Capital Outdoor, Inc. v. Guilford County Board of Adjustment

GREENE, Judge,

dissenting.

The majority holds the standard of review utilized by the Guilford County Superior Court cannot be determined and thus this case must be reversed and remanded. I disagree. The superior court stated in its judgment that the Guilford County Board of Adjustment’s (the Board) “interpretation ... of ‘residentially zoned property’ was reasonable [and] did not constitute [an] error of law.” Whether the superior court utilized a whole record review or a de novo review in reaching this conclusion is immaterial, “[s]ince [it] specifically concluded that the . . . Board did not commit an error of law.” Associated Mechanical Contractors v. Payne, 342 N.C. 825, 833, 467 S.E.2d 398, 402 (1996). In any event, an appellate court’s obligation to review a superior court order for errors of law, ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997), can be accomplished by addressing the dispositive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court. See, e.g., Grooms v. State of N.C. Dept. of State Treasurer, 144 N.C. App. 160, 550 S.E.2d 204 (2001); Barrett v. N.C. Psychology Bd., 132 N.C. App. 126, 510 S.E.2d 189 (1999) (for appellate courts addressing issues of *393law presented to agency and superior court without discussing the scope of review employed by the superior court).

The dispositive issue in this case is whether the Board erred in interpreting the Guilford County Development Ordinance (the Ordinance). See Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 140 N.C. App. 99, 102-03, 535 S.E.2d 415, 417 (2000) (proper construction of ordinance presents a question of law and is reviewable de novó).

Ordinance § 6-4.24 prevents the placement of a billboard within “three hundred (300) feet [of] any residentially zoned property.” Guilford County, N.C., Guilford County Development Ordinance § 6-4.24 (Nov. 19, 1990). In early 1999, Capital Outdoor, Inc. (Capital) applied for and received a permit from the Guilford County Planning Department (the Department) to place a billboard in Guilford County. After the billboard was constructed, the Department revoked the permit because the billboard was located within 300 feet of land zoned “Agricultural.”

The underlying issue is whether property zoned “Agricultural” is “residentially zoned property” within the meaning of section 6-4.24. The Board argues that because residences are permitted within “Agricultural” zoned areas, property zoned “Agricultural” is “residen-tially zoned property.” I disagree. Although residences are permitted in an “Agricultural” district, such a district “is primarily intended to accommodate uses of an agricultural nature,” Ordinance § 4-2.1(A), and in any event, is not zoned “Residential.” There are two districts which are zoned “Residential”: Ordinance § 4-2.1(B) covers a Single-Family Residential district, and Ordinance § 4-2.1(C) covers a Multi-Family Residential district. Because the language of Ordinance § 6-4.24 is plain 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.” Utilities Comm’n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1976). In the Ordinance, there is no provision prohibiting the location of a billboard within 300 feet of property zoned “Agricultural.” The prohibition is only against the location of billboards within 300 feet of property zoned as either Single-Family Residential or MultiFamily Residential. Accordingly, the Board committed an error of law in construing the Ordinance otherwise and erred in revoking Capital’s permit. Likewise, the superior court erred in affirming that revocation. I would reverse the order of the superior court and *394remand to that court for remand to the Board for reinstatement of the billboard permit.