegation. Finding no material issues of fact in dispute and deciding the matter on the law alone, the trial court issued summary judgment in favor of Neighbors. The County appealed. DECISION: Judgment of superior court reversed, and matter remanded. The Court of Appeals of North Carolina held that County's rezoning of the two -acre tract was not illegal spot zoning. In so holding, the court explained that spot zoning was defined as: "A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected[.]" The court further explained that spot zoning practices may be valid or invalid depending upon the facts of the specific case. Thus, spot zoning is not invalid per se but, rather, "it is beyond the authority of the municipal- ity or county and therefore void only in the absence of a clear showing of a reasonable basis therefor." In determining if the rezoning here constituted spot zoning, the court applied a two-part test, looking at: (1) whether the rezoning constituted spot zoning as that action is defined; and (2) if so, whether the zoning authority made a clear showing of a reasonable basis for the zoning, considering the size of the tract in question, the compatibility of the disputed zoning action with an existing comprehensive zoning plan, the benefits and detriments resulting from the zoning action for the Behes of the newly zoned property, their neighbors, and the surrounding com- munity, and the relationship between the uses envisioned under the new zoning and the uses currently present in adjacent tracts. © 2015 Thomson Reuters 5