If a private drug-and-alcohol treatment center starts treating Department of Corrections inmates under a state contract, does that turn it into a 'penal and correctional facility' for zoning purposes?

Plain-English summary

The Tarboro town attorney asked whether a private drug-and-alcohol treatment center (Mary Frances Center, or MFC) located in the town's Office and Institutional (O&I) zoning district had to be reclassified as a penal and correctional facility after MFC contracted with the North Carolina Department of Correction (DOC) to treat minimum-security inmates. MFC had been a state-of-the-art facility serving private patients until changes in insurance coverage made that economically infeasible. Under the DOC contract, MFC would provide a comprehensive drug-and-alcohol treatment program to minimum-security inmates from throughout the prison system; the building, the services, and the program length would remain the same.

Tarboro's Uniform Development Ordinance (UDO) defined penal and correctional facilities as "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." Such facilities were allowed only in an I-2 zoning district under a conditional-use permit. The town's position was that the change in patient population (private patients to DOC inmates) and the added internal-security measures justified reclassifying the use as a penal facility.

The AG disagreed. Two independent reasons supported the conclusion:

1. Zoning classifications turn on use, not on the status of users. The general purposes of zoning under N.C.G.S. §§ 160A-381 and 160A-383 are concerned with the use of property: density, safety, congestion, fire risk, light and air, sanitation, transportation, schools, parks. None of them tracks who is using the property. MFC had not changed the use of its facilities (drug-and-alcohol treatment) or the physical structures. The change was only in the legal status of the patients (inmates rather than voluntary patients).

2. The DOC contract is for medical services, not for confinement. The purpose of the contract was to procure treatment, not to operate a jail. MFC's role was strictly to provide treatment. The UDO's definition of penal and correctional facilities turns on "confinement of persons awaiting trial or serving sentences." MFC was not operating as a place of confinement. References to "inmates" and internal-security measures in the contract addressed practical matters collateral to the central purpose of treatment.

The AG also reminded the town that zoning ordinances are in derogation of property rights and provisions granting exemptions or permissions are to be liberally construed in favor of the property owner. The AG cited In re Couch, In re Appeal of Supply Co., and In re Application of Construction Co.

The AG concluded that the proposed MFC operation under the DOC contract:

• did not constitute the operation of a "penal and correctional facility" as defined by Tarboro's UDO; and
• was a permissible use of property in the O&I (Office and Institutional) zoning district.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's zoning statutes (§§ 160A-381 to 160A-383 and related) have been amended and parts have been recodified into Chapter 160D, the unified development ordinance statute. The general principle (use, not user status, drives zoning classification) appears stable, but counsel should verify under current statute and the specific local ordinance.

Historical context: what the AG concluded

The opinion is an unusual zoning analysis: a fact-bound, ordinance-bound interpretation issued not as a generic statement of law but as a specific reading of Tarboro's UDO applied to one property's contract change. The AG worked through the substantive zoning question in two parallel tracks.

Track 1: zoning classifications track use, not users. The AG quoted McQuillin's Municipal Corporations for the general purposes of zoning:

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...

The AG then quoted N.C.G.S. §§ 160A-381 (grant of power) and 160A-383 (purposes in view). Both statutes track use of property and the physical and economic character of zones, not the status of users.

The AG reinforced the rule with another McQuillin quotation: "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." And: "[A]n 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 relevant test is whether the change is "different in kind in its effect on the neighborhood."

The example the AG gave: a residential facility that had served elderly patients but then shifted to treating younger patients with violent tendencies. A court had held that this did not significantly change the operations so as to constitute a change in use. The MFC change was a smaller change than that.

Track 2: contract purpose is medical, not custodial. Separately, the UDO's penal-and-correctional definition turns on "confinement of persons awaiting trial or serving sentences." MFC was not contracting to confine people. It was contracting to treat them. The AG observed: "[I]t 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." The contract terms (training requirements, internal security) were "collateral to the central theme of the agreement."

Track 3: presumption in favor of property use. "[A] zoning ordinance 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." The AG cited In re Couch, In re Appeal of Supply Co., and In re Application of Construction Co. This presumption reinforces the substantive analysis.

The AG's bottom-line answers, given verbatim to the town:

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.

Common questions

Can a town change a property's zoning just because the property starts serving prison inmates?

Not under this opinion. Zoning classifications track the use of the property, not the legal status of the people on it. If the building continues to be operated as a medical or treatment facility, and the program does not change, the zoning classification does not change.

What is the rule for "expansion of nonconforming use" under North Carolina law?

The McQuillin treatise rule the AG cited: an increase in volume of business is not an expansion of nonconforming use; the prohibition is on new uses, not on broadening the scope of an existing use. The question is whether the change is "different in kind in its effect on the neighborhood." That is a use-centric, not a user-centric, inquiry.

Are zoning ordinances liberally construed in favor of property owners?

In North Carolina, yes. The AG noted: "A zoning ordinance, like any other legislative enactment, must be construed so as to ascertain and effectuate the intent of the legislative body. 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."

What if the local government insists on reclassification?

The owner's recourse is the local zoning enforcement and appeal process, and ultimately judicial review. The AG opinion gives owners a substantive argument and a doctrinal frame, but it is not binding on the town. The owner would need to litigate if the town acts contrary to the opinion.

Does this opinion apply to other types of contracts to serve government clients?

The AG opinion's logic suggests yes. The AG used the military, the National Guard, and public schools as hypotheticals to test the analysis. The principle is general: a contract to provide a service to a particular client (DOC, military, school) does not change the underlying use of the property if the service and structure remain the same.

Background and statutory framework

Tarboro's Uniform Development Ordinance. The UDO defined "Penal and Correctional Facilities" as "[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." Such facilities were authorized only in an I-2 Zoning Classification under a Conditional Use Permit. Use 7100 in the UDO was "Hospitals, Clinics, Other Medical (including mental health) Treatment Facilities in Excess of 10,000 Square Feet of Floor Area," allowed in O&I. MFC fell under Use 7100 before the DOC contract and continued under it after.

N.C.G.S. § 160A-381 (Grant of power). Authorizes cities to regulate the height, size, density, and use of buildings and land "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community."

N.C.G.S. § 160A-383 (Purposes in view). Requires zoning regulations to be made in accordance with a comprehensive plan and lists the substantive purposes: lessen street congestion, secure safety from fire and panic, promote health and general welfare, provide adequate light and air, prevent overcrowding, avoid undue concentration of population, facilitate adequate provision of transportation, water, sewerage, schools, parks, and other public requirements.

Case-law presumption. North Carolina case law treats zoning as in derogation of property rights and construes permissive provisions liberally in favor of the owner. See In re Couch, 258 N.C. 345; In re Appeal of Supply Co., 202 N.C. 496; In re Application of Construction Co., 272 N.C. 715 (1967).

McQuillin's Municipal Corporations. The AG cited the McQuillin treatise (3rd ed.) for both the general purposes of zoning (§ 25.17) and the rule on nonconforming-use expansion (§ 25.207).

The opinion is signed by Charles J. Murray (Special Deputy Attorney General) and Andrew A. Vanore, Jr. (Chief Deputy Attorney General). The AG at the time was Michael F. Easley.

Citations

• N.C.G.S. §§ 160A-381, 160A-383.
• 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., 272 N.C. 715, 158 S.E.2d 887 (1967).
• 8 McQuillin Mun. Corp. § 25.17 (3rd ed.).
• 8A McQuillin Mun. Corp. § 25.207 (3rd ed.).

Source

• Landing page: https://ncdoj.gov/opinions/tarboro-zoning-ordinance/

Original opinion text

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