Agenda - Planning Commission - 09/06/2007

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Zoning Bulletin Torres filed im application, and, after a hearing, the board recom- mended approving the permit. The permit would allow the operation of twO soccer fields, playground, concessions, and other related uses, sub- ject to restrictions for reasonable buffering. However, while theapplica- tion was srill pending fi.nal approval from the county board of commis- sioners, Torres was told to cease operating the soccer fields. Ultimately, after a hearing, the commissioners voted against the permit. Torres filed a petition in court seeking a declaration from the court that clarmed whether a soccer fi.eld was a permitted use in the zone in which his property was located. The court found that the language in the code that defined the zone was clear and unambiguous in allow- ing recreational facilities and that soccer fi.elds were clearly a permitted "similar recreational use" as defi.ned by the code. The county appealed. Decision: Affirmed. The appeals court had to look at the facts in this case as though they were hearing them for the first time to decide on the issues at hand. On its face, the statute did not exclude soccer fields, but the language "simi- lar recreational uses" was unclear. Where language in an ordinance was unclear or open to more than one interpretation, the court had to look at it in its entirety and "adopt the construction and practical interpre- tation which best expresse[d] the intention of the Legislature" that en- acted the challenged law. While the code listed specific perlT'jtted uses such as golf courses, playgrolLTlds, and swimming pools, the county argued that the list of permitted uses intentionally did not include sports such as football, baseball, and soccer because of the difference in impact that these activ- ities could potentially have. The county contended that in denying the permit for soccer fields, the commissioners took into account the tramC and noise that these playing fields may cause. However, another section of the code allowed colleges and universi- ties to be constructed in the zone, and those campuses would generally include athletic playing facilities and present similar or greater tramc and noise impacts. In addition, the court found that soccer fi.elds were not that dissimilar to some of '[he permitted uses with regard to the nature of the facili'[ies, and noted that playgrounds often contain play- ing fields. When taken as a whole, the appeals court found that the language "similar recreational use" allowed the inclusion of soccer fi.elds as a per- mitted use. It affirmed the decision of the lower court. See also: Durham Land Owners Ass'n v. County of Durham, 633 S.E.2d 678 (N.c. 2006). 6 106