Godfrey v. Zoning Bd. of Adjustment of Union County

• Decision Date: 03 June 1986
• Docket Number: No. 182PA85,182PA85
• Citation: 317 N.C. 51,344 S.E.2d 272
• Parties: Frank B. GODFREY, Joe N. Sutton, O. Fred Howey and Billips Hood v. The ZONING BOARD OF ADJUSTMENT OF UNION COUNTY, North Carolina.
• Court: North Carolina Supreme Court

Page 272

344 S.E.2d 272

317 N.C. 51

Frank B. GODFREY, Joe N. Sutton, O. Fred Howey and Billips Hood v. The ZONING BOARD OF ADJUSTMENT OF UNION COUNTY, North Carolina.

No. 182PA85.

Supreme Court of North Carolina.

June 3, 1986.

Joe P. McCollum, Jr., Monroe, for plaintiff-appellants.

Love & Milliken by John R. Milliken, Monroe, for defendant-appellee.

MEYER, Justice.

James Dennis Rape came into ownership and possession of a 17.45-acre tract of land in Union County in 1973. The Union County Board of Commissioners adopted a comprehensive zoning ordinance on 14 April 1975, effective 2 June 1975. On the effective date of the ordinance, Mr. Rape's 17.45-acre tract was being farmed; no business other than farming was operated on this tract prior to 1980. The Rape tract and the surrounding area were zoned low density residential, R-20, by the 1975 ordinance.

On 12 September 1980, Mr. Rape petitioned the county to rezone his tract from R-20 to H-I, "heavy industrial." Mr. Rape's purpose in requesting the zone change was to enable him to construct a grain storage facility and office space on a portion of his tract. The Union County Planning Board voted to recommend the rezoning request, and on 23 November 1980, the County Commissioners, by a vote of three to two, voted to amend the zoning ordinance to rezone the tract as requested by Rape.

Disturbed by this action, three adjoining landowners, within three weeks of the rezoning, filed an action in Superior Court, Union County, on 15 December 1980 seeking a declaratory judgment to the effect that the Commissioners' action in rezoning the Rape tract was null and void because it constituted "spot zoning." Meanwhile, Mr. Rape, pursuant to a "previous arrangement" with Gro-More of Monroe, Inc., obtained a building permit to construct the grain storage facility and began construction of the facility. Gro-More's majority shareholder is Eastern Plant Foods, Inc., of Greenville, South Carolina; Mr. Rape is president and minority shareholder of Gro-More. In May 1981, construction was completed, and pursuant to the arrangement with Gro-More, Mr. Rape transferred 4.25 acres of his 17.45-acre tract containing the grain storage facility and office space to Gro-More. Subsequent to the facility being completed and its transfer to Gro-More, and during the pendency of the action for On 11 December 1981, Judge Kivett entered an order in the declaratory judgment action declaring the Commissioners' rezoning of the Rape tract on 23 November 1980 null and void because such action constituted "spot zoning." ¹ The result of this order was that the entire tract remained subject to the original R-20, low density residential designation. Gro-More and Eastern Plant Foods appealed to the Court of Appeals, which affirmed Judge Kivett's order in Godfrey v. Union Co. Bd. of Commissioners, 61 N.C.App. 100, 300 S.E.2d 273 (1983). Pursuant to that opinion, Union County Zoning Enforcement Officer H. Steve Morton notified Mr. Rape by letter of 14 April 1983 that the Gro-More grain storage facility was not in compliance with the R-20 district in which it was located and that Mr. Rape had thirty days to bring the use into compliance.

declaratory judgment, the Union County Board of Commissioners on 25 August 1981 amended the zoning ordinance to make provision for "Nonconforming Situations" (hereinafter, Section 70).

On 4 May 1983, Gro-More and Eastern Plant Foods, by their attorney, petitioned the Union County Board of Adjustment for an allowance of the continuance of the "nonconforming situation" on the 4.26-acre tract. The Board of Adjustment held meetings on 6 June and 11 July 1983 and heard from Mr. Rape, as well as from plaintiffs in this action. Both parties were represented by counsel. On 11 July 1983, the Board of Adjustment approved Gro-More's petition allowing the facility to continue as a "nonconforming situation." Pursuant to N.C.G.S. § 153A-345(e), plaintiffs petitioned the Superior Court, Union County, for a writ of certiorari to review the Board's 11 July 1983 order. In their petition for the writ, plaintiffs stated as "Reasons Why the Writ Should Issue" that "the action of the Board of Adjustment was arbitrary and capricious in that there was no showing that a nonconforming use ever existed and further there was [sic] not sufficient findings of fact by the Board to grant any relief."

Upon the review by a superior court upon writ of certiorari issued pursuant to N.C.G.S. § 153A-345(e),

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 the evidence.

In re Campsites Unlimited, 287 N.C. 493, 498, 215 S.E.2d 73, 76 (1975). See also Coastal Ready-Mix Concrete Co., Inc. v. Board of Comm'rs of the Town of Nags

Head, 299 N.C. 620, 623-27, 265 S.E.2d 379, 381-83, reh'g denied, 300 N.C. 562, 270 S.E.2d 106 (1980).

On 16 November 1983, Judge Hal H. Walker entered an order finding no error in the proceedings and concluding that the Board's 11 July 1983 order allowing continuation of the nonconforming use was proper. On appeal by plaintiffs, the Court of Appeals affirmed the superior court's decision in its opinion at 73 N.C.App. 299, 326 S.E.2d 113.

The Court of Appeals recognized that, according to Union County Zoning Ordinance, Sections 70.1(1) and 70.2, the grain storage facility is not a "nonconforming use" subject to being continued because the facility was not in existence at the effective date of the ordinance or the effective date of the amendment to the ordinance rezoning the property from R-20 to H-I. However, the Court of Appeals found that the situation became nonconforming as a result of the subsequent judicial declaration that the purported 1980 rezoning to H-I constituted "spot zoning" and was null and void and of no effect. Additionally, the court found that Mr. Rape had incurred "great expense in constructing a large facility valued at $400,000" in "good faith reliance" upon the 1980 zoning amendment and the building permit. Id. at 302, 326 S.E.2d at 115. Relying on Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969), and its progeny, the court held that "the landowner acquired a vested right to continue using the facility." Godfrey, 73 N.C.App. at 302, 326 S.E.2d at 115. The Court of Appeals, adopting defendant's argument, noted that plaintiffs could have protected their interests by obtaining an injunction when they filed their petition for a writ of certiorari, and the landowners' interest could have been protected by means of a bond. We conclude that the reasoning and the result of the panel below is erroneous, and we therefore reverse.

A.

Following public hearings on 6 June and 11 July 1983, the Union County Zoning Board of Adjustment issued an order in which it concluded that the Gro-More facility constituted a "nonconforming situation" as defined in Section 70 and was entitled to continuation pursuant to Section 70.2. Our review of the record convinces us that the Board erred as a matter of law in concluding that the subject property was a "nonconforming situation" and thus erred in allowing continuation pursuant to Section 70.2.

The 1981 amendment to the Union County Zoning Ordinance, "Section 70. Nonconforming Situations," provides the framework for analysis in the determination of whether the Gro-More facility could legally be permitted to continue as such following the judicial determination that the 1980 purported zoning change under which the facility was constructed constituted unlawful "spot zoning." The relevant portions of Section 70 provide in pertinent part:

70.1 Definitions

(1) Nonconforming Situation. A situation that occurs when, on the effective date of this ordinance or any amendment to it, an existing lot or structure or use of an existing lot or structure does not conform to one or more of the regulations applicable to the district in which the lot or structure is located. Among other possibilities, a nonconforming situation may arise because ... land or buildings are used for purposes made unlawful by this ordinance.

....

70.2 Continuation of Nonconforming Situations

Nonconforming situations that were otherwise lawful on the effective date of this ordinance may be continued, subject to the restrictions and qualifications set forth in subsections 70.3 and 70.6 of this section.

(Emphasis added.)

By clear definition, a situation may be designated "nonconforming" for purposes of continuation under the ordinance The plain meaning of Section 70, as applied to these facts, is that the grain storage facility is not a "nonconforming situation" as defined by Section 70.1(1) and therefore cannot be "continued" pursuant to Section 70.2. Thus, the superior court erred in failing to conclude that the Board committed an error of law in authorizing the continuance of the Gro-More facility.

                only if it is an existing lot or structure on the effective date of the ordinance or amendment.   Section 70.1(1).  According to the record, the effective date of the comprehensive zoning ordinance was 2 June 1975.  On that date, the entire Rape tract was being farmed, and no structure was in existence on the property.  The effective date of the amendment purporting

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