Appeal by Petitioners from decision and order entered 24
January 2006 by Judge Orlando F. Hudson in Superior Court, Durham
County. Heard in the Court of Appeals 24 January 2007.
Hutson Hughes & Powell, P.A., by James H. Hughes, for
Office of the Durham City Attorney, by Assistant City Attorney
Karen A. Sindelar, for Respondents-Appellees.
Phillip C. Clegg (Mr. Clegg) owns real property at 3666 Guess
Road in Durham (the Guess Road lot). Mr. Clegg also owns an
adjoining parcel of real property located behind the Guess Road lot
that fronts on Hermine Street (the Hermine Street lot). The Guess
Road lot and the Hermine Street lot (collectively the properties)
are each located in single-family residential zoning districts.
Mr. Clegg began operating an exterminating business, Clegg's
Termite and Pest Control, on the Guess Road lot in 1974. Mr. Clegg
received a letter dated 1 October 1985 from the City of Durham'sPlanning and Community Development Department stating that in 1974
the Durham Inspections Department had "approved the use of an
existing nonconforming use of [the properties] for Clegg['s]
Termite and Pest Control and Glenn Darst Realty." The letter
stated that these two businesses were the only ones that the
properties could legally accommodate, but that five businesses were
operating on the properties. The letter stated this constituted a
zoning violation. Mr. Clegg agreed to reduce the number of
businesses operating on the properties to two.
In 1988, Mr. Clegg ceased using the Guess Road lot for the
operation of Clegg's Termite and Pest Control and began leasing the
Guess Road lot to commercial tenants. Thereafter, Mr. Clegg
continued to use a portion of the Hermine Street lot for storage
related to Clegg's Termite and Pest Control.
The Durham City/County Zoning Ordinance (the Zoning Ordinance)
was modified in 1994 to prohibit a change from one nonconforming
use to another nonconforming use. At that time, Mr. Clegg was
leasing the Guess Road lot to an auto repair shop. Mr. Clegg began
leasing the Guess Road lot to Benson Nursery, a plant nursery, in
2000. Benson Nursery has continued to operate on the Guess Road
lot since that time.
The Durham City/County Zoning Enforcement staff received
complaints in 2004 concerning a tractor-trailer that was parked on
the Hermine Street lot, and general complaints about the operation
of a business on the Guess Road lot. Upon investigation, it was
determined that Benson Nursery was operating on both the Guess Roadlot and the Hermine Street lot. The Durham City/County Zoning
Enforcement Officer issued a notice of violation to Mr. Clegg on 15
July 2004. The notice stated that the Guess Road lot was zoned as
an R-8 residential district and the Hermine Street lot was zoned as
an R-10 residential district. The notice further stated that a
commercial retail nursery was not a permitted use in an R-8 or R-10
residential zoning district. A notice of violation was also issued
to Benson Nursery on 16 September 2004. Mr. Clegg and Benson
Nursery (Petitioners) appealed to the Durham City/County Board of
Adjustment (the Board).
In a letter to the Board, the director of the Durham
City/County Planning Department concluded that "Benson Nursery
represents a change of use of [the properties] that is not allowed
under the Zoning Ordinance." The Board conducted a hearing
regarding Petitioners' appeal on 14 December 2004.
The Board found that the properties were located in single-
family residential zoning districts. The Board also found that a
portion of the properties was being used as a plant nursery, which
was not a permitted use in single-family residential zoning
districts. The Board found that section 19.6(2) of the Zoning
Ordinance, which became effective 1 January 1994, did not allow a
nonconforming use to be converted to another nonconforming use. As
of 1 January 1994, an auto repair business was being operated on
the Guess Road lot. Sometime in 2000, the Benson Nursery opened
and began operating on the Guess Road lot.
The Board concluded "[t]hat the term 'Use' referenced inSection 19 of the Zoning Ordinance [meant] those particular
categories of uses found in Section 4 of the Zoning Ordinance or
the 'Table of Permitted Uses' found in Section 6." The Board
further concluded "[t]hat 'Leasing' [was] not defined and
considered as a separate category of property use in the Zoning
Ordinance. In other words, the Zoning Ordinance defin[ed] what
activities [could] occur on property regardless of whether the
property [was] leased or owned." Therefore, "the opening of the
plant nursery was a violation of Section 19.6(2) of the
. . . Zoning Ordinance in that an existing nonconforming use [auto
repair] was changed to another nonconforming use [a plant
nursery]." The Board voted to uphold the determination of the
Planning Director that Petitioners were operating, or allowing the
operation of, Benson Nursery in violation of the Zoning Ordinance.
Petitioners filed a petition for writ of certiorari and for
judicial review of the Board's decision. The trial court filed its
decision and order on 24 January 2006, upholding the Board's
decision. The trial court determined, inter alia, that
[t]he Board's interpretation of the term 'use'
to mean particular activities conducted on
property, and the Board's conclusion that
leasing for a commercial purpose or to
commercial tenants is not a 'use' as defined
by the Code are both consistent with the
. . . Zoning [Ordinance], and are not affected
by error of law[.]
Petitioners argue the trial court and the Board erred by
interpreting the term "use" to mean particular activities conductedon property and by concluding that leasing for a commercial purpose
was not a "use" defined by the Zoning Ordinance. "On appeal of a
trial court judgment considering a decision of a board of
adjustment, our Court reviews the trial court's order for errors of
law." Jirtle v. Board of Adjust. for the Town of Biscoe
, 175 N.C.
App. 178, 180, 622 S.E.2d 713, 715 (2005). "A question involving
the interpretation of a zoning ordinance is a question of law, to
which we apply a de novo
standard of review." Id.
"Zoning restrictions should be interpreted according to the
language used in the ordinance." Id.
"In determining the meaning
of a zoning ordinance, we attempt to ascertain and effectuate the
intent of the legislative body." Ayers v. Board of Adjust. for
Town of Robersonville
, 113 N.C. App. 528, 531, 439 S.E.2d 199, 201,
disc. review denied
, 336 N.C. 71, 445 S.E.2d 28 (1994). "In
addition, we avoid interpretations that create absurd or illogical
Petitioners argue the trial court and the Board erred by
failing to apply the definition of the term "use" found in the
Zoning Ordinance. Under Section 2.2 of the Zoning Ordinance, "use"
is defined as "[t]he purpose for which a building, structure, or
area of land may be arranged or occupied or the activity conducted
or proposed in a building, structure, or on an area of land."
Petitioners contend that under this definition, leasing to
commercial tenants who operate businesses allowed by the general
commercial district is a "purpose for which a building, structure,
or area of land may be arranged or occupied[.]" Petitioners argue that in 1988 Mr. Clegg changed the purpose
of the use of the Guess Road lot "from operating a business under
the Commercial District Classification to leasing to tenants who
operate a business under the Commercial District Classification."
Therefore, in 1994 when the new Zoning Ordinance was adopted, the
nonconforming use of the Guess Road lot was leasing to commercial
tenants. Thereafter, Petitioners argue, Mr. Clegg could lease to
different commercial tenants without changing the nonconforming use
of the Guess Road lot, provided that the commercial tenants
operated businesses allowed under the commercial district
Section 4D.3.2 of the Zoning Ordinance lists the uses that are
permitted in general commercial districts. Section 4D.3.2 lists,
, "[g]arden centers" and "[v]ehicle repair shops without
outdoor storage or operations[,]" as uses permitted in general
commercial districts. However, Section 4D.3.2 makes no distinction
on the basis of whether these uses are conducted by the owner of
real property or by a tenant of the owner of real property.
Moreover, the table of permitted uses in Section 6 of the Zoning
Ordinance lists the uses that are permitted in each of the zoning
districts. Again, the table makes no distinction based upon
whether the listed uses are conducted on real property that is
leased or not. Neither Section 4D.3.2 nor the table of permitted
uses list leasing as a separate property use.
The permitted uses listed under Sections 4 and 6 of the Zoning
Ordinance all focus on what is occurring on real property, not whois conducting that activity on the real property. Therefore, we
hold the trial court did not err by upholding the Board's
conclusion that the term "use" "[meant] those particular categories
of uses found in Section 4 of the Zoning Ordinance or the 'Table of
Permitted Uses' found in Section 6." We also conclude that the
trial court and the Board properly determined that leasing was not
a separate category of property use under the Zoning Ordinance.
However, even assuming arguendo
that the Board and the trial
court erred by failing to apply the definition of "use" found in
Section 2.2 of the Zoning Ordinance, the ultimate result would
remain the same. Our Court has held that where "a court's ruling
[is] based upon a misapprehension of law, '[but] the
misapprehension of the law does not affect the result[,] . . . the
judgment will not be reversed.'" Smith v. Beaufort County Hosp.
, 141 N.C. App. 203, 212, 540 S.E.2d 775, 781 (2000) (quoting
Bowles Distributing Co. v. Pabst Brewing Co.
, 69 N.C. App. 341,
348, 317 S.E.2d 684, 689 (1984)), disc. review denied
, 353 N.C.
381, 547 S.E.2d 435, aff'd per curiam
, 354 N.C. 212, 552 S.E.2d 139
In the present case, Section 2.2 defines the term "use" in
part as "[t]he purpose for which a building, structure, or area of
land may be arranged or occupied[.]" The term "purpose" is not
defined in the Zoning Ordinance. The term "purpose" can be defined
as "[a]n objective, goal, or end[.]" Black's Law Dictionary 1271
ed. 2004). When this definition is applied to the definition
of "use" found in the Zoning Ordinance, the definition reads asfollows: "the [objective, goal, or end] for which a building,
structure, or area of land may be arranged or occupied[.]" We
interpret the term "purpose" to relate to what occurs on real
property, not to the ownership of real property.
Our decision is supported by Graham Court Assoc. v. Town of
, 53 N.C. App. 543, 281 S.E.2d 418 (1981), where the
issue was "whether the power to control the uses
through zoning extends to control of the manner in which the
property is owned." Id.
at 544, 281 S.E.2d at 419. In that case,
the petitioner owned an apartment building that did not fully
comply with the standards of the applicable zoning ordinance. Id.
at 544-45, 281 S.E.2d at 419. However, the continued use of the
apartment building was permitted as a prior nonconforming use. Id.
at 545, 281 S.E.2d at 419. The petitioner sought to sell the
individual apartments in the building to new owners in accordance
with the North Carolina Unit Ownership Act, but the respondent
Chapel Hill Town Council asserted that the petitioner needed to
obtain a special use permit to do so. Id.
at 545-46, 281 S.E.2d at
419. However, the respondent denied issuance of the special use
permit to the petitioner. Id.
at 546, 281 S.E.2d at 419.
Our Court relied on several cases from other jurisdictions,
and recognized that "[b]asic to the decisions in other
jurisdictions is the premise that zoning is the regulation by a
municipality of the use
of land within that municipality, and of
the buildings and structures thereon_not regulation of the
of the land or structures." Id.
at 546, 281 S.E.2d at420. Our Court held that the petitioner was "not required to apply
for or receive a special use permit in order to convert its tenant
occupied apartments to owner occupied apartments." Id.
at 551, 281
S.E.2d at 422. In support of its holding, our Court stated:
Without question [the] petitioner has the
right to continue the present use of the
Graham Court Apartments as they stand, because
they constitute nonconforming uses. The only
real difference in the contemplated change is
ownership. If the [respondent] should
prevail, the apartments would be relegated,
now and for the future, to occupancy by
tenants. The conversion which [the]
petitioner seeks would permit them to be owned
by their occupants. There would be absolutely
no change in the use
of the land. If a use is
permitted, as here, it is beyond the power of
the municipality to regulate the manner of
ownership of the legal estate.
at 551, 281 S.E.2d at 422-23.
In the present case, Petitioners argue that leasing to
commercial tenants is a use recognized by the Zoning Ordinance.
However, as recognized by Graham Court Assoc.
, zoning is not the
regulation of ownership of land or the structures thereon. Id.
546, 281 S.E.2d at 420. Rather, zoning only deals with regulation
of what occurs on real property. Id.
Our decision in the present case effectuates the intent of the
Board in adopting the Zoning Ordinance. The Purpose paragraph of
the section of the Zoning Ordinance dealing with nonconforming
lots, uses and buildings, states: "It is not the intent of this
Section to encourage the continuance of nonconformities which are
out of character with the standards of the zoning district."
Furthermore, the Interpretation paragraph of the Zoning Ordinancestates: "In the case of interpretations regarding allowable uses,
the Director shall apply the closest existing use category to the
activity in question. If there are no such categories, the
Director may disallow the use." In other words, in determining
whether a use is an allowable use, the Planning Director should
look to the categories of uses listed in the Zoning Ordinance.
Therefore, the Board and the trial court did not err by looking to
Sections 4 and 6 of the Zoning Ordinance in determining that
leasing was not a use recognized by the Zoning Ordinance.
Accordingly, our interpretation of the term "use" effectuates the
intent of the Board in adopting the Zoning Ordinance.
Moreover, our interpretation avoids absurd or illogical
results. Petitioners' interpretation would lead to an arbitrary
and illogical discrimination in favor of leased properties over
properties that are not leased. Petitioners' interpretation would
allow nonconforming uses to remain on property that is leased.
This is illogical because the offending characteristics of a
nonconforming use relate to the activity occurring on real
property, not to the ownership of the real property. For example,
in the present case, the other residents of the residential
district were concerned with the fact that Benson Nursery was
operating on the Guess Road lot. They were not concerned with
whether Benson Nursery was being operated by the owner of the Guess
Road lot or by a lessee.
Our decision is also consistent with the public policy of
North Carolina. "Nonconforming uses and structures are not favoredunder the public policy of North Carolina, and '[z]oning ordinances
are construed against indefinite continuation of a non-conforming
, 175 N.C. App. at 181, 622 S.E.2d at 715 (2005)
(quoting 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 Petitioners' interpretation of the term "use" in
the present case, nonconforming uses could continue indefinitely if
the properties on which they existed were leased. This result
would be contrary to the public policy of North Carolina. For the
reasons stated above, we overrule Petitioners' assignment of error.
We also deem Petitioners' remaining assignments of error abandoned
because Petitioners failed to set forth argument pertaining to
those assignments of error. See
N.C.R. App. P. 28(b)(6).
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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