Posted by: Patricia Salkin | June 14, 2009

Failure to Follow Statutory Procedures Invalidates Countywide Zoning Ordinance

Following a decision by the County Commissioners enacting an ordinance regulating multi-family dwellings, the ordinance did not apply any rules to property located below 2,500 feet above sea level,

The Partnership II brought an action for declaratory relief seeking to have the ordinance declared invalid alleging that the ordinance was adopted without compliance with statutory requirements.  After finding that the Partnership had standing to bring the action, as this was an attack on the validity of the ordinance, not an as applied challenge, and the trial court granted summary judgment in favor of the county. 

On appeal, the Court affirmed the trial court’s finding that the Partnerhsip had standing, as a party has standing to challenge a zoning ordinance in an action for declaratory judgment when it has a specific personal legal interest in the subject matter affected by the zoning ordinance and is directly and adversely affected thereby. The Court found that Lott’s use of its land was limited by the zoning regulations and that therefore it had standing to challenge the regulations. However, the Appeals Court reversed the trial court’s grant of summary judgment.  The Court determined that the ordinance substantially affected Lott’s use of its property, and that the County had to comply with the statutory notice requirements.  Lastly, the Court noted that the County failed to comply with the statutory requirements for submitting zoning maps to the planning board where there has been an amendment. Since the ordinance was not passed in accordance with the statutory requirements, nor did the County follow its own rules of procedure, the law was invalidated.

Thrash Ltd. Partnership v. County of Buncombe, 673 S.E. 2d 706 (N.C. Ct. App. 3/17/2009)

The opinion can be accessed at: http://www.aoc.state.nc.us/www/public/coa/opinions/2009/080229-1.htm


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