In 2002, the Nash-Rocky Mount Board of Education ("the School
Board") contacted the City of Rocky Mount about adding a parkinglot for school buses at Rocky Mount Senior High School. The
parking lot was necessary because of an increased number of buses
at the high school due to pupil reassignment and the need to
relocate other schools' buses due to vandalism at those schools.
The Rocky Mount Zoning Board told the School Board that it would
need two permits: a driveway permit and a fence permit. Once it
had obtained the permits, the School Board constructed the parking
lot using a crushed gravel base with a chain link fence around the
exterior.
Rocky Mount Senior High School is located next to residential
neighborhoods. After the parking lot went into use, local
residents began complaining of noise, dust, traffic congestion, and
trash. In response to the complaints, the City of Rocky Mount
informed the School Board that it would need to obtain a special
use permit from the Board of Adjustment in order to continue
operation of the parking lot.
The Board of Adjustment conducted a hearing on the School
Board's request for a special use permit. Based on the testimony
of two residents living near the parking lot, the Board of
Adjustment concluded that the location of the school bus parking
lot would adversely affect the surrounding properties and it would
endanger the public health, safety, or general welfare of the
neighborhood. For these reasons, the Board denied the request for
a special use permit.
The School Board filed a petition for writ of certiorari with
the Nash County Superior Court, which the court allowed. The trialcourt concluded that the Board of Adjustment lacked jurisdiction
over the School Board's parking lot and, therefore, reversed the
Board of Adjustment's decision and "remanded to the Board of
Adjustment for the issuance to the Nash-Rocky Mount Board of
Education of a special use permit for its school bus parking lot
forthwith." The Board of Adjustment filed a timely appeal.
Although "[t]he original zoning power of the State reposes in
the General Assembly[,] [i]t has delegated this power to the
'legislative body' of municipal corporations."
Allred v. City of
Raleigh, 277 N.C. 530, 540, 178 S.E.2d 432, 437 (1971) (internal
citation omitted). N.C. Gen. Stat. § 160A-381(a) (2003) sets out
the authority of cities and towns to engage in zoning:
For the purpose of promoting health, safety,
morals, or the general welfare of the
community, any city may regulate and restrict
the height, number of stories and size of
buildings and other structures, the percentage
of lots that may be occupied, the size of
yards, courts and other open spaces, the
density of population, and the location and
use of buildings, structures and land for
trade, industry, residence or other purposes .
. . .
Generally, municipal zoning regulations do not apply to the State
or its political subdivisions unless the legislature has clearly
expressed a contrary intent.
Davidson County v. City of High
Point, 85 N.C. App. 26, 37-38, 354 S.E.2d 280, 286,
modified on
other grounds, 321 N.C. 252, 362 S.E.2d 553 (1987). In North
Carolina, the General Assembly has determined that a city or town
may exercise its zoning power as to other governmental entities inthe limited circumstances set forth in N.C. Gen. Stat. § 160A-392
(2003) (emphasis added): "All of the provisions of this Part
[relating to zoning by cities and towns] are hereby made applicable
to the
erection, construction, and use of buildings by the State of
North Carolina and its political subdivisions."
(See footnote 1)
The question presented by this case is, therefore, whether the
parking lot located at Rocky Mount Senior High School falls within
the grant of zoning power contained in N.C. Gen. Stat. § 160A-392.
As the Supreme Court stated in
Allred, 277 N.C. at 540, 178 S.E.2d
at 437-38, "[t]he power to zone, conferred upon the 'legislative
body' of a municipality, is subject to the limitations of the
enabling act."
See also Heaton v. City of Charlotte, 277 N.C. 506,
513, 178 S.E.2d 352, 356 (1971) ("A municipality has no inherent
power to zone its territory and possesses only such power to zone
as is delegated to it by the enabling statutes."). Accordingly, if
the parking lot comes within the terms of N.C. Gen. Stat. § 160A-
392, then the Board of Adjustment has jurisdiction to issue or deny
a special use permit, but if the parking lot is outside the scope
of the statute, then the Board of Adjustment has no jurisdiction
over the parking lot. In making this determination, we note that
"[s]tatutorily granted powers are to be strictly construed."
Davidson County, 321 N.C. at 257, 362 S.E.2d at 557. As both parties have agreed, the question whether the Board of
Adjustment has jurisdiction in this case is determined by whether
the parking lot is considered either a "building" or a "use of a
building" under the statute. We hold that the parking lot falls
into neither category.
With respect to the definition of a "building," the Board of
Adjustment first argues that it has jurisdiction because the Rocky
Mount Zoning Ordinance defines the word "building" to include a
"parking area." This argument places the cart before the horse.
The Rocky Mount Zoning Ordinance (and its definitions) cannot
become applicable until after a determination that Rocky Mount had
the authority to zone with respect to the parking lot under N.C.
Gen. Stat. § 160A-392. A local entity cannot define the scope of
the authority granted to it by the General Assembly.
See Davidson
County, 321 N.C. at 259, 362 S.E.2d at 558 ("In short, the County
may not use [a condition to issuance of a permit] to impose
limitations outside the scope of its statutory authority.").
We must determine whether
the General Assembly intended to
include a parking lot within the scope of the word "building." "It
is elementary that in the construction of a statute words are to be
given their plain and ordinary meaning unless the context, or the
history of the statute, requires otherwise."
State v. Wiggins, 272
N.C. 147, 153, 158 S.E.2d 37, 42 (1967),
cert. denied, 390 U.S.
1028, 20 L. Ed. 2d 285, 88 S. Ct. 1418 (1968).
In
Davidson County, 85 N.C. App. at 38, 354 S.E.2d at 286,
this Court construed the word "building" as used in N.C. Gen. Stat.§ 138A-347 (2003) _ a statute identical to N.C. Gen. Stat. § 160A-
392 with the exception that it applies to counties and not cities.
(See footnote 2)
Except for
Davidson County, we can find no other case that has
defined "building" as that term is used in North Carolina's zoning
statutes. This Court in
Davidson County found a "building" to be
a:
"[s]tructure designed for habitation, shelter,
storage, trade, manufacture, religion,
business, education, and the like. A
structure or edifice inclosing a space within
its walls, and usually, but not necessarily,
covered with a roof."
Id., 354 S.E.2d at 287 (quoting
Black's Law Dictionary 176 (5th ed.
1979)).
The dictionary definition of "building" is:
a constructed edifice designed to stand more
or less permanently, covering a space of land,
usu. covered by a roof and more or less
completely enclosed by walls, and serving as a
dwelling, storehouse, factory, shelter for
animals, or other useful structure _
distinguished from structures not designed for
occupancy (as fences or monuments) and from
structures not intended for use in one place
(as boats or trailers) even though subject to
occupancy.
Webster's Third New Int'l Dictionary 292 (1968).
See also Black's
Law Dictionary 207 (8th ed. 2004) (defining "building" as "[a]
structure with walls and a roof, esp. a permanent structure"). No matter whether we use the definition of "building" adopted
by the court in
Davidson County or the dictionary definition, it is
apparent that the plain meaning of the word "building" does not
encompass a parking lot. A parking lot is not a structure; it has
no roof, walls, or any other kind of permanent, immovable features
apart from a fence. Put simply, a parking lot is an open air space
used to temporarily park automobiles and buses. It in no way
resembles a building.
See David W. Owens,
Legislative Zoning
Decisions: Legal Aspects 253 n.63 (2nd ed. 1999) ("In some limited
circumstances zoning does not affect a city, county, or state
government use. For example, because a 'building' is required to
trigger application of zoning, and given that 'land uses' per se
are not covered, an open-air use of land without a building would
not be subject to local zoning. A landfill or parking area might
fit this situation.").
The Board of Adjustment argues alternatively that since a
parking lot is necessary in order to use the school, the parking
lot falls within the "use of buildings" language contained in N.C.
Gen. Stat. § 160A-392. The Board of Adjustment asserts that the
zoning provisions apply to more than just actual physical
structures owned by the State. It argues that the phrase "use of
buildings" means that the surrounding land used in conjunction with
the actual building is also covered in the grant of jurisdictional
power in the zoning act. According to the Board of Adjustment,
since the parking lot is land adjoining the school building and is
necessary for the School Board to fully use that building, theparking lot falls under the jurisdictional grant in N.C. Gen. Stat.
§ 160A-392. We disagree.
"In matters of statutory construction, our primary task is to
ensure that the purpose of the legislature, the legislative intent,
is accomplished."
Elec. Supply Co. v. Swain Elec. Co., 328 N.C.
651, 656, 403 S.E.2d 291, 294 (1991). Although we have found no
North Carolina decision addressing the meaning of the word "use"
within zoning statutes, the South Carolina Court of Appeals has
addressed precisely that issue and observed: "As it is
conventionally applied, the term 'use' is the purpose or activity
for which land or buildings are designed, arranged, or intended, or
for which land or buildings are occupied or maintained."
Heilker
v. Zoning Bd. of Appeals, 346 S.C. 401, 407, 552 S.E.2d 42, 45
(S.C. Ct. App. 2001) (internal quotation marks omitted).
See also
83 Am. Jur. 2d
Zoning and Planning § 156 (2003) ("The term 'use' as
employed in the context of zoning, is generally described as a word
of art denoting the purpose for which a parcel of land or building
is utilized."); Owens,
supra, at 8 ("Every [zoning] ordinance is
different: each local government decides how many zoning districts
it wants, what to call them,
what uses to allow, and what special
procedures to include." (emphasis added)).
A review of North Carolina's zoning statutes supports our
conclusion that the General Assembly intended the word "use" in the
conventional zoning sense: as relating to the purpose for which
the building was constructed.
See Brown v. Flowe, 349 N.C. 520,
523-24, 507 S.E.2d 894, 896 (1998) ("When multiple statutes addressa single subject, this Court construes them
in pari materia to
determine and effectuate the legislative intent."). The initial
grant of power in N.C. Gen. Stat. § 160A-381(a) permits regulation
of the "use of buildings, structures and land for trade, industry,
residence or other purposes." N.C. Gen. Stat. § 160A-382 (2003)
provides that, in exercising that power, the city may divide its
territorial jurisdiction into districts and, among other things,
regulate the "use of buildings, structures, or land." The section
then specifies:
Such districts may include, but shall not be
limited to,
general use districts, in which a
variety of uses are permissible in accordance
with general standards; overlay districts, in
which additional requirements are imposed on
certain properties within one or more
underlying general or special use districts;
and
special use districts or conditional use
districts, in which uses are permitted only
upon the issuance of a special use permit or a
conditional use permit.
(Emphasis added.) In these sections, "use" can only mean
"purpose." Similarly, in the remedy section, N.C. Gen. Stat. §
160A-389 (2003), the city is authorized "to prevent any illegal
act, conduct, business or use in or about the premises," suggesting
that "use" refers to a particular activity. In sum, these
provisions indicate an intent to permit zoning regulation of the
purpose or activity for which a building, structure, or land is
being utilized _ in other words, the conventional meaning of the
word "use" when dealing with zoning statutes. N.C. Gen. Stat. §
160A-392 should be construed consistently. Accordingly, N.C. Gen. Stat. § 160A-392 permits a municipality
to regulate the purpose for which the State or other political
subdivision utilizes a building. As in effect at the time of the
underlying events, the statute did not give the municipality
jurisdiction to regulate land simply because it was utilized in
connection with the building.
See also Davidson County, 321 N.C.
at 257, 362 S.E.2d at 557 ("A county has the power to impose
reasonable zoning requirements
on buildings operated by certain
other governmental units within its boundaries." (emphasis added)).
Defendant relies upon
Yancey v. Heafner, 268 N.C. 263, 150
S.E.2d 440 (1966) to support its theory that zoning regulations
should not be limited simply to the buildings themselves.
Yancey,
however, addressed the question whether a Board of Adjustment
properly granted a
building permit for the construction of a 4,000
foot stadium.
Id. at 265, 150 S.E.2d at 442.
Yancey does not
consider whether a municipality has jurisdiction to zone
government-owned land apart from buildings.
Therefore, because the parking lot is not a "building" under
the applicable version of N.C. Gen. Stat. § 160A-392, we hold that
the Board of Adjustment lacked jurisdiction to issue or deny a
special use permit concerning that land and affirm that portion of
the trial court's order. The trial court, however, also "remanded
to the Board of Adjustment for the issuance to the Nash-Rocky Mount
Board of Education of a special use permit for its school bus
parking lot forthwith." Since the Board of Adjustment had no
authority over the parking lot, there is no need for issuance of aspecial use permit. That portion of the order of the trial court
directing the issuance of a special use permit is, therefore,
reversed. The remaining portion of the trial court's order is
affirmed.
Affirmed in part and reversed in part.
Judges TIMMONS-GOODSON and TYSON concur.
Footnote: 1
