More on Nonconforming Land Uses: What is an Expansion of Use?

Generally, in North Carolina, landowners have a vested right to continuing using their lands as currently being used even if the local county or municipality enacts new land use laws -- like zoning laws -- that make a prior land use "nonconforming." In a sense, such prior uses become "grandfathered" but are still considered nonconforming. Local governments ARE allowed to regulate such nonconforming uses. Often, the local ordinance or law will specify that nonconforming uses are allowed to continue as long as the nonconforming use is not "extended or expanded."

A good example comes from the case of Whitehurst v. Alexander County, Case No. COA15-265 (NC Court of Appeals 2016) (unpublished). In that case, in 2000, land surrounding a local lake in Alexander County, North Carolina was zoned by a new zoning ordinance to only allow for residential uses. However, a certain landowner had been using his land on the lakeshore to operate a watercraft and boat engine repair business. The 2000 Ordinance had a provision that allowed prior non-residential use of the lands in question to continue -- as nonconforming uses -- as long as any nonconforming use was not "enlarged or extended" in any way.

Under North Carolina judicial precedent, if a nonconforming use is challenged, the key focus is on the nature of the nonconforming use. Thus, in Whitehurst, the nonconforming use was the operation of a commercial business in a residential zone. A neighbor reported the boat repair business and claimed that the business had been "enlarged or extended." The County zoning enforcement official cited the landowner who, then, appealed to the County Board of Adjustment. The Board determined that the nonconforming use, the operation of a business, had NOT been enlarged or expanded. The Board's decision was ultimately approved by the North Carolina Court of Appeals.

The same focus on the nonconforming use can be seen in the case of Jirtle v. Board of Adjustment, 622 SE 2d 713 (NC Court of Appeals 2005). That case involved Page Memorial United Methodist Church located in Biscoe, North Carolina. The church was located on a main lot and had been there since approximately 1900. In 1983, the church acquired title to an adjoining tract of land parcel (which had no buildings). Further, since at least 1990, the church had operated a food pantry from the basement of one of the two buildings on the main lot.

In 1993, the Town of Biscoe enacted a zoning ordinance that zoned the area around the church as R-12 residential. Churches were among the permitted uses allowed in the R-12 residential district. However, the church was NOT in compliance with the 1993 zoning ordinance based on new set-back and parking space requirements. However, the ordinance allowed for the continuance of such nonconformances, provided that the structures and uses were not expanded.

In 2003, the church decided to move its food pantry to a new structure to be built upon the adjoining lot. In 2004, the church applied for a permit to construct a food pantry on the adjoining lot which was granted by the Biscoe zoning administrator.

However, neighboring property owners were displeased and appealed the decision to the town's Board of Adjustment. The Board upheld the decision of the zoning administrator.

The neighbors then took the matter to the county Superior Court by filing a petition for writ of certiorari. The Superior Court affirmed the Board and the neighbors then appealed to the North Carolina Court of Appeals.

The main argument was that, as proposed, the food pantry would be an impermissible expansion of a nonconforming use in violation of the 1993 Biscoe zoning ordinance. In resolving the case, the Court of Appeals focused on the applicable nonconforming uses. According to the court, it was agreed that the use of the land by the church was nonconforming in only two respects: (1) inadequate parking and (2) violation of set-back requirements. As planned, the new structure for the food pantry was not in violation of the set-back requirements. Thus, the court focused only on whether the construction of the food pantry by the church would expand the parking nonconformance. Under the Biscoe ordinance, parking requirements are calculated based on the "largest assembly room" in the relevant structure. For the Church, this meant the main room in the Church where worship services were held. The neighbors conceded that the main assembly room was not being increased or modified by the construction of the food pantry. Further, all agreed that the food pantry was planned to be much smaller than the main Church building. As such, building the food pantry would not change or modify the "largest assembly room" on the land and, therefore, would not change the calculation of the parking requirements under the ordinance.

For these reasons, the Court of Appeals held that the Biscoe Board of Adjustment had properly concluded that the parking nonconformance had not been expanded when it approved construction of the new food pantry building.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning, and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.