It seems like a small business owner’s worst nightmare: Learn that you have lost the ability to use part of your property for your business based on a change of zoning boundaries — and government officials say no copies of the zoning maps exist. Yet that’s exactly the situation a Macon County property owner faced until the state’s second-highest court intervened.
John Shearl runs J&J Lawn and Landscape on property he bought in 1993 off N.C. 28 in Highlands. His company uses two buildings on the property, a shop building near the road and a storage building further back.
On Aug. 19, 2009, the town of Highlands issued a zoning violation notice to Shearl, saying he was making commercial use of a building on property zoned as residential.
In that part of Highlands, zoning designations are set based on the distance from the center of N.C. 28. Shearl’s property has split zoning, with the front portion zoned commercial and the rear portion residential. In the 1980s, the demarcation line between commercial and residential zoning was 230 feet from the center of the highway. The town later rezoned the area and moved the demarcation line to 150 feet from the center of the highway. While Shearl’s shop building clearly is on the part of the property zoned commercial, the storage building is between 150 and 230 feet from the middle of the highway and affected by the zoning change.
Before the town’s Zoning Board of Adjustment, Shearl argued that his commercial use of the storage building was a legal nonconforming use, and that he should be allowed to use the storage building for his business because he was using it as such when the zoning line was moved. After the board and a Superior Court judge ruled against him, Shearl renewed his claim at the N.C. Court of Appeals.
Ordinarily, a property owner bears the burden of establishing the existence of a legal nonconforming use. But the appeals court ruled that standard should not apply in this case.
“Given the unique factual circumstances presented here, we hold that [the town] bears the burden of proving that petitioner’s zoning violation dates back to petitioner’s purchase of the property,” wrote Judge Robert N. Hunter Jr. for the court.
“Because the burden was inappropriately placed on Petitioner, we vacate the superior court’s order and remand this matter for a new hearing.”
The “unique factual circumstances” Hunter referred to surround changes Highlands made in 1990 to its zoning scheme. The town claims it moved the zoning line in 1990 — three years before Shearl bought the property, so he could not claim the building as a nonconforming use. But the town also admitted that it has lost all copies of the 1990 map.
“We believe that where, as here, a town fails to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy is to place the burden back on the town to establish the location and classification of zoning districts when the landowner began his or her nonconforming use,” wrote Hunter.
The appeals court made clear that the town now faces a high burden to prove that it moved the demarcation line in 1990, given that the best evidence to show such a move no longer exists.
“Respondent must produce such evidence on remand establishing that the line was at 150 feet when Petitioner began his commercial use of the storage building,” Hunter wrote. “Otherwise, it must be presumed that petitioner has a legal nonconforming use given the absence of any evidence tending to show that petitioner’s building is within the earlier 230-foot demarcation line.”
Court of Appeals decisions are binding interpretations of state law unless overruled by the N.C. Supreme Court. If a similar case arose challenging a local government’s zoning authority and the locality had lost its maps, the locality would have the burden of providing other evidence.
The case is Shearl v. Town of Highlands, (14-113).
Michael Lowrey is an associate editor of Carolina Journal.