Agenda - 03-10-1987 - Laserfiche WebLink

Browse Search

2 has a similar provision -- Article 1, Section 19 says that no person shall be denied equal protection of the laws. Article 1, Section 32 states that no person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public service. There is no public service involved which would exempt family members from dimensional requirements of the Ordinance. Therefore, there is a likelihood that any exemption for family members would likewise violate the North Carolina Constitution. The enabling legislation which allows counties to zone is contained in Chapter 153A of the North Carolina General Statutes. There are two sections - (1) Grant of Power - which allows the County, for the purpose of promoting health, safety, morals or the general welfare to regulate the height and the number of stories, the percentage of 9 the lot that may be occupied, lot sizes and densities, etc. (2) Purposes - zoning regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers, to promote health and the general welfare, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population, and to facilitate the adequate provision of transportation, water, sewer, schools, parks and other public requirements. None of these purposes have anything to do with ownership of the property. Therefore any classification of property in regard to ownership would be beyond the authority of the County. The Supreme Court of North Carolina has expressed concern with legislation that would have the same effect as this proposed exemption for family members in a number of ways. One of the limitations on zoning restrictions is that they cannot create zoning districts which are not consistent with the comprehensive plan. An example of this limitation is known as the prohibition of spot zoning. Spot zoning would be the result of such an exemption and would very probably be invalidated by the courts. The theory behind the limitation on spot zoning is that the decision to so zone is arbitrary and not based on the general purposes of the zoning enabling legislation. Gledhill continued that the problem is that there would be no legal reasonable basis for distinguishing between the property that would be owned by the family members and the property owned by other people. For this reason, he recommended to the Board that they not create this special family exemption. Commissioner Willhoit asked about similar prohibition against exempting minor subdivisions from these provisions since they are exempt from other aspects of the Ordinance. Gledhill responded that minor subdivisions under the County Sub- division regulations are subject to all the substantive provisions of major subdivisions. The difference between minor and major subdivisions is the process. They are required to meet all the same standards. In answer to a question from Council Member Julie Andresen, Gledhill stated that he did not have enough information or background on the Chesapeake County, Maryland case to comment as to whether or not it would be subject to a federal constitutional attack. The risk is that the people who will complain will not be the family members but those who wish to develop the property in higher density who would complain of unfair treatment. Chair Marshall assured the public that even though a few lots are 1 rsor