Municipal – Zoning – Conflict of Interest – Hearing – Variance – Neighboring Nonconforming Use

Harbor Baptist Church v. City of Charlotte. (Lawyers Weekly No. 10-16-0778, 11 pp.) (Rick Elmore, J.) Appealed from Mecklenburg County Superior Court. (Robert C. Ervin, J.) N.C. App. Unpub.

Holding: The defendant-city’s zoning board of adjustment (ZBA) discussed both ZBA member Davis’ ex parte conversations and his working relationship with a member of the applicant’s board of directors. Contrary to plaintiff’s argument, the ZBA’s decision was not made in ignorance of the fact that ZBA member Davis was a co-worker of one of the applicant’s directors.

We affirm the superior court order upholding the ZBA’s issuance of a variance to applicant Center for Community Transitions, Inc. (CCT).

CCT bought a two-acre tract situated between the plaintiff-church and a mobile home park. CCT bought the property to use as a halfway house for women.

Under the defendant-city’s zoning ordinance, a halfway house may not be located next to property that is zoned residential. The mobile home park is zoned industrial, but it pre-existed the zoning ordinance and remains in operation as a nonconforming use.

The building on CCT’s property is only 42 feet from structures in the mobile home park. The zoning ordinance requires 100 feet between a halfway house and a residence. CCT sought a variance of 58 feet.

The plaintiff-church opposed CCT’s application for a variance. At the hearing on the application, ZBA member Jeffrey Davis revealed that he had had ex parte conversations with

Jay Ashendorf. Davis also revealed that the two men worked together.

It was after disclosure of both the ex parte communications and the working relationship between Davis and Ashendorf, that someone from the audience at the hearing voiced his or her objection to Davis participating in the vote. Thus, when the board members discussed whether Davis should recuse himself from the board for this case, they did so in consideration of all of Davis’s disclosures leading up to the objection – both the ex parte communications and the working relationship with Ashendorf.

Each panel member had an opportunity to voice concern over Davis’s presence on the panel, and did so in front of ZBA’s counsel. The members of ZBA were unanimous in their desire for Davis to remain on the panel. As the panel followed the procedure specified by G.S. § 160A-388(e1), Davis’s presence on the panel did not deny the church its constitutional right to an impartial decision maker.

The ZBA’s finding of fact 9 establishes that the existence of the residential use of the mobile home park in the abutting lot, although zoned for industrial use, would create practical difficulties and unnecessary hardships if the ordinance were strictly applied, due to the fact that CCT cannot use the property in its current state in a manner that would be allowed if the use in the abutting lot were conforming. The only reason that CCT’s existing building does not meet the setback requirements is because of the neighboring property’s non-conforming use as a mobile home park. These facts satisfy the requirements of Charlotte Code § 5.108(1)(a).

Finding of fact 10 establishes that the hardship suffered by CCT is a result of the non-conforming use of the adjoining property, not actions of either CCT or the previous owner. The hardship is also particular to the property in question and not shared by other properties in the neighborhood because of the location of the non-conforming mobile home park. As discussed during the hearing, if the mobile home park ceased to operate in a residential manner, the property and the building would immediately be available to CCT for its desired use.

Finding of fact 10 also addresses whether CCT was prevented from securing a reasonable use of the property. During its deliberation, the ZBA stated that it was unreasonable for a property owner to have to move a building 20 feet to comply with a requirement that could cease to be a requirement if and when the mobile home park ceased to exist. These facts satisfy the requirements set out in code § 5.108(3).

Findings of fact 11 and 12 address the adherence to the “spirit of these regulations” as well as the maintenance of public safety and welfare as required by § 5.108(1)(b)-(c) manifested by the ZBA’s insistence that the project include a fence and landscaping buffer.

The challenged findings of fact are based on credible and competent evidence; furthermore, the challenged conclusions of law are supported by the findings of fact.

Affirmed.