Agenda - Planning Commission - 07/07/2005

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Page 4 -- May 25, 2005 Z.B. formed Wireless of the changes that would need to be made to the applications -in order for permits to be granted and indicated no further action would be taken unless ~hose changes were made. No further action was taken for nine months. These actions constituted an informal denial'of the applications. Following the telephone cali, the city never provided a written decision as to the status of Wireless' applications. While such an informal procedure could be sufficient under state law, it directly violated the requirements of the Telecommunications Act. see also: United States v. City of Detroit, 329 F. 3d 515 (2003). see also: Nextet Partners Inc. v. Kingston Township, 286 F. 3d 687 (2002). Special Use Permit-- Board of adjustment denies permit for school parking lot Board of education claims city has no jurisdiction over anything that is not a building .. Citation: Nash-Rocky Mo~mt Board of Education v. The.Rocky Mount Board of Adjustment, Court of Appeals of North CarOlina, No. COA04-290 (2005) NORTH CAROLINA (04/05/05) --The Nash-Rocky Mount Board of Education wanted to add a parking lot in front of Rocky Mount Senior High School. The parking lot wa~ requested because of an increased number of buses at the high school. The Rocky Mount Zoning Board told the bodrd of education it could do so as long as it received a driveway and fence permit. After obtaining the necessary permits, the parking lot was built. As a result, neighboring residents complained~ about noise, dust, traffic congestion., and trash. In response, the city told' the board, of education it would need to obtain. a special use permit from the board of adjustment to continue operation of the parking lot. After a hearing, the board of adjustment denied the permit. Under state law, a city or town could only exercise its zoning power over the erection, construction, and use of buildings. The board of education believed the board of adjustment had no power to either ~ant Or deny a special use permit over the parking lot. The board of education sued, and the court ruled in its favor. It found the board of adjustment had no jurisdiction over the parking lot. The board of adjustment appealed, arguing a parking lot fell within the relevant statute's definition of a "building." DECISION:Affirmed. "Parking lot" was not included within the scope of the word "building." In general, when interpreting a statute, the words were to be given their plain and ordinary meaning unless the context, or the history of the statute, required otherwise. © 2005 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 88