Opinion
No. COA15-329
05-03-2016
MIKE CAMPBELL, RHONDA CAMPBELL, GAIL CAMPBELL, JOHN FOX, JR., SYLVIA FOX, ALAN HARPE, ROBIN HARPE, BILL SHERRILL, NORMA JEAN SHERRILL, RICHARD GORDON, SUSANNE GORDON, JOE BROWN, PATTY HEWITT, LARRY MARLIN, FIRST RX PHARMACY, BETH BUSH, CHARLES MCNIEL, CAROL MCNIEL, NGA AMADOR, JACK MOORE, MARIA MOORE, JODY PARLIER, CATHY PARLIER, DAVID LYNCH, JUDITH LYNCH, VICTOR MCINTYRE, LOUISE MCINTYRE, BRIAN FOX, CARRIE NORMAN, CHARLES JOHNSON, MARY JOHNSON, LANDREA RHYNE, TOM BRANDON, SARA BRANDON, MICHAEL KEPLEY, SANDY KEPLEY, VINCE CHERRY, JAMES FOXWORTHY, SHEILA FOXWORTHY, CHUCK DOCKERY, KIM DOCKERY, BILL MURDOCK, JEANNIE MURDOCK, SHIRLEY SILVA, BRENT WARREN, MICHELLE WARREN, JIM HOWARD, JANET HOWARD, HCRI NORTH CAROLINA PROPERTIES III, LP DBA BROOKDALE SENIOR LIVING CENTER, LOUIS GORDON, TRAVIS BLACKWELDER, STATESVILLE BOVINE AND EQUINE CENTER, JARED REIMANN, AIMEE REIMANN, LEE SHEPARD, CECIL DAVIS, IMOGENE DAVIS, JOHN STRIKELEATHER III, HERITAGE KNITTING COMPANY, LLC, JUDY VOELSKE, VOELSKE AUTOMOTIVE, COONEY PROPERTIES, LLC, AND DR. CHIP COONEY, Petitioners, v. THE CITY OF STATESVILLE, NORTH CAROLINA, LOVE'S TRAVEL STOPS & COUNTRY STORES, INC. and ROSEROCK HOLDINGS, LLC, Respondents.
Parker Poe Adams & Bernstein, LLP, by Anthony Fox and Benjamin R. Sullivan, for petitioners. Homesley, Gaines, Dudley, & Clodfelter, LLP, by Edmund L. Gaines and Leah Gaines Messick for respondent City of Statesville. Homesley & Wingo Law Group PLLC, by Clifton W. Homesley and Clark D. Tew, for respondents Love's Travel Stops & Country Stores, Inc. and Roserock Holdings, LLC.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Iredell County, No. 14 CVS 1387 Appeal by petitioners from order entered 17 November 2014 by Judge Tanya Wallace in Iredell County Superior Court. Heard in the Court of Appeals 9 September 2015. Parker Poe Adams & Bernstein, LLP, by Anthony Fox and Benjamin R. Sullivan, for petitioners. Homesley, Gaines, Dudley, & Clodfelter, LLP, by Edmund L. Gaines and Leah Gaines Messick for respondent City of Statesville. Homesley & Wingo Law Group PLLC, by Clifton W. Homesley and Clark D. Tew, for respondents Love's Travel Stops & Country Stores, Inc. and Roserock Holdings, LLC. CALABRIA, Judge.
Residents and business owners ("petitioners") in the City of Statesville ("the City") appeal an order of the superior court, which affirmed the City Board of Adjustment's ("the Board") determination that a "truck stop" is permitted in the B-4 Zoning District. For the reasons that follow, we affirm.
We note that the parties use different monikers to describe the proposed development—the petitioners use "truck stop" and the respondents use "travel stop" or "travel center." Although the development, if constructed, will accommodate cars and other vehicles used by the general public, the petitioners' arguments on appeal revolve around the truck traffic it may generate. Thus, for purposes of clarity, we use the term truck stop to refer to the proposed development.
I. Background
Respondents Love's Travel Stops & Country Stores, Inc. and Roserock Holdings, LLC (collectively "Love's") own approximately 14.4 acres ("the site") in the City. The site is located in the southwest quadrant of Interstate Highway 40 at the northwest corner of U.S. Highway 64 and Old Mocksville Road. To the south, across Highway 64, numerous petitioners live in a residential neighborhood which may only be accessed by a street that is located across from the site. Further south, a collection of retail and commercial businesses are situated on Highway 64. Adjoining the site's western boundary is an animal hospital and veterinary office.
The City Council of Statesville ("City Council") is the City's governing body and is authorized to pass municipal legislation in the form of city ordinances. The City Planning Director ("Planning Director") is the administrative officer tasked with developing and administering the City's zoning regulations as well as heading the City's Planning Department ("CPD"). Under the City's Unified Development Code ("UDC"), property owners who wish to develop their property must submit a site development plan to the CPD for review.
The site is located in the City's B-4 Highway Business zoning district ("B-4 zone"). In March 2012, Love's contacted the CPD to determine whether or not the site was a permissible location for a truck stop. This inquiry required the Planning Director, David Currier ("Currier"), to consult the UDC, which contains a "Use Matrix" that lists different types of development ("uses") and specifies the zoning districts where they are permitted. Since a truck stop was not listed in the Use Matrix, Currier was tasked with applying Section 3.03(F) of the UDC, which provides:
F. Uses Not Specifically Listed
In the case where a use is not specifically listed under any of the district regulations, the Planning Director shall determine the appropriate district or districts where such use shall be allowed based on a comparison of other uses which most closely resemble the unlisted use. Where the Planning Director is unable to determine the appropriate placement, the City Council shall be called upon for
interpretation.Statesville Unified Dev. Code art. 3, § 3.03(F).
As a result, Currier reviewed the proposed uses at the site, which included a fueling station (gasoline and diesel pumps), a convenience store, a retail tire repair center, a fast food restaurant, a hotel, a motel, and a campground. Currier then compared those uses with their counterparts that were explicitly listed in the Use Matrix: service stations, convenience stores, tire centers, sit-down restaurants, fast food restaurants, and campgrounds. All of these uses were permitted as of right in the B-4 zone, and none of the proposed uses for the site were prohibited in the B-4 zone. Based upon this comparison, Currier determined that a truck stop contained elements sufficiently similar to those permitted in the B-4 zone. He also determined that the location of the site, in between an Interstate Highway and a U.S. Highway, was a logical and necessary location for the proposed use, and that the B-4 zone was found throughout the City primarily at highway interchanges and intersections.
Love's did not propose to build any type of hotel, motel, or campground on the site; however, it was necessary to consider these uses since Love's planned to include 92 parking spots for 18-wheel commercial trucks on the site. Some of those spots would be used by truck drivers to park their trucks on the site and rest overnight. Accordingly, Currier found it relevant that campgrounds allow for patrons to sleep overnight in self-contained units or vehicles.
Relying on Currier's determination, Love's purchased the site in August 2012 for $2,400,000 and submitted its proposed site plan for review by the Planning Department. After hearing arguments from petitioners who opposed the development, the Board concluded that Currier had correctly applied the UDC— specifically, Section 3.03(F)—and that a truck stop was a permitted use in the B-4 zone.
Petitioners appealed the Board's order to Iredell County Superior Court by petition for writ of certiorari in May 2013. After conducting a hearing on the matter, the court ruled that the CPD's March 2012 decision was only an advisory opinion and that Love's had not been granted any actual approval for the truck stop. Subsequently, the City Council amended its UDC, so that "the purpose of [the B-4 zone] is to provide for the location of businesses and other uses which are properly and necessarily located on major highways due to their dependence upon the highways for major transportation service, which is of prime importance to the operation of the uses." In October 2013, the City issued a Certificate of Zoning Compliance ("CZC") and found that a truck stop is a permitted use in the B-4 zone.
The parties have stipulated on appeal that this statement of purpose applies to the zoning permit issued in this case.
Petitioners then appealed the issuance of the CZC to the Board, which conducted a second quasi-judicial hearing on the matter. On 3 June 2014, the Board issued another order approving the truck stop as a permitted use in the B-4 zone. Petitioners appealed the Board's decision to superior court by a petition for review in the nature of certiorari. One of petitioners' principal arguments was that it had presented expert testimony to the Board demonstrating that—pursuant to Section 3.03(F)—truck stops most closely resemble truck terminals, which are prohibited in the B-4 zone. On 17 November 2014, Judge Tanya Wallace entered an order that adopted the Board's findings and affirmed the Board's decision that truck stops constitute a permissible use in the B-4 zone. Petitioners now appeal the superior court's order affirming the Board's June 2014 decision.
The Board admitted petitioners' witnesses Don Baglien ("Baglien") and Gary Hall ("Hall"), who have a combined 60 years of experience in the truck stop and trucking industries, as truck stop experts.
II. Standard of Review
Our General Statutes authorize judicial review of a municipal board of adjustment's decisions, providing that "[e]very decision of the board shall be subject to review by . . . proceedings in the nature of certiorari." N.C. Gen. Stat. § 160A-388(e2) (2015). When a superior court reviews a board's decision, it should:
(1) review the record for errors of law; (2) ensure that procedures specified by law in both statute and ordinance are followed; (3) ensure that appropriate due process rights of the petitioner are protected, including the right to offer evidence, cross-examine witnesses, and inspect documents; (4) ensure that the decision is supported by competent, material, and substantial evidence in the whole record; and (5) ensure that the decision is not arbitrary and capricious.Wright v. Town of Matthews, 177 N.C. App. 1, 8, 627 S.E.2d 650, 656 (2006) (citation and quotation marks omitted). In this context, the superior court is not the trier of fact; rather, the court sits in an appellate role. Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 342 (1999) (citation omitted).
The superior court's standard of review is established by the particular nature of the issues presented on appeal. In re Appeal of Willis, 129 N.C. App. 499, 501, 500 S.E.2d 723, 725 (1998) (citation omitted). To that end, "[w]hen the petitioner correctly contends that the agency's decision was either unsupported by the evidence or arbitrary and capricious," the superior court must apply the "whole record" test. Tucker v. Mecklenburg Cty. Zoning Bd. of Adjustment, 148 N.C. App. 52, 55, 557 S.E.2d 631, 634 (2001) (emphasis added) (citation omitted), aff'd in part, review dismissed in part, 356 N.C. 658, 576 S.E.2d 324 (2003). "The 'whole record' test requires the reviewing court to examine all competent evidence (the 'whole record') in order to determine whether the agency decision is supported by 'substantial evidence.' " Amanini v. N.C. Dep't. of Human Res., 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994) (citation omitted). This test "does not allow the reviewing court to replace the Board's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo." Thompson v. Wake Cty. Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977) (citation omitted).
"If, however, [the] petitioner properly alleges that the agency's decision was based on error of law, de novo review is required." Tucker, 148 N.C. App. at 55, 557 S.E.2d at 634 (emphasis added) (citation omitted). "Under a de novo review, the superior court consider[s] the matter anew[ ] and freely substitut[es] its own judgment for the agency's judgment." Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citation and internal quotation marks omitted; alterations in original).
When sitting as an appellate court to review the decision of a quasi-judicial body, the superior court "must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review." Sutton, 132 N.C. App. at 389, 511 S.E.2d at 342. "A [reviewing] court may properly employ both [the whole record test and a de novo review] in a specific case, but the standards are to be applied separately to discrete issues[.]" Sun Suites Holdings, LLC v. Bd. of Aldermen of Town of Garner, 139 N.C. App. 269, 273-74, 533 S.E.2d 525, 528 (2000) (citations omitted).
On review of a superior court order regarding a municipal board's decision, this Court "examines the court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Welter v. Rowan Cty. Bd. Of Comm'rs, 160 N.C. App. 358, 362, 585 S.E.2d 472, 476 (2003) (citation omitted). The manner of review, however, is not "governed merely by the label an appellant places upon an assignment of error[.]" Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118 (citations omitted). Rather, "this Court determines the actual nature of the contended error and then proceeds with an application of the proper standard of review." Tucker, 148 N.C. App. at 56, 557 S.E.2d at 634 (citation omitted).
In the instant case, petitioners presented arguments to the trial court regarding: (1) whether the Board failed to conduct a de novo review of Currier's decision; (2) whether the Board "made an error of law in approving [Currier's] . . . interpretation of Section 3.03(F)"; and (3) whether the Board's decision was unsupported by substantial evidence and therefore arbitrary and capricious.
The superior court stated in its order that since the "controversy at issue" was the application and interpretation of Section 3.03(F), an issue of a law, the proper standard of review was de novo. To that end, the court reserved the right to "substitute its judgment for that of the Board," but ultimately found no reason to do so. Pursuant to its de novo review, the court concluded that "the procedures employed by [Currier] in issuing the [CZC], and the Board . . . while hearing the appeal, were in compliance with [the City's] ordinances and the law of this State." The court also concluded that even if "the issue on review . . . requir[ed] a 'whole record' [analysis], upon a review of all the competent evidence presented to the Board, . . . there is substantial evidence . . . that the truck stop/travel stop use at issue most closely resemble[s] those uses permitted in the B-4 zone . . . ." All in all, the superior court conducted a de novo review only in reaching its decision, but went a step further and concluded that the Board's decision would pass the whole record test if that standard applied.
On appeal, petitioners assert that since "it is unclear what standard of review the [trial] court applied[,] . . . this Court should use de novo review to reverse the Board's legal error of deciding that Section 3.03(F) does not involve considering facts, and this Court should then apply whole record review to determine there is no substantial evidence to support a ruling that truck stops are permitted in [the] B-4 [zone]." We decline this invitation to apply both standards.
To be sure, the superior court's analysis introduced considerable confusion into its review of the Board's order. In proceeding with a de novo review, the court mistakenly found that "substantial evidence"—a term of art unique to the whole record test—supported the Planning Director and the Board's decision. However, the balance of the superior court's analysis displayed the de novo standard, as the Board's findings and conclusions were incorporated into the court's order. Curiously, the court then back-tracked and stated that its ruling would be the same under the whole record test, a lesser standard than de novo:
[The whole record] test . . . is not 'a tool of judicial intrusion.' . . . Instead, the . . . test 'merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.' Therefore, if the [administrative body's] findings are supported by substantial evidence—that amount of evidence that a reasonable mind would accept as adequate to support a decision, the reviewing court must uphold the [body's] decision.N.C. Dep't of Correction v. McNeely, 135 N.C. App. 587, 591-92, 521 S.E.2d 730, 733 (1999) (citations omitted); see also Bellsouth Carolinas PCS, L.P. v. Henderson Cty. Zoning Bd. Of Adjustment, 174 N.C. App. 574, 576, 621 S.E.2d 270, 272 (2005) ("In [applying the whole record test], the superior court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency."). In essence, the court conducted a sweeping review (de novo) and affirmed the Board's decision, but chose to further justify its ruling under a standard that was much more deferential to the Board (the whole record test).
Petitioners insist that any interpretation of Section 3.03(F) necessitates a fact-intensive inquiry; the implication is that the whole record test must come into play at some point. This is a curious position to take, considering that if petitioners lose on a de novo review, their arguments will certainly fall under the whole record test. In any event, their characterization of the contended error does not establish our manner of review. Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118; see also Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjustment, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting) ("[A]n appellate court's obligation to review a superior court order for errors of law . . . 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."), rev'd per curiam for reasons stated in the dissent, 355 N.C. 269, 559 S.E.2d 547 (2002). And while petitioners emphasize that certain conclusions had to be drawn from their expert evidence, their arguments are inextricably linked to the process Currier, the Planning Director, employed in applying Section 3.03(F). Even though the superior court's reasoning produced a confusing order, it is clear that the court properly conducted a de novo review of the Board's decision.
In short, the dispositive issue before the Board and the superior court was the interpretation of the applicable zoning ordinance. Thus, because the actual nature of the contended error in the instant case is a question of law—the Board's interpretation of Section 3.03(F)—we will conduct a de novo review. See Tucker, 148 N.C. App. at 56-57, 557 S.E.2d at 635 (examining the "actual nature" of the contended error and determining that because the "sole issue presented [was] whether the Board correctly interpreted definitions in the zoning ordinance in determining that respondents operate a private kennel as a permitted accessory use, . . . the proper standard of review [was] de novo"); Fort v. Cty. of Cumberland, ___ N.C. App. ___, ___, 761 S.E.2d 744, 749, disc. review denied, 367 N.C. 798, 766 S.E.2d 688 (2014) ("The superior court reviews a board of adjustment's interpretation of a municipal ordinance de novo.") (citation omitted).
III. Analysis
A. Petitioners' Central Arguments on Appeal and the B-4 Zoning District's Purpose
The gravamen of petitioners' argument on appeal is that deciding which uses "most closely resemble" a truck stop "requires [considering] facts." Specifically, they contend that the Board, and by extension, Currier, committed a legal error by "deciding that [any] application of Section 3.03(F) does not involve" comparing uses based on facts outside the record. Petitioners insist that it "is impossible to make the comparisons required by Section 3.03(F) just by reading the [UDC]." We disagree.
When interpreting municipal zoning ordinances, our courts apply the general rules of statutory construction. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 303, 554 S.E.2d 634, 638 (2001). "The basic rule is to ascertain and effectuate the intention of the municipal legislative body." Id. at 303-04, 554 S.E.2d at 638 (citation omitted). "Intent is determined . . . by examining [the] (i) language, (ii) spirit, and (iii) goal of the ordinance." Capricorn Equity Corp. v. Town of Chapel Hill Bd. of Adjustment, 334 N.C. 132, 138, 431 S.E.2d 183, 188 (1993) (citation omitted).
Where the language of an ordinance is "plain and unambiguous, the court need look no further." Westminster Homes, 354 N.C. at 304, 554 S.E.2d at 638 (citation omitted); see also In re Matter of Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388-89 (1978) ("When the language of a statute is clear and unambiguous, there is no room for judicial construction and 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). Where the language of an ordinance is ambiguous, the following well-founded principles of statutory construction apply:
First, we presume that no part of a statute is mere surplusage, but that each provision adds something not otherwise included therein. Second, words and phrases of a statute may not be interpreted out of context, but must be interpreted as a composite whole so as to harmonize with other statutory provisions and effectuate legislative intent, while avoiding absurd or illogical interpretations[.]
Additionally, we find instructive this Court's use of the long-standing rule of statutory construction: expressio unius est exclusio alterius, meaning the expression of one thing is the exclusion of another.Fort v. Cnty. of Cumberland, 218 N.C. App. 401, 407, 721 S.E.2d 350, 355, disc. review denied, 366 N.C. 401, 735 S.E.2d 180 (2012) (internal citations and quotation marks omitted).
Applying these principles, and turning first to the UDC itself for evidence of the City Council's intent, we note that the B-4 zone accommodates a broad spectrum of transient activity:
B-4 Highway DistrictStatesville Unified Dev. Code art. 3, § 3.04(R)(1)-(2). Thus, by way of its purpose and authorized uses, the B-4 zone incentivizes the construction of commercial developments that will cater to highway and other travelers. The Board used this statement of purpose to support its conclusion that "the UD[C] should be interpreted such that . . . [t]ruck [s]tops are permitted in the B-4" zone.
1. Purpose: The purpose of this district is to provide for the location of businesses and other uses which are properly and necessarily located on major highways due to their dependence upon the highways for major transportation service which is of prime importance in the operation of the uses.
2. Authorized Uses: Uses permitted in this zoning district shall be limited to those indicated in [the Use Matrix,] which include intensive retail sales and services and depend upon high traffic volume.
In an attempt to bolster their argument that the UDC "does not provide enough information to apply Section 3.03(F)," petitioners contend that "the Board and the [trial] court tried to fill the gap by relying on [UDC] provisions irrelevant to Section 3.03(F)." According to petitioners, since Section 3.03(F) "does not instruct the Board to consider a zoning district's statement of purpose when deciding where an unlisted use is allowed[,] . . . [t]he Board and [trial] court . . . violated the [UDC's] express instructions." However, it is illogical to contend that because Section 3.03(F) does not specifically instruct the Planning Director to consider the purpose of a zoning district, the Board's decision to do so was erroneous. Section 3.03(F) confers significant discretion on the Planning Director, and it instructs the director to determine "the appropriate district or districts where [uses not specifically listed in the UDC] shall be allowed." Here, Currier reviewed all of Love's proposed uses at the site. Since the individual uses—which included a service station, a convenience store, a tire repair center, and a fast food restaurant—were permitted as of right in the B-4 zone, Currier determined that a truck stop was a permissible use in that zone. The Board was charged with reviewing Currier's determination—specifically, his analysis of the individual uses and the aggregate use at issue. Part of the Board's responsibility in construing Section 3.03(F) was to harmonize its directives with other portions of the UDC and effectuate the City Council's intent. Decisions rendered pursuant to Section 3.03(F) must be "based on a comparison of other uses which most closely resemble the unlisted use." The B-4 zoning district ordinance—the one most pertinent to the proposed truck stop's combined uses—contains a specific purpose and description of authorized uses, both of which benefitted the Board's inquiry into whether Currier's comparative analysis led to a proper determination. Thus, we are not convinced that examining the purpose of the zoning district in which an unlisted use is sought to be permitted is irrelevant in any way. We conclude that the language of the B-4 zoning ordinance, the title of the district it creates (Highway District), and the uses it permits were properly considered by the Board in its interpretation and application of Section 3.03(F).
B. Currier's Application of Section 3.03(F)
We now turn to petitioners' argument that the Board was explicitly required to consider facts external to the UDC and particular to Love's proposed uses when rendering its interpretation of Section 3.03(F).
As noted above, Section 3.03(F) granted Currier broad discretionary power to determine where unlisted uses may be allowed. Although the inquiry must take a particular form—the Planning Director must compare "other uses which most closely resemble the unlisted use"—no other constraints or requirements are placed on the director's determination.
Except that "[w]here the Planning Director is unable to determine the appropriate placement, the City Council shall be called upon for interpretation." Here, Currier believed he had no reason to involve the City Council because his ability to make the required comparisons was "very clear."
Similarly, we find no ambiguity in Section 3.03(F). By its plain language, Section 3.03(F) simply provides the Planning Director with a process for placing unlisted uses in the appropriate zone(s). Petitioners believe the process Currier utilized was flawed because he allegedly failed to consider evidence "about the actual, real-world characteristics of the uses at issue[.]" This argument revolves around the premise that a fact-finding requirement is somehow imbedded in Section 3.03(F). Yet municipal ordinances are law, not evidence of law. Petitioners seek to establish an evidentiary requirement in the law at issue, but we are not persuaded. If the City Council had intended Section 3.03(F) to provide for an intensive factual inquiry, we presume it would have said so. Our conclusion rests not on a belief that Section 3.03(F) has some inflexible meaning divorced from the many contexts in which it may apply, but on its allocation of discretionary power to the Planning Director. If planning directors and boards of adjustment were required to comb through mountains of evidence when tasked with interpreting their own ordinances, the litigation of a zoning case would degenerate into an endless wrangle in which collateral issues would play a predominant part. There certainly is no reason to impose such a requirement in this case. See Westminster Homes, Inc., 354 N.C. at 304, 554 S.E.2d at 638. ("[L]imitations and restrictions not clearly within the scope of the language employed in [zoning] ordinances should be excluded from the operation thereof.") (citation omitted). Furthermore, Currier and the Board's interpretation of the City's UDO must be given some deference. CG & T Corp. v. Bd. of Adjustment, 105 N.C. App. 32, 39, 411 S.E.2d 655, 659 (1992); Whiteco Outdoor Advert. v. Johnston Cty. Bd. of Adjustment, 132 N.C. App. 465, 470, 513 S.E.2d 70, 74 (1999).
Since Section 3.03(F)'s language is unambiguous and Currier had broad discretionary power in applying the ordinance, we agree with Love's assertion that Section 3.03(F) requires only that the Planning Director consider the proposed use (and any of its component parts), and compare it to other uses permitted by the UDO in the district(s) in question. Nothing in Section 3.03(F) necessitates the interpretation that petitioners urge us to adopt. Accordingly, we reject petitioners' argument that Currier, the Board, and the superior court were required to consider external facts when interpreting Section 3.03(F) as it applied to the permissibility of a truck stop in the B-4 zone. See Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966) ("Zoning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly their express terms. . . . [W]ell-founded doubts as to the meaning of obscure provisions of a Zoning Ordinance should be resolved in favor of the free use of property.").
Petitioners further contend that Currier was not permitted to engage in a piecemeal comparison of the truck stop's proposed uses because Section 3.03(F) required Currier to consider all the uses in the Use Matrix and identify the singular use that most closely resembles a truck stop, which petitioners contend is a truck terminal. The City endorses Currier's analysis, asserting that since Section 3.03(F) does not prescribe the exact manner in which the Planning Director must engage in the required comparison of uses, he undertook a valid comparison when he "compared the specific uses that Love's proposed in the [s]ite [p]lan, as well as the uses typically found at a truck stop, to uses already listed within the Use Matrix." Both the City and Love's argue that considering what a truck stop comprised in the aggregate was not necessary; rather, it was acceptable to analyze the sum of the truck stop's parts to determine whether it was a permissible use. Given the context of this case, we agree with the City's and Love's arguments.
By its plain language, Section 3.03(F) directed Currier to compare other uses with the unlisted use, not base his determination solely upon which individual use most closely resembled the proposed truck stop. A one-to-one comparison is not envisioned by Section 3.03(F). Instead, the ordinance calls for a holistic inquiry.
For this reason, we find In re Couch instructive, a case where our Supreme Court considered whether a stand-alone car wash would be allowed in a zone that did not expressly allow for such a use, but did allow for service stations that usually performed this service. 258 N.C. 345, 346, 128 S.E.2d 409, 411 (1962). After observing that "if the proprietor were to sell gasoline, oil and minor accessories, and to make minor repairs and wash cars, the petitioners would be entitled to the permit[,]" the Court held "[o]n the theory that the whole includes all the parts, we think the petitioners have the right to erect a building for any one or more of the permitted uses." Id. (emphasis added). The same general principle applies here, only in reverse. In his testimony before the Board, Currier stated that he reviewed the uses allowed in the B-4 zone and found that Love's proposed use (the truck stop) contained what was essentially the consolidation of a drive thru restaurant, a gas station, a convenience store, a parking area, and truck tire and other service uses, all of which are permitted as of right in that zone. Since all of the truck stop's principal uses are permitted individually, we see no reason why Love's cannot erect a building to accommodate all of them. In other words, if the site was subdivided, all of the truck stop's individual uses would be permitted as of right on the separate tracts. On the facts of this case, the parts are permissible and so is the whole. As such, the truck stop was properly evaluated by examining the sum of its parts, and the Board properly approved of the process Currier employed pursuant to Section 3.03(F), which involved comparing the relevant, listed uses with the unlisted use.
C. Truck Stop v. Truck Terminal
In their final argument, petitioners insist that the Board and superior court improperly disregarded their evidence showing that a truck stop most closely resembles a truck terminal, a use that is not permitted in the B-4 zone. Once again we disagree.
To begin, petitioners presented photographs of truck terminals depicting large, warehouse-like structures that appear to be used for the storage of trucks as well as the loading and unloading of cargo. Notably, Dr. Michael Schlesinger, an individual petitioner, admitted that "substantial activity . . . tak[es] place [at] truck terminals involving loading and unloading of trucks." Currier's testimony confirmed that a truck terminal "is an industrial use," whereas a truck stop is a commercial use. Hall's testimony further established that truck terminals are not engaged in any activity that is open to the general public. Likewise, Baglien testified that truck terminals only refuel vehicles in their own fleet. However, as noted below, truck stops cater to the public at large. On the whole, some of the evidence that petitioners presented to the Board belies the argument they make on appeal.
Furthermore, petitioners' argument is also fixated on the "truck" component of the proposed truck stop. Implicit in this argument is the inference that Currier, the Board, and the superior court failed to consider the impact of the type of truck traffic Love's truck stop may generate. Yet nothing in the UDC or the record establishes that the acceptability of a proposed use is affected by the type of vehicular traffic it will attract. Currier specifically testified that "[i]f [he] wanted to build a fast-food restaurant on ten acres, just a fast food, and accommodate oversized vehicles, [he] would have every right to do that under our [UDC], whether they be trucks, 18-wheelers, or an F-150 pulling a 25-foot camper." Moreover, Rick Shuffield, Love's Director of Real Estate and Development, testified that "as a general rule, we run about three times the number of cars going through a facility on a 24-hour period of time as we do trucks. . . . I expect that [at this location] it would be a bit higher percentage of cars" because of the McDonald's drive-through restaurant in the facility. Shuffield went on to testify that Love's facilities "cater to all the traveling public, which is going to include, you know, cars, trucks, RVs." All things considered, the record supports the Board's findings that truck stops "primarily provide[] retail services to the traveling public" while truck terminals do not. The Board's duty was to give meaning to the term "truck stop"—a use not listed in the UDC—and render an interpretation within the bounds of the law. We have already held that the Board's interpretation of Section 3.03(F) was consistent with the ordinance's plain text and the applicable legal principles. Petitioners point us to no evidence that cars, RVs, and other passenger vehicles would have access to a truck terminal; nor is there any evidence that truck terminals serve the general public. Love's proposed truck stop is therefore better characterized as a full-service convenience store and restaurant than as a truck terminal, which appears to be an exclusive refuge for drivers employed by particular trucking companies. Our review of the record reveals no evidence establishing that trucks stops most closely resemble truck terminals. Accordingly, the Board did not err in concluding that the comparison required by Section 3.03(F) established that truck stops are a permissible use in the B-4 zoning district.
IV. Conclusion
The superior court properly conducted a de novo review of the Board's order. In addition, the Board did not err by considering the B-4 zone's purpose in rendering its decision. Furthermore, the Board did not err in approving of the holistic inquiry and comparison that Currier conducted pursuant to Section 3.03(F). Finally, the record does not demonstrate that a truck terminal most closely resembles a truck stop under the UDC. We therefore hold that the Board properly approved Love's proposed truck stop as a land use permitted in the City's B-4 Highway Business district. Accordingly, we affirm the order of the superior court affirming the Board's decision.
AFFIRMED.
Judges STROUD and INMAN concur.
Report per Rule 30(e).