Appalachian Materials, LLC v. Watauga Cnty.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-188

Filed: 6 November 2018

Watauga County, No. 15 CVS 628

APPALACHIAN MATERIALS, LLC, Petitioner,

v.

WATAUGA COUNTY, A North Carolina County, Respondent,

And

TERRY COVELL, SHARON COVELL and BLUE RIDGE ENVIRONMENTAL
DEFENSE LEAGUE, INC., d/b/a HIGH COUNTRY WATCH, Intervenors.

Appeal by petitioner from order entered 8 September 2017 by Judge R. Gregory

Horne in Watauga County Superior Court. Heard in the Court of Appeals 22 August

2018.

Moffatt & Moffatt, PLLC, by Tyler R. Moffatt, for petitioner-appellant.

Di Santi Watson Capua Wilson & Garrett, PLLC, by Chelsea Bell Garrett, for
respondent-appellee.

DAVIS, Judge.

This case requires us to construe a single provision of a Watauga County land

use ordinance prohibiting the construction of an asphalt plant within 1,500 feet of an

“educational facility.” Although this appeal arises in the zoning context, the

resolution of this issue provides this Court with an opportunity to reiterate
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fundamental principles of statutory interpretation applicable to the construction of

any law or ordinance.

Appalachian Materials, LLC, (“Appalachian”) appeals from the trial court’s

order upholding the denial of its application for a High Impact Land Use (“HILU”)

permit. The trial court affirmed the denial of Appalachian’s permit because the

proposed asphalt plant site was located within 1,500 feet of the Margaret E. Gragg

Education Center (the “Gragg Center”), a building that serves as the central

administrative office for the Watauga County Schools. Because we conclude that the

Gragg Center does not qualify as an “educational facility” based on the plain language

of the ordinance’s definition of that term, we reverse the trial court’s order.

Factual and Procedural Background

In March 2003, Watauga County adopted an “Ordinance to Regulate High

Impact Land Uses” (the “HILU ordinance”) in all unincorporated areas of the county.

The ordinance was adopted “for the purpose of promoting the health, safety and

general welfare of the citizens of Watauga County” by regulating certain land uses

that “by their very nature produce objectionable levels of noise, odors, vibrations,

fumes, light, smoke, and other impacts upon the lands adjacent to them.” One such

regulated use concerned the location of asphalt plants. Pursuant to the HILU

ordinance, an asphalt plant “shall not be within 1,500 feet of a public or private

educational facility, a [North Carolina] licensed child care facility, a [North Carolina]

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assisted living facility, or a [North Carolina] licensed nursing home.” In addition, no

applicant wishing to build an asphalt plant is permitted to proceed with construction

without having first received a permit from the Watauga County Department of

Planning and Inspections.

On 10 November 2013, Appalachian began leasing an 8.5 acre tract of land

located along Rainbow Trail in Watauga County upon which it intended to construct

and operate an asphalt plant. Appalachian subsequently hired Derek Goddard, the

vice-president of Blue Ridge Environmental Consultants, to plan, design, and obtain

any necessary permits for the proposed asphalt plant site.

On 9 September 2014, Goddard emailed Joseph Furman, the director of the

Watauga County Planning and Inspections Department, to inquire whether Furman

could provide him with a map displaying all of the buffers required by the HILU

ordinance. The following day, Furman replied by sending Goddard via an email

attachment a map (the “HILU map”) containing the heading “High Impact Land Use

Spacing.” The HILU map purported to depict facilities in Watauga County subject to

the ordinance’s spacing requirements and displayed a 1,500-foot buffer zone around

each such facility. The HILU map did not indicate that the site of Appalachian’s

proposed asphalt plant was within 1,500 feet of any facility implicated by the HILU

ordinance. The Gragg Center was not indicated on the map as being subject to the

ordinance’s spacing requirements.

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On 15 June 2015, Appalachian submitted a High Impact Land Use

Development Permit Application to the Watauga County Planning and Inspections

Department in which it sought approval to construct and operate an asphalt plant in

the vicinity of Rainbow Trail. In his capacity as director of the Planning and

Inspections Department, Furman denied Appalachian’s permit application on 22

June 2015. Furman explained his reasoning for denying the application, in relevant

part, as follows:

According to Article II, Section 3(G) Spacing Requirements,
the nearest portion of the premises of an asphalt plant may
not be established within 1,500 feet of a public or private
educational facility. The [Gragg Center] is clearly within
1,500 feet of the premises of this asphalt plant based upon
our review of the application.

On 17 July 2015, Appalachian appealed Furman’s decision to the Watauga

County Board of Adjustment (the “Board”) pursuant to N.C. Gen Stat. § 160A-

388(b1). Sharon and Terry Covell, homeowners whose property was located next to

the proposed asphalt plant, and the Blue Ridge Environmental Defense League, Inc.

subsequently filed motions to intervene as parties to Appalachian’s appeal. A hearing

on the motions to intervene and on Appalachian’s appeal was held before the Board

beginning on 14 October 2015. The Board first heard evidence on the two motions to

intervene and granted both motions. The Board then received evidence with regard

to Appalachian’s appeal of the denial of its permit application.

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Scott Elliot, the superintendent of Watauga County Schools, testified at the

hearing concerning the various functions of the Gragg Center. Elliot stated that the

Gragg Center served as the central office for Watauga County Schools as well as the

meeting place for the Watauga County Board of Education. He further testified that

the building primarily housed administrative personnel responsible for coordinating

and implementing the education curriculum for the entire Watauga County Schools

system. In addition, Elliot stated that professional development training for

teachers, student testing, and the Watauga County Spelling Bee also took place at

the Gragg Center.

On 30 October 2015, the Board issued a decision upholding Furman’s denial of

Appalachian’s permit application. In its decision, the Board made the following

pertinent findings of fact:

2. The [Gragg Center] is located within 1500 feet from the
nearest portion of the building, structure, or outdoor
storage used as part of the premises for the proposed
asphalt plant.

3. The [Gragg Center] meets the requirements for an
Education Facility as defined in the High Impact Land Use
Ordinance.

Appalachian sought review of the Board’s decision in Watauga County

Superior Court on 2 December 2015 by means of a petition for certiorari. Following

a hearing on 14 August 2017, the Honorable R. Gregory Horne entered an order on 8

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September 2017 affirming the Board’s decision. Appalachian filed a timely notice of

appeal to this Court.

Analysis

Although Appalachian has raised several arguments, we need address only the

question of whether the Gragg Center is an “educational facility” as that term is

defined by the HILU ordinance because that issue is dispositive of this appeal. This

Court has held that “[a] legislative body such as the Board [of Adjustment], when

granting or denying a conditional use permit, sits as a quasi-judicial body.” Sun

Suites Holdings, LLC v. Bd. Of Aldermen of Town of Garner, 139 N.C. App. 269, 271,

533 S.E.2d 525, 527 (citation omitted), disc. review denied, 353 N.C. 280, 546 S.E.2d

397 (2000). A board of adjustment’s decision “shall be subject to review of the superior

court in the nature of certiorari in accordance with G.S. 160A-388.” N.C. Gen. Stat.

§ 160A-381(c) (2017). We have described the superior court’s role in reviewing the

decision of a local board as follows:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both
statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a
petitioner are protected including the right to offer
evidence, cross-examine witnesses, and inspect
documents,

(4) Insuring that decisions of town boards are supported by
competent, material and substantial evidence in the

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whole record, and

(5) Insuring that decisions are not arbitrary and
capricious.

Dellinger v. Lincoln Cty., __ N.C. App. __, __, 789 S.E.2d 21, 26 (citation omitted),

disc. review denied, 369 N.C. 190, 794 S.E.2d 324 (2016).

“If a petitioner appeals an administrative decision on the basis of an error of

law, the trial court applies de novo review; if the petitioner alleges the decision was

arbitrary and capricious, or challenges the sufficiency of the evidence, the trial court

applies the whole record test.” Premier Plastic Surgery Ctr., PLLC v. Bd. of

Adjustment for Town of Matthews, 213 N.C. App. 364, 367, 713 S.E.2d 511, 514 (2011)

(citation and quotation marks omitted). A reviewing court “does not make findings

of fact, but instead, determines whether the Board of Adjustment made sufficient

findings of fact which are supported by the evidence before it.” Crist v. City of

Jacksonville, 131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998) (citation omitted).

Our Supreme Court has held that “[t]he rules applicable to the construction of

statutes are equally applicable to the construction of municipal ordinances.” Cogdell

v. Taylor, 264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965) (citation omitted). A basic tenet

of statutory construction is that “[w]here the language of a statute is clear and

unambiguous, there is no room for judicial construction and the courts must construe

the statute using its plain meaning.” Burgess v. Your House of Raleigh, Inc., 326 N.C.

205, 209, 388 S.E.2d 134, 136 (1990). Furthermore, courts should “give effect to the

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words actually used in a statute and should neither delete words used nor insert

words not used in the relevant statutory language during the statutory construction

process.” Midrex Techs., Inc., v. N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d

785, 792 (2016) (citation and quotation marks omitted).

As noted above, the HILU ordinance provides that “[t]he location of asphalt

plants . . . shall not be within 1,500 feet of a public or private educational facility[.]”

The version of the HILU ordinance in effect during the time period relevant to this

appeal defined “educational facility” as follows:

Educational Facility — Includes elementary schools,
secondary schools, community colleges, colleges, and
universities. Also includes any property owned by those
facilities used for educational purposes.1

Thus, the first sentence of the definition lists five specific entities. Each of the

five is a specific type of school or educational institution. Under the expressio unius

est exclusio alterius canon of statutory construction, “the expression of one thing

implies the exclusion of another.” Jeffries v. Cty. of Harnett, __ N.C. App. __, __, 817

S.E.2d 36, 50 (2018). See Evans v. Diaz, 333 N.C. 774, 780, 430 S.E.2d 244, 247 (1993)

(“[W]hen a statute lists the situations to which it applies, it implies the exclusion of

situations not contained in the list.” (citation omitted)); Jolly v. Wright, 300 N.C. 83,

1 The HILU ordinance has since been amended on multiple occasions. The version of the
ordinance currently in effect defines an “educational facility,” in pertinent part, as “[e]lementary
schools, secondary schools, community colleges, colleges, and universities, including support facilities
such as administration for all of the preceding.”

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89, 265 S.E.2d 135, 141 (1980) (“[W]hen certain things are specified in a statute, an

intention to exclude all others from its operation may be inferred.” (citation omitted)),

overruled on other grounds by McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14

(1993). Thus, because the Gragg Center is not an elementary school, a secondary

school, a community college, a college, or a university, it does not come within the

first sentence of the definition.

The second sentence of the definition provides that the meaning of the term

“educational facility” extends to “any property owned by those facilities used for

educational purposes.” (Emphasis added.) Clearly, the phrase “those facilities” refers

to the entities listed with specificity in the first sentence. It is undisputed that the

Gragg Center is not owned by an elementary school, secondary school, community

college, college, or university and is instead owned by the Watauga County Board of

Education. Thus, the Gragg Center likewise fails to qualify as an “educational

facility” under the second sentence of the definition.

Watauga County nevertheless argues that a ruling that the Gragg Center does

not fit within the definition of “educational facility” would “subvert the goal and spirit

of the HILU” and “create an absurd or illogical result.” It further contends that

although the Gragg Center is not itself a school, its various uses are essential to the

operation of the Watauga County Schools system.

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The County’s argument, however, runs counter to basic principles of statutory

construction. As explained above, it is axiomatic that where the language of a statute

or ordinance is clear and unambiguous this Court “does not engage in judicial

construction but must apply the statute to give effect to the plain and definite

meaning of the language.” Carolina Power & Light Co. v. City of Asheville, 358 N.C.

512, 518, 597 S.E.2d 717, 722 (2004) (citation and quotation marks omitted). Given

that the Gragg Center is neither one of the entities listed in the first sentence of the

definition nor is it property owned by one of those entities, our analysis must

necessarily end there.

While the County asks us to accept its representation that the definition

contained in the ordinance was intended to encompass buildings such as the Gragg

Center, our determination of the intent underlying this provision must be based on

the words actually contained therein. See Lenox, Inc. v. Tolson, 353 N.C. 659, 664,

548 S.E.2d 513, 517 (2001) (“If the language of a statute is clear, the court must

implement the statute according to the plain meaning of its terms[.]” (citation

omitted)). This Court lacks the authority to engage in the exercise of guessing what

additional types of buildings the County might have meant to encompass within this

definition where doing so would require us to substitute language of our own choosing

for the words actually used in the ordinance itself. See In re Banks, 295 N.C. 236,

239, 244 S.E.2d 386, 388-89 (1978) (“When the language of a statute is clear and

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unambiguous . . . the courts must give the statute its plain and definite meaning, and

are without power to interpolate, or superimpose, provisions and limitations not

contained therein.” (citation omitted)).

Moreover, with regard to the County’s position that the adoption of the

interpretation advocated by Appalachian would lead to an absurd result, this

argument fails for two reasons. First, there is nothing “absurd” about a local

government’s decision to prohibit the placement of high impact land uses near actual

schools that serve as places of instruction for students on a regular basis while

permitting such uses near primarily administrative facilities such as the Gragg

Center.

Second, and more fundamentally, our Supreme Court has made clear that

courts are not permitted to avoid a so-called “absurd result” by rewriting a statute or

ordinance in order to reach a more “logical” meaning. See Wiggs v. Edgecombe Cty.,

361 N.C. 318, 322, 643 S.E.2d 904, 907 (2007) (the clear meaning of a statute “may

not be evaded by . . . a court under the guise of construction. We will not engage in

judicial construction merely to assume a legislative role and rectify what defendants

argue is an absurd result.” (internal citations and quotation marks omitted)).

Finally, the County makes the argument that a ruling in favor of Appalachian

would render the second sentence of the definition meaningless because elementary

and secondary schools are not authorized to own property. As an initial matter,

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counsel for Appalachian conceded at oral argument that colleges and universities are,

in fact, legally permitted to own property. Thus, by Appalachian’s own admission,

the second sentence actually does possess some meaning in that property owned by

those entities would fall within the definition as long as said property was being used

for educational purposes.

This argument fails for a more basic reason as well. Even if the second

sentence of the definition did not actually encompass any additional specific locations

within Watauga County other than those enumerated in the first sentence, this Court

would still lack a license to engage in the legislative function of rewriting this

sentence in accordance with our own subjective belief as to what other locations might

be deserving of protection from nearby asphalt plants. See Cochrane v. City of

Charlotte, 148 N.C. App. 621, 628, 559 S.E.2d 260, 264 (“It is critical to our system of

government and the expectation of our citizens that the courts not assume the role of

legislatures.” (citation and quotation marks omitted)), disc. review denied, 356 N.C.

160, 568 S.E.2d 189 (2002).

The definition of “educational facility” in the HILU ordinance does not mention

the Watauga County Board of Education. Had the County intended for any building

owned by the Board of Education possessing some type of educational purpose to be

encompassed within the ordinance’s definition, it would have been a simple matter to

say so in the definition itself. But language to this effect does not exist.

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Were we to accept the County’s invitation to effectively add new words to this

provision of the ordinance, we would be creating a new definition out of whole cloth

rather than interpreting the one that is currently before us. This we cannot do.

Courts do not possess the authority to insert language into an ordinance or statute

that could have been included therein but was not. See Lunsford v. Mills, 367 N.C.

618, 623, 766 S.E.2d 297, 301 (2014) (“[I]n effectuating legislative intent, it is our

duty to give effect to the words actually used in a statute and not to delete words used

or to insert words not used.” (citation omitted)). Simply put, in construing the HILU

ordinance this Court lacks the authority to add words that the drafters themselves

left out.

The concurrence ultimately reaches the correct result in this case but does so

by using a mode of statutory construction that is at odds with the rules of

interpretation discussed above. Rather than apply the language that the drafters of

the HILU ordinance actually used, the concurrence instead plucks out of thin air the

phrase “physical locations” and makes it the focal point of its analysis — despite the

fact that such a phrase appears nowhere in the definition of “educational facilities.”

Based largely on this invented terminology, the concurrence mistakenly concludes

that the second sentence of the definition (1) lacks any meaning at all as actually

worded; and (2) can only be given meaning by the addition of language the drafters

themselves did not see fit to add.

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With regard to the first proposition, the concurrence employs a mode of

construction that can only be described as odd. While it is axiomatic that courts

should strive to find meaning in a statutory provision based on the words used

therein, see State v. Williams, 286 N.C. 422, 431, 212 S.E.2d 113, 119 (1975) (“[A]

statute must be construed, if possible, so as to give effect to every part of it, it being

presumed that the Legislature did not intend any of its provisions to be surplusage.”

(citation omitted)), the concurrence does the precise opposite — instead opting for a

method of interpretation guaranteed to render the plain language of the second

sentence of the definition at issue meaningless.

As for its second conclusion, by means of judicial sleight-of-hand the

concurrence sees fit to change the phrase “property owned by [the entities listed in

the first sentence]” to the quite different phrase “property owned by the owners of [the

entities listed in the first sentence].” The concurrence’s assertion of authority to add

new language to the ordinance’s definition under the guise of interpretation finds no

refuge in the jurisprudence of our appellate courts. Moreover, its interpretation is

rendered illogical by virtue of the fact that the Watauga County Board of Education

does not own community colleges, colleges, or universities located within the county’s

borders.

The concurrence’s assurance that its interpretation would give effect to

Watauga County’s “obvious intent” in drafting the HILU ordinance is also puzzling

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since there is simply no evidence to suggest that this was, in fact, the County’s intent.

To the contrary, the plain language employed in the definition suggests that this was

not the drafters’ intent at all. Guided by nothing more than its own subjective belief

as to what would have constituted a wise definition, the concurrence violates the

cardinal rule of statutory construction that prohibits courts from assuming a

legislative role. See Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002)

(“When the language of a statute is clear and unambiguous, it must be given effect

and its clear meaning may not be evaded by an administrative body or a court under

the guise of construction.” (citation and quotation marks omitted)).

***

Words matter — be they contained in an ordinance, statute, contract, will,

deed, or any other document possessing legal significance. Our holding today is not

the result of a hypertechnical reading of the HILU ordinance. Rather, it applies

longstanding principles of statutory construction by relying on the ordinance’s plain

language, which simply does not lend itself to the interpretation sought by the County

in this appeal. Accordingly, we hold that the trial court erred in affirming the Board’s

decision to uphold the denial of Appalachian’s permit application.

Conclusion

For the reasons stated above, we reverse the 8 September 2017 order of the

trial court and remand for proceedings not inconsistent with this opinion.

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REVERSED AND REMANDED.

Judge ELMORE concurs.

Judge DILLON concurs in result only by separate opinion.

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DILLON, Judge, concurring in result only.

I. Background

Appalachian Materials, LLC, applied for a permit to build an asphalt plant

within 1,500 feet of the administrative offices of the Watauga County Board of

Education (the “BOE”). Watauga County denied the permit, in part, because its

ordinances do not allow any property to be developed as an asphalt plant if that

property is located within 1,500 feet of an “educational facility,” concluding that the

BOE property is an “educational facility” under the ordinance.

When Appalachian Materials applied for its permit, the term “educational

facility” was defined by the County ordinance as follows:

Educational facility – includes elementary schools,
secondary schools, community colleges, colleges, and
universities. Also includes any property owned by those
facilities used for educational purposes.

I agree with the majority that the BOE property does not meet this definition of

“educational facility.” The majority, though, bases its conclusion on the fact that the

BOE property is not “owned by [any of] those facilities “ referenced in the first part of

the definition. I base my conclusion, however, on the fact that the BOE property is

not property “used for educational purposes.”

II. Rules of Construction
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DILLON, J., concurring in result

In construing a statute or ordinance, our Supreme Court has instructed that

our “goal” is “to accomplish the legislative intent.” Wilkie v. Boiling Springs, 370

N.C. 540, 547, 809 S.E.2d 853, 858 (2018) (emphasis added).

“The best indicia of that intent are the language of the [ordinance].” Id.

(emphasis added). And the general rule is that “[w]here the language of the statute

is clear and unambiguous, there is no room for judicial construction and the courts

must construe the statute using its plain meaning.” Id. (emphasis added).

However, our Supreme Court has also instructed that “a statute must be

construed, if possible, to give meaning and effect to all of its provisions,” and

that an interpretation which would render a provision “meaningless . . . is not

permitted.” HCA Crossroads v. N.C. Dept. of Hum. Res., 327 N.C. 573, 578, 398

S.E.2d 466, 470 (1990) (emphasis added).

For example, in Teachy v. Coble Dairies, our Supreme Court refused to

construe the 1975 version of Rule 14(c) of our Rules of Civil Procedure by the plain

meaning of certain words used by our General Assembly because “were [those words]

interpreted strictly and literally, [the provision] would be nugatory.” Teachy v. Coble

Dairies, 306 N.C. 324, 330, 293 S.E.2d 182, 186 (1982). Rather, our Supreme Court

determined that these words constituted a “clerical error” and that to apply a strict

construction would “thwart the obvious legislative intent and [would] render [the act]

meaningless.” Teachy, 306 N.C. at 331, 293 S.E.2d at 186. The Court did not apply

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DILLON, J., concurring in result

the plain meaning, reasoning that construing an act in a manner which would render

it meaningless “would be anomalous, aberrant, and abhorrent.” Id.

III. Analysis of the Watauga County Ordinance

The definition of “educational facility” is plainly describing physical locations;

that is, physical locations near which an asphalt plant cannot be developed. The plain

meaning of the word “facility” is a physical location; the term “facility” is never used

in English parlance to describe an entity which owns a physical location.

The definition of “educational facility” is broken up into two parts.

The first part is plainly describing physical locations used either as an

elementary or secondary school or as a college or university, near which an asphalt

plant may not be developed. It is plainly not describing school entities in the abstract.

For instance, the term “universities” as used here would include the Appalachian

State University campus, not the University entity. I agree with the majority that

the BOE property does not fit the first part of the definition of “educational facility.”

The BOE property is not a facility used as a school or college.

The second part further defines an “educational facility” as “property owned by

those facilities [referenced in the first part] used for educational purposes.” The

majority reasons that the BOE property is not a “property owned by those facilities

[referenced in the first part of the definition] because the BOE property is not owned

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by an elementary or secondary school or by a college or university.” I reason that the

BOE property is not being “used for educational purposes.”

I conclude that adopting a construction based on the plain reading of the

language used in the second part would render the second part meaningless. Under

North Carolina law, a real estate “facility” cannot own real property; only people and

entities are capable of owning real property. The majority, though, suggests that a

construction based on the plain language would not render the second part

meaningless because some of the “facilities” in the first part are capable of owning

property; for example, “universities” are capable of owning property. The majority

essentially suggests, however, that the word “facilities” may be read to also refer to

abstract entities, not just to physical locations. However, this suggestion ignores the

plain meaning of the word “facilities.” Further, it ignores a plain reading of the first

part as referring only to physical locations, not to abstract entities. “Appalachian

State University” may sometimes refer to a physical location in Boone: “I am heading

to ASU this weekend to watch a football game.” “Appalachian State University” may

also refer an abstract entity: “I work for Appalachian State University.” But the

term “universities,” as used in the first part, plainly refers only to physical locations,

not to abstract entities.

Therefore, since construing the second part by giving the language used

therein its plain reading would render the second part meaningless, as “facilities”

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cannot own property, we must adopt a construction, if possible, to give effect to

County’s obvious intent.

Since “facilities” themselves are not capable of owning real estate, I conclude

that the County’s obvious intent was to include within the definition “property owned

by [the owners of] the facilities [referenced in the first part].” For example, the

definition includes not only property used as an elementary and secondary school,

but also other property owned by the owner of any elementary and secondary school

used to educate students from that school. Here, the BOE owns the public elementary

and secondary schools in the County. I conclude that the intent was to include within

the scope of “educational facilities” not only the elementary and secondary school

locations owned by the BOE, but also any other locations owned by the BOE where

public school students participate in educational activities.

Under the majority’s construction, “educational facilities” could only include

off-site locations owned by a college, university, or private school entity. Since public

schools are not owned by separate school entities, but rather by the BOE, the

majority’s construction would not include any off-site facility used to educate students

attending public schools. I do not think it was the County’s obvious intent to include

only off-site facilities used to educate private school students.

In any event, I believe that the BOE property is not being used for “educational

purposes” as that phrase is used in the ordinance. The term “educational purposes”

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 APPALACHIAN MATERIALS, LLC V. WATAUGA CTY.

DILLON, J., concurring in result

is a bit ambiguous. If read broadly, “educational purposes” could include, for example,

property used as a gravel pit owned by the BOE where the income generated was

used to fund education. But to the extent the term is ambiguous, we are to construe

it narrowly. See Capricorn Equity Corp. v. Town of Chapel Hill, 334 N.C. 132, 138-

39, 431 S.E.2d 183, 188 (1993) (“Since zoning ordinances are in derogation of common-

law property rights, limitations and restrictions not clearly within the scope of the

language employed in such ordinances should be excluded from the operation

thereof.”).

I construe “educational purposes” narrowly, to include only those facilities

which are primarily used for activities where students are present. Indeed, this

construction fits the context: The first part of the definition generally describes

locations primarily used for activities where students are present. The evidence in the

record demonstrates that the BOE property is used primarily for administrative

purposes, and that the BOE property is only sporadically used for events where

students are present. Therefore, I concur in the majority’s result.

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