Agenda - Planning Commission - 02/02/2006

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Page 4 --November 25, 2005 DECISION: Affirmed. Proposed construction was i public nuisance as a matter of law and, as such, subject to a permanent injunction. Russellvllle promulgated land-use ordinances and regulations controlling the property where the sewage treatment plant was to be constructed. Those regulations restricted construction in areas prone to flooding. Importantly, the Dover tract was in a flood-prone area. Arkansas state law gave communities the authority to take appropriate actions to prevent and lessen flood hazards and losses. Consequently, a per- manent injunction against building the plant was an appropriate response. see also: City of Dover v. City of RussellvilIe, I00 S. W. 3d 689 (2003). see also: City of Dover v. City of Russellville, 95 S. W. 3d 808 (2003). Appeal-- Court makes its own independent findings Fails to take into account evidence record colleqted by zontng board Citation: Gastonia V~deo & News Inc. v. Gastonia Board of Adjustment, Court of Appeals of North Carolina, No. COA04-1421 (2005) NORTH CAROLENA (10/18/05) -- Gastonia V~deo & News Inc. operated a busi- ness that included an adult bookstore and theater. The city of Gastonia enacted a zoning ordinance that allowed no more than one adult establishment within the same structure. Gastonia Video responded by making several changes in August 2002, including adding more non-adult books to its inventory and limiting the number of available stations in its mini- theater. The Gastonia Board of Adjustment ultimately concluded that the reconfiguration did not change the fact that there were two adult businesses operating out of the same structure. The board told Gastonia Video that it was required to cease operation of either the bookstore or the theater within 15 days. Gastonia Video sued, and the court ruled in favor of the board. Gastonia Video appealed, claiming the lower court illegally inserted its own opinion for that of the board. DECISION: Vacated and returner[ to the lower court. The lower court's independent fact-finding did not comply with the legal standard of review. Thus, it had to reconsider the case. The board's order contained 29 detailed findings of fact regarding Gastonia Video's inventory and display space, the changes made in August 2002, and the operation of the mini-theater. The order also contained six conclusions of law applying the pertinent terms of the city zoning ordinance and state statutes to Gastonia Video's business. Although the lower court acknowledged that the proper standard of re- rD 2005 Quinlan ?u~tisI~ing Group. Any reproduction ~s prohibited. For more information please call (617} S42-OO4n 118