Building setbacks at issue in Court of Appeals cases

By PAUL THARP, Staff Writer

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The future of one pricey Charlotte property is uncertain after a Court of Appeals reversal involving building setbacks.

In another case, a neighbor upset with what he saw as the excessive height of his neighbor’s house will have to live with his frustrations.

The first case involved setbacks in deed restrictions, while the second involved setbacks in zoning ordinances.

“We have two levels of setbacks,” said Charlotte attorney Roy H. Michaux of K&L Gates, who represented the defendants in Irby v. Freese (Lawyers Weekly No. 10-07-795, 13 pp.).

In that case a Myers Park couple sought to enforce setback restrictions against a neighbor who constructed a half-million-dollar addition on her home in violation of front and side setback lines.

At the time the setbacks and other restrictions were imposed by deed in 1915, Michaux said, “we didn’t have zoning. It was an attempt to have uniformity in a subdivision. Back then that was about the only way to do it.”

The second and more recent type of restrictions are zoning ordinances, Michaux said. Those were featured in the second Court of Appeals case – Meier v. City of Charlotte (Lawyers Weekly No. 10-07-799, 17 pp.).

In that case the city of Charlotte withheld an occupancy permit to a developer who constructed a 50-foot-tall dwelling that was alleged to be in violation of zoning ordinances.

When a concerned neighbor brought the development to the attention of the zoning administrator, the zoning administrator issued a letter indicating that the dwelling would be in compliance with local ordinances as long as rear and side setback lines were extended.

When the neighbor later appealed to the board of adjustment, the board held that it did not have jurisdiction to hear the case because the neighbor’s appeal was brought more than 30 days after the letter issued by the zoning administrator.

Reversing a Mecklenburg County trial court, the Court of Appeals on Aug. 17 upheld the board’s decision and effectively ended the neighbor’s suit.

The Irby case demonstrates that the consequences of setback-line violations can be devastating, while the Meier case shows that builders can rely on initial determinations of zoning administrators, assuming the final product mirrors the plan upon which a zoning administrator bases his or her determination.

Charlotte attorney Kenneth T. Davies, who represented the plaintiffs in Irby, said the remedy for violation of the setback lines in Myers Park “is to comply with the deed restrictions.”

That will entail demolition of the part of the residence that crosses the front and side setback lines, he said. “It’s unfortunate for the property owners.”

Michaux agreed. “I am very disappointed. This was a totally unintentional violation, and I am not aware that [the property owners] would have any recourse against anyone else.”

That means they will have to demolish the $500,000 addition at their own expense.

Recurring issues

Davies said issues over setbacks and other restrictions are frequent in neighborhoods like Myers Park.

“Over the past two decades there has been tremendous pressure to build houses bigger and higher. That maximizes the investment for the builder as well as the homeowner,” he said.

He added that the addition in the Irby case “went up so quickly that by the time the Irbys sought to deal with it, there was nothing else to do but file suit.”

The kind of building pressure Davies referenced may have pushed the dwelling in nearby Dilworth at issue in the Meier case to heights that made neighbors uncomfortable.

“The builder was aware of the concerns about the house’s height,” said John H. Carmichael of K&L Gates, who represented the city of Charlotte.

“The zoning administrator made a determination, however, that if the structure was built according to its plan, it would comply with applicable zoning ordinances,” he said.

After the structure had been built the city requested a sealed survey proving that the actual structure mirrored the building plans. It did.

By the time the neighbor appealed the zoning administrator’s initial determination, more than 30 days had passed, so the board of adjustments did not have jurisdiction to hear his appeal.

“Once those 30 days are up the builder gets to rely on that, and that makes sense,” Carmichael said. “If the zoning administrator’s determination could be reversed at any time, we would be seeing a lot of houses torn down because of decision reversals.”

OPINION BRIEF

Case name: Irby v. Freese

Court: N.C. Court of Appeals

Judges: Judge Linda Stephens; Judges Ann Marie Calabria and Martha A. Geer, concurring

Date: Aug. 17, 2010

Plaintiff-appellant’s attorney: Kenneth T. Davies (Charlotte)

Defendant-appellee’s attorneys: Roy H. Michaux of K&L Gates (Charlotte)

Issues: Were the plaintiffs barred by the doctrine of laches from seeking to enjoin the construction of an addition to the defendant’s dwelling that was allegedly in violation of building setback restrictions?

Holding: No, considering the facts and circumstances of this case, the plaintiffs brought their action to enjoin construction of the addition to the dwelling in a timely manner, and were not barred by the doctrine of laches.

Noteworthy: A Charlotte homeowner may have to destroy a $500,000 addition because it violates building setbacks.

OPINION BRIEF

Case name: Meier v. City of Charlotte

Court: N.C. Court of Appeals

Judges: Judge Sam Ervin IV; Judges Barbara Jackson and Robert N. Hunter Jr., concurring

Date: Aug. 17, 2010

Plaintiff-appellant’s attorney: Ronald A. Skufca of Moretz & Skufca (Charlotte)

Defendant-appellee’s attorneys: Collin W. Brown and John H. Carmichael, both  of K&L Gates (Charlotte)

Issue: Did the local board of adjustment have jurisdiction to hear an appeal of a denial of a certificate of occupancy where a property owner’s dwelling allegedly violated a building setback ordinance?

Holding: No, because the zoning administrator’s decision was not appealed within 30 days, the board of adjustment did not have jurisdiction to hear the appeal.

Noteworthy: A neighbor will have to live with frustrations over 50-foot-tall house.