CRLP Durham, LP v. Durham City/County Board of Adjustment
210 N.C. App. 203
| N.C. Ct. App. | 2011Background
- Ellis Road, LLC owns a 42.76-acre parcel on Ellis Road; CRLP Durham, LP owns an adjoining 28.21-acre parcel.
- Ellis Road filed a site plan in 2007 seeking 344 apartment units and a cross-access connection to petitioner's property.
- Planning Department found the cross-access was a required element of the development plan and that it should be usable without restrictions.
- An Access Agreement limited the cross-access to office use only; petitioner purchased its parcel in 2005 after an apartment complex had been constructed.
- The Board affirmed the Planning Department; petitioner sought certiorari in Superior Court, which denied relief; petitioner appeals and the record raises questions about which zoning ordinance applies (MZO vs UDO) to the 2000 development plan.
- Due to the record lacking clear evidence of which ordinance superseded the other, the appellate court dismissed the petition for lack of a proper legal framework to decide the issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable ordinance governing the cross-access issue | Petitioner argues MZO governs; UDO may supplant but record incomplete | Board applied UDO as the controlling ordinance | Dismissed appeal for lack of record to determine applicable ordinance. |
| Whether the Board erred in interpreting the development plan | Development plan allows cross-access without unrestricted office-use limitation | Access Agreement restricting to office use is a major deviation needing Board approval | Not reached due to dismissal; court cannot determine applicable law. |
| Whether the cross-access restriction constitutes an improper deviation from the plan | Restriction contradicts the development plan’s scope | Restriction could be compatible with zoning but inconsistent with plan | Not reached; record insufficient to resolve under proper ordinance. |
| Whether the superior court properly reviewed the Board's decision | Petitioner challenges legal errors in Board’s interpretation | Board acted within lawful discretion | Not reached; appeal dismissed for lack of a proper legal framework. |
Key Cases Cited
- Overton v. Camden County, 155 N.C.App. 391, 574 S.E.2d 157 (2002) (designates applicable ordinance when a newer ordinance supersedes the old one; time-of-decision controlling)
- Wright v. Town of Matthews, 177 N.C.App. 1, 627 S.E.2d 650 (2006) (scope of judicial review of board decisions; whole-record review)
- Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368 (1953) (cannot take judicial notice of municipal ordinances; record completeness required)
- High Point Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892 (1965) (appellate review restricted to record on appeal)