BOA minutes 101016 - Laserfiche WebLink

Browse Search

Approved 12/12/16 OC Board of Adjustment – 10/10/16 Page 91 of 113 Counties as well have no legal power to refuse a building permit for a cause assigned, even if they had 1 grounds to believing such a cause exists, the law declares that it’s the right of the applicant to erect the 2 building for which the permit is sought as otherwise absolute. It is no ground of denial of the permit or 3 mandate to compel its issuance that the applicant intends to put a building when erected to an improper 4 use. The question as to legality of the alleged intended use must await determination and proper 5 proceedings. After such use is attempted to be made use of the building. So to try and analyze and look 6 behind and dig into facts at this stage, when it’s still being planned and worked out and evolving, is an 7 advisory decision. They have an absolute right to construct a barn on their property and what the barn 8 looks like, how it’s built… If Bill Gate buys the farm, some land, and starts trying to do agriculture he can 9 put a taj mahal barn on it if he wants to. Until that barn starts getting used in a way that is non-farm he is 10 permitted to build that barn. And that’s what we’re talking about today. A building permit that was issued 11 without being subject to zoning. So my first submission to this Board is that you lack the jurisdiction at this 12 point to make a decision as to future uses on this site. It is clear, both in Ms. Brewer’s affidavit and in the 13 email, which is being appealed, that the County will continue to assess the uses that are occurring on that 14 property. Turning to the estoppel argument. Ms. Brown raised the Marsh case. I would submit first of all, 15 there is a jurisdictional issue here as well in that… The power to rule on estoppel claim is an equitable 16 power that this Board does not have. 17 18 Barry Katz: Equitable? 19 20 Andy Petesch: An equitable power. 21 22 Barry Katz: Court? 23 24 Andy Petesch: Yes. That is conferred on our trial courts but the authority of this Board is set out in (North 25 Carolina General Statute) 160a-388. Again, made applicable to counties through a separate statute. And 26 that is your powers are to rule on SUP, Conditional Use Permits, variances, and appeals from staff 27 determinations. From final and binding determinations. It does not include ruling on an estoppel claim. That 28 aside, Ms. Brown’s heavy reliance on the Marsh case communicated that the facts were very similar and it 29 should apply here are misplaced. In Marsh what happened is that the gentleman had some land, he was 30 doing some farming on it, he wanted to run a rodeo. He wanted to have rodeo events. And he applied for a 31 SUP and he was granted that SUP. The conditions included, among other, he would only have 1 access, 32 not two accesses to the rodeo events and that he would only have 4 rodeos a year. He violated. He 33 exceeded the 4-rodeo limit and then also created a second access. So the jurisdiction then issued notices 34 of violation and then the staff went to the Board Of Adjustment on their own and requested that the SUP be 35 revoked. The Board of Adjustment then did revoke the SUP and then the owner appealed that to Superior 36 Court and in their appeal he had spent all 5 pages of his brief arguing and claiming the reason why 37 inaudible shouldn’t matter is that he was exempt under 153a-340. And then the Superior Court ruled 38 against him, affirmed the revocation and in doing so said one of the basises was that he was estopped 39 because he had been granted a SUP and now he was challenges that approval. Something that he had 40 received. And so he did not appeal that decision. So he went on to continue to operate rodeos. He was 41 issued additional notice of violations, he appealed that and it went on to the Superior Court. They held that 42 because he did not appeal that he had his chance, made his argument about the exemption, and then 43 didn’t appeal that and then couldn’t come back and claim the exemption again. That’s not at all what 44 happened here. There was no approval granted in the beginning. And in the process Ms. Brewer never 45 tried to challenge the fact that… She never raised the exemption issue. In fact, when she asked for the 46 exemption to be approved and to be able to go forward under the exemption it was granted by staff. She’s 47 not been issued any notice of violations. So for estoppel to apply, especially they type of estoppel called 48 collateral estoppel that was identified by the Court in Marsh, this issue that you’re trying to be estopped 49