864 S.E.2d 742
N.C. Ct. App.2021Background
- Hampton Lodge Campground has operated as a nonconforming campground in Currituck County since at least 1967; the County's 2013 UDO treats existing campgrounds as nonconforming and bars expansion beyond the number of campsites that existed on January 1, 2013.
- UDO § 8.2.6 permits modifications to existing campgrounds so long as changes do not increase the nonconformity with respect to the number of campsites on 1/1/2013; UDO § 8.2.3 generally bars enlargement or intensification of nonconforming uses.
- Petitioner (85° and Sunny, LLC) bought the campground in 2018 and submitted a site plan showing 314 RV sites and 78 tent sites plus new amenities (bathhouses, pool, pool house, pool, dog parks, playground, septic improvements, caretaker replacement).
- The County Director concluded 234 campsites existed on 1/1/2013, could not verify 78 tent sites, and determined many proposed new amenities were impermissible expansions; the Board of Adjustment affirmed.
- Superior court granted certiorari, found 314 RV and 78 tent sites existed on 1/1/2013, allowed most health/safety improvements and a porch but disallowed the pool; it reversed the Board.
- The Court of Appeals: (1) held the Board’s 234-site baseline was supported by substantial evidence and the superior court improperly substituted its judgment; (2) held the UDO’s general nonconforming-use rules and the campground-specific rules must be harmonized and that most proposed new facilities (including the pool) constituted impermissible expansion; it affirmed in part and reversed in part, remanding to affirm the Board’s order in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the superior court articulate and apply the correct standards of review? | Petitioner argued superior court applied whole-record and de novo as appropriate. | County argued the superior court failed to articulate standards for each issue. | Court of Appeals: superior court adequately identified and applied whole-record (factual) and de novo (legal) standards. |
| How many campsites existed on Jan. 1, 2013? | Petitioner: 314 RV sites and 78 tent sites existed; site plan shows capacity. | County/Board: 1996–97 site plans showing 234 campsites (plus tent area to be computed) are the most competent evidence. | Held: Board’s 234-site determination (and tent-area method) was supported by substantial evidence; superior court wrongly replaced Board judgment. |
| Are Petitioner’s proposed improvements (bathhouses, pool house, new bathhouses, pool, piers, etc.) permitted under the UDO? | Petitioner: Only the campground-specific provisions control, so any improvements that do not expand land area or campsite count are allowed. | County: Both the general nonconforming-use limits and the campground-specific rules apply; new amenities that intensify use are barred. | Held: General and specific provisions must be read together; most new amenities are impermissible expansions. Superior court erred in allowing them. |
| Is the swimming pool a permissible improvement? | Petitioner: Pool is an improvement that doesn’t expand sites or land area, so should be allowed. | County: Pool is a substantial new facility that intensifies the nonconforming use and is barred. | Held: Pool is not permitted; Court of Appeals affirmed the superior court’s denial of the pool (and upheld Board’s view that the pool is impermissible). |
Key Cases Cited
- Mann Media, Inc. v. Randolph Cnty. Plan. Bd., 356 N.C. 1 (2002) (whole-record test and scope of superior court review of a board of adjustment).
- Sun Suites Holdings, L.L.C. v. Bd. of Aldermen of Garner, 139 N.C. App. 269 (2000) (definition of substantial evidence).
- Thompson v. Wake Cnty. Bd. of Educ., 292 N.C. 406 (1977) (courts may not substitute their judgment for board where substantial evidence supports board).
- Sutton v. N.C. Dep’t of Labor, 132 N.C. App. 387 (1999) (de novo review for pure legal errors).
- Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298 (2001) (statutory construction principles applied to zoning ordinances).
- High Rock Lake Partners, LLC v. N.C. Dep’t of Transp., 366 N.C. 315 (2012) (specific statutory provisions control over general when conflict arises).
- Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 (1990) (avoid constructions that defeat the statute’s object).