Agenda - Planning Commission - 03/06/2003

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I I I I I I I ! l ! I I I I I I I I g.g. February 10, 2003 Page 3 City of Fayetteville's.Planning Department that contained provisions for:a front. setback of 50 feet and a side setback of 30 feet as required by the zoning ordi- nance. The site plan was approved, and Burnham began construction. The city's inspection department conducted an onsite investigation and approved the pouring of concrete slabs. However, during the construction, the department later questioned the distance of the construction site from the road. Burnham ceased construction on. the building. The department then discovered the construction only provided a front setback of 25 feet and a side setback of 29 feet. Burnham apphed to the board of adjustment for a zoning variance as to the setbacks. The board allowed the variance. Showcase Realty and Construction Company,. the owner of adjacent prop- erty, sued. The court affaraed the approval of the variance. Showcase appealed, arguing the board's decision was arbitrary and-capri- cious, and unsupported by the evidence. DECISION: Reversed. The variance should not have been granted. The zoning ordinance allowed a variance only When there were practical difficulties or unnecessary hardships that made it impossible to reasonably use the land. · Burnham stated he had been unable to use the land in the past, but'he pro- vided no evidence to support his statement. Burnham testified he could move the building to comply with the ordinance, but such action would be a prohibi- tive financial burden. There was no evidence he could secure-no reasonable return or make no reasonable use of the property without a variance. The only evidence demonstrating a possible unnecessary' hardship to Burnham was the financial cost of moving the concrete slabs. However, finan- cial hardships alone did not satisfy the requirement of the ordinance. Citation: Showcase Realty and Construction Company v: City. of FayettevilIe Board of Adjustment, Court of Appeals of North Carolina, No. COA02-314 (2002). .. .. see also: Lee v. Board of Adjustment, 37' S.E. 2d 128 (1946). ' see also: Williams v. N. C. Department of Environment and Natural Resources, 548 S.E. 2d 793 (2001). . . Due Process -- Town claims, fire autOmatically terminates nonconforming use Owner seeks rental permit for two-family house NEW YORK (01/02/03) Norton owned a house that was converted by pre- vious owners into a two,family dwelling in-1933. Sometime after 1933, the town adopted an ordinance zoning the area to single-family detached dwellings. 129·