Appeal by petitioners from order entered 30 August 2004 by
Judge Melzer A. Morgan, Jr. in Superior Court, Montgomery County.
Heard in the Court of Appeals 18 October 2005.
Van Camp, Meacham & Newman, PLLC, by Michael J. Newman, for
petitioners-appellants.
Gill & Tobias, LLP, by Douglas R. Gill; and Garner &
Williamson, P.A., by Max Garner, for respondent-appellee.
McGEE, Judge.
Page Memorial United Methodist Church (the church) is located
at 203 Church Street (the main lot) in Biscoe, North Carolina. The
church has been in its current location since approximately 1900.
In 1983, the church acquired title to an adjoining tract of land
(the adjoining lot).
The church has two buildings situated upon the main lot. The
adjoining lot is vacant. Since approximately 1990, the church has
operated a food distribution program from the basement of its
education building located on the main lot. On Saturdays, church
volunteers distributed food from the education building to
approximately 200-230 people.
In 1993, the Town of Biscoe (the town) enacted a zoning
ordinance (the ordinance). The area around the church, including
the main lot and the adjoining lot, was zoned as a R-12 residential
district. The ordinance provided that churches were among the
"[p]ermitted [u]ses" allowed in the R-12 residential district. The
ordinance also defined certain structures and uses as
nonconforming, but the ordinance allowed for the continuance of
such nonconformances, provided that the structures and uses were
not expanded.
In 2003, the church decided to move its food distribution
program from its education building to a new structure to be built
upon the adjoining lot. The church applied for a permit to
construct a food pantry on the adjoining lot on 21 October 2003.
The town's zoning administrator granted a zoning permit to thechurch for the construction of a food pantry on 12 November 2003.
Randy Jirtle and wife, Nancy Jirtle; Buddy Batten and wife, Thelma
Batten; and Edward Goodwin and wife, Doris Goodwin (petitioners)
appealed the decision to the town's Board of Adjustment (the
board). Subsequently, the church withdrew its application for a
permit.
The church again applied for a permit to construct a food
pantry on the adjoining lot on 9 June 2004, which the zoning
administrator granted. Petitioners again appealed the decision to
the board. The board upheld the decision of the zoning
administrator on 9 August 2004.
Petitioners filed a petition for writ of certiorari with the
trial court on 9 August 2004. The trial court affirmed the board's
decision upholding the grant of the permit to the church in an
order entered 30 August 2004. Petitioners appeal.
I.
[1] Petitioners first argue that construction of a food pantry
would constitute an impermissible expansion of a nonconformance in
violation of the applicable zoning ordinance. A decision of a
board of adjustment may be reviewed by a trial court upon the
issuance of a writ of certiorari, in which case the trial court
sits as an appellate court.
Tate Terrace Realty Investors, Inc. v.
Currituck County, 127 N.C. App. 212, 217, 488 S.E.2d 845, 848,
disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997). On
appeal of a trial court judgment considering a decision of a board
of adjustment, our Court reviews the trial court's order for errorsof law.
Id. at 219, 488 S.E.2d at 849.
A question involving the interpretation of a zoning ordinance
is a question of law, to which we apply a
de novo standard of
review.
Ayers v. Bd. of Adjust. for Town of Robersonville, 113
N.C. App. 528, 530-31, 439 S.E.2d 199, 201,
disc. review denied,
336 N.C. 71, 445 S.E.2d 28 (1994). Zoning restrictions should be
interpreted according to the language used in the ordinance.
Kirkpatrick v. Village Council, 138 N.C. App. 79, 85, 530 S.E.2d
338, 342 (2000). Nonconforming uses and structures are not favored
under the public policy of North Carolina, and "[z]oning ordinances
are construed against indefinite continuation of a non-conforming
use."
Forsyth Co. v. Shelton, 74 N.C. App. 674, 676, 329 S.E.2d
730, 733,
disc. review denied, 314 N.C. 328, 333 S.E.2d 484 (1985).
Under section 11 of the Biscoe zoning ordinance,
Upon the effective date of this ordinance, and
any amendment thereto, pre-existing structures
or lots of record and existing and lawful uses
of any building or land which do not meet the
minimum requirements of this ordinance for the
district in which they are located or which
would be prohibited as new development in the
district in which they are located shall be
considered as nonconforming. It is the intent
of this ordinance to permit these
nonconforming uses to continue until they are
removed, discontinued, or destroyed, but not
to encourage such continued use, and to
prohibit the expansion of any nonconformance.
Town of Biscoe, N.C., Zoning Ordinance § 11 (1993). More
specifically, section 11.3 of the ordinance states: "The
nonconforming use of land shall not be enlarged or increased, nor
shall any nonconforming use be extended to occupy a greater area of
land than that occupied by such use at the time of the passage ofthis ordinance. . . ." Town of Biscoe, N.C., Zoning Ordinance §
11.3 (1993).
It is not disputed that the church is nonconforming in two
respects: (1) inadequate parking and (2) violation of set-back
requirements. Since petitioners do not argue that construction of
a food pantry would expand the set-back nonconformance, we only
determine whether construction of a food pantry would expand the
parking nonconformance.
Pursuant to the minimum parking requirements of section 13.6
of the ordinance, places of assembly, including churches, are
required to have "[o]ne (1) parking space for each four (4) seats
in the largest assembly room." Town of Biscoe, N.C., Zoning
Ordinance § 13.6 (1993). The church sanctuary is the "largest
assembly room" in the church, seating between 120 and 189 people,
which would require between 30 and 47-1/4 parking spaces under
section 13.6 of the ordinance. However, the church does not have
the requisite number of parking spaces and relies on street
parking. Therefore, the church is nonconforming under section 13.6
of the ordinance.
Petitioners argue that construction of a food pantry would
impermissibly expand the parking nonconformance. They apparently
contend that construction of the food pantry would increase the
number of people receiving food at the church and would therefore
increase parking demand, which the church could not meet.
Petitioners argue that under the plain language of the zoning
ordinance, such an increase in unmet parking demand wouldconstitute an impermissible expansion of a nonconformance.
Petitioners concede, however, that construction of the food
pantry would not alter the "largest assembly room" in the church
for purposes of section 13.6 of the ordinance. The plain language
of the ordinance makes clear that parking requirements for churches
are determined solely by the number of seats in the "largest
assembly room." Accordingly, because the church sanctuary would
remain the "largest assembly room" in the church after construction
of a food pantry, the parking requirements for the church would
remain the same. There would not be a greater nonconformity with
the minimum parking requirements after construction of a food
pantry; therefore, construction of a food pantry would not
impermissibly expand the parking nonconformance.
II.
[2] Petitioners also argue the trial court erred in concluding
that a food pantry would constitute an accessory use of the church.
In order to qualify as an accessory building or use under section
2.3 of the ordinance, a building or use must be:
A. Conducted or located on the same zoning
lot as the principal building or use
served, except as may be specifically
provided elsewhere in this Ordinance.
B. Clearly incidental to, subordinate in
area and purpose to, and serves the
principal use; and
C. Either in the same ownership as the
principal use or is clearly operated and
maintained solely for the comfort,
convenience, necessity, or benefit of the
occupants, employees, customers, or
visitors of or to the principal use.Town of Biscoe, N.C., Zoning Ordinance § 2.3 (1993).
Petitioners do not challenge the third requirement for
classification as an accessory building or use. Therefore, we
examine only the first two requirements. With respect to the first
requirement, petitioners argue that because a food pantry would be
constructed upon the adjoining lot, it would be located upon a
different zoning lot from the church, which is located upon the
main lot. However, pursuant to section 2.51 of the ordinance, "the
word 'lot' shall be taken to mean any number of contiguous lots or
portions thereof, upon which one or more main structures for a
single use are erected or are to be erected." Town of Biscoe,
N.C., Zoning Ordinance § 2.51 (1993). Under this definition, the
main lot and the adjoining lot constitute one zoning lot, in that
they are contiguous lots upon which one or more main church
structures for a single church use are erected or are to be
erected.
Petitioners also argue a food pantry would not satisfy the
second requirement for classification as an accessory building or
use. Petitioners argue that because the adjoining lot is larger
than the main lot, a food pantry is not "subordinate in area" to
the church. However, petitioners mistakenly focus upon the
relative size of the lots, rather than the size of the buildings,
as required by the plain language of the ordinance. A food pantry
scheduled to have a gross floor area of 1,000 square feet would
clearly be smaller than the current church buildings, which
currently occupy approximately 9,390 square feet. Also, theprovision of food to the hungry is incidental and subordinate to
the church's main purpose of worship, although it serves the main
purpose and principal use of the church. Accordingly, a food
pantry would qualify as an accessory building or use, and we
overrule these assignments of error.
III.
[3] Petitioners next argue the trial court erred by concluding
that "a denial of the construction permit for a food pantry would
impose a substantial burden on the religious exercise of the
[c]hurch" in violation of the Religious Land Use and
Institutionalized Persons Act (RLUIPA). However, because we hold
that a food pantry qualifies as an accessory building or use of the
church and does not constitute an impermissible expansion of a
nonconformance, we need not review this argument.
IV.
[4] Finally, petitioners argue the "trial court erred by
making additional findings of fact and conclusions of law not made
by the [b]oard, because such a practice is not permissible under
North Carolina law." When a trial court issues a writ of
certiorari to review the decision of a board of adjustment, "the
[trial] court sits as an appellate court, and not as a trier of
facts."
Tate Terrace Realty Investors, Inc., 127 N.C. App. at 217,
488 S.E.2d at 848. "The [trial] court . . . may not make
additional findings."
Batch v. Town of Chapel Hill, 326 N.C. 1,
11, 387 S.E.2d 655, 662,
cert. denied, 496 U.S. 931, 110 L. Ed. 2d
651 (1990). Petitioners specifically assign error to only one of the trial
court's findings of fact: "[T]he proposed food pantry building is
clearly incidental to, subordinate in area and subordinate in
purpose to the church." Petitioners argue the trial court erred by
making this finding, which was not previously made by the board.
However, because this determination required the application of
legal principles to a set of facts, it is more properly labeled a
conclusion of law, and we treat it as such.
Carpenter v. Brooks,
139 N.C. App. 745, 752, 534 S.E.2d 641, 646,
disc. review denied,
353 N.C. 261, 546 S.E.2d 91 (2000). Petitioners also assign error
to four other conclusions of law made by the trial court. As we
have already noted, a trial court's role on appeal of a decision of
a board of adjustment is to review the record for errors of law.
Tate Terrace Realty Investors, Inc., 127 N.C. App. at 218, 488
S.E.2d at 848. The trial court merely fulfilled that duty by
making conclusions of law based on the facts as found by the board.
Additionally, petitioners do not argue that the trial court's
conclusions were not supported by the findings of fact.
Accordingly, we overrule these assignments of error.
Affirmed.
Judges WYNN and GEER concur.
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