Attorney David Murray obtained a decision from the Mecklenburg County Superior Court reversing three Town of Huntersville Zoning Board of Adjustment (“ZBA”) decisions which had denied variances for three new houses which had been built relying in good faith upon surveys that later were determined to contain incorrect lot line measurements.
The client, WJH, LLC, d/b/a Wade Journey Homes is a national builder that has built hundreds of homes in Mecklenburg County. The surveying error, which was caused by an outside company, had never occurred on any other home built in the county. However, due to old surveying irons being extremely difficult to find on the properties being built upon, the surveyor, acting on a mistaken belief as to the location of the lots from a 1962 plat, placed new surveying stakes in the wrong locations. WJH then built three new single-family homes based upon the surveyor’s stakes. Right before the new owners were planning to move in and before closing, the error in the location of the houses was identified by another surveyor who was completing a survey across the street from the new houses.
WJH requested three variances of no more than 2.6 feet in order to reduce the required 10-foot side yards so that the new houses could remain and would not have to be demolished. WJH presented evidence at the variance hearings that it relied in good faith upon the surveys and that it has obtained the proper permits to build the houses. WJH also argued that it would be unreasonable to require the houses to be torn down for less than 3-foot encroachments into the side yard buffers. However, the ZBA did not agree with WJH and denied the variances.
Murray was retained by WJH to litigate the appeals of the denied variances to Mecklenburg County Superior Court. A hearing was held in April 2019. At the close of the hearing, the superior court judge adopted Mr. Murray’s arguments, determined that the ZBA’s decisions denying the variances were incorrect and reversed the ZBA’s decisions, ordering that the ZBA issue the requested side yard buffer variances. The court’s order was not appealed by the Town and the variances were issued in June 2019.