Determining and Distinguishing Land Uses

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Adam Lovelady

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Through the years of local zoning and planning, we have managed to create increasingly complex use lists.  Each local ordinance has its own long list of defined uses, drawing fine lines between similar uses like “parks” and “public recreation facilities,” for example.  Despite these careful lists—or perhaps because of them—questions remain about determining and distinguishing among land uses.  Can we distinguish between owner and renter uses?  How about commercial and non-commercial?  What do we do when the use is not listed?  When do we know that a land use has changed?  This discussion explores those questions and the options and requirements for distinguishing uses.

Ownership.  One thing is clear.  Ownership status may not be used to define a land use.  In Graham Court Associates v. Town Council of Town of Chapel Hill, the property owner sought to convert a multifamily building from tenant-occupied apartments to owner-occupied condominiums.  The court found that “[t]here would be absolutely no change in the use of the land” and stated clearly that the change in ownership to condominiums does not constitute a change in use which the town can regulate by its zoning ordinance. 53 N.C. App. 543, 281 S.E.2d 418 (1981).

That decision was re-affirmed in City of Wilmington v. Hill in which the court rejected a city zoning ordinance that required an owner to occupy one of the residences in the case of an accessory dwelling unit.  The court quoted from Graham, stating that “it is ‘beyond the power of the municipality to regulate the manner of ownership of the legal estate.’” 189 N.C. App. 173, 178, 657 S.E.2d 670, 673 (2008).

Commercial Nature.  The courts have taken a more lenient view on distinctions between commercial and non-commercial uses with comparable land use impacts.  In Tucker v. Mecklenburg County Zoning Bd. of Adjustment, the court considered a 10-15 dog kennel operated by a nonprofit organization that offered the rescue dogs for adoption.  The court allowed the distinction between private and commercial kennels.  And, despite the commercial aspects of the kennel (size, contract terms for adoption, etc.), the court upheld the local board’s finding that the kennel at issue was private.  148 N.C. App. 52, 59, 557 S.E.2d 631, 636 (2001) aff’d in part, review dismissed in part, 356 N.C. 658, 576 S.E.2d 324 (2003).

Similarly, the NC Supreme Court has accepted a distinction between personal and commercial use, despite comparable impacts.  In Dobo v. Zoning Board of Adjustment, the Court accepted the dissenting opinion from the Court of Appeals, which allowed a commercial-scale sawmill for personal use after finding no evidence that the owner used it for commercial purposes. 149 N.C. App. 701, 712, 562 S.E.2d 108, 115 (2002) rev’d, 356 N.C. 656, 576 S.E.2d 324 (2003).

What use is it? Even with the long use lists and complex use tables, a local ordinance cannot list every possible use of land.  For uses that are not listed in the land use table, many zoning ordinances authorize the zoning official to determine the category most similar to the unlisted use and regulate it as such.  The NC Court of Appeals decision in Land v. Village of Wesley Chapel highlighted the risk of arbitrariness for such “similarity of use” decisions. 206 N.C. App. 123, 697 S.E.2d 458 (2010).  My colleague Rich Ducker offered an analysis of the case and practical suggestions for reviewing zoning ordinances in light of it.  Recently, the Court of Appeals allowed an “unlisted use” provision that is part of the Town of Cary’s Land Development Ordinance. Cary’s ordinance included a level of discretion for the Planning Director to permit unlisted uses, but set forth criteria for the evaluation.  Fairway Outdoor Adver. v. Town of Cary, __ N.C. App. __ (2013).

Change of Use.  Pursuant to the state building code (Sec. 204.8.1) and as set forth by many zoning ordinances, an owner must obtain a compliance permit for a change of use.  Additionally, many zoning ordinances restrict changes to lawfully nonconforming uses.  As such, the question of whether a use has changed may arise in several scenarios.

In Stegall v. Zoning Board of Adjustment of New Hanover County, the court considered whether the addition of mausoleums to a cemetery constitutes a change in use.  Examining the applicable ordinance language and relevant statutory definitions, the court found that the permissible activity was using the land for cemetery purposes, including below-ground and above-ground burial.  The addition of mausoleums, the court found, related to the process and intensity of the permitted land use, not an unlawful change of use.  The addition of an administration, security, and sales office building, however, would amount to an unlawful change under the ordinance.  87 N.C. App. 359, 361 S.E.2d 309 (1987)

Ordinance language is critical.  Whereas the ordinance language in Stegall permitted intensification of use, the local ordinance in Kirkpatrick v. Village Council for Village of Pinehurst plainly prohibited intensification of a nonconforming use.  As such, the owner was not permitted to increase the total number of campsites at a lawfully nonconforming campground. 138 N.C. App. 79, 530 S.E.2d 338 (2000).

Proposed Use v. Suspected Use.  So, a landowner says she is growing a few flowers, but rumor suggests that she maintains a commercial landscaping company.  What is the real use?  When it comes to applications, local governments must consider the actual proposed use of the site, not some feared possible use.

In Mitchell v. Barfield, the owner sought a permit for a hotel (a permitted use), but the local government suspected that the owner intended to use the property as a hospital or infirmary (not a permitted use).

Considering the situation, the state Supreme Court noted that “it is no ground for the denial of the permit . . . that the applicant intends to put the building when erected to an improper use; the question as to the legality of the alleged intended use must await determination in proper proceedings after such use is attempted to be made of the building.” 232 N.C. 325, 327, 59 S.E.2d 810, 811 (1950).

For existing uses, of course, reasonable investigation may demonstrate that the land use is not the permitted use, and enforcement action may follow. Durham County v. Maddry & Co., Inc., 315 N.C. 296, 337 S.E.2d 576 (1985).

 Is it still a land use? What is the status of a property’s use when the building is not currently occupied?  This question typically arises in the case of a nonconforming use.  Many local ordinances prohibit an owner from re-establishing a use after it has been terminated or discontinued for some stated amount of time (six months, for example).  This question may also arise when an ordinance requires a buffer between uses (x feet between a bar and a church, for example).

A recent blog post by David Owens explored this question thoroughly.  In short, the answer will depend on the specific ordinance language and facts of the case, but generally, when an owner is actively renovating and repairing a property, the use continues.

When an owner is remodeling pursuant to a valid building permit, closing the business for construction is not discontinuance of the use.  In Diggs v. City of Wilson, 25 N.C. App. 464, 465, 213 S.E.2d 443, 444 (1975), for example, the city granted a permit to alter and remodel a nonconforming restaurant.  The court found that the permitted remodeling—which lingered on for thirteen months—“ did not constitute, as a matter of law, a ‘discontinuance’ of the nonconforming use within the meaning of the ordinance.”

The outcome was similar in Flowerree v. City of Concord, 93 N.C. App. 483, 485, 378 S.E.2d 188, 189 (1989).  After renters moved out, the owner of a nonconforming duplex advertised for new renters.  Having no luck, the owner began repairs and renovations to attract new renters.  The city argued that there had been cessation of the use for more than three consecutive months, so under the ordinance the owner was prohibited from re-establishing the nonconforming use.  The court disagreed.  It held that the owner’s seeking of tenants and effort to make repairs was not cessation of the use.

Is it termination or discontinuance? In Southern Equipment Company v. Winstead, 80 N.C. App. 526, 342 S.E.2d 524 (1986), the court relied upon local ordinance language and distinguished between permanent termination of a use and temporary discontinuation of a use. For over six months a company did not operate its concrete plant, but maintained the plant, equipment, inventory, and utilities to resume operations as soon as the market improved.  Under the ordinance, a nonconforming use status would be forfeited if the use “ceases for any reason for a period of six (6) months.”   The court noted that the term cessation may be read as termination of a use (permanent) or discontinuance of a use (temporary).  For this particular ordinance, the court found cessation synonymous with termination.  Given the facts of the concrete company, the court found that the operator did not “cease” the nonconforming use under the ordinance.

So what does it all mean?

Defining and determining change of use is largely dependent on the applicable ordinance language.  Although ownership status is not an aspect that may be used in defining land use, the commercial nature may be a determinative aspect.  Change of use decisions may be necessary for basic zoning and building permits and in nonconforming situations.  And, of course, we cannot predict what future changes may occur.  When evaluating a permit, the local government must consider the proposed use, not some feared alternate use. And, when determining if a use has ended, the answer will depend on the specific ordinance language and facts of the case.

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