Clarifying “Grandfather” Protections

            When a child outgrows its clothes you simply buy larger clothes.  But when an older business outgrows its building and lot, new zoning codes often determine the extent to which physical expansion can occur.

             It can be frustrating, especially when you’re an oceanfront hotel, you’re hemmed in on four sides, and moving is not an option.  And that’s the situation Wrightsville Beach’s Blockade Runner hotel was in when it tried to add a four-story parking deck in 2006.

             Although the Blockade Runner and its predecessors have been on the same site for over 100 years, Wrightsville Beach adopted a zoning ordinance in 1972 that added requirements related to expansion of legal nonconforming uses and which delineated which new or expanded uses require conditional use permits.

             Side Bar: Colloquially, a “legal nonconforming use” is called a “grandfathered” use. The term “grandfather clause” originated in post-Civil War America when several southern states adopted constitutional amendments related to voting restrictions which exempted anyone whose grandfather had a right to vote, amendments that effectively denied pre-war slaves from being able to vote. Illiterate whites, however, were “grandfathered.”  End Side Bar.

             Anyone who has recently stayed at or visited the Blockade Runner knows that parking is woefully inadequate.  Although its plans for a four-story parking deck would only bring parking into partial compliance, the deck also had setback and landscaping issues.

             The town’s Code Administrator told the hotel’s owners that if they expanded parking – even if the expansion made parking less nonconforming – they needed to comply with the current zoning ordinance, which required that they apply for a conditional use permit, or CUP.  The Administrator’s decision was appealed to the local Board of Adjustment, which upheld the Administrator.  The BOA’s decision was appealed to the superior court, which upheld the BOA.  And the superior court’s decision was appealed to the Court of Appeals, which upheld the superior court in Four Seasons Management Services, Inc. v. Town of Wrightsville Beach.

             The Blockade Runner argued that the parking deck did not need a CUP because it was an accessory structure and, by definition, therefore an accessory use.  This contention received substantial attention at both the trial and appellate court levels, and both courts refused to equate accessory structures and uses.

             Although each local government can define these concepts as it wishes, two examples might bring the concepts into sharper focus.  A community swimming pool on its own zone lot would be a principal use, while a swimming pool behind a hotel (like the pool at the Blockade Runner) would be an accessory use to the primary use. Similarly, a cell tower on its own zone lot would be a principal structure, but a cell antenna mounted to the roof of a hotel would be an accessory structure to the hotel building.

             The Court of Appeals also held that expansion of the hotel to construct a four-story parking deck would be an expansion of a non-conforming use.  Generally, a “grandfathered use” can continue to exist as is until the end of the world, but it cannot be expanded without rezoning the lot to bring the use into compliance. Some local governments tinker with the concept and allow expansion by right under some circumstances, but the principle remains.  The town’s zoning code provided that “After May 15, 1972 . . . any structural alteration or change in use shall conform with the regulations specified in this chapter.”  And that meant first requesting a CUP.

             I found one point quite interesting.  The Blockade Runner’s attorneys argued that “since the proposed parking deck will mitigate the extent of the existing nonconformity by increasing the number of available parking spaces, the construction of the proposed parking deck cannot, as a matter of law, constitute the expansion of a nonconformity.” (emphasis mine) There’s a compelling logic to this point. The Court, however, was unpersuaded, noting that the same logic could be used to support construction of a ten-story building. 

             Although the principles of law in this case are not complex, this opinion emphasizes the importance of reading the local zoning ordinance carefully as your roadmap.  It is also worth noting that the Blockade Runner hasn’t “lost” in the sense that the parking deck is disallowed.  It’s just that four years after starting the effort they now have to request a conditional use permit.

 Color Commentary

             First, you may wonder why the Blockade Runner’s owner didn’t just apply for a CUP in 2006 and be done with the issue.  Sitting at my desk 200 miles away and without inquiring as to what would be proprietary information anyway, I would guess that there was a business logic to the decision to appeal.  If they sought a judicial declaration regarding their obligation to have a CUP in the first place and won, then that would end it.  But if they lost, they still have a second bite at the apple by applying for a CUP.  However, if they went for the CUP first, then they had only one bite at a very important apple.  Clients I have represented have been in this position many times.  It is better to have two bites than one, especially if losing is not an option.

             Second, non-attorneys sometimes equate a lawsuit against a government as an action filled with venom and acrimony, when it’s almost always the opposite.  I have litigated against the Town of Wrightsville Beach before and found its attorney, John Wessell to be, in every respect, a gentleman.  And a scholar too, but the point is that attorneys create an environment of civility completely contrary to your favorite TV Land lawyer shows.

             And third, this Court of Appeals opinion was authored by Judge Samuel James (“Jimmy”) Ervin IV, grandson of U.S. Senator and scholarly N.C. Supreme Court Justice “Sam” Ervin and son of the Honorable Samuel J. Ervin III, formerly judge of the United States Court of Appeals for the 4th Circuit.  Instead of writing a short, summary opinion, Judge Ervin’s well-written treatise is full of footnotes and other breadcrumbs for future courts to follow when this decision becomes precedent for future cases.  As a land use attorney, I’m more than impressed.  I’m appreciative.

             [To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted by email when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others.]

                     

Comments are closed.

About Our Firm

Fox Rothschild LLP is a national law firm with 900 attorneys practicing in 27 offices coast to coast. We’ve been serving clients for more than a century, and we’ve been climbing the ranks of the nation’s largest firms for many years, according to both The Am Law 100 and The National Law Journal.
Read More