Posted by: Patricia Salkin | October 30, 2014

NC Appeals Court Finds the Burden was on the Town, Rather than Property Owner, to Establish the Location of Zoning Line at the Time Property Owner Began His Nonconforming Use Because Town Could Not Locate Official Zoning Map

John Shearl (“Petitioner”) owned property directly off Highway 28 in Highlands, on which he operates a business entitled, “J & J Lawn and Landscape.”  On 19 August 2009, Respondent issued a zoning violation notice to Petitioner, which stated that he was making commercial use of property zoned for residential use.  Petitioner appealed to the BOA, which ruled in favor of the Respondent. The Superior Court affirmed this holding, and Shearl again appealed, contending that the Superior Court erred by concluding that the evidence established the existence of a zoning violation when the notice of violation was issued. In the alternative, Petitioner argued that the Superior Court erred by determining that he had the burden of proving that his nonconforming use was grandfathered in under the terms of the zoning ordinance given that the Town of Highlands (“Respondent”) has lost an official zoning map crucial to his defense.

Respondent contends that the 1993 Plat Map, the 1996 Zoning Map, and the GIS printout entitled “Current Zoning Map” constitutes competent, material, and substantial evidence that the current zoning line on Petitioner’s property runs 150 feet parallel from the centerline of Highway 28. Although testimony concerning the 1996 Zoning Map tended to support the location of the zoning line at 150 feet, but the 1996 Zoning Map is not in the record on appeal.  The court found it was Respondent’s responsibility to present evidence that Petitioner’s commercial use of his storage building was in violation of Respondent’s zoning ordinance when the notice of violation was issued on 19 August 2009. Because the burden of proof was inappropriately placed on Petitioner to establish the location of the zoning line when he began his nonconforming use, the Court of Appeals held that the Superior Court’s order must be vacated.

The absence of the zoning map also impacted the Petitioner’s nonconforming use claim. The court found that in circumstances in which a town fails to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy is to place the burden back on the town to establish the location and classification of zoning districts when the landowner began his or her nonconforming use. Accordingly, the Superior Court’s order was vacated and this matter was remanded to the Superior Court with instructions to order further proceedings before the BOA.

Shearl v Town of Highlands, 762 S.E. 2d 877 (NC App. 9/2/2014)

The opinion can be accessed at: http://appellate.nccourts.org/opinions/?c=2&pdf=31645


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