Campsites Unlimited, Inc., Application of, 50

• Decision Date: 06 June 1975
• Docket Number: No. 50,50
• Citation: 215 S.E.2d 73,287 N.C. 493
• Court: North Carolina Supreme Court
• Parties: Application of CAMPSITES UNLIMITED, INC.

Page 73

215 S.E.2d 73

287 N.C. 493

Application of CAMPSITES UNLIMITED, INC.

No. 50.

Supreme Court of North Carolina.

June 6, 1975.

Brown, Brown & Brown by Richard L. Brown, Jr., Albemarle, for Stanly County.

Henry C. Doby, Jr., Albemarle, for James A. Henson and others.

Russell J. Hollers, Troy, and Hunter & Wharton by John V. Hunter III, Raleigh, for Campsites Unlimited, Inc.

LAKE, Justice.

This proceeding came before the Superior Court upon certiorari for review of the order of the Board of Adjustments for Stanly County. 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 the present case, the Superior Court set forth in its judgment what purport to be findings of fact by it. The material portions of these are identical with the material findings of fact made by the Board of Adjustments. For the purposes of this appeal we treat these portions of the judgment of the Superior Court as merely the determination by the Superior Court that the findings of fact made by the Board of Adjustments are supported by the evidence contained in the record of the hearing before the Board. Such a determination by the Superior Court is its conclusion upon a question of law and is reviewable, as such, by the appellate courts.

The statement of facts above set forth is a summary of uncontradicted evidence set forth in the record of the hearing before the Board of Adjustments. The key finding of fact by the Board was:

'8. Applicant has failed to sustain its claim that the expenditures of money made by it and for which it became obligated to make on its 155-acre tract were made in good faith without knowledge that the Board of Commissioners of Stanly County was contemplating adopting a Zoning Ordinance encompassing the area in which the 155--acre tract lies, and prohibiting the use of its property in the manner and for the purposes proposed by Applicant. This finding of fact is based on the following evidence:'

We summarize the Board's statement of the basis for its said finding of fact as follows:

Mr. Darnley testified that in the fall of 1972 he had knowledge of the proposed zoning in Stanly County, but believed that his project would be almost finished prior to 1 July 1973, the tentative target date for the adoption of some zoning ordinance by the Board of County Commissioners. He had been advised by the real estate agent, through whom he purchased the land in question, that 'they were in the process of trying to get zoning in Stanly County.'

Mr. Darnley made no inquiry of the Planning Administrator and Zoning Administrator prior to the adoption of the zoning ordinance on 16 April 1973. He made no personal inquiry of anyone between November 1972 and the passage of the ordinance on 16 April 1973 as to whether there was any zoning in effect or in contemplation in Stanly County. The Stanly News and Press, a newspaper published in Albemarle, carried various news stories relative to zoning in the county, which stories began as early as October 1971. Mr. Darnley read this newspaper 'on occasions' and read a story in the paper about the appointment of the County Planning Board (July 1971). With knowledge that zoning was 'in progress in Stanly County with a target effective date of July 1, 1973,' Mr. Darnley told his engineer on 12 January 1973 that he 'wanted to expedite things as fast as possible' and 'wanted to open by the first of March, if possible, or by early spring.' At the hearing on 16 April 1973, following which the zoning ordinance was adopted by the Board of County Commissioners, Mr. Darnley, in response to a question by 'someone,' stated that he was aware that zoning 'had been in the planning stage for a year or so' and that he 'was trying to beat it.'

It is indisputable that prior to 16 April 1973 there was no zoning ordinance or other law in effect which prohibited the development and use of the property of Campsites as proposed by it. It is equally indisputable that at least three months prior to the enactment of the county zoning ordinance, Campsites purchased the property for the purpose of developing it as now proposed and immediately began its contemplated development with the intent to develop the entire tract as rapidly as possible, so as to take advantage of the spring and summer market for the sale of the contemplated camp sites. It is likewise indisputable that extensive work on the property itself, including the engineering and staking of roads and lots, the cutting and clearing of trees and the grading and opening of roads, occurred throughout several weeks prior to the enactment of the ordinance and was still in progress when the ordinance was enacted and that, for the purchase of the land, engineering, legal work, and the above mentioned construction work on the property itself, Campsites expended, or obligated itself to expend, in excess of $250,000. Nothing in the record of the hearing before the Board of Adjustments suggests that, at the time Campsites embarked upon this project, made these expenditures and undertook these contractual obligations, any specific proposal for a zoning ordinance had been reported to the County Board of Commissioners by the Planning Board, had been publicized by the county or had otherwise been brought to the attention of Campsites or of its president, Mr. Darnley.

Campsites does not contend that the Stanly County Zoning Ordinance was not duly adopted or that it is, in any respect, invalid. It contends that this valid ordinance has no application to its proposed development of its land, for the reason that such development was in progress when the ordinance was adopted and, consequently, it has a vested right to continue its development as a nonconforming use of its property.

In a number of recent decisions, this Court has dealt with the right of one, to whom a municipality has issued a building permit and who, in reliance thereon, has commenced construction or has incurred substantial expenditures or contractual obligations preparatory to such construction, to proceed with the construction, notwithstanding revocation of such permit by a valid, subsequently enacted zoning ordinance. See: Keiger v. Board of Adjustment, 281 N.C. 715, 190 S.E.2d 175; Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904; Warner v. W & O, Inc., 263 N.C. 37, 138 S.E.2d 782; Stowe v. Burke, 255 N.C. 527, 122 S.E.2d 374. The only significance of the building permit in those cases was that such permit was required, under the ordinance in effect at the time of its issuance, in order to make the proposed use of the property lawful. In the present instance, there was no county ordinance or other law in effect at the time Campsites began its development of its...