March 2, 1995
Mr. Z. Creighton Brinson Tarboro Town Attorney
P.O. Drawer 308 Tarboro, NC 27886-0308
Re: Advisory Opinion; Tarboro Zoning Ordinance
Dear Mr. Brinson:
The following is submitted in response to your letter dated February 24, 1995 requesting an interpretation of the above referenced zoning ordinance based upon the Uniform Development Ordinance (UDO).
Your letter requests an opinion on the ordinance as it is applicable to property owned by the Mary Frances Center (MFC) located within the zoning jurisdiction of the Town and the proposed use thereof by MFC under a contract with the North Carolina Department of Correction (DOC).
Your letter sets out the following facts:
The property of MFC is located in an area with a zoning classification of Office and Institutional (O&I)
The improvements on the property of MFC were specifically designed and constructed as a medical facility for the treatment and rehabilitation of alcohol and substance abusers. The facility is a modern state-of-the-art facility and was operated for the treatment of private patients until last Fall when changes in insurance coverage provided by the insurance industry drastically reduced the length of stay covered by insurance and created economic conditions which made it impossible for MFC to continue to operate.
MFC has now entered into a contract with the DOC for the treatment of inmates of the Division of Prisons (DOP) at the facilities of the MFC. A question has arisen as to whether the proposed Use of the MFC facility pursuant to its contract with DOC will constitute a penal or correctional facility as defined by the UDO of the Town which is not a Permissible Use in an O&I Zoning District under the provisions of the UDO of the Town.
The definition of "Penal and Correctional Facilities" set forth in the UDO of the Town reads as follows:
"Penal and Correctional Facilities – A state or county jail, a local lock-up, a regional or district jail, a juvenile detention home, a detention facility for adults and any other similar facility operated for the confinement of persons awaiting trial or serving sentences."
. . . . Use 7.400 Penal and Correctional Facilities is authorized only in an I-2 Zoning Classification under a Conditional Use Permit issued by the Town Council. . . .
Additional information set out in your letter or in the attachments thereto establish the following: 1) In the UDO, use 7100 is described as appropriate for "Hospitals, Clinics, Other Medical (including mental health) Treatment Facilities in Excess of 10,000 Square Feet of Floor Area."
2) The agreement between DOC and MFC provides that MFC is to provide a comprehensive drug and alcohol treatment program at its Tarboro facilities for minimum security inmates who will come from correctional facilities throughout the North Carolina prison system.
3) The agreement dictates certain requirements for training for the personnel of MFC and that MFC must ensure that certain internal security measures are taken.
4) The agreement with DOC does not change the following factors in comparison with MFC’s previous operations: (i) The nature of the services provided to its patients by MFC in its treatment program; or, (ii) The nature of the use of the physical facilities by MFC or by the patients; or (iii) The number or length of stay of the patients in MFC’s treatment program; or (iv) The size, number or appearance of the physical structures on MFC’s property.
5) The agreement between DOC and MFC changes the status of the patients of MFC’s treatment program as all of the patients treated by MFC under the agreement will be minimum security inmates of the DOC. Under MFC’s previous operations a patient presumably had freedom to leave the program at will, whereas under the agreement with DOC an uncooperative patient could be returned to a facility operated by the DOC.
6) The agreement does not support even an inference that MFC has lost its status as a private non-governmental entity. That is, MFC is clearly a private entity which has entered into a contract to provide services for DOC and has not become a government agency or an instrumentality of DOC.
As stated in your letter, the Town’s position is that the status of the patients as inmates and the increased internal security measures should be used in determining the zoning classification of MFC. However, the creation of different zoning classifications based upon the status of the users of the property is not one of the generally recognized purposes for the creation of zoning classifications, nor is it a purpose listed in the statutes authorizing the exercise of the zoning power by municipalities in North Carolina. A very general statement of the purposes for which municipalities are given the authority to zone is as follows.
Specifically, the common purposes of zoning, sometimes specified by statute and in any event implicit in the concept of comprehensive zoning and reasonably related to the public safety, health, morality and convenience, include the following: Avoidance of undue concentration of population; prevention of overcrowding of land or buildings; establishment of residential districts to promote the public welfare, protect property values, advance the attractiveness of the city, and perhaps improve its esthetic features; establishment of trade and industrial districts in the interest of public health and safety and for economic reasons as well; securing of safety from fire, panic and other dangers; promotion of public sanitation; exclusion of dangerous, offensive and unwholesome trades and industries from certain districts; protection of adequate light and air; lessening of congestion in the streets; and reduction of hazards to traffic generally and to school children especially. 8 McQuillin Mun. Corp. § 25.17 (3rd Ed).
The specific statutory provisions listing the purposes for the zoning power in North Carolina are as follows:
§ 160A-381. Grant of power.
For the purpose of promoting health, safety, morals, or the general welfare of the community, any city may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes . . . .
§ 160A-383. Purposes in view.
Zoning regulations shall be made in accordance with a comprehensive plan and designated to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; and to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. The regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city.
An analysis of the above authority establishes that it is the nature of the owner’s use of the property that properly determines its classification and not the status of the users or the degree to which they are voluntarily in a treatment program. Simply stated, because MFC has not changed the use or the physical structure of its facilities, there has been no change that warrants a zoning reclassification of MFC’s property. As stated in McQuillin’s Municipal Corporations:
As long as the change in the operations of the owner does not constitute a different use, then the owner is entitled to the permissible use.
The general rule is that an increase in volume of business alone is not an expansion of a nonconforming use. Even a great increase does not work a prohibited change. The prohibition of a zoning ordinance is directed to new uses; it imposes no restraint upon broadening the scope of an existing use.
The distinction is between an increase in the amount of business, even a great increase, which does not work a change in use, and an enlargement of a nonconforming business so as to be different in kind in its effect on the neighborhood. For example, a court held that a residential facility that originally served elderly patients, but then shifted to treating younger patients with violent tendencies, had not significantly changed its operations so as to constitute a change in use. 8A McQuillin Mun Corp. § 25.207 (3 Ed). Therefore, since the use of the facilities of MFC have not changed the zoning classification of the facilities should not be changed.
Independently of the above authority and reasoning, the issue also may be resolved on the basis that the purpose of the contract between MFC and DOC is to procure medically related treatment and not for the operation of a confinement facility. Under the terms of the agreement, MFC’s role is strictly one of providing the described treatment and the contract makes no reference to MFC
acting as a jail, detention center, lock-up or other place of confinement. Without any opinion as
to the legality of such a contract, had the thrust of the agreement between MFC and DOC been
for the incarceration of those awaiting trial or of sentenced prisoners then the argument that the
nature of the MFC facilities had changed from a treatment clinic to a penal institution would be
more tenable. However, that clearly is not the case and the overriding thrust of the contract
between DOC and MFC is to provide alcohol and drug rehabilitation treatment. References to the
patients as inmates and to the provisions relating to internal security measures are present to
address practical matters which are collateral to the central theme of the agreement. In fact, it is
conceivable that MFC might contract with other government agencies such as the military, the
North Carolina National Guard or even public educational institutions to provide its treatment
services to members, employees or students with little or no change in the terms of the contract it
has with DOC. Therefore, the definition of penal institution in the ordinance, which expressly
refers to a place of "confinement of persons awaiting trial or serving sentences", does not support
the conclusion that MFC should be considered a "penal institution".
Finally it should be noted that, when determining the application of a zoning ordinance to a
particular piece of property, the law favors the free use of the property by the owner who is
entitled to a liberal interpretation of the zoning ordinance in his or her favor.
A zoning ordinance, like any other legislative enactment, must be construed so as to ascertain
and effectuate the intent of the legislative body. Bryan v. Wilson, supra. A zoning ordinance,
however, is in derogation of the right of private property and provisions therein granting
exemptions or permissions are to be liberally construed in favor of freedom of use. In Re Couch,
258 N.C. 345, 128 S.E.2d 409; In Re Appeal of Supply Co., 202 N.C. 496, 163 S.E. 462. In re
Application of Construction Co., 27 N.C. 715, 718, 158 S.E.2d 887, __ (1967).
In light of the above, the answers to the questions set out in your letter are as follows.
The proposed operation and use of the property of MFC in the zoning jurisdiction of the Town of
Tarboro as described in your letter would not constitute the operation of a "penal and correctional
facility" as defined by the UDO of the Town of Tarboro.
The proposed operation and use of the property in the zoning jurisdiction of the Town of Tarboro
by the MFC as described in your letter would constitute a use of property which is permitted in
an O&I (Office and Institutional) District consistent with the zoning regulations of the Town of
Tarboro as set forth in the UDO of the Town.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Charles J. Murray
Special Deputy Attorney General