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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1071


Filed: 19 June 2007


v .                         Johnston County
                            No. 03CVS3480
Acting Through its Board
of Commissioners,

    Appeal by Petitioners from judgment entered 13 February 2006 by Judge William C. Gore, Jr. in Superior Court, Johnston County. Heard in the Court of Appeals 27 March 2007.

    Wilkins, Wellons & Coats, by Allen H. Wellons,and Spence & Spence, by Robert A. Spence Jr., for Petitioners-appellees.

    Woodruff, Reece, & Fortner, by Gordon C. Woodruff and Michael J. Reece, for Respondent-appellant.

    WYNN, Judge.

    For the reasons set forth below, we affirm the trial court's declaratory judgment.
    The undisputed findings by the trial court show that Petitioners purchased 10.01 acres of land in Johnston County with the stated “intent to construct a home, have a garden and some agricultural land, and build one or more soccer fields for their use and for the use of the predominately Hispanic Adult Soccer League as well as for younger players and friends.” Johnston County zoned the property as Agricultural-Residential District (AR) with the following permitted uses: “Golf courses, parks,playgrounds, community centers, libraries, swimming pools and similar recreational uses.” According to Petitioners, the Johnston County Planning Department informed them that soccer fields were a permitted use on their property.
    After Petitioners constructed soccer fields with substantial investment and began using them for games, some neighbors complained that the soccer fields violated the Johnston County Land Development Code. In response to the complaints, the Johnston County Planning Department staff advised Petitioners to file a Rezoning Petition/Special Use Application to rezone the soccer field property as Agricultural-Residential Special Use District (AR-SUD). Petitioners filed the matter which was brought before the Johnston County Planning Board on 19 August 2003, at which time the Board recommended, with a 6 to 1 vote, that the special use permit be approved to allow the operation of two soccer fields, playground, concessions, and other related uses, subject to restrictions for reasonable buffering.
    On 10 September 2003, Petitioners received a letter from Johnston County Planning Board stating that due to complaints received, Petitioners should cease use of the soccer fields, pending a review by the Board of County Commissioners. After a public meeting on 13 October 2003, t he Board of County Commissioners denied the petition to allow the special use permit for soccer fields.
    On 3 December 2003, Petitioners filed a Petition for Declaratory Judgment and Writ of Certiorari to determine theirrights. While the matter was pending, the parties participated in mediation and decided to go back before the Planning Board. Again, the Planning Board recommended that the property be designated as AR-SUD; however, on 11 July 2005, the Board of Commissioners denied the request.
    After a hearing on 31 January 2006, the trial court ruled:
        . . . that the Johnston County Development Ordinance, the relevant zoning code, in Section 14-75 Agricultural-Residential District (AR), is clear and unambiguous in its definition of permitted uses to include recreational facilities. The Court hereby finds that . . . soccer fields are clearly a permitted “similar recreational use” as defined therein.

    From this declaratory judgment, Johnston County appeals, contending that the trial court erred in concluding that the use of the property for soccer fields was a permitted use under Section 14-75 of the Johnston County Code Ordinance.   (See footnote 1)  We review this question of law de novo. See Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjust., 334 N.C. 132, 137, 431 S.E.2d 183, 187 (1993)(providing that “[i]n determining whether error of law existed, the superior court, sitting as an appellate court, could freely substitute its judgment for that of respondent and apply de novo review as could the Court of Appeals with respect to the judgment of the superior court”); Savings and Loan League v. Credit Union Comm., 302 N.C. 458, 464-65, 276 S.E.2d 404, 409-10 (1981) (stating that error in interpreting a statute is an error of lawand the court may apply de novo review); Moore v. Bd. of Adjust. for City of Kinston, 113 N.C. App. 181, 182, 437 S.E.2d 536, 537 (1993) (providing that “[w]hether or not the flea market is a permitted use of property in the B-1 district is a matter of interpretation and, therefore, is a question of law subject to de novo review”).
    This Court applies the “same rules of construction when construing both statutes and municipal zoning ordinances.” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 303, 554 S.E.2d 634, 638 (2001) . “The 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)). Moreover, “intent is determined according to the same general rules governing statutory construction, that is, by examining (i) language, (ii) spirit, and (iii) goal of the ordinance.” Id. at 304, 554 S.E.2d at 638 (citation omitted).
    Additionally, “if the words of a statute are plain and unambiguous, the court need look no further.” Id. (quoting Walker v. Board of Trustees of N.C. Local Governmental Employees' Ret. Sys., 348 N.C. 63, 65-66, 499 S.E.2d 429, 430-31 (1998). However, “[i]f the language is unclear, judicial construction may be required.” Id. (quoting In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388-89 (1978)).     Johnston County contends that the language outlining the permitted uses under Section 14-75(b)(5)   (See footnote 2)  excludes the use of soccer fields. On its face, the statute does not exclude soccer fields, and the language “similar recreational uses” is unclear. When “the language is ambiguous, or susceptible to multiple interpretations,” as in the case at hand, “judicial construction must be grounded in the statute's perceived intent or purpose.” Durham Land Owners Ass'n v. County of Durham, ___ N.C. App. ___, 630 S.E.2d 200, 203, disc. review denied, 360 N.C. 532, 633 S.E.2d 678 (2006). Moreover,
        [i]t is the universal rule that in seeking the intent it is the duty of the Court, where the language of a statute is susceptible of more than one interpretation, to adopt the construction and practical interpretation which best expresses the intention of the Legislature, . . . for 'the heart of a statute is the intention of the lawmaking body.'

Id. (quoting Mullen v. Louisburg, 225 N.C. 53, 58, 33 S.E.2d 484, 487 (1945)).
    Section 14-75(b)(5) of the Johnston County Code of Ordinance includes golf courses, parks, playgrounds, and community centers. The facilities may include some types of playing field which may potentially draw large crowds. Moreover, these facilities typically sell food and drinks, and may have restroom facilities. Thus, a soccer field appears to fit within the meaning ofrecreational uses similar to golf courses, parks, playgrounds and community centers.
    Nonetheless, Johnston County argues that the list does not include football, baseball, and other sports. It contends that in denying the permit for soccer fields, the Board of Commissioners took into account the traffic and noise that these playing fields may cause. However, under section four (4) of Section 14-75(b),   (See footnote 3)  the ordinance allows colleges and universities as a permitted use in an AR District. These facilities typically include a sports complex, which draws large crowds and lead to major traffic issues.
    When the ordinance is taken as a whole, the language “similar recreational use” allows the inclusion of soccer fields as a permitted use. Accordingly, we hold the trial court did not err in concluding that soccer fields were a permitted use under Section 14-75(b)(5) of the Johnston County Code of Ordinance.
    Judges BRYANT and GEER concur.
    Report per rule 30(e).

Footnote: 1
     The trial court did not consider the writ of certiorari, and decided the case solely on the declaratory judgment action.
Footnote: 2
     “Golf courses, parks, playgrounds, community centers, libraries, swimming pools and similar recreational uses.” Johnston County Code of Ordinance § 14-75(b)(5).
Footnote: 3
    “Colleges, universities, public elementary and secondary schools, and private schools having curricula approximately the same as ordinarily given in public schools.” Johnston County Code of Ordinance § 14-75(b)(4).

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