Heard in the Court of Appeals November 6, 2013.
Counsel Amended, March 18, 2014.
Warren County. No. 12 CVS 180. Robert H. Hobgood, Judge.
Robinson, Bradshaw & Hinson, P.A., by John H. Carmichael, for petitioner-appellee.
Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for respondents-appellants.
Robinson, Bradshaw & Hinson, P.A., by Mr. John H. Carmichael, Attorney at Law, for petitioner-appellee.
Turrentine Law Firm, PLLC, by Ms. Karlene S. Turrentine, Attorney at Law, for appellant.
DAVIS, Judge. Judge McCULLOUGH concurs. Judge ELMORE dissents by separate opinion.
Appeal by respondents from order entered 13 September 2012 by Judge Robert H. Hobgood in Warren County Superior Court. Heard in the Court of Appeals 6 November 2013.
Warren County and Ken Krulik (" Mr. Krulik" ), in his official capacity as the Warren County Planning and Zoning Administrator (collectively " Respondents" ), appeal from the trial court's order issuing a writ of mandamus in favor of Morningstar Marinas/Eaton Ferry, LLC (" Morningstar" ) in connection with a zoning dispute. After careful review, we affirm the trial court's order.
The facts relevant to this appeal are as follows: Morningstar operates a full-service marina on a 5.03 acre parcel of land (" the Morningstar Property" ) located at 1835 Eaton Ferry Road in Littleton, North Carolina. The Morningstar Property is zoned commercial in the Lakeside Business District under the Warren County Zoning Ordinance (" the Ordinance" ). Its commercial marina offers
wet slips and dry storage for boats and a fuel dock. The Morningstar Property is located off of a small cove of Lake Gaston and is approximately 145 feet across the cove from land owned by East Oaks, LLC (" East Oaks" ). Approximately 8.5 acres of the East Oaks property is zoned residential (" the Residential Property" ) under the Ordinance. Adjacent to the Residential Property is a 1.91 acre parcel of land owned by East Oaks and zoned commercial (" the Commercial Property" ). The Commercial Property is improved with a boat storage building from which East Oaks operates a dry storage facility.
East Oaks filed a petition for a conditional use permit seeking to build 36 townhouses on the Residential Property. In its petition, East Oaks included a site plan for the proposed use showing the townhouses, roads, and a drive (" the Drive" ) that connects the Commercial Property and the Residential Property. The record indicates that the Drive was to be used for the purpose of transporting boats from the dry storage facility located on the Commercial Property to the boat launch area located on the Residential Property.
Before the Warren County Board of Adjustment (" BOA" ) ruled on East Oaks' petition for a conditional use permit, Mr. Krulik reviewed the Ordinance and issued a formal determination on 21 April 2011 (" the 21 April Determination" ), finding that townhouses were a permitted use in a residential district as a single-family dwelling. As such, East Oaks withdrew its application for the conditional use permit and secured a standard zoning permit to begin construction.
Morningstar appealed the 21 April Determination to the BOA, asserting that neither the townhouses nor the Drive portions of East Oaks' site plan were permitted under the Ordinance. Because the 21 April Determination did not expressly address the Drive portion of East Oaks' site plan, on 12 May 2011, Morningstar requested that Mr. Krulik issue a formal determination as to whether East Oaks' proposed use of the Drive would constitute a commercial use of the Residential Property in violation of the Ordinance. In an email dated 10 June 2011, Mr. Krulik responded, " I am not going to make a determination on this . . . . [because] it is not a relevant issue to my determination on townhouses as a permitted use or issuing the zoning permit."
On 15 August 2011, the BOA heard Morningstar's appeal and voted unanimously to reverse the 21 April Determination and to revoke East Oaks' zoning permit. On 12 September 2011, East Oaks filed a petition for writ of certiorari in Warren County Superior Court seeking judicial review of the BOA's decision reversing the 21 April Determination. On 14 October 2011, the Honorable Robert H. Hobgood entered a consent order whereby East Oaks and Warren County agreed to reinstate East Oaks' zoning permit and adopt Mr. Krulik's interpretation of the Ordinance so as to allow East Oaks to develop the property pursuant to its site plan. Morningstar was not a party to the consent order, and the trial court concluded as a matter of law that " Morningstar is not a 'person ...