c060605Closed Session — June 6, 2005
At 5:48 p.m. the Board adjourned to closed session to consult with our attorney to consider and give
instructions concerning a judicial action titled Maxton McDowell, Wanda McDowell, Claude Winslow,
Barbara Winslow vs. Randolph county and McDowell Lumber Company, Inc. pursuant to NCGS 143-
318(a)(3). Commissioners Holmes, Kemp, Frye, Lanier, and Davis were present, as well as County
Manager Frank Willis, County Attorney Alan Pugh, Associate County Attorney Aimee Scotton,
Planning Director Hal Johnson, Deputy Finance Officer Will Massie, Clerk to the Board Alice Dawson
and Deputy Clerk to the Board Cheryl Ivey.
Alan Pugh said that the Plaintiffs had amended their complaint to include the Board of
Commissioners' decision on May 2, 2005 to change the zoning district classification of the McDowell
Lumber property to a Heavy Industrial/Conditional Use District.
Mr. Pugh distributed copies of the County's answer (filed June 3, 2005) to the amended complaint
and briefed the Board on its contents. He said that the County's response is derived from the old
common law version of a statute of limitations or "laches," such that the plaintiffs lived adjacent to
defendant McDowell Lumber Company and its operations for more than 20 years prior to their initiation
of this lawsuit and never lodged a formal complaint. Moreover, one plaintiff has sat on the County
Planning Board since its inception and did nothing. According to the doctrine of "laches," the plaintiffs
have sat on their rights too long.
The complaint also states that the Board of Commissioners committed procedural errors during the
process by which it conducted the conditional use rezoning as if it were a purely legislative act. The
County's response is the "conditional use" designation on an application for an
y rezoning request
within the jurisdiction of the County of Randolph is a voluntary act by any applicant to offer and add
additional restrictions which the applicant requests be imposed on the use and zoning classification of
the applicant's property for the purpose of protecting, enhancing, and making more compatible the use
of the applicant's real property with that of adjacent land owners and the community in general.
Applicants for a change in their zoning classification within the County of Randolph are free to apply
for a rezoning classification without any conditions ("straight" rezoning), or zoning with additional
conditions not required by the Unified Development Ordinance in that type of zone ("conditional use "
rezoning) which conditions they voluntarily offer to be imposed on their property as an additional factor
to be considered by the Board of County Commissioners in making its legislative decision on the
request. This method of `conditional use' modification of "straight" rezoning applications has been
expressly approved by the Supreme Court of N.C. as a salutary tool providing for the practical
application of land use regulations particularly in large jurisdictional areas more rural or mixed in use
than traditional urbanized settings which have historically been the subject of municipal zoning
ordinances, and to ameliorate the traditional strictures as to "contract zoning" and "spot zoning. "
On motion of Davis, seconded by Kemp, the Board voted unanimously to return to regular session at
6:05 p. m.
J. Harold Holmes, Chairman
Phil Kemp
Arnold Lanier
Darrell L. Frye, Vice Chairman
Robert B. Davis
Cheryl A. Ivey, Deputy Clerk to the Board