Agenda - Planning Commission - 10/07/2010

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Zoning Bulletin September 10, 20101 Volume 41 No. 17 Four Seasons then appealed to Superior Court. The court upheld the Board's decision. Four Seasons again appealed. DECISION: Affirmed The Court of Appeals of North Carolina held that: (1) Four Sea- sons did not have aright to construct the parking deck as an accessory structure; and (2) the parking deck would impermissibly expand the nonconforming use in violation of the town's zoning ordinance. Four Seasons had argued that since the parking deck was an ac- cessory use, permitted as of right in the zoning district where the ho- tel was located, it was entitled to construct the parking deck without undergoing the conditional use permit process. In support of this ar- gument, Four Seasons had equated an "accessory use" with an "ac- cessory structure." The court found that equation unpersuasive. The court found the zoning ordinance clearly intended: for the term "ac- cessory use" to "refer to something that someone does," and for the term "accessory structure" to refer to a "physical object." The court thus determined that the zoning ordinance simply did "not treat 'ac- cessory uses,' which [were] activities, and `accessory structures,' which [were] physical objects, as equivalent." Thus, the court concluded that the fact that "accessory uses" were permitted as a matter of right in the zoning district in which the hotel was located did not establish that Four Seasons was entitled to construct an "accessory structure" on its property as a matter of right. The court concluded that Four Seasons was "required to obtain an amendment to its conditional use permit before construction of the proposed parking deck" given the facts that: accessory structures were not permitted as of right under the zoning ordinance; the zoning ordinance required conditional use permits for conditional . uses such as hotels; and the town had consistently required amendments to existing conditional use permits for changes or addi- tions to structures requiring a conditional use permit. In regard to its conclusion that the parking deck would impermis- sibly expand the nonconforming use in violation of the town's zoning ordinance, the court found that: "the relevant provisions of the zon- ing ordinance clearly contemplate that any modifications to a non-con- forming use are impermissible unless they bring the nonconformity to an end." The court found that the construction of the proposed park - ing deck "would clearly result in the expansion of an existing noncon- formity ...." Moreover, although the proposed parking deck would mitigate the hotel's lack of parking, the hotel would still not have the required number of parking spaces, and thus would continue to be in violation of the ordinance (i.e., nonconforming). The proposed parking deck construction would not end the nonconformity. Thus it consti- tuted an impermissible expansion of an existing nonconforming use — which was prohibited under the zoning ordinance. © 2010 Thomson Reuters 9 71