Westminster Homes, Inc. v. CARY ZONING BD.

• Decision Date: 09 November 2001
• Docket Number: No. 499PA00.,499PA00.
• Citation: 554 S.E.2d 634
• Court: North Carolina Supreme Court
• Parties: WESTMINSTER HOMES, INC.; John and Susan Evans; Bakulesh and Vadana Naik, Petitioners, v. TOWN OF CARY ZONING BOARD OF ADJUSTMENT, Respondent, and Jeff and Leigh Thorne, Intervenor/Respondents.

554 S.E.2d 634

WESTMINSTER HOMES, INC.; John and Susan Evans; Bakulesh and Vadana Naik, Petitioners, v. TOWN OF CARY ZONING BOARD OF ADJUSTMENT, Respondent, and Jeff and Leigh Thorne, Intervenor/Respondents.

No. 499PA00.

Supreme Court of North Carolina.

November 9, 2001.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., and Kathleen M. Thornton, Greensboro, for petitioner-appellants.

Charles M. Putterman, Durham, for intervenor/respondent-appellees.

The Brough Law Firm, by William C. Morgan, Jr., Chapel Hill, on behalf of the Town of Cary, amicus curiae.

LAKE, Chief Justice.

The question presented for review in this case is whether a conditional use municipal zoning permit may be construed to allow residents of a subdivision within the municipality to install gates in a fence that serves as part of a buffer area between the subdivision and an adjoining neighborhood, in order to allow the residents access to portions of their property located within the buffer. The Court of Appeals held that such gates are not permitted. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 140 N.C.App. 99, 106, 535 S.E.2d 415, 419 (2000). For the reasons hereinafter set forth, we affirm.

In 1992, petitioner Westminster Homes, Inc., a residential housing developer, petitioned the Town of Cary to rezone various properties surrounding the Harmony Hill Lane neighborhood to allow for higher density residential subdivisions. Part of this property, designated Tract 3 on Wake County Tax Map 543, later became Westminster's Sherborne subdivision. Homeowners in the Harmony Hill neighborhood filed protest petitions against Westminster's request. After negotiations, which resulted in a formal legal agreement, Harmony Hill residents withdrew their protests, and Westminster agreed to certain developmental restrictions on Tract 3.

Westminster petitioned the Town to rezone its property in accordance with the agreement made with the residents of Harmony Hill. In February 1993, the Cary Town Council approved some of these restrictions as conditional use zoning permit Z-664-92-PUD. This permit provides, in part, as follows:

1. There shall be a 50 foot undisturbed buffer along the northern boundary of Tract 3.... A seven-foot treated wood fence shall be constructed and maintained by the developer along the length of the undisturbed buffer where it adjoins Parcels 19, 20, 21, and 22, Wake County Tax Map 515. The fence shall be the same architecturally and of the same materials as the fence currently existing between Preston Woods and the McLaurin Tract. The fence shall be located 45 feet off the property line ... and it shall be connected to the existing gate over the sewer easement. The fence shall be installed with the minimum of disturbance to the buffer environment. The fence shall be connected at each end to the fences to be constructed under the respective agreements with Hester and McLaurin in order to preserve continuity and integrity. The fence will always be 45 feet from the boundary line or any property corner, and shall intersect at right angles. This fence will be constructed at the time that a grading permit is issued by the Town of Cary and be completed prior to recording any final plats. The integrity and maintenance of this fence will be the responsibility of the developer of Tract 3 or new owner. A deed disclosure and recorded plat shall be made by the developer so as to inform all new residents of the placement, integrity and maintenance of the new fence. Furthermore, a disclosure as to maintenance responsibility shall be part of the recorded plat and be subject to approval of the Town Council of the Town of Cary.

2. There shall be no utility crossings, sewer lines, or greenways in the 50 foot buffer, except where the Town of Cary may require street or utility connections to Parcel 14, Wake County Tax Map 515. The buffer otherwise will remain in its present natural and undisturbed condition, except fencing and plantings.

3. ... Fast growing and evergreen trees such as Leyland Cypress shall be planted in a type "A" buffer standard to provide both optical and acoustical screening in front of the fence.

Thus, the permit requires, inter alia, that a "50 foot undisturbed buffer" be maintained between the Harmony Hill neighborhood and Tract 3, and that this buffer include a seven-foot high wooden fence offset forty-five feet from the rear property line of Tract 3, which abuts Harmony Hill. The "developer of Tract 3 or new owner" is responsible for the "integrity and maintenance" of the fence, and all new residents are to be made aware of the fence restriction through a deed disclosure and the recorded plat.

With the parties having settled their preliminary differences, plans for the Sherborne development proceeded. On 18 November 1993, the Town of Cary approved a plan for the Sherborne subdivision. In October 1996, intervenor/respondents Jeff and Leigh Thorne moved into the adjacent Harmony Hill neighborhood. On 5 February 1997, Westminster filed the final subdivision plat for the Sherborne subdivision with the Register of Deeds. Both the plan approved in 1993 and the plat filed in 1997 showed that all the land in Tract 3, including the buffer zone, would be subdivided.¹

In December 1997, petitioners John and Susan Evans and Bakulesh and Vadana Naik purchased lots and homes from Westminster in the Sherborne subdivision. Petitioners' lots abutted the intervenor/respondents' lot in the Harmony Hill neighborhood. Thus, the buffer zone runs along the back of and through petitioners' properties. Approximately one-half of the Evanses' lot and one-quarter of the Naiks' lot are part of the designated buffer area. Even so, these lots, excluding those portions which are in the buffer, are larger than many others in the Sherborne development.²

After the individual petitioners occupied their lots, they desired to access the portions of their respective lots located behind the fence in the buffer zone. In December 1997, petitioner Westminster, the developer of Sherborne, built a gate in the fence for the Naiks. On 13 January 1998, the Town staff with the Division of Planning and Zoning advised Westminster that gates were not permitted in the fence. In June 1998, the Evanses installed a gate in that portion of the fence in their backyard.

On 24 June 1998, a zoning enforcement officer for the Town of Cary sent letters to petitioners informing them that they were in violation of conditional use zoning permit Z-664-92-PUD because they had installed gates in the fence. Petitioners filed an appeal to the Town of Cary Zoning Board of Adjustment. On 10 August 1998, the Board of Adjustment held a hearing and heard evidence regarding the appeal, and residents of the Harmony Hill neighborhood, including intervenor/respondents, urged the Board not to allow gates in the fence. Ultimately, the Board upheld the zoning enforcement officer's interpretation of the conditional use permit and the determination that petitioners were in violation of the permit.

Petitioners appealed to Superior Court, Wake County. At this point, the Thornes formally intervened. After a hearing, the court overturned the Board's ruling and ordered that the Sherborne homeowners were permitted to install gates in the fence in order to access that portion of their property located beyond the fence in the buffer area. Intervenor/respondents appealed. The Court of Appeals reversed the trial court, holding that petitioners are prohibited from installing gates in the fence. Westminster Homes, 140 N.C.App. at 106, 535 S.E.2d at 419.

The only issue before this Court is whether petitioners, as residents of the Sherborne subdivision, may install individual access gates in the fence required under the conditional use zoning permit. Petitioners contend that the Board and the Court of Appeals erred in holding that such gates are prohibited under a proper construction of the conditional use zoning permit. We disagree. "[C]onditional use zoning occurs when a governmental body, without committing its own authority, secures a given property owner's agreement to limit the use of his property to a particular use or to subject his tract to certain restrictions as a precondition to any rezoning." Chrismon v. Guilford County, 322 N.C. 611, 618, 370 S.E.2d 579, 583 (1988). "[T]he practice of conditional use zoning is an approved practice in North Carolina, so long as the action of the local zoning authority in accomplishing the zoning is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest." Id. at 617, 370 S.E.2d at 583; see also N.C.G.S. §§ 160A-381, 160A-382 (1999). "[T]he only use which can be made of the land which is conditionally rezoned is that which is specified in the conditional use permit." Hall v. City of Durham, 323 N.C. 293, 300, 372 S.E.2d 564, 569 (1988).

Thus, a conditional use zoning permit is a specialized form of a municipal ordinance, and it follows that the same rules of construction apply to both. Courts apply the same rules of construction when construing both statutes and municipal zoning ordinances. Cogdell v. Taylor, 264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965) ("The rules applicable to the construction of statutes are equally applicable to the construction of municipal ordinances."); accord Coastal Ready-Mix Concrete Co. v. Board of Comm'rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)

; George v. Town of Edenton, 294 N.C. 679, 684, 242 S.E.2d 877, 880 (1978). "The basic rule is to ascertain and effectuate the intention of the municipal legislative body." George, 294 N.C. at 684,

242 S.E.2d at 880.

Intent is determined according to the same general rules governing statutory construction, that is, by examining (i) language, (ii) spirit, and (iii) goal of the ordinance. [Coastal Ready-Mix Concrete Co., 299 N.C. at 629, 265 S.E.2d at 385.] Since zoning ordinances are in

...