Shearl v. Town of Highlands
236 N.C. App. 113
| N.C. Ct. App. | 2014Background
- Petitioner John Shearl owns property on Highway 28 in Highlands, used for J&J Lawn and Landscape, with a 1993 purchase and prior split-zoning in 1983 between 230 ft commercial front and 230 ft residential rear; a 1990 zoning overhaul allegedly moved the line to 150 ft, but the 1990 official map was lost and only a plat map suggests the change; a zoning violation notice was issued on 19 August 2009 alleging commercial use in a residential zone; the Highlands BOA conducted two hearings in 2009 and denied relief, upholding the violation; the Superior Court affirmed the BOA, holding substantial evidence supported the violation and that Petitioner did not have a grandfathered nonconforming use; the record on appeal is incomplete due to lost maps, hindering proof of the line’s location; the Court holds that the Town bears the burden of proving the line’s location when nonconforming use began, and remands for new proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears burden to prove zoning line location at start of nonconforming use | Shearl argues the Town failed to prove the line location and improperly shifted burden to him | Town contends Petitioner must prove nonconforming use and line location | Burden improperly placed on Petitioner; remand for new hearing |
| Whether Petitioner’s storage-building use was a legal nonconforming use given lost official maps | Petitioner relies on 1993 line at 230 ft to support grandfathered use under §110(A) | Town must prove current violation and line location; missing maps complicate proof | Remand to allow Town to prove current violation and line location; Petitioner may rebut |
Key Cases Cited
- City of Winston-Salem v. Hoots Concrete Co., Inc., 47 N.C. App. 405 (1980) (burden of proving violation rests with city, with defense burden to prove defenses)
- Lamar Outdoor Adver., Inc. v. City of Hendersonville Zoning Bd. of Adjustment, 155 N.C. App. 516 (2002) (whole-record review; substantial evidence standard; de novo for legal questions)
- First Gaston Bank of N.C. v. City of Hickory, 203 N.C. App. 195 (2010) (record completeness and appellate record duties)