How North Carolina Courts Resolve Zoning/Land Use Appeals: Currituck County Campground Example

Currituck County recently won its legal dispute with the owners of the KOA Outer Banks West campground in Waterlily, North Carolina. See media report here. The campground sits on a triangular parcel of land on the north end of Church's Island on the Outer Banks West, boasting of panoramic views of Currituck Sound. The campground owners applied to the County for approval of a site plan to increase the number of campsites from 234 to 314 and to build a swimming pool and new bathroom and other facilities. The campground has existed at that location since 1967. The County denied the site plan and was affirmed by the North Carolina Court of Appeals. The campground will be limited to 234 campsites for RVs, trailers, or campers and will not be able to add a swimming pool or new bathrooms. The campground will continue to be allowed an area for tent camping, but the area for tent camping will be limited. See 85'And Sunny, LLC v. Currituck County, 2021 NCCOA 422 (NC. Court of Appeals August 17, 2021).

The case provides an interesting example of how North Carolina courts review and decide legal questions with respect to land use and zoning applications. As noted, the campground has existed since 1967. Currituck County did not enact a county-wide zoning law until 1971. As such, since that time, the campground has operated as a nonconforming use under the Cuurituck County zoning laws. Among other things, the County zoning law requires that any a "nonconforming use shall not be changed to any other nonconforming use" and that any nonconforming use cannot "be enlarged, expanded in area, or intensified." More specifically, the current land use/zoning statute passed in 2013 prohibits existing campgrounds from expanding the number of campsites and/or from using additional land area for camping beyond what existed on January 1, 2013. Further, modifications to existing campground buildings are allowed, but only so long as the building size is not expanded beyond what existed on January 1, 2013.

In 2018, the new owners of the campground submitted a Major Site Plan to Currituck County for review. As noted, the owners wanted to have 314 campsites, to add new restroom and bathhouse facilities, a swimming pool, a pool house and other facilities. The County issued a letter stating that the Site Plan was not allowed under the Currituck land use/zoning laws. The letter was issued by the Currituck County Planning and Development Director ("Director"). The Director determined that, historically, the campground had only 234 campsites. The campground was limited to that number and the other facilities were not allowed since they would impermissibly expand the campground beyond what it had been as of January 1, 2013.

The campground owners appealed to the County Board. The Board heard evidence, reviewed the historical documents and reviewed other submitted evidence. The Board agreed with the Director.

The campground owners then appealed to the county Superior Court which overturned the Board. The Board then appealed to the North Carolina Court of Appeals which reinstated the Board's decision.

How did the Court of Appeals evaluate the case? There are two different standards of review that a court is to apply when there is an appeal from a decision of an administrative official charged with enforcing a zoning or unified development ordinance. These are:

• "Whole Record" test
• Error of law de novo review test

Generally speaking, if the legal challenge is that the decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court applies the whole record test. This is a very deferential standard. A court is to ensure that sufficient, material and competent evidence exists in the record that supports whatever decision was made. The court is to defer to the decision-maker's judgment when the evidence is in conflict. In other words, the whole record test does not allow the reviewing court to replace the decision-maker's judgment as between two reasonably conflicting views, even though the court might have made a different decision.

If the legal challenge is that the decision was based on an error of law, then the reviewing court must apply the error of law de novo test. This generally requires the court to determine what is the proper interpretation and application of the laws or statutes in question, as a matter of the judge's interpretation. When interpreting laws and statutes, there is no deference to the decision-maker's determination.

In the campground case, the Court of Appeals reversed the decision of the Superior Court because the lower court used the wrong test. The challenge made by the campground owners was that the Currituck County Board's decision was arbitrary and capricious. The Superior Court should have used the whole record test and, since there was plenty of evidence to support the Board's decision, the Superior court should have deferred to the Board's judgment. But the Superior Court used the other test and substituted its judgment with respect to the evidence submitted to the Board. This was the wrong standard and the Court of Appeals reversed. As noted, the Court of Appeals reinstated the Board's decision giving the legal victory to Currituck County.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.