In re Campsites Unlimited, Inc.

23 N.C. App. 250 | N.C. Ct. App. | 1974

CAMPBELL, Judge.

The appellant basically contends that at the time it knew or could have known of a proposed zoning ordinance affecting its land it had acquired a vested right to proceed with construction notwithstanding that the contemplated use would be nonconforming. The appellees contend that the appellant knew that proposed zoning was being contemplated and that this knowledge prevented the appellant from acting in good faith in reliance on the existing law.

The appellee Stanly County specifically relies on the “good faith” rule as stated in Town of Hillsborough v. Smith, 276 N.C. 48, 56, 170 S.E. 2d 904, 910 (1969), to-wit:

“The ‘good faith’ which is requisite under the rule of Warner v. W <6 0, Inc., supra, is not present when the landowner, with knowledge that the adoption of a zoning ordinance is imminent and that, if adopted, it will forbid his proposed construction and use of the land, hastens, in a race with the town commissioners, to make expenditures or incur obligations before the town can take its contemplated action so as to avoid what would otherwise be the effect of the ordinance upon him.” (Emphasis added.)

The appellees make a great deal of this language. Their reliance is unfounded. This is due to the fact that the rule requires knowledge on the part of a landowner that a zoning ordinance will prohibit the contemplated use to which he was putting his land.

In this case, there was evidence that zoning in Stanly County was being contemplated as early as 1968, but there is a marked absence of evidence indicating the particular type of zoning ordinance contemplated. At most there was ambiguity. The State planner from the Department of Natural and Economic Resources, who was assisting the County, was suggesting one thing, the planning board suggesting something else. This continued until 28 March 1973 when certain protestants at an informal courtesy hearing voiced objection to the proposed project. At that time, the planning board considered for the first time a specific zoning classification for the area in question. The appellant admitted to knowledge of zoning in general in Stanly County as early as the fall of 1972, but this is not knowledge that the zoning is imminent and that it would forbid the proposed use. Furthermore, it was not clear whether public notice was given for the courtesy hearing. In any event, the courtesy hearing was an informal county hearing which would not constitute legal notice to the appellant. It was uncontested that he was not present at the meeting and had no knowedge of it.

Therefore the finding by the Board of Adjustment and its affirmance by the superior court that the appellant was not acting in good faith prior to 16 April 1973, is unsupported by the evidence, is arbitrary and is in error as a matter of law.

“To acquire [a] vested property right it is sufficient that, prior to the . . . enactment of the zoning ordinance and with the requisite good faith, he make a substantial beginning of construction and incur therein substantial expense.” Town of Hillsborough v. Smith, supra, at 54, 170 S.E. 2d at 909. The appellees contend that the amounts expended constitute less than ten percent of the projected total cost of the development and that this is not a substantial expenditure in contemplation of the law. This is without merit. “[0]ne who, in good faith . . . makes expenditures or incurs contractual obligations, substantial in amount, incidental to or as part of the acquisition of the building site or the construction . . . may not be deprived of his right to continue such construction and use. . . .” Town of Hillsborough v. Smith, supra, at 55, 170 S.E. 2d at 909. (Emphasis added.) The record is replete with evidence of the construction begun, and expenditures made by the appellant prior to the adoption of the ordinance on 16 April 1973. He had paid or had become obligated to pay approximately $275,000 of which $156,000 was for the land. Roads had been staked off and graded, supplies purchased, maps recorded, and substantial engineering and surveying services incurred. We find that the evidence in this case compels the conclusion as a matter of law that substantial expenditures had been incurred so as to qualify the project as a nonconforming use.

The appellant also contends that should this Court find the development to be a nonconforming use, it should so find as to the entire development and not just sections one through five. It so happened that at the time the zoning ordinance intervened, the appellant had only cut roads in five of the eight sections. On this basis, the Board originally found a nonconforming use as to just those five sections. This was error. The evidence established that the economic feasibility of the campsite project depended implicitly on the development of the entire area in question. It further established that the primary reason for the division of the property into eight sections was merely to facilitate a legible, useful and recordable system for filing plats in the register of deeds office. There was work being continuously carried out in all sections of the project at the same time. The evidence compels a finding that this is not a section development and that the nonconforming use applies to the entire project area. In re Tadlock, 261 N.C. 120, 134 S.E. 2d 177 (1963).

The decision of a board of adjustment is final as to facts found provided there is some evidence to support such facts. The courts are empowered to review errors in law but not facts. Here there was a question of law. The Court can give relief against orders which are arbitrary, oppressive, or attended with manifest abuse of authority and ones which are unsupported by the evidence. See Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E. 2d 128 (1946). The order of the Board of Adjustment as affirmed by the Stanly County Superior Court was arbitrary as not supported by the evidence and was in error as a matter of law.

Consequently, we reverse and remand the case to the Superior Court of Stanly County with the direction that the court enter judgment in this matter declaring the entire development in question to be a nonconforming use and further declaring the property free of the effect of the zoning ordinance of 16 April 1973.

Reversed and remanded.

Judge Parker concurs. Judge Vaughn dissents.