Town of Garner v. Weston, 471
| Decision Date | 15 January 1965 |
| Docket Number | No. 471,471 |
| Citation | 263 N.C. 487,139 S.E.2d 642 |
| Parties | TOWN OF GARNER, a Municipal Corporation v. W. A. WESTON and wife, Bertha B. Weston. |
| Court | North Carolina Supreme Court |
Robert T. Hedrick, Raleigh, for defendant appellants.
Johnson, Gamble & Hollowell, by Samuel H. Johnson, Lassiter, Leager, Walker & Banks, by Wm. C. Lassiter, Raleigh, for plaintiff appellee.
Broughton & Broughton, Raleigh, for Mobile Home Parks Association, Inc., amicus curiae.
The parties stipulated the Presiding Judge should hear the evidence, make findings of fact, state his conclusions of law, and enter judgment. The appellants advise us in their brief that there is no dispute with respect to the facts found in the court below. Hence the court must accept, and is bound by, Judge Hobgood's findings. The short quotations from the findings are sufficient to support the court's conclusion, which in turn sustains the judgment entered.
The constitutionality of the zoning ordinance, as such, is not challenged as we interpret the record. If it is, Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870, and the authorities therein cited repel the challenge.
The defendants contend they had completed plans for their mobile home court and in furtherance thereof had dug a well, built a pump house, laid water lines, constructed patios, graded streets, and bought trailer units to be set up before the zoning ordinance became effective. They contend by reason thereof they are entitled to complete the project as a nonconforming use. They offer evidence in partial support of their claims with respect to the extent of the construction as of April 15, 1963. However, there was evidence to the contrary. The trial judge made his findings. They do not support the defendants' claim with respect to the work done. While the findings are contrary to most of the defendants' evidence, nevertheless the defendants do not challenge them on any ground. Turner Coffee Co. v. Thompson, 248 N.C. 207, 102 S.E.2d 783; Jones Construction Co. v. Local Union 755 of the International, etc., Electrical Workers, 246 N.C. 481, 98 S.E.2d 852.
While the defendants' evidence to some extent parallels the facts in the Tadlock case (In re Appeal of Tadlock), 261 N.C. 120, 134 S.E.2d 177, the court's findings fall short of the standards approved in Tadlock and in other zoning cases which have authorized the completion of the project under way at the date the ordinance became effective. The court found...
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Garren v. City of Winston-Salem, North Carolina
...247 N.C. 363, 100 S.E.2d 870 (1957), appeal dismissed, 357 U.S. 343, 78 S.Ct. 1369, 2 L.Ed.2d 1367 (1958); Town of Garner v. Weston, 263 N.C. 487, 139 S.E.2d 642 (1965); Walworth Co. v. City of Elkhorn, 27 Wis.2d 30, 133 N.W.2d 257 (1965); Schlientz v. City of North Platte, 172 Neb. 477, 11......
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Metropolitan Development Com'n of Marion County v. I. Ching, Inc.
...(S.D.N.Y.1973) 354 F.Supp. 1338, aff'd, 485 F.2d 457; Ulman v. United States, (1977) 558 F.2d 1, 214 Ct.Cl. 308; Town of Garner v. Weston, (1965) 263 N.C. 487, 139 S.E.2d 642; Township of Honey Brook v. Alenovitz, (1968) 430 Pa. 614, 243 A.2d 330. The rationale is that the considerations of......
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Town of Hillsborough v. Smith, 17
...of Warner v. W & O, Inc., supra, the law does not require them to make a vain trip to the City Hall before exercising it. Garner v. Weston, 263 N.C. 487, 139 S.E.2d 642, is distinguishable from the present case in that there the trial court found, upon sufficient evidence, that the landowne......
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Fowler v. Williamson, 7825SC172
...therefrom, may be assumed as true as against the party asserting them. 5 C.J.S. Appeal and Error § 1343-45. See Garner v. Weston, 263 N.C. 487, 139 S.E.2d 642 (1965). In the interest of the prompt elimination of a factually unfounded claim, we elect to consider on appeal the facts asserted ......