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Re-Zoning Out
by Ron Davis

The proximity of two shopping centers has doomed plans of two North Carolina property owners to build a retail furniture store nearby. The shopping centers, located in the town of Cary, are Centrum Center and Crossroads Plaza, both of whom attract a lot of traffic to their location. And traffic was a big factor that Cary town council members considered when the neighboring property owners applied for the zoning change they needed to build their store.

Their property, zoned for low-density residential uses, has to change to a business-commercial designation before they can build their store. They therefore appealed to town officials to make the change. In doing so, they pointed out that the property would be used only for a furniture store, the store would be no larger than 19,000 square feet, and the store would generate only about 50 additional car trips per day to the area.

The timing could not have been worse for the two property owners. At the time of their rezoning application, Cary’s town council was considering a plan to manage traffic in the area surrounding the two shopping centers. Council members ultimately decided to restrict additional commercial development there.

Despite their concerns about traffic congestion, however, they approved a rezoning application by the owner of a Ford dealership in that area so that the dealership could build a storage facility. Yet council members denied the two property owners’ request for a zoning change for the furniture store.

The property owners appealed to the courts, contending that council members had acted arbitrarily and capriciously in their decision to deny them a zoning change.

A North Carolina court refused to overturn the town council decision, explaining, “The record reveals a plausible basis for the zoning decision that had a basis in reason and bore a substantial relation to public safety. This court is not free to substitute its judgment for that of the town council. That’s because the courts may not interfere with or control a municipality’s zoning power or direct zoning laws to be repealed, enacted, or amended.” (Ashby v. Town of Cary, 588 S.E.2d 572)

Decision: December 2003
Published: February 2003
Decision: October 2003 Published: January 2004



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