Local zoning decisions are often contentious. This is especially true when they pit different local government authorities against each other. In a case decided April 5, the N.C. Court of Appeals ruled on whether the city of Rocky Mount had the authority to impose zoning restrictions on a bus parking lot used by the Nash County schools. The appeals court held that the city had no power to zone the parking lot under the then-existing state law, as a parking lot was not a building.

In 2002, the Nash-Rocky Mount schools wanted to build a bus parking lot at Rocky Mount Senior High School. The school system obtained driveway and fence permits from the city and then built and began using the new lot. The school is, however, located next to a residential area, and some neighbors complained to the city about the traffic, noise, dust and trash coming from the parking lot. In response, Rocky Mount informed the school system that it would need a special use permit from its Board of Adjustment if it wanted to continue to use the new lot. The Board of Adjustment in turn rejected the school system’s request for the permit, finding that the bus parking lot was adversely affecting the nearby neighborhoods.

The schools then brought the case before the courts.

Municipal zoning regulations do not generally apply to the state or localities unless the General Assembly has indicated otherwise. At issue on appeal was the limits of one such grant of zoning power to the towns and cities, N.C. Gen. Stat. § 160A-392(2003). It stated that: “All of the provisions of this Part [relating to zoning by cities and towns] are hereby made applicable to the erection, construction, and use of buildings by the State of North Carolina and its political subdivisions.”

Rocky Mount contended that the parking lot should be covered, as its ordinances define “building” to include a “parking area.” The Court of Appeals did not agree, finding the issue was not the intent of the city’s regulations but rather the General Assembly’s intent in adopting the legislation. It also found a parking lot is not a building.

“No matter whether we use the definition of ‘building’ adopted by the court in Davidson County or the dictionary definition, it is apparent that the plain meaning of the word ‘building’ does not encompass a parking lot,” wrote Judge Martha Geer for the court. “A parking lot is not a structure; it has no roof, walls, or any other kind of permanent, immovable features apart from a fence. Put simply, a parking lot is an open air space used to temporarily park automobiles and buses. It in no way resembles a building.”

In the alternative, the city argued that the power to regulate was implied, as the parking lot constituted a “use” of the high school buildings. Again the appeals court did not agree.

“In sum, these provisions indicate an intent to permit zoning regulation of the purpose or activity for which a building, structure, or land is being utilized — in other words, the conventional meaning of the word ‘use’ when dealing with zoning statutes. N.C. Gen. Stat. § 160A-392 should be construed consistently. Accordingly, N.C. Gen. Stat. § 160A-392 permits a municipality to regulate the purpose for which the State or other political subdivision utilizes a building. As in effect at the time of the underlying events, the statute did not give the municipality jurisdiction to regulate land simply because it was utilized in connection with the building.”

Under the law in force at the time, the court held that the Board of Adjustment had no authority over the school system’s parking lot.

The General Assembly has since amended N.C. Gen. Stat. § 160A-392 to explicitly include land.

The case is Nash-Rocky Mt. Bd. of Educ. v. Rocky Mt. Bd. Adj., (04-290):

http://www.aoc.state.nc.us/www/public/coa/opinions/2005/040290-1.htm.

Mike Lowrey is a contributing editor of Carolina Journal.