ZONING – COMPREHENSIVE PLAN: MORRIS V. CARTER (COA 8/10/2007)

MORRIS V. CARTER
ZONING:  COMPREHENSIVE PLAN
2006-CA-000733
PUBLISHED: REVERSING
PANEL: WINE PRESIDING; COMBS AND NICKELL CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 8/10/2007

In 2002, the Morrises sought a zoning amendment for their entire property to allow for four lots per acre (“RB” zoning) (“2002 Amendment”). The Franklin County Planning Commission recommended denial of the application, and the Fiscal Court denied it in part because of plans to widen the highway in front of the property and the lack of sewer availability.

The Morrises sought a second zoning amendment in 2003 (“2003 Amendment”) asking to re-zone only a portion of its property to RB. The Planning Commission held a public hearing in which there was testimony that the widening of the highway was completed, the property was an example of infill because the area around it was already developed RB, there was a shortage of single-family lots with sewers in the county and sewers had been put into service in the area. After the hearing, the Planning Commission again recommended denial. However, the Fiscal Court approved the proposed 2003 Amendment to RB.

Neighboring property owners appealed. The circuit court reversed the zoning change approval. Although the circuit court rejected the argument that the 2003 Amendment was barred by res judicata or collateral estoppel due to the denial of the 2002 Amendment, it held that the Fiscal Court’s findings when approving the 2003 Amendment were not supported by substantial evidence because there was no evidence that the amendment agreed with the Comprehensive Plan, that there were changes in the area not anticipated by the Comprehensive Plan or that the existing zoning was no longer appropriate.

The Morrises and the Fiscal Court appealed. The court of appeals agreed with the circuit court that the 2003 Amendment was not barred by collateral estoppel or res judicata based on the denial of the 2002 Amendment. The court ultimately reversed the circuit court, however, finding that there was substantial evidence supporting the Fiscal Court’s approval of the 2003 Amendment. Specifically, the court found that the circuit court improperly considered the reasons for denial of the 2002 Amendment in determining whether the findings supporting the 2003 Amendment were supported by substantial evidence because the earlier findings were not binding on the Fiscal Court. The court stated that while there was evidence against allowing the zoning amendment, when viewed as a whole, the evidence supported the Fiscal Court’s decision.

Digested by Sam Hinkle

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