Tonter owned three tracts of land in the city. Tracts 1 and 2 were zoned A-2, Agricultural District. Tract 3 was zoned A-1, Agricultural. At the time Tonter purchased the tracts, the A-2 and A-1 zones permitted residential structures. However, in August 2007, the county passed an ordinance (the “August Amendment”), prohibiting all residential uses for A-2 zones. Effectively, the August Amendment prevented Tonter from turning Tracts 1 and 2 into subdivided residential developments as planned. In September 2007, the county passed another ordinance (the “September Amendment”), requiring that, unless granted an exception by the county: no structure could be built in the county unless (a) the lots contained a minimum of 25 feet of frontage on a state maintained road or a county-approved road and (b) lots were located within 1,000 feet of a public water supply. None of Tonter’s tracts were located within 1,000 feet of a public water supply. This meant that Tonter could not build any structures on the tracts without an exception granted by the county.

Tonter asked the county for an exception from the August and September Amendments. The county rejected Tonter’s request. Tonter filed a legal action in court, challenging the August and September Amendments as invalid and beyond the county’s zoning power. North Carolina statutory law prohibited exempted lots greater than ten acres from local subdivision regulations. Since Tonter’s proposed lots were all at least ten acres in size, the county could not impose subdivision regulations on Tonter’s lots. Tonter argued that the August and September Amendments were passed “under the guise of zoning ordinances” in order to circumvent the statutory exemption. As such, Tonter maintained they were invalid.

The Court of Appeals of North Carolina disagreed with Tonter. It acknowledged that the September and August Amendments effectively precluded Tonter from building residences on land that Tonter planned to subdivide into lots that would be at least 10 acres. However, it noted that the fact that state law exempted lots greater than ten acres from county subdivision regulations did not mean that such lots were not still subject to county zoning power. The court found that the September and August Amendments were within the county’s zoning power because they had a “strong relationship to public safety and health.”

Tonter Investments, Inc. v. Pasquotank County, 2009 WL 2783731 (N.C. App., 9/1/ 2009).

The opinion can be accessed at: http://www.aoc.state.nc.us/www/public/coa/opinions/2009/pdf/081057-1.pdf

This abstract is excerpted from the Quinlan Zoning Law E-News, available for free at: http://west.thomson.com/signup/newsletters/215.aspx