Appalachian Poster Advertising Co. v. Zoning Bd. of Adjustment of City of Shelby, 8027SC950

• Citation: 52 N.C.App. 266,278 S.E.2d 321
• Decision Date: 02 June 1981
• Docket Number: No. 8027SC950,8027SC950
• Parties: APPALACHIAN POSTER ADVERTISING COMPANY v. ZONING BOARD OF ADJUSTMENT OF the CITY OF SHELBY, N. C. and Bob Hamilton, Director of Building and Zoning of the City of Shelby, N. C.
• Court: North Carolina Court of Appeals

Page 321

278 S.E.2d 321

52 N.C.App. 266

APPALACHIAN POSTER ADVERTISING COMPANY v. ZONING BOARD OF ADJUSTMENT OF the CITY OF SHELBY, N. C. and Bob Hamilton, Director of Building and Zoning of

the City of Shelby, N. C.

No. 8027SC950.

Court of Appeals of North Carolina.

June 2, 1981.

Whisnant, Lackey & Schweppe by N. Dixon Lackey, Jr., Shelby, for petitioner-appellant.

Kennedy, Church, Young & Paksoy by William C. Young, Shelby, for respondent-appellee.

ROBERT M. MARTIN, Judge.

The standard for Superior Court review of a Board of Adjustment decision is as follows:

Upon such review, the findings of fact made by the Board, if supported by evidence introduced at the hearing before the Board, are conclusive. In re Application of Hasting, 252 N.C. 327, 113 S.E.2d 433; In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1. The matter is before the Court to determine whether an error of law has been committed and to give relief from an order of the Board which is found to be arbitrary, oppressive or attended with manifest abuse of authority. Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128. It is not the function of the reviewing court, in such a proceeding, to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board. It may vacate an order based upon a finding of fact not supported by evidence.

In Re Campsites Unlimited, 287 N.C. 493, 215 S.E.2d 73 (1975). The arguments in petitioner-appellant's brief are directed at the findings and conclusions of the Board which the Superior Court, applying the above standard for review, has upheld.

Petitioner first argues that there is no evidence to support the Board's finding that there were originally two separate and distinct non-conforming billboard structures. The Superior Court found substantial competent and material evidence to support this finding, and we agree. Petitioner's president, Walter J. Hogan, testified before the Board as follows:

The two advertising signs before the work was done might have been joined or might not. We're not sure, we've got them both ways. I don't know whether the signs out there were visibly joined together or not before the work was done.

Before the work was done, I just couldn't say how far apart or how close the two sign faces were together. My recollection of it is that they were very close but it's been at least a year or so before this came up that I had actually looked at it.

We had six poles in a line that took up forty-eight feet and had two separate signs that did not touch, that is the original signs. There was some space, whether it was an inch or four to six inches which did not touch each other, which made it in the opinion of the Building Inspector two signs.

I originally built two individual posters. They were built in an aligned pattern.

In other parts of his testimony, Hogan referred to the billboard structures as "two signs" and he stated, "When you have two signs side by side, it is possible to remove one sign and leave the other side standing and it would be structurally sound and we could see it." Bob Hamilton, the building inspector, testified:

Based upon my memory and as well as I recall, there were two billboard structures that were located side by side in line, one with the other, each was supported by three poles in the ground and there were two separate advertising copy areas mounted on each of the three sets of poles for each structure.

The evidence supports the Board's first finding of fact.

Petitioner next challenges the Board's second finding. The first aspect of this finding, to the effect that one of the billboard structures was completely removed, is supported by the evidence. Hogan testified that both of the original display faces were taken down, but he was not sure which of the original poles were replaced. Hamilton testified, "The three poles which were replaced on the billboard were the ones which if you were standing on the site, it was the billboard to your left and they were all three on the same billboard on the left."

The remainder of this finding, to the effect that the billboard structure ceased to exist as a non-conforming use when it was completely removed and could not be replaced, is in reality a conclusion of law. Consideration of it requires examination of the relevant zoning ordinances. They are:

Sec. 60. Use.

No building or land shall hereafter be used or occupied and no building or structure or part thereof shall be erected, moved or structurally altered except in conformity with the regulations of this ordinance, or amendments thereto, for the district in which it is located.

. . . . . .

Sec. 70. Non-conforming uses.

Any building, structure or use of land, existing at the time of the enactment of this section, or any amendment thereto, used for a purpose not permitted in the zoning district in which it is located shall be considered a non-conforming use. However:

70.3 A non-conforming use may not be extended or enlarged, nor shall a non-conforming structure be altered except as follows:

70.31 Structural alterations as required by law or ordinance or as ordered by the zoning enforcement office to secure the safety of the structure are permissible.

70.32 Maintenance and repair necessary to keep a non-conforming use in sound condition are permissible.

. . . . . .

70.4 A non-conforming use may not be re-established after discontinuance for a period of three hundred and sixty-five (365) days....

. . . . . .

71.3 Maintenance. All advertising structures, together with any supports, braces, guys, and anchors shall be kept in repair and in a safe state of preservation. All signs erected to serve a temporary purpose shall be removed within thirty (30) days from the date the purpose ceased to exist.

In In re O'Neal, 243 N.C. 714, 92 S.E.2d 189 (1956), our Supreme Court held that a frame building used as a nursing home could be replaced with a new fireproof structure and the non-conforming use of the premises could be continued so long as the scale of the nursing home operations was not substantially increased; however, the zoning ordinances involved in O'Neal did not prohibit structural alterations. We find Goodrich v. Selligman, 298 Ky. 863, 183 S.W.2d 625 (1944), to be instructive. In Goodrich a building permit was granted for general repairs pursuant to which an outdoor advertising company removed certain old billboards and replaced them with new ones. There, as here, a zoning ordinance prohibited structural alterations except those required by law or ordinance. The Kentucky Court of Appeals held that the permit should not have been granted. The Court wrote:

In Selligman v. Von Allmen Bros., 297 Ky. 121, 179 S.W.2d 207, 209, this...