Agenda - Planning Commission - 02/03/2005

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Page {5 -- January 10, 2005 Z.B. 'his 1.and so he could use his property as a small used-car sales lot, a' use prohibited by the current C-1 ("local commercial-") zoning. He wanted the board to change the zoning to C-2 conditional, which would permit a more intense "general commercial" use or' the property. In addition, Burdette was willing to lin-fit his use of the property to a car lot containing a maxi- mum of 15 cars. The board of commissioners denied his request. Burdette sued, claiming the decision violated his equal protection rights, and the court ruled in his favor. The court concluded that the denial to rezone constituted a violation of Burdette's equal' p/:otection r/ghts because, on the same day the board denied Burdette's rezoning application, it had approved a .rezoning application on a parcel five miles away. The board allowed the second parcel to be rezoned from C-2 conditional (limited to use as a used-car lot) to C-I, with the condi- tion that the owner of the second parcel operated a small used-car lot as a legal nonconforming use. The owner of the second parcel had operated a small used-car lot on the property since 1989, when his property Was zoned as C-2 conditional. In 1991, however, the county adopted a comprehensive land- use plan that called for both the used-car lot and Burdette's parcel to be zoned C-1. The county appealed. DECISION: Reversed, Burdette's equal protection rights were not violated. The owners of the two separate parcels of property were not considered to be similarly situated for equal protection purposes when only one of the par- cels had a preexisting nonconforming use. The lower court determined that both landowners were similarly situated because the second parcel did not have a preexisting nonconforming use. However, the lower court erred in limiting a preexisting nonconforming use to only those uses in existence at the time the governing authority enacted its initial zoning ordinance. instead, a preexisting nonconforming use was defined as "a use which lawfully existed prior to the enactment of a zoning ordinance ... and which therefore may be maintained after the effective date of the ordinance or amend- ment although it does not comply with the zoning restrictions." Since the sec- ond parcel was rezoned to C-1 zoning, the use of the property as a used-car lot was a nonconforming use. Therefore, Burdett was not similarly situated with the owner of the second parcel, so the difference in treatment did not violate his equal protection rights. xee also: Lam~Tr Cozum, v. E.T. C~u'l¥te Co., 394 S.E. 2d 333 (2004). 1 O0 ~ 2005 Quinian PuOiishing Group. 4n¥ reproduction is prohibited. For more irfforma~ion please ,:all (6'i7) '542-0048.