Agenda - Planning Commission - 10/07/2010

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70 September 10, 2010 I Volume 4 j No. 17 Zoning Bulletin Accessory Use /Nonconforming Use —Hotel Appeals Denial of Authorization to Construct Proposed Parking Deck Parking is as an accessory use allowed as of right, and parking deck would mitigate nonconformance Citation: Four Seasons Management Services, Inc. v. Town of Wrights- ville Beach, 2010 WL 265037.5 (N.C. Ct. App. 2010) NORTH CAROLINA (07/06/10) —This case addressed the issue of whether an "accessory structure" was equivalent to an "accessory use" and thus permitted as of right when an "accessory use" was permitted as of right. The case also addressed the issue of whether an expansion of a nonconforming use, which mitigates but does not end the noncon- formance, is permitted— despite a prohibition on expansion of a non- conforming use. The Background/Facts: Four Seasons Management Service, Inc. ( "Four Seasons ") owned and operated a hotel in the town. The hotel was not in compliance with the town's zoning ordinance in a number of respects. However, because it was constructed prior to the effective date of the zoning ordinance, the hotel was classified as a "non -con- forming use." As such, it was entitled to operate despite its noncompli- ance with the various provisions of the zoning ordinance. The hotel was located in a "C -4" zoning district, which allowed "accessory uses" as a matter of right and permitted the operation of hotels as a "conditional use." As a nonconforming use, the hotel did not obtain a conditional use permit prior to construction. However, Four Seasons had applied for and obtained a conditional use permit authorizing certain improvements to the hotel. In October 2006, Four Seasons submitted to the town's Director of Planning and Parks (the "Director ") a request for authorization to "build a four -story parking deck over its existing parking area." ' The Director denied Four Seasons' request. The Director said that construction of the parking deck would require an amendment to the hotel's existing conditional use permit. The Director found that the parking deck was not, as Four Seasons had asserted, an "accessory use" permitted as of right, without requirement of a conditional use permit. The Director also found that the parking deck would imper- missibly expand the nonconforming use in violation of the town's zon- ing ordinance. That was the case, found the Director, even if, as Four Seasons had argued, it mitigated the hotel's lack of parking. Four Seasons appealed to the town's Board of Adjustment (the "Board "). The Board upheld the Director's decision. 8 O 2010 Thomson Reuters