Posted by: Patricia Salkin | September 10, 2010

N.C. Appeals Court Finds No Violation of Due Process Where ZBA Member Spoke with Board Member of Applicant’s Association, and Further Upheld Variance Where Competent Evidence Supported Board’s Decision

Plaintiff brought an action appealing the City of Charlotte Zoning Board of Adjustment’s (ZBA) decision to grant a zoning variance to the Center for Community Transitions (CCT) to build a halfway house and the dismissal of this case by the trial court.  Plaintiff argues that the trial court erred because it failed to address the allegations that a ZBA member had a conflict of interest.  Plaintiff also argues the findings of fact and conclusions of law are not supported, and therefore the trial court erred when it affirmed the decision.

CCT purchased a parcel of land between plaintiff and a motor home park.  The land satisfied the Charlotte zoning classifications.  The adjacent motor home park began operating before the zoning classifications took effect but it had been allowed to continue operations.  CCT filed an application with the ZBA requesting a variance of fifty-eight feet because CCT realized that the building on the property violated Charlotte Code § 9.503(9)(b)(i), which requires buildings, including halfway houses, to be at least 100 feet from the “nearest residentially zoned” property.

Plaintiffs appeared before the ZBA and voiced concerns pertaining to the establishment of a halfway house on the neighboring property but argued very little factual reasons that the variance should not be granted.

A ZBA member informed the Board that he had previously had communications with one of CCT’s board members.  The ZBA discussed the issue but opted to allow the member to continue to participate in the hearing at hand, and the ZBA ultimately granted the variance.

Plaintiff filed a petition for review in addition to a petition for declaratory judgment, alleging the decision violated Plaintiff’s due process rights.  While the lower court dismissed the declaratory judgment claim, it remanded the matter back to the ZBA because the court found that the findings of fact were “inadequate to permit judicial review.” The ZBA approved additional findings of fact and the trial court conducted a second hearing and affirmed the ZBA’s revised decision. 

With regard to the conflict of interest with the ZBA member and the board member at CCT, the ZBA discussed whether the member should recuse himself while considering all of the disclosures made up to that point.  The ZBA members were unanimous in their decision to keep the ZBA member on the panel for this hearing.  The Court of Appeals stated that the ZBA’s decision to keep the ZBA member on the panel “did not deny [plaintiff] its constitutional right to an impartial decision maker.” Further the Court disagreed with Plaintiff’s arguments that findings of fact were not based on competent evidence, and therefore the Court affirmed the judgment of the trial court.

Harbor Baptist Church v. City of Charlotte, 2010 WL 3002103 (N.C. App.8/3/2010).

The opinion can be accessed at:

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