Heard in the Court of Appeals May 22, 2014.
Macon County. No. 12 CVS 653.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Craig D. JustusMr., for petitioner-appellant.
Coward, Hicks, & Siler, P.A., by Bonnie J. ClaxtonMs., for respondent-appellee.
Coward, Hicks, & Siler, P.A., by Mr. James K. Coward, Jr., Primary Attorney, Attorney at Law, for respondent-appellee.
Robert N. HUNTER, JR., Judge. Judges ERVIN and DAVIS concur.
Appeal by petitioner from order entered 5 September
2013 by Judge James U. Downs in Macon County Superior Court.
HUNTER, JR., Robert N., Judge.
John Shearl (" Petitioner" ) appeals fro an order of the Macon County Superior Court affirming a zoning decision by the Town of Highlands Zoning Board of Adjustment (" the BOA" ). The BOA's decision concluded that Petitioner was making commercial use of property located in a residential zone in violation of the local zoning ordinance. On appeal to this Court, Petitioner contends that the Superior Court erred by concluding that the evidence established the existence of a zoning violation when the notice of violation was issued. In the alternative, Petitioner contends that the Superior Court erred by determining that he had the burden of proving that his nonconforming use was grandfathered in under the terms of the zoning ordinance given that the Town of Highlands (" Respondent" ) has lost an official zoning map crucial to his defense. Given the unique factual circumstances presented here, we hold that Respondent bears the burden of proving that Petitioner's zoning violation dates back to Petitioner's purchase of the property. Because the burden was inappropriately placed on Petitioner, we vacate the superior court's order and remand this matter for a new hearing consistent with this opinion.
I. Factual & Procedural History
Petitioner owns property directly off Highway 28 in Highlands, on which he operates a business entitled, " J& J Lawn and Landscape." On 19 August 2009, Respondent issued a zoning violation notice to Petitioner, which stated that he was making commercial use of property zoned for residential use. Petitioner promptly appealed to the BOA, which heard Petitioner's case at two separate hearings on 14 October 2009 and 4 November 2009. Evidence presented at the hearings tended to show the following.
Petitioner purchased the subject property in November of 1993. Prior to Petitioner's purchase, in 1983, Respondent split-zoned the property for commercial and residential use. The front portion of the property, which measured 230 feet from the centerline of Highway 28, was zoned for business or commercial use. The rear of the property, i.e., 230 feet and beyond, was zoned for residential use. An official zoning map, current through 1988, was admitted at the BOA hearings and reflects the 230-foot line demarcating the two zones.
In 1990, Respondent made comprehensive changes to the town's zoning ordinance for the purpose of reducing strip commercial development. As a result, zoning categories changed and a new zoning map was adopted. Respondent contended that at this time, the demarcation line between the commercial and residential zone on the subject property was moved from 230 feet to 150 feet from the centerline of Highway 28. However, the official map adopted in connection with the 1990 zoning changes was not admitted into evidence and, by Respondent's own ...