Agenda - Planning Commission - 03/03/2016

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January 10, 2016 1 Volume 10 1 Issue 1 Zoning Bulletin ting Lake Gaston in Warren County (the "County") with 8.5 acres of its prop- erty zoned as residential and 1.91 acres zoned for commercial use. In April 2011, East Oaks sought a conditional use permit to construct a townhouse community on the residential portion of its property (the "Townhouse Project"). The site plan for the Townhouse Project showed a proposed access easement for a driveway (the "Drive") connecting a boat storage building on the commercial portion of the property to a boat launch area on Lake Gaston located on the residential portion of the property. The Drive was to be utilized to transport boats from the boat storage facility to the boat slips and launching area on the residential property. The County Planning and Zoning Administrator (the "PZA") issued a formal determination, concluding that the Townhouse Project was a permitted use in the residential district and therefore a conditional use permit was not required. East Oaks withdrew its application for a conditional use permit and obtained a zoning permit. Morningstar Marinas ("Morningstar") owned land approximately 145 feet across a small cove from East Oaks' property. Morningstar appealed the PZA's formal determination to the County Board of Adjustment (the "Board"). Among other things, Morningstar argued that the Drive constituted a com- mercial use of East Oak's residential property in violation of the County Zon- ing Ordinance (the "Ordinance"). On Morningstar's appeal, the Board overturned the PZA's determination. East Oaks then appealed, and while the appeal was pending East Oaks and the County entered into a consent order, approved by the court, in which East Oaks and the County agreed that the zoning permit issued by the PZA would be reinstated. Morningstar was not a party to the consent order. However, the consent order stated the trial court's conclusion that Morningstar was not a "person aggrieved," under North Carolina statutory law (N.C. Gen. Stat. N.C. Gen. Stat. § 153A -345(b)) and that the Board "had no jurisdiction or authority to hear the appeal of Morningstar." In the meantime, before the consent order issued, Morningstar had filed a petition in superior court, in which it requested that the court compel the PZA to issue a formal determination pursuant to the Ordinance regarding whether the Drive constituted a commercial use of the East Oaks residential property in violation of the Ordinance (the "Drive Determination"). The PZA then issued a formal determination, finding the County did not regulate easements through its zoning regulations. Morningstar then dismissed its mandamus action, and instead appealed the PZA's determination to the Board. The PZA refused to place Morningstar's appeal of the PZA's Drive Determination on the Board's agenda because the PZA found that the Board had "no authority or jurisdiction to hear an appeal by [Morningstar] because East Oaks' permit issue ha[d] been settled by" the consent order between East Oaks and the County. Morningstar then filed a petition for writ of mandamus in superior court, requesting that the court compel the PZA to place Morningstar's appeal of the PZA's Drive Determination on the Board's next available agenda for a hearing. The court granted Morningstar's petition and issued a writ of mandamus ordering the PZA to place the appeal on the Board's agenda for a hearing on the merits. 8 © 2016 Thomson Reuters