An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-367


Filed: 2 January 2007


v .                         New Hanover County
                            No. 05 CVS 0921

    Appeal by petitioner from judgment entered 8 September 2005 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 21 September 2006.

    Wessell & Raney, L.L.P., by John C. Wessell, III, for petitioner-appellant.

    Andrew A. Canoutas for respondent-appellee.

    GEER, Judge.

    Petitioner S.F. Holdings of Wilmington, L.L.C. appeals from a judgment of the superior court affirming a decision of the Kure Beach Board of Adjustment (the "Board") that had denied petitioner's request for permission to build four single-family dwellings on property it owned in the B-1 Business District of the Town of Kure Beach. Petitioner contends that a provision in Kure Beach's zoning ordinance should be construed to allow the single- family dwellings. Because the Board's interpretation of its zoningordinance is both consistent with the rules of statutory construction and reasonable, we affirm.


    The facts on appeal are essentially undisputed. Petitioner acquired a four-lot tract of land in Kure Beach on 23 December 2004. At that time, a motel, called the Rolling Surf Motel, was located on the property. During all times pertinent to this appeal, this property was zoned as a "B-1 Business District" under Kure Beach, N.C., Code §§ 19-242 through -262 (2003). Petitioner acknowledges that single-family dwellings are not, under Kure Beach, N.C., Code § 19-243 (2003), listed as permitted uses in the B-1 Business District.
    On 23 February 2005, however, petitioner wrote a letter to the Kure Beach Building Inspector (the "inspector"), requesting that he provide documentation "indicating that a single family dwelling may be constructed on each of the four lots where the Rolling Surf Motel is currently located." Petitioner contended, in this letter, that single-family dwellings were in fact permitted in all Kure Beach districts, including the B-1 Business District, by virtue of Kure Beach, N.C., Code § 19-323.5 (2003), which provides: "A single-family dwelling shall be permitted in all districts provided that it conforms to the RA-1A residential requirements."
    The inspector declined to grant petitioner's request, concluding that "single family homes are not permitted in the B-1 district." Petitioner appealed to the Board, which held a public hearing on 18 April 2005. On the same date, the Board rendered adecision interpreting the Kure Beach ordinance with respect to the use of petitioner's property. The Board concluded that § 19-323.5 was to be interpreted "as a continuation of Section 19-323 which lays out certain conditions under which single family dwellings are to be permitted on a lot of record." Kure Beach, N.C., Code § 19- 323 (2003) specifically provides:
            Where the owner of a lot at the time of the adoption of the ordinance from which this chapter was derived or his successor in title thereto does not own sufficient land to enable him to conform to the dimensional requirements of this chapter, such lot may be used as a building site for a single family residence in a district in which residences are permitted.

The Board construed § 19-323 and § 19-323.5 as working together: "Section 19-323.5 extends Section 19-323 to include all districts, including B-1, but does not negate the conditions of non-conformity with the dimension requirement of the district as specified in Section 19-323."
    Phrased differently, the Board concluded that § 19-323.5 allows a property owner to build a single-family dwelling in any district, including the B-1 Business District, if the land is not sufficiently large enough to comply with the dimensional requirements of the particular district and, therefore, a conforming use is not possible. Because the Board found that petitioner's property "involves sufficient land to construct a conforming use," it affirmed the inspector's decision.
    On 4 May 2005, petitioner filed a petition for writ of certiorari in the New Hanover County Superior Court. The writ was granted and, after hearing arguments from counsel, the superiorcourt affirmed the Board's decision. Petitioner has timely appealed to this Court.
    On appeal from a superior court's review of a zoning board decision, the scope of our review is limited to determining whether the trial court exercised the appropriate standard of review and, if so, deciding if the trial court did so properly. Harding v. Bd. of Adjustment of Davie County, 170 N.C. App. 392, 395, 612 S.E.2d 431, 434 (2005). Our standard of review is the same as that of the superior court. Id.
    In reviewing a decision of a zoning board, a superior court must first determine what type of error the petitioner asserts. In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998). When the petitioner claims that the municipality's conclusions were either unsupported by the evidence or arbitrary and capricious, the appropriate standard of review is the "whole record" test. Id. On the other hand, if the petitioner correctly contends that the municipality's decision was based on an error of law, de novo review is required. Id. As petitioner's contention in the present case is based on the construction of a municipal zoning ordinance, the standard of review is de novo. See Keith v. Town of White Lake, ___ N.C. App. ___, ___, 625 S.E.2d 587, 588 (2006) ("Interpretation of the zoning ordinance is a matter of law which we review de novo.").
    "Courts apply the same rules of construction when construing both statutes and municipal zoning ordinances." Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 303,554 S.E.2d 634, 638 (2001). It is, of course, a fundamental rule of construction that "if the words of a statute are plain and unambiguous, the court need look no further." Id. at 304, 554 S.E.2d at 638. Nevertheless, we must be mindful that "'[t]he basic rule is to ascertain and effectuate the intention of the municipal legislative body.'" Id. at 303-04, 554 S.E.2d at 638 (quoting George v. Town of Edenton, 294 N.C. 679, 684, 242 S.E.2d 877, 880 (1978)). Accordingly, "[a] court 'does not read segments of a statute in isolation. Rather, we construe statutes in pari materia, giving effect, if possible, to every provision.'" MMR Holdings, LLC v. City of Charlotte, 174 N.C. App. 540, 545, 621 S.E.2d 210, 213 (2005) (quoting Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004)).
    In the present case, Article III of the Kure Beach Zoning Ordinance, entitled "District Regulations," provides the substantive regulations for each district in Kure Beach, including both residential and business districts. The purpose of the B-1 Business District regulations, as stated in Article III, is to provide a "centrally located trade and commercial service area" and "encourage the continued use of land for regional trade and commercial service uses." Kure Beach, N.C., Code § 19-242. In contrast, Article IV of the Kure Beach Zoning Ordinance, entitled "Supplemental District Regulations," provides additional regulatory provisions governing some or all of the districts, depending on the particular provision at issue.     Among the Supplemental District Regulations is § 19-323, which is followed immediately by § 19-323.5. While the Board concluded that the two sections must be read in tandem, petitioner contends that § 19-323.5 should stand alone and allow property owners to build single-family dwellings in any district without limitation, except for the requirement that the dwellings comply with the RA-1A residential requirements.
    A board of adjustment "'is vested with reasonable discretion in interpreting the meaning of a zoning ordinance, and a court may not substitute its judgment for the board in the absence of error of law . . . .'" Morris Communs. Corp. v. Bd. of Adjustment, 159 N.C. App. 598, 601, 583 S.E.2d 419, 421 (quoting Rauseo v. New Hanover County, 118 N.C. App. 286, 289, 454 S.E.2d 698, 700 (1995)), appeal dismissed, 357 N.C. 658, 590 S.E.2d 269 (2003). Moreover, as "one of the functions of a board of adjustment is to interpret its own local zoning ordinance, . . . its interpretations are owed some deference." MMR Holdings, 174 N.C. App. at 546, 621 S.E.2d at 213.
    We agree with the Board's interpretation of the ordinance as the most reasonable construction. Under § 19-323, when an owner of a lot cannot, because of the lot's dimensions, comply with the applicable regulations for a conforming use, the owner may nevertheless construct a single-family dwelling so long as the lot is in a district "in which residences are permitted." Section 19- 323.5 then extends this single-family dwelling exception for non- conforming lots to all districts, whether business or residential.    The Board's interpretation implements the intention of the municipal legislature by requiring "the continued use of land [in the B-1 Business District] for regional trade and commercial service uses" when a lot is dimensionally capable of being so used. It adheres to the principle of in pari materia by construing §§ 19- 323 and 19-323.5 together and is, in fact, eminently reasonable. Under the Board's approach, if petitioner's lot _ for dimensional reasons _ could not comply with the applicable B-1 Business District regulations, petitioner would still be able to use its property by constructing a single-family dwelling. On the other hand, if petitioner's interpretation were adopted, the designation of a separate trade and commercial district would essentially be eviscerated since there would be no limits on a property owner's ability to build single-family dwellings in any district so long as they complied with the RA-1A residential requirements. We do not believe that this construction is consistent with the manifest intent of Kure Beach's zoning ordinance.
    We, therefore, uphold the Board's interpretation of § 19-323.5 as requiring that a property owner demonstrate, prior to being able to build a single-family dwelling pursuant to that subsection, that the lot meets the requirements of § 19-323. Because the Board found (and petitioner does not dispute) that petitioner's property "involves sufficient land to construct a conforming use," neither § 19-323 nor § 19-323.5 applies, and, therefore, petitioner must comply with the B-1 Business District regulations. We, therefore, affirm the trial court's order upholding the decision of the Board.
    Judges STEELMAN and STEPHENS concur.
    Judge STEPHENS concurred prior to 31 December 2006.
    Report per Rule 30(e).

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