Tuesday, July 06, 2004

It never really pays to be tooo tricky

In this opinion, the 5th overturned a Circuit Court quashal of a decision by the Orange County Board of Commissioners (sitting in a review capacity?) that upheld a BZA opinion upholding the Zoning Director's determination that a landowner's mess wasn't a grandfathered non-conforming "race car repair" operation, but a junkyard.

Bad facts. The landowners had been cited for operating a junkyard. They tried through the determination process to become a non-conforming race car facility and it was this determination that was denied. We don't know from the 5th's opinion -- but it looks like the circuit court bought the idea - that it wasn't inconsistent for there to be a junkyard (impermissible) AND a non-conforming race car repair facility.

5th bought Orange County's view that because there was CSE to support the Board in determining that there was a junkyard operation, the Board was justified in rejection the contention that there was (also?) a race car operation.

What's really interesting is that we don't know if EITHER the Circuit Court or the 5th examined Orange County's processes. The Board's decision was characterized as being quasi-judicial, but was it a de novo type process or a quasi-appellate process based on the record before the BZA? And if the latter, was there any appropriate finding that the record and decision below was truly adequate for review? I promise that we'll see more of this, because a LOT of commissions seems to be taking on quasi=appellate roles over local administrative decisions.


  1. Anonymous10:20 AM

    Even though this was an appeal of the Board of Zoning Adjustment's upholding of a Zoning Manager's determination, the Board of County Commissioners' public hearing is de novo under the Orange County Code. The BZA and the Planning and Zoning Commission are advisory boards under the Orange County Code; the final decision is made by the BCC.
    Vivien Monaco, Assistant County Attorney

  2. Anonymous11:24 AM

    What is interesting about this case is the fact that the code enforcement board found the property owner in violation of the code for extensive auto repairs. However, when the property owner sought a non-conforming use determination based on the fact that her late husband and five sons had been continuously repairing their own race cars since the 1950's, there was suddenly no evidence of any race car repair (leaving one to wonder how the code enforcement board could have found a violation if there was no evidence). The issue was not whether the alleged "junkyard" was a valid non-conforming use, but whether the property owner could continue to repair race cars on the property based on the continuous use of the property for that purpose prior to the effective date of the code. In any event, it appears that this case could harm future property owners who are seeking non-conforming use determinations.