Pаge Memorial United Methodist Church (the church) is located at 203 Church Street (the main lot) in Biscoe, North Carolina. The church has been in its current location since approximately 1900. In 1983, the church acquired title to an adjoining trаct of land (the adjoining lot).
The church has two buildings situated upon the main lot. The adjoining lot is vacant. Since approximately 1990, the church has operated a food distribution program from the basement of its education building lоcated on the main lot. On Saturdays, church volunteers distributed food from the education building to approximately 200-230 people.
In 1993, the Town of Biscoe (the town) enacted a zoning ordinance (the ordinance). The arеa around the church, including the main lot and the adjoining lot, was zoned as a R-12 residential district. The ordinance provided that churches were among the “[permitted [u]ses” allowed in the R-12 residential district. The ordinance also dеfined certain structures and uses as nonconforming, but the ordi nance allowed for the continuance of such nonconformances, provided that the structures and uses were not expanded.
In 2003, the church decided to move its food distribution program from its education building to a new structure to be built upon the adjoining lot. The church applied for a permit to construct a food pantry on the adjoining lot on 21 October 2003. The town’s zoning administrator granted a zoning permit to the church for the construction of a food pantry on 12 November 2003. Randy Jirtle and wife, Nancy Jirtle; Buddy Batten and wife, Thelma Batten; and Edward Goodwin and wife, Doris Goodwin (petitioners) appealed the decision to the town’s Board of Adjustment (the board). Subsequently, the church withdrew its application for a permit.
The church again applied for a permit to construct a food pantry on the adjoining lot on 9 June 2004, which the zoning administrator granted. Petitioners again appéaled the decision to the board. The board upheld the decision of the zoning administrator on 9 August 2004.
Petitioners filed a petition for writ of certiorari with the trial court on 9 August 2004. The trial court affirmed the board’s decision upholding the grant of the permit to the church in an order entered 30 August 2004. Petitioners appeal.
I.
Petitioners first argue that construction of a food pantry would constitute an impermissible expаnsion of a nonconformance in violation of the applicable zoning ordinance. A decision of a board of adjustment may be reviewed by a trial court upon the issuance of a writ of certiorari, in which cаse-the trial court sits as an appellate court.
Tate Terrace Realty Investors, Inc. v. Currituck County,
A question involving the interрretation of a zoning ordinance is a question of law, to which we apply a
de novo
standard of review.
Ayers v. Bd. of Adjust for Town of Robersonville,
Upon the effective date of this ordinance, and any amendment thereto, рre-existing structures or lots of record and existing and lawful uses of any building or land which do not meet the minimum requirements of this ordinance for the district in which they are located or which would be prohibited as new development in the district in which they are located shall be considered as nonconforming. It is the intent of this ordinance to permit these nonconforming uses to continue until they are removed, discontinued, or destroyed, but not to encourage such continued use, and to prohibit the expansion of any nonconformance.
Town of Biscoe, N.C., Zoning Ordinance § 11 (1993). More specifically, section 11.3 of the ordinance states: “The nonconforming use of land shall not be enlаrged or increased, nor shall any nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the passage of this ordinance. ...” Town of Biscoe, N.C., Zoning Ordinance § 11.3 (1993).
It is not disputed that the church is nonconforming in two respects: (1) inadequate parking and (2) violation of set-back requirements. Since petitioners do not argue that construction of a food pantry would expаnd the set-back nonconformance, we only determine whether construction of a food pantry would expand the parking nonconformance.
Pursuant to the minimum parking requirements of section 13.6 of the ordinance, рlaces of assembly, including churches, are required to have “[o]ne (1) parking space for each four (4) seats in the largest assembly room.” Town of Biscoe, N.C., Zoning Ordinance § 13.6 (1993). The church sanctuary is the “largest assembly'roоm” in the church, seating between 120 and 189 people, which would require between 30 and 47-1/4 parking spaces under section 13.6 of the ordinance. However, the church does not have the requisite number of parking spaces аnd relies on street parking. Therefore, the church is nonconforming under section 13.6 of the ordinance.
Petitioners argue that construction of a food pantry would imper-missibly expand the parking nonconformance. They apparently contend that construction of the food pantry would increase the number' of people receiving food at the church and would therefore increase parking demand, which the church cоuld not meet. Petitioners argue that under the plain language of the zoning ordinance, such an increase in unmet parking demand would constitute an impermissible . expansion of a nonconformance.
Petitioners conсede, however, that construction of the food pantry would not alter the “largest assembly room” in the church for purposes of section 13.6 of the ordinance. The plain language of the ordinance makes clеar that parking requirements for churches are determined solely by the number of seats in the “largest assembly room.” Accordingly, because the church sanctuary would remain the “largest assembly room” in the church after construсtion of a food pantry, the parking requirements for the church would remain the same. There would not be a greater nonconformity with the minimum parking requirements after construction of a food pantry; therefore, construction of a food pantry would not impermissibly expand the parking nonconformance.
II.
Petitioners also argue the trial court erred in concluding that a food pantry would constitute an accessory use of the church. In order to qualify as an accessory building or use under section 2.3 of the ordinance, a building or use must be:
A. Conducted or located on the same zoning lot as the principal building or use served, except as may be speсifically provided elsewhere in this Ordinance.
B. Clearly incidental to, subordinate in area and purpose to, and serves the principal use; and
C. Either in the same ownership as the principal use or is clearly operated and maintained solely for the comfort, convenience, necessity, or benefit of the occupants, employees, customers, or visitors of or to the principal use.
Town of Biscoe, N.C., Zoning Ordinance § 2.3 (1993).
Petitioners do not challenge thе third requirement for classification as an accessory
Petitioners also argue a foоd pantry would not satisfy the second requirement for classification as an accessory building or use. Petitioners argue that because the adjoining lot is larger than the main lot, a food pantry is not “subordinate in area” to thе church. However, petitioners mistakenly focus upon the relative size of the lots, rather than the size of the buildings, as required by the plain language of the ordinance. A food pantry scheduled to have a gross floor arеa of 1,000 square feet would clearly be smaller than the current church buildings, which currently occupy approximately 9,390 square feet. Also, the provision of food to the hungry is incidental and subordinate to the church’s main purpose of worship, although it serves the main purpose and principal use of the church. Accordingly, a food pantry would qualify as an accessory building or use, and we overrule these assignments of error.
III.
Petitioners next argue the trial court erred by concluding that “a denial of the construction permit for a food pantry would impose a substantial burden on the religious exercise of the [c]hurch” in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). However, because we hold that a food pantry qualifies as an accessory building or use of the church and does not constitute an impermissible expansion of a nonconformance, we need not review this argument.
IV.
Finally, petitioners argue the “trial court erred by making additional findings of fact and conclusions of law not made by the [b]oard, because such a practice is not permissible under North Carolina law.” When a trial сourt issues a writ of certiorari to review the decision of a board of adjustment, “the [trial] court sits as an
appellate court, and not as a trier of facts.”
Tate Terrace Realty Investors, Inc.,
Petitioners specifically assign error to only one of the trial court’s findings of fact: “[T]he proposed food pantry building is clearly incidental to, subordinate in area and subordinate in purpose to the church.” Petitioners argue the trial court erred by making this finding, which was not previously madе by the board. However, because this determination required the application of legal principles to a set of facts, it is more properly labeled a conclusion of law, and we treat it as such.
Carpenter v. Brooks,
Affirmed.