Forsyth County v. Shelton

329 S.E.2d 730 (1985)

FORSYTH COUNTY v. William H. SHELTON; and wife, Carolyn Shelton; Christopher H. Shelton; William T. Shelton; and Lisa C. Shelton.

No. 8421DC1026.

Court of Appeals of North Carolina.

May 21, 1985.

*732 Jonathan V. Maxwell and P. Eugene Price, Jr., Winston-Salem, for plaintiff.

D. Blake Yokley, Winston-Salem, for defendants.

WELLS, Judge.

Defendants first assign error to the denial of their motion for directed verdict, based on the insufficiency of evidence of abandonment. Upon such motion, plaintiff's evidence is taken as true, with all reasonable inferences therefrom, resolving all conflicts and inconsistencies in plaintiff's favor, and disregarding defendants' evidence unless favorable to plaintiff or tending to clarify plaintiff's case. Koonce v. May, 59 N.C.App. 633, 298 S.E.2d 69 (1982).

*733 Defendants make two arguments under this assignment. First, they argue that all the evidence showed that the "nature of the use of the property remained the same ..., although no one was actually using it." This argument, if adopted, would make the establishment of abandonment in such cases impossible, contrary both to the ordinance and to the public policy of this state. See Poster Advertising Co. v. Bd. of Adjustment, 52 N.C.App. 266, 278 S.E.2d 321 (1981) (non-conforming uses not favored). Zoning ordinances are construed against indefinite continuation of a non-conforming use. Id. Ordinances in general are construed to give effect to all of their parts if possible. See Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969). We therefore reject defendants' position, which would allow nonconforming uses to continue indefinitely and effectively nullify the abandonment provisions of the ordinance. Upon the evidence that use of the lake property was abandoned at least four years within the meaning of the ordinance, we hold that the nature and use of the lake property did not remain the same as its previous non-conforming use.

Defendants next contend, however, that the abandonment was not intentional. The ordinance defined abandonment as "the voluntary discontinuance of a use, when accompanied by an intent not to reestablish such use." Defendants contend that all the evidence showed that Ivor Shelton only ceased operating the lake property because of ill health, and always intended to reopen it to the public. We disagree. While defendants did produce evidence which tended to show that Ivor Shelton's stroke and attendant health problems prevented Ivor Shelton himself from operating the lake property and that Ivor Shelton always intended for the lake property to be reopened to the public, nevertheless, such evidence must be weighed and considered against plaintiff's evidence of non-use over a period of at least four years.

We first address the question of voluntariness of discontinuance. Defendants argue that Ivor Shelton's ill health conclusively established that the discontinuance of the operation of the lake property as a public facility was involuntary. Again we disagree. While the evidence showed that Ivor Shelton's stroke caused a significant degree of physical disability, the evidence also showed that Ivor Shelton retained the ability to conduct his affairs and that he did in fact continue to make decisions as to the use and maintenance of the property. Such evidence was sufficient to raise a jury question as to whether the discontinuance of the commercial use of the property was voluntary.

In support of their position that where discontinuance of use is occasioned by the illness of the owner, such discontinuance is involuntary, defendants rely on Conway v. City of Greenville, 254 S.C. 96, 173 S.E.2d 648 (1970), a case involving discontinued use following the illness of the principal operator of a non-conforming business. While the South Carolina Court did find that under the circumstances of that case, the discontinuance of business use was involuntary, the court nevertheless made it clear that the question (in such cases) was "largely one of intention and must be determined from all of the surrounding facts and circumstances." Id. Such a standard has been adopted in a significant number of other states. See 82 Am.Jur.2d, Zoning and Planning § 217. Similarly, we hold that the question of voluntariness of discontinuance of use in the case was one of fact, to be determined by the jury in the light of all the circumstances surrounding the discontinued use of the Shelton lake property as a commercial amusement enterprise.

Defendants also contend that all of the relevant evidence on the point showed that Ivor Shelton never showed any intent not to reopen the lake property to public commercial use. Again, we disagree, and hold that under all the circumstances of this case, including the significant length of non-use, a finder of fact could reasonably infer that Ivor Shelton manifested an intent to forego or abandon the use of the *734 lake property as a commercial amusement enterprise.

Defendants next assign error to the exclusion of evidence that a commercial electric account had been maintained for the lake property since 1961. The exclusion of evidence constitutes reversible error only if the appellant shows that a different result would have likely ensued had the error not occurred. Responsible Citizens v. City of Asheville, 308 N.C. 255, 302 S.E.2d 204 (1983). Defendants put before the jury testimony that power service had been continuous since 1961. Whether the account was designated commercial or otherwise appears to be of little relevance. Defendants have shown no prejudicial error.

Defendants requested a jury instruction on involuntary cessation of the non-conforming use, which the court did not give.[1] Defendants claim prejudicial error. We consider the assignment in light of the evidence and the whole charge given. See Stewart v. Gallimore, 265 N.C. 696, 144 S.E.2d 862 (1965) (per curiam). The court correctly instructed the jury that plaintiff had to prove not only abandonment but also the intent not to reestablish the use. In light of the evidence and the charge, we conclude the jury was correctly instructed, and that the instruction was substantially as defendants requested.

Finally, defendants assign error to the court's ruling, as a matter of law, that the ordinance was not unconstitutionally vague in failing to define and distinguish "commercial amusement" (prohibited) and "recreational facility" (allowed). Defendants admitted in their answer and proceeded throughout trial on the theory that the use was a non-conforming use. A non-conforming use is one not allowed by the ordinance, i.e., a commercial amusement as opposed to a recreational facility. An admission in an answer judicially establishes the fact and removes the matter from further consideration. Rollins v. Miller Roofing Co., 55 N.C.App. 158, 284 S.E.2d 697 (1981). Defendants having admitted their non-conforming use, they were not then in a position to protest unfair treatment because they later (implicitly) contended the lake was a conforming use. See Wilkes v. Bd. of Alcoholic Control, 44 N.C.App. 495, 261 S.E.2d 205 (1980) (only one adversely affected may challenge constitutionality). As the court below correctly pointed out, defendants' proper remedy was to utilize existing administrative appeal channels to contest the zoning officer's determination that paid public use of the lake property was a non-conforming use. See Town of Kenansville v. Summerlin, 70 N.C.App. 601, 320 S.E.2d 428 (1984) (statutory remedy exclusive). Defendants do not contend that they were unaware of their right to appeal the decision of the zoning officer; their failure to do so precludes attack on that decision here. New Hanover County v. Pleasant, 59 N.C.App. 644, 297 S.E.2d 760 (1982). They have never applied for a variance. The assignment is thus without merit.

Plaintiff brings forward two cross-assignments of error. The first, that the court erroneously instructed on the burden of proof, is now moot. The second involves a stay pending this appeal obtained by defendants to allow the commercial operation of the lake property through the summer of 1984. As plaintiff concedes, the stay was in the discretion of the court. N.C.Gen.Stat. § 1A-1, Rule 62(c) of the Rules of Civil Procedure (1983). Plaintiff argues that a ruling on the propriety of the stay will nonetheless provide a legal basis to determine whether defendants' bond *735 should be forfeited. It appears that the stay was granted expressly to allow operation of the lake property pending appeal; the bond clearly was set to ensure compliance with the conditions of operation set in the court's stay order. No ground for forfeiture is apparent, and our decision on the merits renders the propriety of the stay itself moot. In view of the minimal actual harm to plaintiff, we are not inclined to rule that the stay constituted an abuse of discretion in any event. In the light of our decision, however, we now order that the stay order be vacated. The result is:

No error in the trial.

Stay order is vacated.

JOHNSON and COZORT, JJ., concur.

[1] The requested instruction read in full:

Ladies and Gentlemen of the Jury, the defendants contend that Ivor Shelton did not voluntarily discontinue the non-conforming use of the subject property. Defendants contend that because of the ill health of Ivor Shelton after he suffered a stroke, he was physically unable to open the subject property for its seasonal use, maintain it, and manage it. The law provides that if the cessation of the nonconforming use is involuntary, such cessation will not constitute an abandonment of the use.