Long v. Currituck Cnty., COA15–376.

• Decision Date: 21 June 2016
• Docket Number: No. COA15–376.,COA15–376.
• Citation: 787 S.E.2d 835,248 N.C.App. 55
• Parties: Michael P. LONG and Marie C. Long, Petitioner–Plaintiffs v. CURRITUCK COUNTY, North Carolina and Elizabeth Letendre, Respondents.
• Court: North Carolina Court of Appeals

248 N.C.App. 55

787 S.E.2d 835

Michael P. LONG and Marie C. Long, Petitioner–Plaintiffs

v.CURRITUCK COUNTY, North Carolina and Elizabeth Letendre, Respondents.

No. COA15–376.

Court of Appeals of North Carolina.

June 21, 2016.

George B. Currin, Raleigh, for petitioner-plaintiff-appellants Michael P. Long and Marie C. Long.

Donald I. McRee, Jr., for respondent-appellee Currituck County.

Gregory E. Wills, P.C., by Gregory E. Wills, Point Harbor, for respondent-appellee Elizabeth Letendre.

STROUD, Judge.

Petitioner-plaintiffs Michael Long and Marie Long appeal a Superior Court (1) "DECISION AND ORDER" affirming the Currituck County Board of Adjustment's decision "that a structure proposed for construction on property owned by Respondent Elizabeth Letendre is a single family detached dwelling under the Currituck County Unified Development Ordinance and a permitted use in the Single Family Residential Outer Banks Remote Zoning District" and dismissing petitioners' petition for writ of certiorari and (2) "ORDER" denying petitioners' petition for review of the Currituck County Board of Adjustment's decision and again affirming the Currituck County Board of Adjustment's decision. For the following reasons, we reverse and remand.

I. Background

Respondent Ms. Letendre owns an ocean-front lot in Currituck County and planned to build a project of approximately 15,000 square feet on the lot. The project consisted of "a three-story main building that includes cooking, sleeping, and sanitary facilities" and two "two-story side buildings that include sleeping and sanitary facilities." The main building and side buildings are connected by "conditioned hallways" so that all three may be used together as one unit, and each of the three buildings is approximately 5,000 square feet. Petitioners, who are adjacent property owners, challenged the construction of respondent Letendre's project claiming that the project as proposed was not a permitted use in the Single Family Residential Outer Banks Remote District ("SF District") because it is not a "single family detached dwelling" ("Single Family Dwelling") as defined by the Currituck County Unified Development Ordinance ("UDO").

The Currituck County Planning Director determined that respondent Letendre's project was a "single family detached dwelling;" the Currituck County Board of Adjustment ("BOA") affirmed the Planning Director's decision. Petitioners then appealed the BOA's decision to the Superior Court, and the Superior Court agreed, concluding that the "structure proposed for construction on property owned by Respondent Elizabeth Letendre is a single family detached dwelling under the Currituck County Unified Development Ordinance and a permitted use in the Single Family Residential Outer Banks Remote Zoning District" and therefore denied "Petitioner's Petition for Review of the Currituck County Board of Adjustments Order" and affirmed "[t]he Order of the Currituck County Board of Adjustments dated May 9, 2014[.]" Petitioners appealed the Superior Court's orders to this Court, and for the reasons discussed below, we reverse and remand.

On appeal, there is no real factual issue presented but only an issue of the interpretation of the UDO. The parties have made many different arguments, with petitioners focusing upon the applicable definitions and provisions of the UDO, and respondents focusing upon the intended use and function of the project. This case ultimately turns upon the definition of a "single family detached dwelling[.]" Currituck County, N.C., Unified Development Ordinance of Currituck County, North Carolina § 10.1.7 ("UDO").

II. Single–Family Residential Outer Banks Remote District

Petitioners first contend that "the Superior Court erred in affirming the Currituck County Board of Adjustment's decision to uphold the planning director's determination that the proposed structures met the definition of the term ‘single family detached dwelling,’ as that term is used and defined in the Currituck County Unified Development Ordinance." (Original in all caps.) The parties agree on the background underlying this appeal and one of the most salient facts is that the project is comprised of multiple buildings.¹ The project "plans indicate a three-story main building that includes cooking, sleeping, and sanitary facilities; as well as two-story side buildings that include sleeping and sanitary facilities." Each building is approximately 5,000 square feet.² The main building and side buildings are connected by "conditioned hallways[.]"³ The hallways were originally proposed as uncovered decking but the Currituck County Planning Director determined that the uncovered decking did not comply with the ordinances, and thus the project plans were revised to connect the buildings via "conditioned hallways" which the Planning Director determined would make the entire project "a single principal structure" based upon the functioning of the three buildings as one dwelling.

In this appeal, the issue is the county's classification of the project as a "single principal structure" based upon the use or function of the project. The parties agree that (1) the classification of the project is governed by the UDO; (2) pursuant to the UDO the lot is zoned as SF District; and (3) this project must fit within the definition of Single Family Dwelling in order to comply with the UDO. Both the BOA and the Superior Court determined that the project did constitute a Single Family Dwelling, but on appeal, interpretation of a municipal ordinance requires this Court to engage in de novo review. See Morris Commc'ns Corp. v. City of Bessemer City Zoning Bd. of Adjust., 365 N.C. 152, 155, 712 S.E.2d 868, 870–71 (2011) ("We review the trial court's order for errors of law.... Reviewing courts apply de novo review to alleged errors of law, including challenges to a board of adjustment's interpretation of a term in a municipal ordinance.")

In reviewing a decision of the Board of Adjustment for errors of law in the application and interpretation of a zoning ordinance, the superior court applies a de novo standard of review and can freely substitute its judgment for that of the board. Similarly, in reviewing the judgment of the superior court, this Court applies a de novo standard of review in determining whether an error of law exists and we may freely substitute our judgment for that of the superior court. Questions involving the interpretation of ordinances are questions of law....

In determining the meaning of a zoning ordinance, we attempt to ascertain and effectuate the intent of the legislative body. Unless a term is defined specifically within the ordinance in which it is referenced, it should be assigned its plain and ordinary meaning. In addition, we avoid interpretations that create absurd or illogical results.

Ayers v. Bd. of Adjust. for Town of Robersonville, 113 N.C.App. 528, 530–31, 439 S.E.2d 199, 201 (1994) (citations and quotation marks omitted). We therefore review "the application and interpretation of [the] zoning ordinance" de novo. Id.

Before turning to the specific applicable ordinances, we note that the UDO itself provides that "[w]ords and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases that may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning." UDO § 10.1.7. The UDO provides that the SF District

[i]s established to accommodate very low density residential development on the portion of the outer banks north of Currituck Milepost 13. The district is intended to accommodate limited amounts of development in a manner that preserves sensitive natural resources, protects wildlife habitat, recognizes the inherent limitations on development due to the lack of infrastructure, and seeks to minimize damage from flooding and catastrophic weather events. The district accommodates single-family detached homes .... Public safety and utility uses are allowed, while commercial, office, and industrial uses are prohibited.

UDO § 3.4.4 (emphasis added). The UDO defines "DWELLING, SINGLE–FAMILY DETACTED" as follows: "A residential building containing not more than one dwelling unit to be occupied by one family, not physically attached to any other principal structure." UDO § 10.51 (emphasis added).⁴ Thus, the definition of a Single Family Dwelling has five elements: (1) A building, (2) for residential use, (3) containing not more than one dwelling unit,⁵ (4) TO BE OCCUpied by one family, and (5) not physically attached to any other "principal structure."⁶ The definition of a Single Family Dwelling includes portions that address the physical structure of the proposed dwelling: "a building[,]" "containing not more than one dwelling unit[,]" and "not physically attached to any other principal structure." Id. But portions of the definition of a Single Family Dwelling also address the use and function of the proposed dwelling, requiring the building be for "residential" use and "occupied by one family[.]" Id. To qualify as a Single Family Dwelling, a project must fulfill each element of the definition, including both structural and functional provisions. The parties' briefs have addressed each part of the definition at length, but the structural portion of the definition, and particularly the first element—a building—is controlling in this case.

Petitioners argue that the project is not "[a ] residential building [,]" but rather multiple buildings. Id. (emphasis added). Respondent Currituck County barely addresses that the project must be "a residential building" but focuses mainly on the use of the project and meaning of "one dwelling unit[.]" Id. Respondent Elizabeth Letendre contends that "the characterization of a ‘building’ and the methods used to lay a foundation does [ (sic) ] not matter under the UDO. The connection of the rooms so as to ensure that it will ‘function’ as a ...