MALCOLM M. MALLOY, III and PIONEER WELDING SUPPLY,
Petitioners,
v
.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF ASHEVILLE
Respondent.
Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Craig D.
Justus and Albert L. Sneed, Jr., for petitioner-appellants.
City Attorney's Office, by Assistant City Attorney Martha
Walker-McGlohon, for respondent-appellee.
HUDSON, Judge.
Petitioners appeal from an order entered by Superior Court
Judge Ronald K. Payne affirming the decision of the Zoning Board of
Adjustment of the City of Asheville.
Petitioner Malloy owns real property located at 100 Park
Avenue (the Property) within the zoning jurisdiction of the City
of Asheville (the City). Petitioner Pioneer Welding Supply
leases the Property for the operation of a welding and gas supply
business. For more than thirty years, the Property has been used
for commercial-industrial purposes. In 1997, the City re-zoned the
property to RM-8, Residential Multi-Family Medium Density District,
and thereafter, Pioneer was allowed to continue to operate their
business on the Property as a grandfathered nonconforming use. In addition to an office building and a storage warehouse,
petitioners kept a 3,000 gallon above ground storage tank (the old
tank) on the Property to use for storing liquid oxygen. This tank
was on the Property when the City adopted its Unified Development
Ordinance (UDO) in 1997, and thus allowed it to remain on the
Property. In October, 1999, petitioners replaced the old tank with
a 9,000 gallon tank (the new tank). To facilitate the
installation of the new tank, petitioners had poured a three foot
thick concrete slab, thirteen feet by ten feet, approximately ten
feet from the location of the old tank. The new tank was anchored
to the concrete slab and stabilized with three bolts.
After neighbors of the Property complained, on 2 November 1999
the City sent petitioners a Violation Notice, which informed them
that the new tank constituted the prohibited expansion of a
nonconforming use. Scott Shuford, the City's Planning and
Development Director, followed up the Violation Notice with a
letter ruling that the new tank violated the City's UDO. On 2
December 1999, petitioners filed an appeal with Respondent Zoning
Board of Adjustment (BOA). On 27 March 2000, the BOA conducted
a hearing on petitioners' appeal. By a 3 to 2 vote, the BOA upheld
the City's ruling. Petitioners then sought review in the superior
court by writ of certiorari. Following a hearing, Judge Payne
affirmed the BOA's decision. Petitioners appealed to this court.
In their first argument, petitioners contend that the superior
court erred as a matter of law by concluding that the new tank is
a structure as defined by the City's UDO. Where the Petitioneralleges that a board decision is based on error of law, the
reviewing court must examine the record de novo, as though the
issue had not yet been determined. Whiteco Outdoor Adver. v.
Johnston County Bd. of Adjust., 132 N.C. App 465, 470, 513 S.E.2d
70, 74 (1999). In addition, petitioners argue that the whole
record does not contain substantial, competent and material
evidence in the record to support the BOA's finding that the new
tank is a structure. Although this is petitioners' last argument,
we address it with the first issue since they are so closely
related. On review of the sufficiency of the evidence, this Court
applies the whole record test. Id. at 468, 513 S.E.2d at 73.
Under the whole record test, we must determine whether the
Board's findings are supported by substantial evidence contained in
the whole record. Id. Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.
Id. Applying both the whole record test and de novo review, we
find no error in the board's decision or the superior court's order
affirming that decision.
Section 7-2-5 of the City's UDO defines structure as that
which is built or constructed. City of Asheville, N.C. Unified
Development Ordinance sec. 7-2-5 (2002). Where the language of an
ordinance is plain and unambiguous, it must be given effect and
its clear meaning may not be evaded by an administrative body or a
court under the guise of construction. Utilities Comm. v.
Edmisten, Atty. General, 291 N.C. 451, 465, 232 S.E.2d 184, 192
(1976). In addition, [w]ords in a statute must be construed inaccordance with their plain meaning unless the statute provides an
alternative meaning. Kilpatrick v. Village Council, 138 N.C. App.
79, 86, 530 S.E.2d 338, 343 (2000). Petitioner argues that the
terms built and constructed are given an alternative meaning in
section 7-2-5 of the UDO, which defines the terms building and
construction. As these terms are not the precise terms used to
define structure, we decline to accept petitioners' contention.
The plain meaning of built, is [formed] by combining materials
or parts; to erect; construct. The American Heritage Dictionary
of the English Language 174 (1978) Likewise, the plain meaning of
constructed means [formed] by assembling parts; build; erect.
Id. at 288.
Here, before placing the new tank, petitioners first had a
concrete slab poured, per specifications determined by a licensed
engineer as suitable to accommodate the new tank. The concrete
slab was poured to a depth of three feet, covering an area 10 feet
by 13 feet, approximately 10 feet from the location of the old
tank. The new tank was then brought to the Property, placed on the
concrete slab with two cranes, and affixed there with three one-
inch diameter bolts. This evidence leads us to conclude that the
new tank was form[ed] by combining materials or parts and was
erected on the Property and thus constituted a structure under
the City's UDO.
Petitioners next argue that the superior court erred as a
matter of law in concluding that the placement of the new tank on
the Property constituted an enlargement or expansion of anonconforming use. We disagree.
In its Decision Affirming Interpretation, the BOA concluded
as a matter of law that the relocation and replacement of the
liquid oxygen tank constituted an expansion of the non-conforming
use of a structure as defined under Section 7-17-6(b)(2) of the
UDO. Section 7-17-6 of the City's UDO governs nonconforming uses
of structures. Specifically, section 7-17-6(b)(2) provides that:
A nonconforming use of a structure may be
enlarged or extended only into portions of the
structure which existed at the time that the
use became nonconforming. No structural
alterations are allowed to any structure
containing a nonconforming use except (1)
where such alteration does not enlarge the
structure, or (2) where such alteration is
required by law or an order from the building
safety director, fire chief or the planning
and development director to ensure the safety
of the structure.
City of Asheville, N.C. Unified Development Ordinance sec. 7-17-
6(b)(2) (2002) (emphasis added).
In Kilpatrick v. Village Council, this Court addressed the
question of whether the creation of additional campsites on a
nonconforming parcel of land was a violation of a Village of
Pinehurst ordinance that prohibited the expansion or enlargement of
a nonconforming use. In analyzing the ordinance, we noted that
[t]he plain meaning of 'enlarge' is 'to become bigger'; 'to widen
in scope.' A nonconforming use is, therefore, 'enlarged' when the
scope of the use is increased. Kilpatrick v. Village Council, 138
N.C. App. 79, 86, 530 S.E.2d 338, 343 (2000) (citations omitted).
Here, it is not disputed that the new tank is physically
larger than the old tank. The old tank was approximately 96 to 100inches in diameter, approximately 16 to 17 feet tall, with a 3,000
gallon capacity, but the new tank was 110 inches in diameter,
approximately 25-26 feet tall, with a 9,000 gallon capacity.
Though petitioners contend that its customer base has not increased
as a result of the placement of the new tank, the increased storage
capacity provides more volume and will enable them to provide
additional or faster service. Indeed, petitioners admit that
returning to the 3,000 gallon tank will slow down business. From
this evidence, we conclude that petitioners' placement of the new
tank physically enlarges the structure and also increases the scope
of the nonconforming use.
For the foregoing reasons, the order of the superior court is
affirmed.
Affirmed.
Judges McGEE and THOMAS concur.
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