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Currituck County loses Shawboro rezoning case

Aerial Photo of Site

station-lane from the Google Maps

Spot Zoning

spot zoning n. a provision in a general plan which benefits a single parcel of land by creating a zone for use just for that parcel and different from the surrounding properties in the area. Example: in a residential neighborhood zoned for single family dwellings with a minimum of 10,000 square feet, the corner service station property is zoned commercial. Spot zoning is not favored, since it smacks of favoritism and usually annoys neighbors. from the Free Dictionary

Shawboro residents prevail in Rezoning fight

by John H. Snowden, III
Publisher / Editor

Currituck, NC ~ Shawboro residents prevailed today, when Superior Court Judge Walter H. Godwin, found the Currituck County Board of Commissioners guilty of “spot zoning”.

At their December 5, 2011 meeting, the Currituck Board of Commissioners voted 6-1 in favor of granting the request of Daniel “Clay” Cartwright to rezone a 1.1 acre tract of land in Shawboro, from Agricultural (A) to Conditional District – Heavy Manufacturing (CD-HM). In his request for rezoning, Cartwright indicated that the proposed use for the property was a recycling and scrap metal facility.

Prior to the hearing at the December 2011 Board of Commissioners meeting, both the Currituck County planning staff and the Currituck County Planning Board had recommended against approval of the rezoning request.

During the 2001 Board of Commissioners meeting, County Attorney, Donald “Ike” McRee, warned members of the Board of Commissioners that should they approve the request, that approval could be considered “spot zoning” (see side bar above left).

The property which was the subject of the rezoning request is located at 128 Station Lane, Shawboro, NC – the former site of a grain storage facility owned by Currituck Grain, of Virginia Beach.

Shawboro residents – neighbors of the tract subject to rezoning – spoke in opposition to request, citing the incompatibility of the Heavy Manufacturing zoning district with surrounding tracts zoned Agricultural and Residential. Opponents also expressed concerns over increased traffic to the site down Station Lane, as well as the potential for increased criminal activity in the residential areas surrounding the parcel.

After hearing of testimony from both sides, former Commissioner J. Owen Etheridge (R, District 4) moved to approve the request. Commissioner S. Paul O’Neal (R, At Large) seconded the motion.

In spite of the planning department staff, and Planning Board recommendations for denial; the County Attorney’s admonition on “spot zoning”; and the surrounding resident’s opposition, the Board of Commissioners voted in favor of approving the rezoning request.

Commissioner Paul Martin (R, At-Large) cast the only vote against the project, stating that he was opposed to junk yards and this was not a good location for one.

On January 25, 2012, Shawboro residents filed a challenge to the rezoning decision issued by the Board of Commissioners in Currituck Superior Court ~ the initial venue for challenges of changes to County Zoning ordinances ~ one week shy of the date by which they could file a challenge to the rezoning.

According to NCGS 1-54.1 the statute of limitations for challenging a rezoning action is “2 months”. The NCGS section outlining the statute of limitation is as follows:

“Within two months an action contesting the validity of any ordinance adopting or amending a zoning map or approving a special use, conditional use, or conditional zoning district rezoning request under Part 3 of Article 18 of Chapter 153A of the General Statutes or Part 3 of Article 19 of Chapter 160A of the General Statutes or other applicable law. Such an action accrues upon adoption of such ordinance or amendment. (1981, c. 705, s. 1; c. 891, s. 4; 1991 (Reg. Sess., 1992), c. 1030, s. 1; 1995 (Reg. Sess., 1996), c. 746, s. 5; 2011-384, s. 2.)”

A group of three Shawboro residents retained the law firm of Currin and Currin Attorneys at Law, from Raleigh, NC to represent them in their case against Currituck County and the Currituck Board of Commissioners.

The case was heard Monday, March 11 before Superior Court Judge Walter H. Godwin in Currituck. Attorney Robin Currin (of Currin and Currin Attorneys at Law) asked Judge Godwin to overturn the rezoning decision made by the Currituck Board of Commissioners in December 2011.

Ike McRee, representing the County of Currituck and the Board of Commissioners asked for summary dismissal of the complaint against the County..

Judge Godwin heard arguments from both sides during the day on Monday and promised to return with a verdict within the week.

A verdict was returned early this afternoon (Friday, March 15) to the parties involved, at approximately 1:45 pm. When contacted regarding the case, Mary Etheridge – one of the plaintiffs from Shawboro – indicated that “it was a good day” and she was relieved that the Judge had found in their favor.

County Attorney McRee and the plaintiff’s attorney Robin Currin were not available for comment.

We will have more details on this case, when Judge Godwin releases his written judgment.

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