In Re Tadlock's Appeal

134 S.E.2d 177 (1964)

261 N.C. 120

Appeal of M. R. TADLOCK and wife, Lura S. Tadlock, from the Zoning Board of Adjustment for the Charlotte Area.

No. 236.

Supreme Court of North Carolina.

January 17, 1964.

*179 Dockery, Ruff, Perry, Bond & Cobb, by James O. Cobb, Jr., Charlotte, for petitioner appellants.

John T. Morrisey, Sr., Charlotte, and T. LaFontine Odom, Sr., Asst. City Atty., for respondent appellee.

HIGGINS, Justice.

The Board of Adjustment for the Charlotte Zoning Area, and the Superior Court on reviewing its order, based decision on the Zoning Ordinance which provided: "A non-conforming open use of land shall not be enlarged to cover more land than was occupied by that use when it became nonconforming." The ordinance, however, authorized the Board of Adjustment, in its discretion and upon application, to allow a variance in hardship cases. The latter provision is not here involved. The landowners contend they have the legal right not only to complete the 11 additional patios for 11 home units on the south side of the street opposite the 14 units already installed, but to install 50 units on Areas 2 and 3. The zoning authorities contend any additional installations subsequent to January 30, 1962, would be an enlargement of the use and hence prohibited by the ordinance.

*180 According to the evidence, which is not in conflict, the owners planned to develop the entire acreage in three area stages. Area 1 was surveyed, mapped and graded. Actual construction of home foundations, streets, water, sewer, and light were completed, or were under way for all of Area 1 before January 30, 1962. The wells from the south side of the street furnish water for the units installed on the north side. The evidence not being in dispute, questions of law and not of fact arise. Johnson v. Board of Education, 241 N.C. 56, 84 S.E.2d 256; Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879. What is said here is not in conflict with the case In Re Appeal of Hasting, 252 N.C. 327, 113 S.E.2d 433. In that case the evidence as to essential facts was in conflict, permitting the Board of Adjustment to make the findings.

Inasmuch as the evidence is free of conflict as to the determinative facts, whether completion of Area 1 as planned is an enlargement of a nonconforming use becomes a question of law. "An entire tract is generally regarded as within the exemption of an existing nonconforming use, although the entire tract is not so used at the time of the passage or effective date of the zoning law." 58 Am.Jur., "Zoning," § 151.

The case of Kessler v. Smith, 104 Ohio App. 213, 142 N.E.2d 231, appeal dismissed, 167 Ohio St. 91, 146 N.E.2d 308, appears to be exactly in point, although in factual situation not as strong in favor of the landowners. The owners had planned a trailer park for 200 units, 28 of which were completed at the time the ordinance became effective. The court said: "While Smith's business was not completely established at the time of the initiation of these proceedings in November of 1952, still there was such a substantial establishment and development thereof prior to the enactment of the ordinance that we think it comes within the protection of the due process clauses of both the Federal and State Constitutions." The owners were permitted to complete the project.

In Board of County Commissioners of the County of Sarpy v. Petsch, 172 Neb. 263, 109 N.W.2d 388, the court said: "In other words, where a trailer-court project is partially completed when zoning regulations become effective, and the evidence is clear as to the extent of the project, the completed project will ordinarily determine the scope of the nonconforming use." Meuser v. Smith, (Court of Appeals of Ohio), 141 N.E.2d 209, citing McQuillan on Municipal Corporations, 3rd Ed., Vol. 8, § 25.157, p. 272.

The undisputed evidence in this case discloses the Tadlocks, from the date of their purchase in 1957, were continuously thereafter engaged in completing plans for 25 units covering the whole of Area 1. The 14 units were completed and in use on the north side of the access road or street which they graded and surfaced with the clear intent of placing 11 other units on the south side of the street. All wells were actually located on the south side. Apparently financial limitations and not a change of plans account for the delay in completing the installations. But the evidence is plenary that the owners at all times were working towards the completion of all the installations on Area 1. "(T)he criterion is whether the nature of the incipient nonconforming use, in the light of its character and adaptability to the use of the entire parcel, manifestly implies an appropriation of the entirety to such use prior to the adoption of the restrictive ordinance." Vol. 101 C.J.S. Zoning § 192, p. 954.

At no time after purchase was the plan abandoned or changed. Work continued until the inspector gave notice to stop and to remove four units constructed subsequent to January 30, 1962.

Under the evidence and applicable rules of law, the appellants are entitled to complete the installation of 11 additional *181 units in Area 1. However, by planning the development in three stages and confining actual construction to Area 1 only, the applicants as to Areas 2 and 3 fall within the rule that planning a development alone is insufficient to enlarge a nonconforming use. We have no doubt the landowners intended the full ten acres as a trailer park and that its value for other purposes is greatly reduced. However, any extension of the use beyond Area 1 rests in the discretion of the Board of Adjustment as a hardship case.

Judge Copeland should have reversed so much of the Board of Adjustment's order as denied the owners the right to complete their plans by constructing 11 additional units in Area 1. With respect to the area outside of No. 1, the Board's order should be affirmed.

The Superior Court of Mecklenburg County will remand this cause to the Board of Adjustment for the Charlotte Zoning Area with instructions to proceed as here directed.

Reversed in partaffirmed in part.