Posted by: Patricia Salkin | August 28, 2017

NC Appeals Court Finds Unscreened Dumpsters Were Not Nonconforming Structures

Petitioners NCJS, LLC and James H. Plyer ( “NCJS”) owned industrially zoned property in Charlotte. On the property sits a warehouse constructed in 1970, with two abutting leaseholder-owned dumpsters unscreened from public view. A 1984 amendment to the Charlotte Zoning Ordinance (CZO) required that dumpsters be screened on three sides by a fence. Specifically, Section 12.303 of the CZO, imposed the dumpster-screening requirement, providing that “the provision of this Section must be met at the time that land is developed or land and structures are redeveloped.” After NCJS received a zoning notice of violation (NOV) for failing to screen its dumpsters, it appealed to the City of Charlotte’s zoning board of adjustment, arguing that its property was neither developed nor redeveloped since enactment of the 1984 dumpster-screening amendment as required to trigger its application. The City Board affirmed the zoning administrator’s decision and issued a written order demanding that NCJS screen its dumpster. The superior court affirmed, and NCJS appealed.

On appeal, NCJS argued that the City Board misinterpreted the CZO by concluding its unscreened dumpsters were “nonconforming structures” because its dumpsters were legally conforming absent a determination that Section 12.303’s dumpster screening requirement was triggered as to its property. Here, the plain language of Section 12.303 indicated that its dumpster-screening requirement does not trigger unless “land is developed or land and structures are redeveloped.” Since this did not occur, Section 12.303’s dumpster-screening requirement was not triggered and NCJS’s dumpsters fell outside Section 2.201’s definition of a “nonconforming structure.” As such, the court found that the dumpsters should not have been subject to Section 7.104’s nonconformance provisions regulating nonconforming structures. Accordingly, the court held there was no zoning violation and remanded the case.

NCJS, LLC v City of Charlotte, 2017 WL 3480574 (NC App. 8/15/2017)

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