Fantasy World v. GREENSBORO BD. OF ADJ.
| Decision Date | 17 February 2004 |
| Docket Number | No. COA03-52.,COA03-52. |
| Citation | 162 NC App. 603,592 S.E.2d 205 |
| Court | North Carolina Court of Appeals |
| Parties | FANTASY WORLD, INC., Petitioner, v. GREENSBORO BOARD OF ADJUSTMENT and City of Greensboro, Respondents. |
Loflin & Loflin, by Thomas F. Loflin III, Durham; and Sirkin, Pinales, Mezibov & Schwartz, L.L.P., by H. Louis Sirkin and Jennifer M. Kinsley, Cincinnati, OH, for petitioner-appellant.
Office of the City Attorney, City of Greensboro, by A. Terry Wood, Becky Jo Peterson-Buie, and Clyde B. Albright, Greensboro, for respondents-appellees. LEVINSON, Judge.
Petitioner-appellant Fantasy World, Incorporated, appeals from a superior court order upholding a decision by the City of Greensboro, North Carolina to deny the company a business privilege license. We affirm.
I.
The present appeal arises out of a lengthy dispute between the parties over the legality of Fantasy World's use of the building located at 4018 West Wendover Avenue in Greensboro, North Carolina. Prior to 1994, the building housed two separate types of commercial enterprises. A "topless" bar occupied one portion of the building, and a space, which had formerly been a restaurant that was not a sexually oriented business, occupied the other portion. Petitioner-appellant Fantasy World took possession of both portions of the building sometime before June 1994.
On 15 June 1994, the City issued a license to Fantasy World to operate a business at the location. Fantasy World continued to use the "topless" bar portion of the building for live adult entertainment and subsequently sought to use the former restaurant space for lingerie sales. On 1 September 1994, the Greensboro Planning Department attached a note to the building plans specifying that no adult entertainment would be permitted in the former restaurant portion of the building. Adult-oriented uses of the former restaurant space were prohibited because the topless bar was a legal "non-conforming use" and a City development ordinance did not permit non-conforming uses to be "enlarged, increased, or extended to occupy a greater area of land or floor area[.]" Greensboro Code of Ordinances § 30-4-11.2.
Following visits to the property by zoning enforcement officers, the Greensboro Zoning Enforcement Division issued a Notice of Violation to Fantasy World on 27 December 1994, instructing the business to cease all adult sales and use of the "adult mini-motion picture theater" on the premises because (1) such uses did not comply with the development ordinance requiring a five hundred foot spacing from residentially zoned property and a twelve hundred foot spacing from another adult use, or alternatively (2) such uses violated the ordinance prohibiting enlarging, increasing, or extending a non-conforming use to occupy a greater floor area. The Greensboro Zoning Board of Adjustment upheld the Notice of Violation.
The superior court heard the matter on a petition for certiorari pursuant to N.C.G.S. § 160A-388(e). Judge Ben F. Tennille issued an order affirming the Board of Adjustment on 18 July 1996. Judge Tenille ruled that sufficient evidence existed for the Board to conclude that Fantasy World was operating an "adult mini motion picture theater," which constituted a violation of the prohibition against enlarging, increasing, or extending a nonconforming use. This Court affirmed Judge Tennille's order in Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 128 N.C.App. 703, 496 S.E.2d 825,disc. review denied, 348 N.C. 496, 510 S.E.2d 382 (1998).
On 25 September 1998, the City filed a motion requesting the superior court to issue an order requiring Fantasy World to show cause why it should not be held in contempt for violating Judge Tennille's order. Judge Henry E. Frye, Jr., denied this motion. In an unpublished opinion, Fantasy World, Inc. v. Greensboro Board of Adjustment, COA99-438, slip op. at 5 (N.C.App. Mar. 7, 2000), this Court vacated Judge Frye's order denying the City's motion to show cause, and directed him to clarify whether his decision was based on the merits of the controversy. On 19 June 2000, Judge Frye entered an order stating that his denial of the City's motion to show cause had not been a decision based on the merits.
On 10 November 1998, after an appeal of Judge Frye's initial order had been perfected, the City filed a motion for a permanent injunction in superior court, requesting that Fantasy World be ordered to comply with the City's development ordinance and to cease operation of an "adult mini motion picture theater" establishment at 4018 West Wendover Avenue. On 20 January 1999, the superior court ruled that it was without jurisdiction to issue the injunction because N.C.G.S. § 1-294 stayed further proceedings while Judge Frye's order was on appeal.
The 27 December 1994 Notice of Violation cited Fantasy World for operating an "adult mini motion picture theater" at 4018 West Wendover. The City Code defined the term "adult mini motion picture theater" to mean a mini motion picture theater in which "a preponderance of [the movies shown were] distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas." Greensboro Code of Ordinances § 30-2-2.7 (definition deleted 17 April 1995)(emphasis added). The court proceedings between 1996 and 2000, including the two previous appeals heard by this Court, were based on the 27 December 1994 Notice of Violation employing the "preponderance" of materials test.
Sometime prior to 2000, the City replaced many of its definitions relating to adult entertainment with new definitions. Specifically, the City defined the term "sexually oriented business" to include "adult arcades" and "adult bookstores," which were further defined as follows:
Greensboro Code of Ordinances § 30-2-2.7. The Greensboro development ordinances were amended to prohibit the location of a "sexually oriented business" within one thousand two hundred feet of another "sexually oriented business." Greensboro Code of Ordinances § 30-2-2.73.5.
In 2000, Fantasy World submitted an application for a business privilege license to the City tax collector. The application requested a license for a business operating under the name "Xanadu" at 4018 West Wendover Avenue to engage in business associated with retail sales, amusement machines, sale of sundries, and movie sales and rentals. The tax collector visited the business and, by letter dated 14 September 2000, denied Fantasy World's application for a privilege license to operate Xanadu. The letter indicated that the tax collector himself had made the determination that the business was a sexually oriented business, as defined by the amended City development ordinances. The letter further indicated that the tax collector had determined that Fantasy World's operation was in violation of the City's zoning requirement that sexually oriented businesses be at least one thousand two hundred feet apart because it was "under the same roof as" and had "an entry door... not more than ninety feet from" another business which the tax collector had determined to be a sexually oriented business. On the basis of this determination, the tax collector denied the privilege license. The letter indicated that the tax collector's decision could be appealed to the City's Zoning Board of Adjustment.
Fantasy World's appeal was heard by the Greensboro Zoning Board of Adjustment in October and November of 2000. At the hearings, the City introduced evidence of inspections of Fantasy World conducted by City Zoning Officers in 1995, 1998, and 2000. The inspection reports showed that sometime in 1998, Fantasy World began offering the option of viewing sixteen "general release" films and fifteen "sexually oriented films" in their mini motion picture theaters. Fantasy World did not call any witnesses to testify at the hearing. The Board made findings of fact and concluded that the tax collector had properly denied Fantasy World's business privilege license on the grounds that its business at 4018 West Wendover Avenue was not in compliance with the City's current zoning requirements applicable to sexually oriented businesses.
Fantasy World filed a petition for certiorari in superior court pursuant to N.C.G.S. § 160A-388(e) seeking review of the decision by the Board of Adjustment. Following a hearing on the petition, Judge W. Douglas Albright concluded that the Board's decision was supported by competent, material, and substantial evidence and was not the result of an error in law, and entered an order affirming the Board. From this order, Fantasy World appeals.
II.
The trial court's order was entered pursuant to petitioner's appeal from a zoning board of adjustment, which upheld the decision of the City tax collector. A trial court's review of a zoning board of adjustment is as follows: "Every decision of the [zoning] board [of adjustment] shall be subject to review by ...
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