{ "id": 8471893, "name": "NASH-ROCKY MOUNT BOARD OF EDUCATION, Petitioner v. THE ROCKY MOUNT BOARD OF ADJUSTMENT, Respondent", "name_abbreviation": "Nash-Rocky Mount Board of Education v. Rocky Mount Board of Adjustment", "decision_date": "2005-04-05", "docket_number": "No. COA04-290", "first_page": "587", "last_page": "593", "citations": [ { "type": "official", "cite": "169 N.C. App. 587" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "150 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "268 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561227 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0263-01" ] }, { "cite": "507 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "896", "parenthetical": "\"When multiple statutes address a single subject, this Court construes them in pari materia to determine and effectuate the legislative intent.\"" } ], "opinion_index": 0 }, { "cite": "349 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571692 ], "year": 1998, "pin_cites": [ { "page": "523-24", "parenthetical": "\"When multiple statutes address a single subject, this Court construes them in pari materia to determine and effectuate the legislative intent.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0520-01" ] }, { "cite": "346 S.C. 401", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 223299 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "407", "parenthetical": "internal quotation marks omitted" }, { "page": "45", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/sc/346/0401-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "88 S. Ct. 1418", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "20 L. Ed. 2d 285", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "390 U.S. 1028", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6373131, 6372972, 6372621, 6372466, 6372790 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/1028-05", "/us/390/1028-04", "/us/390/1028-02", "/us/390/1028-01", "/us/390/1028-03" ] }, { "cite": "158 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "272 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571698 ], "year": 1967, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0147-01" ] }, { "cite": "178 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "356", "parenthetical": "\"A municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes.\"" } ], "opinion_index": 0 }, { "cite": "277 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566665 ], "year": 1971, "pin_cites": [ { "page": "513", "parenthetical": "\"A municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0506-01" ] }, { "cite": "362 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "557" }, { "page": "558", "parenthetical": "\"In short, the County may not use [a condition to issuance of a permit] to impose limitations outside the scope of its statutory authority.\"" }, { "page": "557", "parenthetical": "\"A county has the power to impose reasonable zoning requirements on buildings operated by certain other governmental units within its boundaries.\" (emphasis added)" }, { "page": "556" } ], "opinion_index": 0 }, { "cite": "321 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566429 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "257" }, { "page": "259" }, { "page": "257" }, { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0252-01" ] }, { "cite": "354 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "286" }, { "page": "286" }, { "page": "287", "parenthetical": "quoting Black's Law Dictionary 176 (5th ed. 1979)" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169585 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "37-38" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0026-01" ] }, { "cite": "178 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "437", "parenthetical": "internal citation omitted" }, { "page": "437-38" } ], "opinion_index": 0 }, { "cite": "277 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566715 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "540", "parenthetical": "internal citation omitted" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0530-01" ] } ], "analysis": { "cardinality": 767, "char_count": 16753, "ocr_confidence": 0.758, "pagerank": { "raw": 1.373994526289264e-07, "percentile": 0.6390934374938462 }, "sha256": "b2ef5b055bdde4595ab25e83a17f433eba84ef35ac0d052ebbc040d037ea01e4", "simhash": "1:9968d13236034128", "word_count": 2761 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and TYSON concur." ], "parties": [ "NASH-ROCKY MOUNT BOARD OF EDUCATION, Petitioner v. THE ROCKY MOUNT BOARD OF ADJUSTMENT, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nRespondent Rocky Mount Board of Adjustment (\u201cBoard of Adjustment\u201d) appeals from the judgment of the trial court reversing the Board of Adjustment\u2019s decision to deny a special use permit to the Nash-Rocky Mount Board of Education for a school bus parking lot. Because we agree with the trial court that the Board of Adjustment lacked jurisdiction over the parking lot, we affirm.\nFactual Background\nIn 2002, the Nash-Rocky Mount Board of Education (\u201cthe School Board\u201d) contacted the City of Rocky Mount about adding a parking lot for school buses at Rocky Mount Senior High School. The parking lot was necessary because of an increased number of buses at the high school due to pupil reassignment and the need to relocate other schools\u2019 buses due to vandalism at those schools. The Rocky Mount Zoning Board told the School Board that it would need two permits: a driveway permit and a fence permit. Once it had obtained the permits, the School Board constructed the parking lot using a crushed gravel base with a chain link fence around the exterior.\nRocky Mount Senior High School is located next to residential neighborhoods. After the parking lot went into use, local residents began complaining of noise, dust, traffic congestion, and trash. In response to the complaints, the City of Rocky Mount informed the School Board that it would need to obtain a special use permit from the Board of Adjustment in order to continue operation of the parking lot.\nThe Board of Adjustment conducted a hearing on the School Board\u2019s request for a special use permit. Based on the testimony of two residents living near the parking lot, the Board of Adjustment concluded that the location of the school bus parking lot would adversely affect the surrounding properties and it would endanger the public health, safety, or general welfare of the neighborhood. For these reasons, the Board denied the request for a special use permit.\nThe School Board filed a petition for writ of certiorari with the Nash County Superior Court, which the court allowed. The trial court concluded that the Board of Adjustment lacked jurisdiction over the School Board\u2019s parking lot and, therefore, reversed the Board of Adjustment\u2019s decision and \u201cremanded to the Board of Adjustment for the issuance to the Nash-Rocky Mount Board of Education of a special use permit for its school bus parking lot forthwith.\u201d The Board of Adjustment filed a timely appeal.\nDiscussion\nAlthough \u201c[t]he original zoning power of the State reposes in the General Assembly[,] [i]t has delegated this power to the \u2018legislative body\u2019 of municipal corporations.\u201d Allred v. City of Raleigh, 277 N.C. 530, 540, 178 S.E.2d 432, 437 (1971) (internal citation omitted). N.C. Gen. Stat. \u00a7 160A-381(a) (2003) sets out the authority of cities and towns to engage in zoning:\nFor the purpose of promoting health, safety, morals, or the general welfare of the community, any city may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence of other purposes ....\nGenerally, municipal zoning regulations do not apply to the State or its political subdivisions unless the legislature has clearly expressed a contrary intent. Davidson County v. City of High Point, 85 N.C. App. 26, 37-38, 354 S.E.2d 280, 286, modified on other grounds, 321 N.C. 252, 362 S.E.2d 553 (1987). In North Carolina, the General Assembly has determined that a city or town may exercise its zoning power as to other governmental entities in the limited circumstances set forth in N.C. Gen. Stat. \u00a7 160A-392 (2003) (emphasis added): \u201cAll of the provisions of this Part [relating to zoning by cities and towns] are hereby made applicable to the erection, construction, and use of buildings by the State of North Carolina and its political subdivisions.\u201d\nThe question presented by this case is, therefore, whether the parking lot located at Rocky Mount Senior High School falls within the grant of zoning power contained in N.C. Gen. Stat. \u00a7 160A-392. As the Supreme Court stated in Allred, 277 N.C. at 540, 178 S.E.2d at 437-38, \u201c[t]he power to zone, conferred upon the \u2018legislative body\u2019 of a municipality, is subject to the limitations of the enabling act.\u201d See also Heaton v. City of Charlotte, 277 N.C. 506, 513, 178 S.E.2d 352, 356 (1971) (\u201cA municipality has no inherent power to zone its territory and possesses only such power to zone as is delegated to it by the enabling statutes.\u201d). Accordingly, if the parking lot comes within the terms of N.C. Gen. Stat. \u00a7 160A-392, then the Board of Adjustment has jurisdiction to issue or deny a special use permit, but if the parking lot is outside the scope of the statute, then the Board of Adjustment has no jurisdiction over the parking lot. In making this determination, we note that \u201c[s]tatutorily granted powers are to be strictly construed.\u201d Davidson County, 321 N.C. at 257, 362 S.E.2d at 557.\nAs both parties have agreed, the question whether the Board of Adjustment has jurisdiction in this case is determined by whether the parking lot is considered either a \u201cbuilding\u201d or a \u201cuse of a building\u201d under the statute. We hold that the parking lot falls into neither category.\nWith respect to the definition of a \u201cbuilding,\u201d the Board of Adjustment first argues that it has jurisdiction because the Rocky Mount Zoning Ordinance defines the word \u201cbuilding\u201d to include a \u201cparking area.\u201d This argument places the cart before the horse. The Rocky Mount Zoning Ordinance (and its definitions) cannot become applicable until after a determination that Rocky Mount had the authority to zone with respect to the parking lot under N.C. Gen. Stat. \u00a7 160A-392. A local entity cannot define the scope of the authority granted to it by the General Assembly. See Davidson County, 321 N.C. at 259, 362 S.E.2d at 558 (\u201cIn short, the County may not use [a condition to issuance of a permit] to impose limitations outside the scope of its statutory authority.\u201d).\nWe must determine whether the General Assembly intended to include a parking lot within the scope of the word \u201cbuilding.\u201d \u201cIt is elementary that in the construction of a statute words are to be given their plain and ordinary meaning unless the context, or the history of the statute, requires otherwise.\u201d State v. Wiggins, 272 N.C. 147, 153, 158 S.E.2d 37, 42 (1967), cert. denied, 390 U.S. 1028, 20 L. Ed. 2d 285, 88 S. Ct. 1418 (1968).\nIn Davidson County, 85 N.C. App. at 38, 354 S.E.2d at 286, this Court construed the word \u201cbuilding\u201d as used in N.C. Gen. Stat. \u00a7 138A-347 (2003) \u2014 a statute identical to N.C. Gen. Stat. \u00a7 160A-392 with the exception that it applies to counties and not cities. Except for Davidson County, we can find no other case that has defined \u201cbuilding\u201d as that term is used in North Carolina\u2019s zoning statutes. This Court in Davidson County found a \u201cbuilding\u201d to be a:\n\u201c[structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof.\u201d\nId., 354 S.E.2d at 287 (quoting Black\u2019s Law Dictionary 176 (5th ed. 1979)).\nThe dictionary definition of \u201cbuilding\u201d is:\na constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure \u2014 distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.\nWebster\u2019s Third New Int\u2019l Dictionary 292 (1968). See also Black\u2019s Law Dictionary 207 (8th ed. 2004) (defining \u201cbuilding\u201d as \u201c[a] structure with walls and a roof, esp. a permanent structure\u201d).\nNo matter whether we use the definition of \u201cbuilding\u201d adopted by the court in Davidson County or the dictionary definition, it is apparent that the plain meaning of the word \u201cbuilding\u201d does not encompass a parking lot. A parking lot is not a structure; it has no roof, walls, or any other kind of permanent, immovable features apart from a fence. Put simply, a parking lot is an open air space used to temporarily park automobiles and buses. It in no way resembles a building. See David W. Owens, Legislative Zoning Decisions: Legal Aspects 253 n.63 (2nd ed. 1999) (\u201cIn some limited circumstances zoning does not affect a city, county, or state government use. For example, because a \u2018building\u2019 is required to trigger application of zoning, and given that \u2018land uses\u2019 per se are not covered, an open-air use of land without a building would not be subject to local zoning. A landfill or parking area might fit this situation.\u201d).\nThe Board of Adjustment argues alternatively that since a parking lot is necessary in order to use the school, the parking lot falls within the \u201cuse of buildings\u201d language contained in N.C. Gen. Stat. \u00a7 160A-392. The Board of Adjustment asserts that the zoning provisions apply to more than just actual physical structures owned by the. State. It argues that the phrase \u201cuse of buildings\u201d means that the surrounding land used in conjunction with the actual building is also covered in the grant of jurisdictional power in the zoning act. According to the Board of Adjustment, since the parking lot is land adjoining the school building and is necessary for the School Board to fully use that building, the parking lot falls under the jurisdictional grant in N.C. Gen. Stat. \u00a7 160A-392. We disagree.\n\u201cIn matters of statutory construction, our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished.\u201d Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). Although we have found no North Carolina decision addressing the meaning of the word \u201cuse\u201d within zoning statutes, the South Carolina Court of Appeals has addressed precisely that issue and observed: \u201cAs it is conventionally applied, the term \u2018use\u2019 is the purpose or activity for which land or buildings are designed, arranged, or intended, or for which land or buildings are occupied or maintained.\u201d Heilker v. Zoning Bd. of Appeals, 346 S.C. 401, 407, 552 S.E.2d 42, 45 (S.C. Ct. App. 2001) (internal quotation marks omitted). See also 83 Am. Jur. 2d Zoning and Planning \u00a7 156 (2003) (\u201cThe term \u2018use\u2019 as employed in the context of zoning, is generally described as a word of art denoting the purpose for which a parcel of land or building is utilized.\u201d); Owens, supra, at 8 (\u201cEvery [zoning] ordinance is different: each local government decides how many zoning districts it wants, what to call them, what uses to allow, and what special procedures to include.\u201d (emphasis added)).\nA review of North Carolina\u2019s zoning statutes supports our conclusion that the General Assembly intended the word \u201cuse\u201d in the conventional zoning sense: as relating to the purpose for which the building was constructed. See Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998) (\u201cWhen multiple statutes address a single subject, this Court construes them in pari materia to determine and effectuate the legislative intent.\u201d). The initial grant of power in N.C. Gen. Stat. \u00a7 160A-381(a) permits regulation of the \u201cuse of buildings, structures and land for trade, industry, residence or other purposes.\u201d N.C. Gen. Stat. \u00a7 160A-382 (2003) provides that, in exercising that power, the city may divide its territorial jurisdiction into districts and, among other things, regulate the \u201cuse of buildings, structures, or land.\u201d The section then specifies:\nSuch districts may include, but shall not be limited to, general use districts, in which a variety of uses are permissible in accordance with general standards; overlay districts, in which additional requirements are imposed on certain properties within one or more underlying general or special use districts; and special use districts or conditional use districts, in which uses are permitted only upon the issuance of a special use permit or a conditional use permit.\n(Emphasis added.) In these sections, \u201cuse\u201d can only mean \u201cpurpose.\u201d Similarly, in the remedy section, N.C. Gen. Stat. \u00a7 160A-389 (2003), the city is authorized \u201cto prevent any illegal act, conduct, business or use in or about the premises,\u201d suggesting that \u201cuse\u201d refers to a particular activity. In sum, these provisions indicate an intent to permit zoning regulation of the purpose or activity for which a building, structure, or land is being utilized \u2014 in other words, the conventional meaning of the word \u201cuse\u201d when dealing with zoning statutes. N.C. Gen. Stat. \u00a7 160A-392 should be construed consistently.\nAccordingly, N.C. Gen. Stat. \u00a7 160A-392 permits a municipality to regulate the purpose for which the State or other political subdivision utilizes a building. As in effect at the time of the underlying events, the statute did not give the municipality jurisdiction to regulate land simply because it was utilized in connection with the building. See also Davidson County, 321 N.C. at 257, 362 S.E.2d at 557 (\u201cA county has the power to impose reasonable zoning requirements on buildings operated by certain other governmental units within its boundaries.\u201d (emphasis added)).\nDefendant relies upon Yancey v. Heafner, 268 N.C. 263, 150 S.E.2d 440 (1966) to support its theory that zoning regulations should not be limited simply to the buildings themselves. Yancey, however, addressed the question whether a Board of Adjustment properly granted a building permit for the construction of a 4,000 foot stadium. Id. at 265, 150 S.E.2d at 442. Yancey does not consider whether a municipality has jurisdiction to zone government-owned land apart from buildings.\nTherefore, because the parking lot is not a \u201cbuilding\u201d under the applicable version of N.C. Gen. Stat. \u00a7 160A-392, we hold that the Board of Adjustment lacked jurisdiction to issue or deny a special use permit concerning that land and affirm that portion of the trial court\u2019s order. The trial court, however, also \u201cremanded to the Board of Adjustment for the issuance to the Nash-Rocky Mount Board of Education of a special use permit for its school bus parking lot forthwith.\u201d Since the Board of Adjustment had no authority over the parking lot, there is no need for issuance of a special use permit. That portion of the order of the trial court directing the issuance of a special use permit is, therefore, reversed. The remaining portion of the trial court\u2019s order is affirmed.\nAffirmed in part and reversed in part.\nJudges TIMMONS-GOODSON and TYSON concur.\n. After the decision rendered by the Board of Adjustment in this case, N.C. Gen. Stat. \u00a7 160A-392 was amended, effective 1 October 2004, to read as follows: \u201cAll of the provisions of this Part are hereby made applicable to the erection, construction, and use of buildings and land by the State of North Carolina and its political subdivisions.\u201d (Emphasis added.)\n. Although the Supreme Court affirmed the result of the decision of this Court on different grounds, it \u201cexpressed] no opinion as to the correctness of the Court of Appeals\u2019 conclusion\u201d regarding the proper construction of the zoning statutes. Davidson County, 321 N.C. at 256, 362 S.E.2d at 556.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Valentine, Adams & Lamar, L.L.P., by L. Wardlaw Lamar and Lewis W. Lamar, Jr., for petitioner-ajpjpellee.", "Hoyle & Stroud, L.L.P., by William S. Hoyle and Philip A. Lane, for respondent-appellant." ], "corrections": "", "head_matter": "NASH-ROCKY MOUNT BOARD OF EDUCATION, Petitioner v. THE ROCKY MOUNT BOARD OF ADJUSTMENT, Respondent\nNo. COA04-290\n(Filed 5 April 2005)\nZoning\u2014 parking lot \u2014 special use permit \u2014 local ordinance\u2014 statutory authority exceeded\nA parking lot is not a building under the applicable version of N.C.G.S. \u00a7 160A-392, and the Board of Adjustment lacked jurisdiction to issue or deny a special use permit for a parking lot for school buses. The pre-amendment version of the statute referred to the use of buildings; while the Board of Adjustment argues that the Rocky Mount ordinance defines \u201cbuilding\u201d to include \u201cparking area,\u201d that ordinance is not applicable unless Rocky Mount has authority under the statute (a local entity cannot define the scope of a grant of authority from the General Assembly). The plain meaning of \u201cbuilding\u201d in the statute did not include parking lots.\nAppeal by respondent from judgment entered 7 November 2003 by Judge J. Richard Parker in Nash County Superior Court. Heard in the Court of Appeals 4 November 2004.\nValentine, Adams & Lamar, L.L.P., by L. Wardlaw Lamar and Lewis W. Lamar, Jr., for petitioner-ajpjpellee.\nHoyle & Stroud, L.L.P., by William S. Hoyle and Philip A. Lane, for respondent-appellant." }, "file_name": "0587-01", "first_page_order": 617, "last_page_order": 623 }