James v. Sutton
| Decision Date | 24 November 1948 |
| Docket Number | No. 526.,526. |
| Citation | 229 N.C. 515,50 S.E.2d 300 |
| Court | North Carolina Supreme Court |
| Parties | JAMES . v. SUTTON, Chief Building Inspector, et al. |
Appeal from Superior Court, Mecklenburg County; Chas. Coggin, Special Judge.
Certiorari proceeding to review an order of the board of adjustment of the city of Charlotte by v. T. James against Harry N. Sutton, Chief Building Inspector of the City of Charlotte and the City of Charlotte, a municipal corporation. From a judgment vacating the order of the board and remanding the proceeding to the board for a new hearing, Harry N. Sutton, etc, and another, appeal.
Remanded.
Petition for writ of certiorari to review an order of the Board of Adjustment of the city of Charlotte.
In June 1947 the city of Charlotte adopted a comprehensive zoning ordinance covering all property within its corporate limits. This ordinance creates districts designated as Bl districts. The uses to which property in a Bl district may be subjected are defined as follows:
Subsections b, c, and d are not material to the question presented.
Petitioner owns a lot in Charlotte, purchased in 1944, located at 1543-45 West Trade Street, in a Bl district as designated in the ordinance. On 26 February 1948, he applied to the building inspector for a permit to build a candy factory on said lot. The building inspector declined to issue the permit and he appealed to the Board of Adjustment. The appeal was heard 2 March, and the Board, by resolution, sustained the building inspector and denied the building permit. Thereupon the petitioner applied to the Superior Court for a writ of certiorari which was issued 26 April 1948.
At the hearing on the appeal before the Board of Adjustment, it was made to appear to the Board that petitioner desired to construct a building on his lot to be used as a candy factory and a candy retail sales room; that he would employ eight to ten people; and that from 15% to 20% of the candy manufactured would be sold at retail, on the premises and the balance wholesale; and the Board found these to be the facts.
When the cause came on for hearing in the court below, it was made to appear to the court by admission of counsel that the Board denied petitioner's application for a building permit for the reason it, believed itself without legal power to grant the same. The court, being of the opinion the Board of Adjustment is vested with authority to permit a nonconforming use and therefore acted under an erroneous conception of the law, vacated the order of the Board and remanded the proceeding to the Board for a new hearing. The respondents excepted and appealed.
J. Spencer Bell and Guy T. Carswell, both of Charlotte, for petitioner appellee.
John D. Shaw, of Charlotte, for resp...
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