Cordell Earthworks v Chapel Hill, (04-190) 06/07/2005

Appeal by petitioner from orders dated 25 July 2003, 28 August 2003, and 14 January 2004 by Judge Kenneth C. Titus in Superior Court, Orange County. Heard in the Court of Appeals 3 November 2004. As the issues presented by petitioner's appeals involve common questions of law, we have consolidated the appeals pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 40 (2004).

Faison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D. Burns, for petitioner-appellant.

Ralph D. Karpinos and Robert Terrell Milner for respondents- appellees.

    McGEE, Judge.

    This action arose from a zoning violation involving real property located at 430 and 432 Erwin Road in Durham, North Carolina. The property is located within the extraterritorial planning jurisdiction of Chapel Hill and is subject to the ChapelHill Development Ordinance (the ordinance). The property is zoned Rural Transition (RT), which allows the land to be "used for agricultural, very low-intensity residential, or open space uses," but may be converted "to more intensive urban uses at such time as community services are available and community needs for such uses are present." Chapel Hill Development Ordinance § 3.1.9 (2002). Under the ordinance, if the type of use is changed from residential to agricultural, then a zoning compliance permit (ZCP) is required. Commercial use is not permitted in the RT zone.
     The Town of Chapel Hill (the Town) gave notice to Cordell Earthworks, Inc. (petitioner) of the expansion of an existing zoning violation in a letter dated 4 April 2002 . The letter summarized a prior meeting between the Town and petitioner in which the Town had explained that "the use of this property as a landscape business was a violation of the Chapel Hill Development Ordinance[.]" The letter also stated that during a site visit, the Town had found that petitioner was expanding the landscape business and that "[e]xpansion of a violation [was] not permitted." The letter further advised petitioner that if petitioner wished to change the type of land use from residential to agricultural, as petitioner had indicated it might in a letter dated 1 April 2002, petitioner would need to apply for a ZCP. The Town suspended the penalties for the zoning violation to allow petitioner to relocate its business but required that petitioner remove "all of the landscape materials, i.e., mulch, gravel, top soil, sand, potted plants," and equipment, such as "Bobcats, front end loaders,delivery trucks, tractors, etc." as of 1 July 2002. The letter also stated that by 1 October 2002, petitioner must discontinue using a mobile home as an office and return the property to residential use only. Petitioner filed a timely notice of appeal with the Chapel Hill Board of Adjustment (Board of Adjustment) regarding this alleged zoning violation.
    Petitioner also applied for a ZCP in May 2002, seeking to change the use of the land from residential to agricultural in order to operate a nursery on the property. Petitioner requested that its ZCP application receive administrative staff approval rather than site plan approval. However, the Planning Director (Town Manager) determined that the requested change in use required site plan approval from the Town's Planning Board and therefore denied petitioner's application for a ZCP. Petitioner filed a timely notice of appeal to the Board of Adjustment.
    At a hearing before the Board of Adjustment, the Town asserted that petitioner had violated the ordinance by changing the type of land use from residential to commercial in that petitioner, who was renting the land, had begun conducting a landscaping business on the property, and was using the land for the storage and maintenance of its landscaping equipment. The Town also asserted that petitioner had changed the use of the land from residential to agricultural without first obtaining a ZCP. Petitioner contended that it was operating as a nursery, not a landscaping business, and was therefore exempt from the zoning ordinances, because nurseries were within the bona fide farm exception to the zoning rules. Regarding the Town's denial of a ZCP, petitioner additionally argued that the Town improperly denied petitioner's request because the Town incorrectly interpreted sections 19.2 and 19.4 of the ordinance. Specifically, petitioner argued that according to petitioner's reading of the ordinance, its request for a ZCP should have been decided administratively through the Town Manager. The Town countered, however, that petitioner misread the ordinance, that administrative approval was not appropriate in petitioner's case, and that petitioner's request for a ZCP was not denied, but rather required that petitioner submit a site plan before petitioner's request could be approved. The Board of Adjustment affirmed the Town's decision that petitioner had violated the ordinance and upheld the Town's denial of administrative approval for petitioner's ZCP request.
    Petitioner petitioned the trial court for a writ of certiorari, which was granted.   (See footnote 1) In two separate orders dated 25 July 2003, the trial court affirmed the Board of Adjustment's decisions. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52 , petitioner moved to have the trial court alter or amend its orders . In an order dated 28 August 2003, the trial court denied petitioner'smotion to alter or amend its decision regarding the Town's denial of a ZCP. In a 14 January 2004 order, the trial court denied petitioner's motion to alter or amend the order affirming petitioner's violation of the ordinance. Petitioner appeals the trial court's orders of 25 July 2003, 28 August 2003, and 14 January 2004.
    For both the zoning violation and the denial of the ZCP, petitioner's assignments of error are that the trial court erred in affirming the decision of the Board of Adjustment and in denying petitioner's motion made to alter or amend the judgment. The assignments of error do not set forth any legal issue for our determination . See McManus v. McManus, 76 N.C. App. 588, 590, 334 S.E.2d 270, 272 (1985) (stating "[a]n assignment of error is supposed to raise a legal issue for the Court's determination") . Broad assignments of error that do not state the specific basis for the alleged error violate Rule 10 of the North Carolina Rules of Appellate Procedure . N.C.R. App. P. 10(c)(1) (stating "[e]ach assignment of error . . . shall state plainly, concisely and without argumentation the legal basis upon which the error is assigned" ); see also Pamlico Properties IV v. SEG Anstalt Co., 89 N.C. App. 323, 325, 365 S.E. 2d 686, 687 (1988) (broad assignments of error that do not state a specific basis for the alleged error violate N.C.R. App. P. 10). Petitioner's assignments of error are subject to dismissal pursuant to N.C.R. App. P. 10.
    However, despite petitioner's broadly stated assignments of error, we can discern the legal issues to be determined frompetitioner's actual arguments. The Town also responded to the merits of petitioner's arguments, demonstrating that it similarly discerned the legal issues raised by petitioner, and thus had notice of the basis upon which our Court might rule. See Viar v. N.C. DOT, 359 N.C. 400, 403, 610 S.E.2d 360, 361 (2005). We, therefore, address the merits of petitioner's arguments in our discretion. See N.C.R. App. P. 2.
    In reviewing an order from a trial court acting in an appellate capacity, our scope of review is restricted to evaluating the trial court's order for errors of law. Shackleford-Moten v. Lenoir County Dep't of Soc. Servs., 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002) (citing ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)). "The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994). However, our Supreme Court has recently ruled that our "obligation to review for errors of law . . . 'can be accomplished by addressing the dispositive issue(s) before the agency [or board] and the trial court' and determining how the trial court should have decided the case upon application of the appropriate standard of review." N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004) (quoting Capital Outdoor, Inc. v. Guilford County Board of Adjustment, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001)(Greene, J., dissenting) (hereinafter Capital I)). Therefore, depending on the issues raised on appeal, "an appellate court must determine whether: '1) the board committed any errors in law; 2) the board followed lawful procedure; 3) the petitioner was afforded appropriate due process; 4) the board's decision was supported by competent evidence in the whole record; and 5) . . . the board's decision was arbitrary and capricious.'" Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002) (quoting Capital I, 146 N.C. App. at 390, 552 S.E.2d at 267)).

    The first dispositive issue before us is whether the trial court erred in affirming the Board of Adjustment's decision that petitioner's activities constituted a zoning violation. Petitioner argues that it was error to affirm this decision because petitioner was operating a bona fide farm and was therefore exempt from the ordinance. Section 12.4 of the ordinance states: "Bona fide farms are not subject to these use regulations [as set forth in § 12.3 of the ordinance], as provided by the N.C. General Statutes." Chapel Hill Development Ordinance § 12.4 (2002). This issue turns on the interpretation of "as provided by the N.C. General Statutes[,]" and raises the issue of whether the Board of Adjustment committed any errors in law. See Capital I, 146 N.C. App. at 390, 552 S.E.2d at 267 . We thus review this issue de novo.
    Assuming, arguendo, that petitioner operates a bona fide farm, we do not agree with petitioner's interpretation of § 12.4 of theordinance. Petitioner asserts that § 12.4 of the ordinance refers to N.C. Gen. Stat. § 153A-340, which grants counties the power to create zoning regulations. Under N.C.G.S. § 153A-340(a), a county's ability to regulate bona fide farms is limited to governing swine farms. N.C.G.S. § 153A-340(a) (1)-(3) (2003). Petitioner argues that because petitioner does not operate a swine farm, but rather a nursery, it is exempt from the ordinance.
    However, Chapter 153A of the North Carolina General Statutes is enabling legislation for counties, whereas Chapter 160A provides the enabling legislation for municipalities. Specifically, municipalities are given the authority to enact zoning regulations in N.C. Gen. Stat. § 160A-381, which contains no limitation on a municipality's ability to regulate farms. The Town explains that it included the language: "as provided by the N.C. General Statutes" in section 12.4 of its ordinance as a safeguard to protect bona fide farms located "in areas outside the Town's zoning jurisdiction, where [Orange] County has agreed to apply Town standards" pursuant to a joint planning agreement between the Town and Orange County. Notwithstanding this agreement, zoning in joint planning areas is restricted by articles in Chapter 153A of the General Statutes. Thus, the Town included the provision in section 12.4 to safeguard that bona fide farms are not subject to the Town's zoning regulations in these joint planning areas. Petitioner argues that there was no reason for the Town to include this "savings provision" in section 12.4 of the ordinance because Orange County's zoning ordinance "contains two such savingprovisions." See Orange County Zoning Ordinance § 50-4. We do not find petitioner's argument persuasive. Rather, it is logical to include such a savings provision in both the county's and the Town's zoning ordinances so as to stress the importance of bona fide farms being free from regulation in the joint planning areas. As petitioner's land falls within the Town's extra-judicial territory, it is subject to regulation by the Town.
    Moreover, to adopt petitioner's interpretation of section 12.4 of the ordinance would result in meaningless surplusage in section 12.3 of the ordinance, which sets forth a schedule of use regulations. If section 12.4 exempted all bona fide farms within the Town's planning jurisdiction, then much of section 12.3, which regulates agricultural operations, would be nullified. For example, livestock is permitted in areas designated as RT but is not permitted in residential areas. Chapel Hill Development Ordinance § 12.3 (2002). Petitioner's interpretation would mean that the Town could not regulate a bona fide farm even in downtown Chapel Hill, which is an impractical result. Petitioner is not exempt from the ordinance, and the Board of Adjustment did not commit any errors in law in affirming that petitioner had violated the ordinance as charged by the Town.
    Petitioner alternatively argues that the Town improperly issued a notice of violation because there was no change in the use of the land. Agricultural use is permitted for RT areas, and petitioner argues that the land had been used for agricultural purposes and that petitioner continued to use it for agriculturalpurposes . As a mixed question of law and fact, our review of this issue requires only that we look to see whether the Board of Adjustment's decision was supported by competent evidence in the whole record. See Appeal of Willis, 129 N.C. App. at 501, 500 S.E.2d at 725; Capital I, 146 N.C. App. at 390, 552 S.E.2d at 267 .
    The Chapel Hill Development Ordinance provides that it is unlawful:
        to change the type of use of occupancy of any land or structure, or to extend any use on any lot on which exists a nonconforming use, until the Town Manager has issued for such action a Zoning Compliance Permit, certifying that such intended uses comply with the applicable provisions of this chapter.

Chapel Hill Development Ordinance § 19.1 (2002). In the present case, competent evidence showed that petitioner began using its property as a landscaping business without applying for a ZCP. Evidence presented to the Board of Adjustment demonstrated that the land at issue had been used as a single-family residence before petitioner began renting the land, and that regardless of whether petitioner was operating a nursery or a landscaping business, that its use of the land was a change in use. The Town's Zoning Enforcement Officer, Maggie Bowers (Bowers), testified that the Town received a signed complaint about petitioner from petitioner's neighbors. Bowers also testified that when she went to inquire about the property, she saw signs advertising mulch, along with bobcats, mulch, topsoil, gravel and company trucks. Shortly thereafter, Bowers met with David Fernandez (Fernandez), a representative for petitioner. Bowers and Fernandez discussed thefact that petitioner's activities violated the ordinance, and Bowers testified that Fernandez had explained that petitioner had been searching for a different location to move the business because it had been so successful. Bowers further stated that petitioner never mentioned that it was operating a nursery, but that even if it had, a nursery would constitute a change in use. A neighbor testified that trucks and trailers were coming and going from the property from as early as 6:00 a.m. until as late as 7:30 p.m. to pick up mulch or gravel in bulk. Evidence further showed that petitioner stored and maintained landscape equipment and materials on its property and advertised a landscape business with a 432 Erwin Road address in the Yellow Pages. Finally, other testimony showed that no farming had taken place on the land for at least forty years. In looking at the whole record, competent evidence supported the Board of Adjustment's affirming the Town's decision that petitioner's use of the land was commercial and thereby constituted a zoning violation.
    The trial court did not err in affirming the Board's decision that petitioner's use of 430 and 432 Erwin Road violated the ordinance.

    Petitioner also argues that the Town erred in its denial of petitioner's request for a ZCP because the Town incorrectly interpreted its own zoning ordinance. Petitioner argues that the Town should have issued a ZCP to petitioner without requiring it to submit a site plan and without requiring that petitioner obtainapproval from the Town's Planning Board. Petitioner's argument centers on the interpretation of sections 19.2 and 19.4 of the ordinance, and the ultimate issue is whether the Board of Adjustment committed any errors in law. See Capital I, 146 N.C. App. at 390, 552 S.E.2d at 267 . Our standard of review is de novo.
    Article nineteen of the ordinance sets forth the requirements for site plans and master plan approvals and permits. Specifically, section 19.2 provides:
        Site plan review and approval by the Council or Planning Board as appropriate, shall be required prior to issuance of a Zoning Compliance Permit for any development or change in use described in Section 19.1, with the following exceptions:

        a)    Any development of a single or two-family dwelling on a zoning lot, or any uses accessory thereto;

        b)    Expansion of development previously existing within a zoning lot may be reviewed and approved by the Town Manager if it would result in:

            i)    Addition of not more than fifteen (15) percent of previously existing floor area, or 2,500 square feet of floor area, whichever is greater;

            ii)    Addition of not more than fifteen (15) percent of previously existing parking spaces, or 10 parking spaces, whichever is greater; and

            iii)    An increase of not more than fifteen (15) percent in the amount of land cleared for non-agricultural development, or 10,000 square feet of new land clearing, whichever is greater.

        c)    Any sign;

        d)    Any development pursuant to an approvedCertificate of Appropriateness or Special Use Permit including Special Use Permits which are no longer necessary and have therefore been abandoned, provided the Manager finds that no modifications are proposed to the plans and conditions in the area have not changed significantly.

        e)    Any development that, in the opinion of the Town Manager, does not affect existing circulation, drainage, relationship of buildings to each other, landscaping, buffering, or lighting, provided such existing site elements comply with the applicable provisions of this chapter; or

        f)    Any of the following changes in use:

            1)     to another use in the same use group;

            2)     from use group C to use group B and/or use group A; or

            3)    from use group B to use group A; provided such change does not involve development other than that exempted above.

        g)    Any development of Solid Waste Management Facility on a zoning lot.

Chapel Hill Development Ordinance § 19.2 (2002). Petitioner argues that the Town Manager misinterpreted this section of the ordinance when it denied petitioner's request for a ZCP on the basis that petitioner's ZCP application did not meet each of the enumerated factors in section 19.2.
    In a letter dated 4 June 2002, the Town Manager denied petitioner its ZCP but informed petitioner that it could apply for site plan approval from the Planning Board. The letter cited several reasons why the Town Manager could not grant the ZCP, including:        2.    The development proposed . . . cannot be approved administratively because the floor area proposed with the addition of greenhouse structures on the lot cannot be approved administratively by the staff (Section 19.2(b)[)].

        3.    The development proposal includes a change to circulation because the round-about area where supply yard materials are stockpiled has not received approval. Town staff cannot approve significant changes to access and circulation in accordance with Section 19.2(e) of the Development Ordinance.

        4.    The development proposal includes changes to landscaping, buffering, and relationship of buildings to each other (Section 19.2(e)[)].

Petitioner argues that pursuant to section 19.2(f)(1) of the ordinance, the Town Manager should have approved petitioner's application for a ZCP because petitioner was seeking to change the use of the land to another use in the same use group. Both residential single-family use and agricultural use are Group A uses. Chapel Hill Development Ordinance § 12.3.
    Petitioner interprets section 19.2 of the ordinance to read that administrative staff approval, i.e., approval by the Town Manager, is mandatory when any of the above exceptions is met. Petitioner bases its argument on its belief that subparagraphs "a" through "g" of section 19.2 "are connected by the disjunctive 'or.'" Thus, under petitioner's interpretation of the ordinance, the Town erred when it denied petitioner's ZCP application because the Town read these exceptions in section 19.2 to be connected by the conjunctive "and," thereby requiring all of the exceptions to be met for the Town Manager to give approval. Although we agree that this ordinance is somewhat unclear, we disagree withpetitioner's interpretation of the ordinance.
    First, petitioner's argument is flawed in that the exceptions in subparagraphs "a" through "g" of section 19.2 are not connected in the entirety by any type of conjunction. Rather, only subparagraphs "e" and "f" are expressly joined by a connector: "or"; other subparagraphs are separated by a semi-colon or end with a period. For instance, subparagraph "b" is connected to "a" by a semi-colon, but ends with period. In applying ordinary rules of grammar, subparagraphs "a" and "b" are connected in some way, but they stand alone from the rest of the subparagraphs because subparagraph "b" ends with a period. See Dunn v. Pacific Employers Ins. Co., 332 N.C. 129, 134, 418 S.E.2d 645, 648 (1992) ("Ordinary rules of grammar apply when ascertaining the meaning of a statute, and the meaning must be construed according to the context and approved usage of the language."). Thus, even if petitioner's ZCP application might have been exempted from requiring Town Council or Planning Board approval because petitioner was proposing a change in use to another use in the same use group under subparagraph "f(1)," a fact the parties dispute, petitioner's ZCP application was not exempt because of subparagraph "b." Since petitioner was not proposing a "development of a single or two-family dwelling on a zoning lot," subparagraph "a" is irrelevant. Subparagraph "b" is thus a stand-alone exemption. In the present case, petitioner's proposal for development sought to add more than fifteen percent floor space to the existing floor area, a fact not disputed by petitioner. Site plan review and approval by the Town Council orPlanning Board was required. Chapel Hill Ordinance § 19.2(b)(i).     Furthermore, we cannot agree with petitioner's interpretation of section 19.2 of the ordinance because it could result in implausible situations. For instance, as the Town asserts, petitioner's interpretation would require that a proposed expansion of a two-family duplex into a thirty-unit apartment complex, resulting in a change in use "to another use in the same use group," be approved by the Town Manager despite that the proposed development would most likely involve adding more than "fifteen (15) percent of previously existing floor space." Chapel Hill Development Ordinance § 19.2(f)(1) and (b)(i). We cannot conclude that the Town intended the ordinance to exempt such a development proposal from review by the Town Council or Planning Board. The Town correctly denied administrative staff approval of petitioner's ZCP request.
    Petitioner also asserts that the Town violated the procedures set forth in section 19.4 of the ordinance. Specifically, petitioner refers to section 19.4.2, which addresses action on the ZCP application. Section 19.4.2 provides:
        On receipt of a complete application, the Town Manager shall cause an analysis to be made by qualified representatives of the Town and such other agencies or officials as appear appropriate in the circumstances of the case, to determine compliance with applicable provisions of this chapter and any applicable conditions of an approved Special Use Permit or Certificate of Appropriateness.

        In the cases of developments exempted from site plan review . . . the Town Manager shall take final action on the application.
        In the case of developments requiring site plan review, the Town Manager shall submit to the Council or Planning Board, as appropriate, a report of his or her analysis of the application.

        The Council or Planning Board, as appropriate, shall review the application and the Town Manager's report and shall take final action on the application.

Chapel Hill Development Ordinance § 19.4.2 (2002).
    Petitioner contends that if site plan review and approval by the Planning Board was required, the Town Manager improperly took final action on petitioner's ZCP application when the Town Manager should have prepared and submitted an analysis of the application to the Planning Board. Petitioner predicates this argument on the fact that the Town Manager wrote in the 4 June 2002 letter that the Town Manager was "required to deny this application for administrative Zoning Compliance Permit in accordance with Section 19.2 of the Development Ordinance." However, the Town Manager further wrote: "If you decide to submit an application for Site Plan Approval for the Planning Board, you may apply your $125 already paid application fee to that application. If not, please let us know and we will initiate the refund process." It therefore appears that the Town Manager did not take final action on petitioner's application, but rather, informed petitioner that while staff approval of petitioner's application was inappropriate, petitioner could file a request for site plan approval. The Town Manager also informed petitioner that it could appeal the Town's decision to the Board of Adjustment. Nothing in the ordinance suggests that the Town Manager must submit an analysis of a ZCPapplication to the Planning Board before the applicant has decided that he or she would like to pursue a site plan approval. We are persuaded by the Town's argument that since site plan approval generally requires more fees than does staff approval, it would be improvident to automatically forward an applicant's ZCP application to the Town Council or Planning Board without first presenting the option of site plan approval to the applicant.
    Moreover, petitioner ignores section 19.4.1 of the ordinance, which states:
        Applications for a Zoning Compliance Permit shall be submitted to the Town Manager.

        The Town Manager shall prescribe the form(s) on which the applications are made. . . . The Town Manager shall prescribe any other material that may reasonably be required to determine compliance with this chapter, with sufficient copies for necessary referrals and records.

Chapel Hill Development Ordinance § 19.4.1 (2002). This section of the ordinance expressly gives the Town Manager the power to create and implement procedures consistent with Article 19 of the ordinance. We find that the Town Manager's actions in the present case complied with the procedures set forth in section 19.4 of the ordinance and were not meant to impede petitioner's application, but rather assist petitioner with the application process. The Town correctly interpreted its own ordinance and the Board of Adjustment did not commit any errors in law by affirming the Town's decision to deny petitioner's ZCP request.
    The trial court did not err in affirming the Board's decision to uphold the Town's denial of petitioner's ZCP request.    Affirmed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

Footnote: 1