85' & Sunny, LLC v. Currituck Cnty., COA20-648

Docket NºNo. COA20-648
Citation864 S.E.2d 742, 279 N.C.App. 1
Case DateAugust 17, 2021
CourtCourt of Appeal of North Carolina (US)

279 N.C.App. 1
864 S.E.2d 742

85’ AND SUNNY, LLC, Petitioner,
v.
CURRITUCK COUNTY, Respondent.

No. COA20-648

Court of Appeals of North Carolina.

Filed August 17, 2021


Williams Mullen, Raleigh, by Thomas H. Johnson, Jr., and Lauren E. Fussell, for Petitioner-Appellee/Cross-Appellant.

Currituck County Attorney Donald I. McRee, Jr., for Respondent-Appellant/Cross-Appellee.

COLLINS, Judge.

864 S.E.2d 744

¶ 1 This case arises from improvements 85 Degrees and Sunny, LLC ("Petitioner"), seeks to make to a campground located in Currituck County, North Carolina. Both Currituck County ("Respondent") and Petitioner appeal from the superior court's order reversing the Currituck County Board of Adjustment's ("Board") (1) determination of the number of campsites that existed on Petitioner's campground as of 1 January 2013, and (2) conclusion that Currituck County's Unified Development Ordinance ("UDO") permitted some, but not all, of Petitioner's proposed improvements to the campground. We affirm in part and reverse in part the superior court's order and remand to the superior court to essentially affirm the Board's entire order.

I. Procedural History and Factual Background

¶ 2 The Hampton Lodge Campground ("Campground") has existed since at least May 1967. At the time the Campground began operation, the County did not regulate the use of property by zoning regulations. Under the County's initial 1971 zoning ordinance, campgrounds were a permitted use of property in certain districts, subject to certain requirements. There was no documentation that the Campground's owners had complied with the 1971 ordinance's requirements for approved campgrounds and the Campground operated as a nonconforming use. The Campground has continued as a nonconforming use under subsequent County zoning regulations adopted in 1975, 1982, 1989, 1992, 2007, and 2013.

¶ 3 Under the current UDO, adopted in 2013, the Campground continues to be a nonconforming use. The UDO provides that "[a] nonconforming use shall not be changed to any other nonconforming use[,]" UDO § 8.2.2., and generally "shall not be enlarged, expanded in area, or intensified[,]" UDO § 8.2.3.A. Additionally, section 8.2.6. of the UDO deems all existing private campgrounds as nonconforming uses, subject to certain standards, including in relevant part:

A. General Standards

(1) Camping is an allowed use of land only in existing campgrounds and campground subdivisions.

....

(5) Modifications to existing campgrounds are permitted provided the changes do not increase the nonconformity with respect to [the] number of campsites that existed on January 1, 2013.

B. Existing Campgrounds

(1) Existing campgrounds may not be expanded to cover additional land area or exceed the total number of campsites that existed on January 1, 2013.

UDO § 8.2.6.

¶ 4 Throughout the Campground's history, owners and developers have submitted documentation to county entities reflecting varying numbers of campsites in existence. A camper subdivision plat showing over 700 campsites was submitted in 1973, but never approved. A site plan submitted alongside an application for a conditional use permit for a concert in 1996 showed 234 campsites at the property, 90 vehicular parking spaces, and a tent camping area. A site plan submitted with a similar application in 1997 again showed 234 campsites and a tent camping area. Neither plan indicated the specific number of tent campsites within the tent camping area.

¶ 5 Petitioner purchased the Campground in June 2018 and submitted a Major Site Plan ("Plan") to Currituck County for review. The Plan showed 314 campsites for recreational vehicle, trailer, or camper use, and 78 campsites for tent camping. The Plan also proposed the following improvements:

• two new restroom and bathhouse facilities,

• a swimming pool and pool house,

• improvements to the on-site septic system,

• two dog park areas,

• playground improvements, and
864 S.E.2d 745
• the demolition and replacement of an existing residence and barn for the caretaker/manager of the campground.

¶ 6 In its review of the Plan, the County determined that the number of campsites exceeded the number of campsites that existed on 1 January 2013, and the additional amenities shown on the Plan were not permitted under the UDO.1

¶ 7 In August 2018, Petitioner filed an Application for Interpretation and supporting materials with the Currituck County Planning and Development Director ("Director"). Petitioner sought a determination of (1) the number of campsites existing on the Campground on 1 January 2013 and (2) whether the UDO allowed Petitioner's proposed improvements to the property.

¶ 8 The Director issued a Letter of Determination ("Letter") on 1 January 2013 wherein the Director determined "that 234 campsites have received some form of approval between 1971 and 1997 and 234 campsites existed on January 1, 2013." The Director also determined that the number of "[t]ent campsites would need to be calculated based on the historical tent area divided by the minimum campsite size (3000 square feet) required by all zoning regulations before the 2013 UDO." The Director could "[ ]not verify, and therefore [did] not conclude, that 78 tent campsites were established prior to January 1, 2013."

¶ 9 Regarding Petitioner's proposed improvements, the Director interpreted the term "modification" in section 8.2.6.A.(5) to require that "something needs to exist before a change, alteration, or amendment can be made[,]" and concluded as follows: "only changes to existing buildings and structures are permitted"; existing facilities—"restroom facilities, piers, docks, bulkheads, camp store, and other recreation facilities"—could be modified; "[t]he new facilities listed in the application ... such as the new bathroom facilities, swimming pool, pool house and the like" "are not limited changes but are substantial and an impermissible expansion, enlargement and intensification of a nonconforming use" prohibited under section 8.2.3.A.

¶ 10 Petitioner appealed to the Board. At the hearing before the Board, the Director testified to the history of permits applied for and issued to the Campground, including the 1996 and 1997 conditional use permits. Petitioner tendered Warren Eadus, who was accepted as an expert witness in site plans. Eadus testified that there were 408 RV sites and 50 tent sites at the Campground. Paul O'Neal, who resided three miles south of the Campground for 50 years, testified that he was hired to perform maintenance on the campsites in 1980. O'Neal testified that in 1980, there were 175 to 200 campsites, and the Campground had not changed from that time. John Pappas, a previous owner of the Campground, testified that there were 252 utility hookups, that a previous music festival was held with close to 400 camping units in attendance, and stargazers had camped for 25 years in the wooded portion of the property.

¶ 11 Other previous owners averred that "[c]ampers have been free to utilize the entire premises for their campsite" and "[t]here has never been a limitation imposed on the number of the sites, the location of the sites, nor occupancy by vehicles of any kind, or tents, or simply sleeping bags and campfire sites." Ann Slade, a co-manager of the Campground since 1998, averred that the entire Campground was used "as needed for tents, trailers and recreational vehicles." Slade averred that in addition to the campsites with utility connections, campers would use campsites in both the forested and open field areas of the property. According to Slade, during music festivals in 1995 through 1997, approximately 400 campsites were used at the Campground. Similarly, James Baeurle, Petitioner's current operator, testified to the Board that on many occasions, 400 to 500 people camped at the campground for one event.

¶ 12 After the hearing, the Board issued an order wherein it found, in part:

27. On January 1, 2013, there were 234 existing campsites and a designated area
864 S.E.2d 746
which was used for tent camping at Hampton Lodge.

28. The number of campsites within the tent camping area should be calculated based on the designated area for tent camping on a scaled version of the 96/97 site plan, divided by the minimum campsite size (3000 square feet) required by all zoning regulations prior to the 2013 UDO.

....

36. Modifications to existing buildings and structures are permitted inasmuch as the changes do not extend to additional structures or to land outside the original structure.

37. Sunny's proposal and site plan includes the addition of new facilities to Hampton Lodge, i.e. new bathroom facilities, swimming pool, pool house, piers etc.

¶ 13 Upon its findings, the Board concluded, in relevant part:

3. Pursuant to 2013 UDO §§ 2.4.16(D)(3) and 10.1, 2013 UDO § 8.2.6.A.(5) must be read in pari materia with the 2013 UDO, specifically 2013 UDO § 8.

4. Modifications to existing buildings and structures are permitted inasmuch as the changes do not extend to additional structures or to land outside the original structure.

5. The new facilities proposed by Sunny qualify as an impermissible expansion, enlargement and intensification of a nonconforming use and are not permitted.

Based upon its...

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3 practice notes
  • TAC Stafford, LLC v. Town of Mooresville, COA21-229
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 5, 2022
    ...and development regulations by local governments into a new Chapter 160D of the General Statutes." 85’ & Sunny, LLC v. Currituck Cty. , 279 N.C. App. 1, 2021-NCCOA-422, ¶ 18 n.3, 864 S.E.2d 742, disc. review denied , ––– N.C. ––––, 865 S.E.2d 858 (2021). As the former Chapter 160A was in ef......
  • TAC Stafford, LLC v. Town of Mooresville, COA21-229
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 5, 2022
    ...and development regulations by local governments into a new Chapter 160D of the General Statutes." 85' & Sunny, LLC v. Currituck Cty., 279 N.C.App. 1, 2021-NCCOA-422, ¶ 18 n.3, disc. review denied, __ N.C. __, 865 S.E.2d 858 (2021). As the former Chapter 160A was in effect at all times rele......
  • Bill Clark Homes of Raleigh, LLC v. Town of Fuquay-Varina, COA21-79
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 21, 2021
    ...by local governments into a new Chapter 160D of the General Statutes." 85’ & Sunny, LLC v. Currituck Cty. , 2021-NCCOA-422, ¶ 18 n.3, 864 S.E.2d 742. As the former Chapter 160A was in effect at all times relevant to this appeal, we address that chapter in this opinion.2 At oral argument, Pl......
2 cases
  • TAC Stafford, LLC v. Town of Mooresville, COA21-229
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 5, 2022
    ...and development regulations by local governments into a new Chapter 160D of the General Statutes." 85' & Sunny, LLC v. Currituck Cty., 279 N.C.App. 1, 2021-NCCOA-422, ¶ 18 n.3, disc. review denied, __ N.C. __, 865 S.E.2d 858 (2021). As the former Chapter 160A was in effect at all times rele......
  • Bill Clark Homes of Raleigh, LLC v. Town of Fuquay-Varina, COA21-79
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 21, 2021
    ...by local governments into a new Chapter 160D of the General Statutes." 85’ & Sunny, LLC v. Currituck Cty. , 2021-NCCOA-422, ¶ 18 n.3, 864 S.E.2d 742. As the former Chapter 160A was in effect at all times relevant to this appeal, we address that chapter in this opinion.2 At oral argument, Pl......

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