Municipal – Zoning – Special Use Permit – Reduction in Area

Wake Forest Golf & Country Club, Inc. v. Town of Wake Forest (Lawyers Weekly No. 11-07-0638, 14 pp.) (Sanford L. Steelman Jr., J.) Appealed from Wake County Superior Court. (Shannon R. Joseph, J.) N.C. App. Click here for the full-text opinion.

Holding: Where a golf club voluntarily designated its entire golf course as open space in its 1999 Planned Unit Development application and thereafter exercised the right to develop the property in accordance with the special use permit, it was not an abuse of discretion for the local board of commissioners to refuse to consider the country club’s 2009 application to reduce the area covered by the special use permit in order to selectively develop the rest of the property for residential use.

As the country club had no right to require that the board of commissioners consider its 2009 application, it was not entitled to injunctive relief or the issuance of a writ of mandamus.

Discussion

Wake Forest Golf & Country Club, Inc. contends that the Wake Forest Board of Commissioners’ refusal to consider and act on its 2009 application violated N.C. Const. art. I, § 19 and was otherwise unlawful. We disagree.

Under existing law enunciated by our Supreme Court, the Wake Forest Board of Commissioners had the discretion to refuse to process or consider the country club’s application for a modification to the special use permit.

In its second argument, WFGCC contends that it is entitled to a writ of mandamus or a mandatory injunction. We disagree.

It is well-established that ‘a party seeking the writ must have a clear legal right to demand it, and the party to be coerced must be under a positive legal obligation to perform the act sought to be required. The function of the writ is to compel the performance of a ministerial duty – not to establish a legal right, but to enforce one which has been established.

As set forth above, WFGCC has no right to demand that the Board of Commissioners consider its 2009 application.

Affirmed.