Four Seasons Mgmt. Serv. Inc v. Town Of Wrightsville Beach

• Decision Date: 06 July 2010
• Docket Number: No. COA09-777.,COA09-777.
• Citation: 695 S.E.2d 456
• Court: North Carolina Court of Appeals
• Parties: FOUR SEASONS MANAGEMENT SERVICES, INC., Petitionerv.TOWN OF WRIGHTSVILLE BEACH, Board of Adjustment and the Town of Wrightsville Beach, Respondents.

695 S.E.2d 456

FOUR SEASONS MANAGEMENT SERVICES, INC., Petitionerv.TOWN OF WRIGHTSVILLE BEACH, Board of Adjustment and the Town of Wrightsville Beach, Respondents.

No. COA09-777.

Court of Appeals of North Carolina.

July 6, 2010.

Appeal by petitioner from judgment entered 17 February 2009 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 11 January 2010.

Shanklin & Nichols, LLP, by Kenneth A. Shanklin, and Matthew A. Nichols, Wilmington, for Petitioner-Appellant.

Wessell & Raney, L.L.P., by John C. Wessell, III, Wilmington, for Respondents-Appellees.

ERVIN, Judge.

Petitioner Four Seasons Management Services, Inc., appeals from the trial court's order upholding a decision by Respondents Town of Wrightsville Beach and the Town of Wrightsville Beach Board of Adjustment denying Petitioner's request to build a four-story parking deck at a hotel which it owns in Wrightsville Beach, North Carolina, without seeking and obtaining an amendment to its conditional use permit. After careful consideration of Petitioner's challenges to Respondent's decision in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

On 15 May 1972, the Town adopted a zoning ordinance, which became effective on the date of enactment. The zoning ordinance includes detailed provisions defining various zoning districts and the types of structures,¹ buildings,² and uses ³ permitted in each district and establishing specific requirements relating to a number of subjects, including, but not limited to, the necessity for obtaining approval prior to undertaking certain construction projects, the number of parking spaces required at hotels and motels, and landscaping. The zoning ordinance also includes provisions addressing administration and enforcement issues.

Petitioner owns and operates a hotel known as the Blockade Runner in Wrightsville Beach. A hotel has been operated at the site of the Blockade Runner for over a century. The Blockade Runner is not in compliance with the zoning ordinance in a number of respects. For example, the Blockade Runner does not have the required number of off-street parking spaces and violates the applicable setback requirements on its south side. Because it was constructed prior to the effective date of the zoning ordinance, the Blockade Runner is classified as a nonconforming use ⁴ and is entitled, for that reason, to operate despite its noncompliance with various provisions of the zoning ordinance.

The Blockade Runner is located in a “C-4” zoning district, which allows “accessory uses” ⁵ as a matter of right and permits the operation of hotels as a “conditional use.” As a nonconforming use, the Blockade Runner did not obtain a conditional use permit ⁶ prior to construction. However, Petitioner applied for and obtained a conditional use permit authorizing the enclosing of a portion of the lobby area for use as a solarium on 26 April 1984. Subsequently, Petitioner obtained an amendment authorizing the construction of stairs associated with a health spa on 24 January 1985 and another amendment authorizing the construction of an open-air gazebo on 24 June 1991.

On 25 April 2006, Petitioner requested authorization to “construct a one-story parking deck” over its existing parking area. In addition, Petitioner sought approval for variances relating to setbacks and parking requirements. On 26 April 2006, the Town's Development Code Administrator denied Petitioner's request for the following reasons:

After conferring with the Town Attorney, it has been determined that construction of the parking deck requires an amendment to the Blockade Runner's existing conditional use permit. The Town of Wrightsville Beach Table of Uses lists hotels and motels as a conditional-use in the C-4, Commercial District. It has been the practice of the Town to require amendments to existing conditional-use permits for changes or additions to structures requiring a conditional-use permit. In addition, the Town does not agree with your classification of the parking deck as an accessory structure ⁷ or accessory use....

In addition, as acknowledged application, the parking deck as violates the requirements of § regarding setbacks and § 155.060 required parking. Furthermore, the parking deck encroaches into the 20-triangle required by § 155.014. It noted that the plans as proposed do the parking lot into compliance in your proposed 155.047 regarding proposed ft. sight should be not bring with the Landscaping Ordinance as required by § 155.181(5).

On 5 May 2006, Petitioner appealed from the Administrator's decision to the Board of Adjustment.

On 12 October 2006, Petitioner submitted revised plans and requested authorization to build a four-story parking deck over its existing parking area.⁸ On 19 October 2006, the Town's Director of Planning and Parks denied Petitioner's revised request. In denying Petitioner's revised request, the Director restated the Town's previously-enunciated position that Petitioner could not “construct the parking deck without going through the conditional-use process”; reiterated the Town's disagreement with “classification of the parking deck as an accessory structure or accessory use”; and pointed out that the proposed parking deck violated the requirements for the number of parking spaces and did “not bring the parking lot into conformity with the Landscaping Ordinance as required by § 155.181(5).” Finally, the Director noted that the proposed plans would not bring the parking lot into conformity with the requirements for fire sprinklers contained in § 94.46 of the zoning ordinance. On 25 October 2006, Petitioner supplemented its 5 May 2006 appeal by appealing to the Board from the Director's 19 October 2006 decision.

On 29 November 2006, the Board conducted a hearing on Petitioner's appeal, at which it received testimony and considered the arguments of counsel. At the conclusion of the hearing, the Board voted not to reverse the Director's decision. On 29 February 2008, the Board issued a written order in which it stated the following conclusions:

24. It is the Board's position that the issues to be addressed by it include the following:

a. Was the Administrator correct in denying the request to construct the 4-story parking deck without the Petitioner first seeking an amendment to its existing conditional use permit?

b. Was the Administrator correct in denying the request to construct the 4-story parking deck because the construction of the proposed parking deck constitutes an expansion of a permitted non-conforming use?

c. Is the Petitioner judicially estopped to challenge the requirement for a conditional use permit when the Petitioner, on at least three prior occasions, has accepted benefits under the ordinance requiring an amendment to its conditional use permit

d. Was the Administrator correct in denying the request to construct the 4-story parking deck because the plan for the proposed parking deck fails to comply with the landscaping ordinance of the Town as set forth in § 155.180 et seq. Of the zoning ordinance?

25. WAS THE ADMINISTRATOR CORRECT IN DENYING THE REQUEST TO CONSTRUCT THE 4-STORY PARKING DECK WITHOUT THE PETITIONER FIRST SEEKING AN AMENDMENT TO ITS EXISTING CONDITIONAL USE PERMIT?

ANSWER: Yes.

26. This Board is of the opinion and concludes that the Petitioner must secure an amendment to its existing conditional use permit in order to construct the proposed parking deck. In support of this position, the Board concludes as follows:

a. The zoning ordinances permit accessory uses in all zoning districts. The table of uses does not address accessory buildings or accessory structures. Neither accessory buildings nor accessory structures are indicated as permitted in any district.

b. The proposed parking deck is an accessory building. While parking may constitute an accessory use, a 4-story parking deck does not constitute an accessory use.

c. In the alternative, the Board finds that the proposed parking deck is not accessory to the principal use, that being a hotel, but rather the proposed parking deck is part of the principal use of the property. It is clear from the testimony of the Petitioner's representatives that the hotel cannot exist without available parking.

d. In attempting to discern the intent of the Town ordinances, the Board took into consideration the testimony of the Administrator that it has been the practice of the Town during the Administrator's ten years of employment to require property owners wishing to expand structures that are subject to an existing conditional use [permit] to secure an amendment to the existing conditional use permit.

27. WAS THE ADMINISTRATOR CORRECT IN DENYING THE REQUEST TO CONSTRUCT THE 4-STORY PARKING DECK BECAUSE THE CONSTRUCTION OF THE PROPOSED PARKING DECK CONSTITUTES AN EXPANSION OF A PERMITTED NON-CONFORMING USE?

ANSWER: Yes.

a. The existing hotel is nonconforming in that it violates the setbacks on at least one side of the structure and because the parking requirements are not currently met and will not be met even if the 4-story parking deck is constructed.

b. Section 155.009 of the zoning ordinances prohibits the expansion of a permitted non-conforming use.

C. The only way in which the parking deck can be constructed is for the hotel to be brought into compliance with current ordinances. Otherwise, the construction of the parking deck is an expansion of a permitted non-conforming use.

28. IS THE PETITIONER JUDICIALLY ESTOPPED TO CHALLENGE THE REQUIREMENT FOR A CONDITIONAL USE PERMIT WHEN THE PETITIONER, ON AT LEAST THREE PRIOR OCCASIONS, HAS ACCEPTED BENEFITS UNDER THE ORDINANCE REQUIRING AN AMENDMENT TO ITS CONDITIONAL USE PERMIT?

ANSWER: Yes.

a. The Petitioner has previously applied for and been granted three conditional use permits or amendments to the existing conditional use permit.

b. On each of these occasions, the Petitioner has acknowledged the

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