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to: |
Mayor and Town Council |
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FROM |
Ralph D. Karpinos, Town Attorney |
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subject: |
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date: |
February 23, 2009 |
The purpose of this report is to outline steps to be taken to allow an amendment to the Town’s Land Use Management Ordinance to be considered in response to an interpretation of a provision of this Ordinance by the North Carolina Supreme Court in Chapel Hill Title and Abstract Company v. Town of Chapel Hill.
On December 12, 2008, the Supreme Court of North Carolina filed its decision in the case of Chapel Hill Title and Abstract Company, Inc., et. al v. Town of Chapel Hill and the Town of Chapel Hill Board of Adjustment. The case involved a property owner’s application for a variance from provisions of the Town’s Resource Conservation District (RCD). The variance was sought for the purpose of permitting the construction of a single family residential structure. The case has a lengthy history and has been before the Board of Adjustment and in the Court system.
The Supreme Court ruled that the Board erred in its denial of the variance application. The “central question” addressed by the Court was “whether the Board should consider the operation of the RCD Ordinance independently, or in conjunction with, the effect of the private restrictive covenants, when determining if petitioners are entitled to a variance.” In its decision the Board had determined, in effect, that a variance was not justified because the ordinance did not prevent the use of the property for a residential structure. The Board’s finding was based, in part, on the fact that the owner was able to receive a building permit for a residential structure, but was prevented from construction due to enforcement, by nearby residents, of a private front yard set back neighborhood covenant. Thus, the Board reasoned, the RCD restrictions were not the cause of the inability to use the property and a variance was, therefore, not warranted.
The Court did not accept the Board’s analysis. Instead, the Court found that “the plain language of the ordinance” required the Board to “consider the uses available to the owner of the entire zoning lot that includes area within the Resource Conservation District.” The Court said that the ordinance “instructs the Board to consider the actual state in which the property is found—including both its physical and legal conditions . . .” The Court determined that the petitioners were “prevented by the restrictive covenants from constructing a home on the 21.5% of the property that falls outside of the RCD ordinance; as such, they have no reasonable “uses available” to them of that portion of the lot.” A variance from the RCD standards was therefore required, the Court said.
The Court’s determination establishes a binding legal precedent for the interpretation and application of the current language in the Town’s Land Use Management Ordinance. Because under some circumstances in the future, there may be situations in which the Town would want to have a Town land use regulation, enacted to protect the public interest, to have priority over a private land restriction, we believe it would be appropriate to consider modifying this current language in the Land Use Management Ordinance.
For the reason stated above, we will initiate a proposed amendment to the Land Use Management Ordinance intended to clarify if and when private covenants would not be considered as a relevant factor in determining if a variance from Town zoning requirements should be granted. We will schedule a Public Hearing and refer the proposed amendment to the Planning Board for recommendation.
1. Supreme Court Decision (p. 3).