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Fantasy World Inc. v. Greensboro Board of Adjustment

March 03, 1998

FANTASY WORLD, INC., PETITIONER-APPELLANT,
v.
GREENSBORO BOARD OF ADJUSTMENT, AND CITY OF GREENSBORO, RESPONDENTS-APPELLEES.



Appeal by petitioner from order entered 18 July 1996 by Judge Ben F. Tenille in Guilford County Superior Court. Heard in the Court of Appeals 9 October 1997.

The opinion of the court was delivered by: Martin, John C., Judge.

Petitioner, Fantasy World, Inc., appeals from an order of the superior court affirming a decision of the Greensboro Board of Adjustment which upheld a Notice of Violation issued by the Zoning Enforcement Division of the City of Greensboro Planning Department. A summary of the factual and procedural history of the case follows:

Effective 18 March 1993, the City of Greensboro amended its Development Ordinance regulating adult entertainment businesses to prohibit the location of any "adult bookstore, adult mini motion picture theater, adult motion picture theater, adult live entertainment business or adult massage parlor" within a specified distance of any other such adult establishment. Greensboro Code of Ordinances § 30-5-2.21(B)(1). Immediately prior to the effective date of the amendment, a permit was issued for property located at 4018 West Wendover Avenue in Greensboro permitting the operation of a live adult entertainment business, specifically a "topless" bar, in one portion of the building, and a restaurant in the other portion. The foregoing amendment to the Development Ordinance would have prohibited use of the property as an adult entertainment establishment. However, the Development Ordinance also provided:

§ 30-4-11.2 Nonconforming use of land.

(A) Continuance of Nonconforming Use of Land: Any nonconforming use legally existing at the time of . . . amendment of this Ordinance, . . . may be continued subject to conditions provided in Section 30-4-11.2(B) below.

(B) Conditions for Continuance: Such nonconforming use of land shall be subject to the following conditions:

(2) No such nonconforming use shall be enlarged, increased, or extended to occupy a greater area of land or floorarea than was occupied at the effective date of adoption or amendment of this Ordinance.

Greensboro Code of Ordinances § 30-4-11.2. Therefore, because the permit had been issued prior to the effective date of the amendment to the Development Ordinance, the adult entertainment business was permitted to continue as a nonconforming use.

On 15 June 1994, a license was issued to petitioner to operate a business at the location. Petitioner continued to use the adult entertainment portion of the building for live adult entertainment, but stopped using the other portion as a restaurant and subsequently sought to use the former restaurant space for lingerie sales. Accordingly, on 1 September 1994, staff members of 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.

On 29 November 1994 and 14 December 1994, Greensboro Zoning Enforcement Officers Levine and Parham visited the property and determined that the former restaurant space was being operated as an adult bookstore and mini motion picture theater. Consequently, on 27 December 1994, the City of Greensboro Zoning Enforcement Division issued a Notice of Violation instructing petitioner to cease all adult sales and use of the adult mini motion picture theater because petitioner's use of the property violated the restrictions of the zoning ordinance for the location of adult businesses or, alternatively, its use of the property was an impermissible expansion of a nonconforming use.

Petitioner appealed the Notice of Violation to the Greensboro Board of Adjustment. After a hearing, the Board of Adjustment concluded that petitioner's use of the former restaurant space as an adult book store and as an adult mini motion picture theater was an impermissible expansion of a non-conforming use. On certiorari, the superior court found substantial evidence in the record to support the Board's finding that petitioner was operating an adult mini motion picture theater in the former restaurant space, but found insufficient evidence to sustain the Board's finding that petitioner was operating an adult bookstore in such space. The superior court concluded that the Board's decision upholding the Notice of Violation was based upon its finding that petitioner had extended the nonconforming use of the property by operating the adult mini motion picture theater. The superior court determined that petitioner's due process rights had been protected, that the Board had followed lawful procedures, that its decision was based upon substantial evidence, was not the result of an error of law, and was not arbitrary or capricious.

A decision of a board of adjustment is subject to judicial review by the superior court by a proceeding in the nature of certiorari. N.C. Gen. Stat. § 160A-388(e) (1994). The superior court sits as an appellate court, and its scope of review includes:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both statute and ...


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