Posted by: Patricia Salkin | October 5, 2015

NC Appeals Court Finds Rezoning to Allow for Brid Dog Training Kennel Could Not Constitute Spot Zoning Because Under NC Law Land was Not in Single Ownership

Philip M. Behe (“Matt Behe”) and his father, Philip L. Behe, purchased through North Carolina Special Warranty Deed property consisting of a 101.76 acre tract, which Matt Behe wished to subdivide approximately two acres out of the parent tract for a kennel to be used as a bird-dog training facility. Matt Behe owned Rocky River Gun Dogs, LLC, which has trained world and national championship bird dogs. On 5 September 2012, Matt Behe and his wife, Megan Behe, filed an application with Rockingham County to rezone the two-acre tract from Residential Agricultural to Highway Commercial—Conditional District. The application was approved by the Rockingham County Board of Commissioners (BOC). On 24 October 2013, plaintiffs, Good Neighbors of Oregon Hill Protecting Property Rights and Ashley M. Wyatt (“Neighbors”), sought a preliminary injunction and a declaratory judgment in superior court that the rezoning ordinance adopted by the BOC was void and of no legal effect. The Superior Court, Rockingham County, granted summary judgment for Neighbors, and the county appealed.

The North Carolina trial courts must consider whether the zoning activity in the case constituted spot zoning; and if so, whether the zoning authority made a clear showing of a reasonable basis for the zoning. The trial court determined that because Matt Behe was the sole owner receiving a special benefit, this was a spot zoning case; however, the tract of land in question was not owned by a single person when the application for rezoning was filed and when the BOC made its determination, rather it was jointly owned by Philip Behe and Matt Behe. Accordingly, the court held the rezoning did not constitute spot zoning as North Carolina courts have defined it. Furthermore, the trial court’s scope was to review the BOC’s decision to see if it was supported by the evidence, and not to weigh the evidence presented by one party and then make a finding that there was “a strong potential” for certain negative outcomes if the zoning change were upheld. Accordingly, the court reversed the trial court’s order and remanded for a new summary judgment hearing.

Finally, the trial court’s order held that the Applicant began excavation and installation of the structure intended for use under the rezoning before securing the zoning permit from the defendant as specifically prohibited under the Zoning Ordinance at Section 15–2(a). However, there was no evidence that Matt Behe, as applicant, failed to obtain or comply with all required permits and approvals. Accordingly, the court found that because the case did not involve spot zoning, the burden was on plaintiff to show that the zoning change was invalid. The case was therefore reversed and remanded.

Good Neighbors of Oregon Hill Protecting Property Rights v County of Rockingham, 774 S.E. 2d 902 (NC App. 7/21/2015)

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