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NCJS, LLC v. City of Charlotte

Court of Appeals of North Carolina

August 15, 2017

NCJS, LLC and JAMES H. PLYLER, Petitioners,
v.
CITY OF CHARLOTTE, a municipal corporation, Respondent.

          Heard in the Court of Appeals 3 May 2017.

         Appeal by petitioners from order entered 5 April 2016 by Judge Hugh Lewis in Mecklenburg County, No. 15 CVS 9540 Superior Court.

          The Odom Firm, PLLC, by David W. Murray; and James H. Plyler, pro se, for petitioner-appellants.

          Senior Assistant City Attorney Thomas E. Powers III and Senior Assistant City Attorney Terrie Hagler-Gray, for respondent-appellee.

          ELMORE, Judge.

         This is a zoning case about screening dumpsters. Petitioners NCJS, LLC and James H. Plyer (collectively "NCJS") own industrially zoned property in Charlotte. On the property sits a warehouse constructed in 1970 that is divided into six leasable units. Currently abutting the warehouse are two leaseholder-owned dumpsters unscreened from public view. A 1984 amendment to the Charlotte Zoning Ordinance (CZO) required that dumpsters be screened on three sides by a fence. Section 12.303 of the CZO, which imposes the dumpster-screening requirement, provides that "the provision of this Section must be met at the time that land is developed or land and structures are redeveloped."

         After NCJS received a zoning notice of violation (NOV) for failing to screen its dumpsters, it appealed to the City of Charlotte's zoning board of adjustment ("City Board") (respondent), arguing that its property was neither developed nor redeveloped since enactment of the 1984 dumpster-screening amendment as required to trigger its application. After a hearing, the City Board voted three to two to affirm the zoning administrator's decision and issued a written order demanding that NCJS screen its dumpsters. In its decision, the City Board determined that NCJS's dumpsters were legally nonconforming structures under the CZO because they were unscreened and thus subject to the nonconformance provisions regulating nonconforming structures, which provides a nonconforming structure loses its nonconforming status when moved. Based on photographs of NCJS's property that showed the dumpsters had moved to different locations against the warehouse, the City Board concluded its dumpsters lost their legal nonconformity and need to be screened. NCJS petitioned the superior court for certiorari review, challenging the City Board's decision on several grounds. After a hearing, the superior court entered an order affirming the City Board's decision. NCJS appealed.

         On appeal, NCJS alleges several errors arising from the superior court's order and the City Board's decision. The dispositive issue, however, is whether the City Board misinterpreted and misapplied the CZO, such that its decision should be reversed. Because we hold the City Board misinterpreted the CZO by concluding that NCJS's dumpsters were "nonconforming structures" without determining whether Section 12.303's dumpster-screening requirement was triggered, and thus misapplied the CZO by subjecting NCJS's dumpsters to the regulations governing nonconforming structures, which provides for the termination of a legal nonconformity when a nonconforming structure is moved, we reverse the superior court's order affirming the City Board's decision. Additionally, because the local zoning authority failed to satisfy its burden of proving the existence of a current zoning violation, we remand this case to the superior court for further remand to the City Board with the instruction to rescind the NOV issued against NCJS. In light of our disposition, we decline to address NCJS's remaining arguments.

         I. Background

         In 2006, NCJS purchased property located at 130 Stetson Drive in Charlotte, which is currently zoned as an I-1 industrial district. When NCJS's property was developed in 1970, it was subject to Mecklenburg County's zoning ordinance, which contained no dumpster-screening requirement. Sometime after 1970, the property came under the zoning jurisdiction of the City of Charlotte and subject to the CZO, which adopted screening requirements in 1972. In 1984, the City of Charlotte amended the CZO to specifically include dumpsters among the listed items requiring screening. Section 12.303 imposes the challenged dumpster-screening requirement and provides: "The provisions of this Section must be met at the time that land is developed or land and structures are redeveloped."

         On 4 February 2015, a zoning administrator sent NCJS a letter, the zoning NOV, stating that it was violating the CZO because its dumpsters were unscreened. NCJS appealed to the City Board, which heard the matter on 31 March 2015. At the hearing, the zoning administrator argued that when the CZO's screening provision was amended in 1984 to include dumpsters, all unscreened dumpsters became "nonconforming structures" under CZO § 2.201 and thus were subject to the nonconformance provisions of CZO § 7.103 (regulating nonconforming structures), which provides for the termination of a legal nonconformity when a nonconforming structure is moved. The zoning administrator showed photographs of NCJS's property that revealed the following: in 2007, two dumpsters abutted the warehouse; in 2010, one dumpster had been removed from the property; in 2011, the remaining dumpster had been moved from one side of a garage entrance to the other; and in 2014, another dumpster had been added against the warehouse. Thus, the zoning administrator argued, because NCJS's dumpsters were nonconforming structures and had been moved, they lost their legal nonconformity and must now be screened.

         NCJS argued that its property was grandfathered in from CZO § 12.303's dumpster-screening requirement because its property was developed in 1970, and neither its land nor its structures had been redeveloped. Thus, NCJS argued, because CZO § 12.303 contemplates dumpster-screening compliance when "land is developed or land and structures are redeveloped, " neither of which occurred on its property since the 1984 amendment, Section 12.303's dumpster-screening requirement did not apply to its property.

         After the hearing was closed, one member of the City Board moved to uphold the zoning NOV, but it was not seconded. After further deliberation among members of the City Board, the hearing was reopened. After the hearing was closed for the second time, the City Board voted three to two to affirm the determination that NCJS's dumpsters needed to be screened. Following the hearing, the City Board issued a written order affirming the zoning administrator's decision to issue NCJS a zoning NOV and demanding that NCJS screen its dumpsters. In its decision, the City Board agreed with the zoning administrator's interpretation that all dumpsters existing after enactment of the 1984 dumpster-screening amendment were nonconforming structures subject to the nonconformance provisions regulating nonconforming structures. Thus, the City Board found, NCJS's dumpsters lost their legal nonconformity when they were moved and must now be screened in compliance with the CZO.

         On 18 May 2015, NCJS petitioned the Mecklenburg County Superior Court for certiorari review of the City Board's decision. After a 24 February 2016 hearing, the superior court entered an order on 5 May 2016 affirming the City Board's decision. NCJS appeals from the superior court's order.

         II. Analysis

         On appeal, NCJS contends the trial court erred by (1) failing to reference any of the grounds alleged in its petition for certiorari review, failing to identify which review standard it applied to any ground raised and the application of that review, failing to make any findings or conclusions related to whether the City Board's interpretation of the CZO was correct; and (2) finding facts beyond those found by the City Board to justify the City Board's decision. NCJS also asserts (3) the City Board misinterpreted the CZO by concluding its unscreened dumpsters were nonconforming structures because its dumpsters are "permitted accessory uses or structures" under the CZO and neither triggering event occurred that would subject its property to Section 12.303's dumpster-screening requirement. NCJS asserts further that (4) the City Board misapplied its ordinance by subjecting the dumpsters to the nonconformance provisions regulating "nonconforming structures, " which prohibits movement, rather than "nonconforming accessory uses and structures, " which does not. Finally, NCJS asserts (5) the City ...


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