Real Estate & Property Law

Zoning Can Regulate Use Of Property, Not Ownership

By Robert Thomas (inversecondemnation.com)

A noteworthy case from the North Carolina Court of Appeals about the limits Euclidean zoning.  Although the decision was issued in March 2008, it seems no one else has posted on the case, so we will. 

In City of Wilmington v. Broadus, 657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a local ordinance that required the owner of a garage apartment to reside either in the main residence or the apartment.  When his permit to build a garage apartment was denied and he was cited for violation of the ordinance, the property owner asserted the owner-occupancy requirement was an unconstitutional regulation of his ownership of the property.

Relying on Graham Court Assoc. v. Town of Chapel Hill, 281 S.E.2d 418 (N.C. Ct. App. 1981), the court held that while the zoning power extends to regulating the use of property, it does not allow the government to control "the manner in which property is owned."  In that case, the court held that the government had no legitimate reason to deny a permit to convert an apartment complex from unitary ownership to condominiums in a zoning district where multi-family residential use was an allowable use, because "[t]he change in ownership from a single owner to multiple owners did not alter the property's character as to multi-family residential use." 

The Broadus court applied that rule to the owner-occupancy requirement for garage apartments, and held the requirement had "no foundation in reason and bears no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense."  The court declined to follow Anderson v. Provo City Corp., 108 P.3d 701, 706 (Utah 2005) and  Kasper v. Town of Brookhaven, 142 A.D.2d 213, 220-21 (N.Y. 1988), which upheld owner-occupancy requirements from constitutional challenges.  The court noted these decisions are from other jurisdictions and it had no obligation to follow them, especially in light of the Graham Court rule:

In the instant case, the property in question is located in a district that is zoned for single-family residences; however, garage apartments are permitted as an accessory use, incidental and subordinate to the principal use as a single-family residence. See WLDC § 18-179 (2005). Garage apartments also are allowed in certain multi-family districts in connection with conforming single-family residences within the district. See WLDC § 18-285 (2005). Plaintiff only is entitled to regulate the use of defendant's single-family residence with the accessory use of a garage apartment, not the ownership.

(emphasis original).  Thanks to my Damon Key colleague Greg Kugle for sending this case my way.

Full post as published by inversecondemnation on July 25, 2008 (boomark / email).