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Court: Because town can’t find zoning map, landowner not in violation

A Macon County town wants to prove that a local landscaper is violating regulations by using a residential zone for commercial purposes. Problem is, it can’t seem to find the proof.rezoning sign WEB

In Shearl v. Town of Highlands, the town claims that in 1990 it made changes to the zoning ordinance to reduce strip commercial development and that John Shearl, owner of J&J Lawn and Landscape, is operating outside the law. While the local Superior Court agreed with the town’s Board of Adjustment, the N.C. Court of Appeals has vacated and remanded the decision.

The reason? In violation of its own ordinances – as well as state law – the town can’t seem to put its finger on a single copy of the 1990 zoning map that supposedly reflects the changes made that year.

According to court records, Shearl bought the property in 1993. A decade earlier, the town had split-zoned the property for commercial and residential use, with the demarcation line extending out 230 feet from the center of N.C. Highway 28. The front area of the property was zoned for business and the rear for residential.

But in 1990, the town claims, the line was moved to 150 feet from the highway. While an official zoning map current through 1988 was admitted into evidence, the only evidence on record reflecting the change is a subdivision plat map “drawn up and recorded in connection with Petitioner’s land transaction.”

Shearl’s attorney, Craig Justus of The Van Winkle Law Firm in Asheville, said his client has operated the business since he purchased the land – 16 years before the 2009 complaint was filed. Highlands is even a client of Shearl’s.

“It should be no news to anybody, the extent of his operation,” Justus said. “It may have been a complaint from an adjoining landowner.”

Court documents show that J&J operates from a shop building close to the highway that would be within regulations using either line. In question, however, is an area toward the rear of the property housing a storage building and landscaping equipment that would fall into the residential zone using a 150-foot demarcation line.

A 1996 zoning map purportedly “current” and displaying the 150-foot demarcation line appears in the list of exhibits but is omitted from the record on appeal. A second zoning map – a geographic information system, or GIS, printout – shows that the land is split-zoned, but “reveals little more,” according to the opinion.

“There are no references to zoning categories on the map and there is no measurement scale,” the opinion reads.

Judge Robert Hunter Jr., writing for the court, declared that, “While we believe that the plat map has some evidentiary value concerning the location of the line, it must be weighed against the evidentiary value of the 230-foot line depicted on the official 1988 Zoning Map.”

The town first served Shearl with a zoning violation notice on Aug. 19, 2009. Shearl immediately appealed to the BOA, which heard his case in two separate hearings in October and November of that year.

Citing Shearl’s burden of establishing a nonconforming use, the BOA unanimously denied his appeal and upheld the violation. When the BOA’s decision was affirmed in Superior Court, the state Court of Appeals took up the questions of (1) whether the violation was supported by substantial evidence and (2) if so, whether the storage building at the rear of the property constituted a legal nonconforming use.

Noting that it is normally the appellant’s duty to ensure the record is complete, the Court of Appeals found that the Superior Court in this case ordered the town to prepare and certify to the court a record of the BOA proceedings. Further, the Appeals Court wasn’t privy to all documents considered by the BOA – including the 1996 zoning map – it held that it could not determine whether the board’s decision to find Shearl in violation was supported by “competent, material and substantial evidence in view of the whole record.”

But since the burden of proof had been wrongly placed on Shearl to begin with, the case was remanded with instructions that the town should reintroduce evidence that commercial use of the storage building was in violation of the zoning ordinance on Aug. 19, 2009.

Regarding legal nonconforming use, Shearl contended that when he purchased the property in 1993, the demarcation line ran 230 feet from the highway. Even if that was subsequently amended, he argued, he would be “grandfathered in” under Section 110 of the town ordinance which states that the “lawful use of any building or premises at the time of the enactment of this Ordinance, or immediately preceding any applicable amendment hereto, may be continued even though the use does not conform with the provision of this Ordinance.”

The appeals court noted that while it is ordinarily the landowner’s responsibility to prove an affirmative defense, including a legal nonconforming use, after the town has proven a zoning violation, Highlands here made that overly difficult for Shearl by losing all copies of the official zoning map from 1990.

“We believe that where, as here, 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,” Hunter wrote.

Justus said he’s reached out to the town to see “where it should go from here,” but believes Shearl is on solid ground legally.

“I think it’s a little bit of an uphill climb for the town, quite frankly,” he said.


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