Agenda - Planning Commission - 04/05/2007

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Zoning Bulletin ('. The legislature had enacted a statute that created an obligation for n'l1l- '. nicipalitiesto approve any subdivision plan that conformed to all applicable zoning ordinances and subdivision requir.ernents "uilless the municipality ad- opted written findings based on a record from the public proceedings why the application [should) not be approved." If a court found that a municipality had an obliga.tion to act but did not _ as the lower court .determined was the case here - an order directing its actioDS was appropriate. Howeve; if an obligation to act coexisted with valid reasons for not acting, the proper remedy was for the court to give the mu- nicipality an oppommity to show why it bad not complied with the statute. The appeals coun found that the board did not have a clear duty to ap- prove the plan simply because it was recommended for approval by the com- miSsion. Furthe~ the board had v~d reaSOns for denying the application that were supported by the rec.ord. The decision of the lower court was reversed, and the case Was seIlt back for further proceedings. . See_ Mendota Golf, LLPu Oty ofMendot4H<iglm, 708 N.W.2d 162 (Mi= 2006), Code - Developer claims code allows single- family homes in business district ( Board has differen.t interpretation of the code i:.. Citation: S.P. Holdings of Wilmi:ngton. LLC v. Town of Kure BelUh Beach, 2007 WL 3764 (N,C. Ct. App, 2007), NORlli CAROLINA (01102107) - S.F, Holdings of W1lmi.i1gton, ll.C, owned a four-lot tract of land in Kure Beach. The propE=!!)' was zoned as a business district; when S.F. acquired it, a morel was located on the propE=!!)', Under the zoniI;tg code, single-family dwellings were not allowed in the district. However; S.F: - relying on a part of the code that stated that: "A single- family dwelling shall be permitted in all districts, provided that it conform[ ed] t~ the [residential zone] requirements" ~ requested permission from the building inspector to construCt a single~fa.nllly residence on each of the four . lots. The inspector denied.the request. , S.P. appealed the decision to the board of adjustment, and a public hear- ing was held. The board decided that the part of the ~ode on which S.P. relied was meant to further clarify conditions under which single-family dwellings could be constrUcted on lors of record; it was not a si::and-alone provision. Specifically, the code allowed property owners in business or other nonresi- dential zOI;les to build a single-family home on the property if a conforming use was not possible due to dimensional requirements. Ultimately, the board supported the building inspecror's decision, and S.P. ap- pealed to court. The court found in the board's favor; and S.F. appealed again. Decision: Affirmed. r The case turned on the interpretation of th~ zoning code. The board had the discretion to interpret the code; absent an error of law, the court could not substimte its judgment for that of the board. Admini~trative zoning S 95