Application of Hasting

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113 S.E.2d 433 (1960)

252 N.C. 327

Matter of the Application and Appeal of Thomas H. HASTING, Before the Charlotte Perimeter Zoning Board of Adjustment.

No. 252.

Supreme Court of North Carolina.

April 6, 1960.

*434 Blakeney, Alexander & Machen, Charlotte, for petitioner appellant.

John D. Shaw, Charlotte, for respondent appellee.

RODMAN, Justice.

The authority given to municipalities in general to enact and enforce zoning ordinances by Art. 14, c. 160 of the General Statutes was, as to the City of Charlotte, enlarged by c. 123, S.L.1955, to apply to a described area surrounding the city. The provisions of the 1955 Act applicable only to Charlotte are substantially the same as c. 1204, S.L.1959, now G.S. ยง 160-181.2. Pursuant to the authority given by the 1955 Act, Charlotte enacted a zoning ordinance which became effective 2 January 1956. One of the permissive uses of property zoned as "rural" is "dwellings except house trailers." The ordinance permits the continuance of an existing prohibited use. It provides: "The lawful use of any building or land existing at the time of the adoption of this ordinance may be continued, but not enlarged or extended, although the use of such building or land does not conform to the regulations of the district in which such use is maintained."

In 1951 petitioner purchased 6.37 acres of land outside of Charlotte but within the area described in c. 123, S.L.1955, and in a part zoned as "rural." The operation of house trailer sites is not a permissive use under the ordinance for areas so zoned. There was a dwelling on the property when petitioner purchased. He occupies this as his home. Subsequent to his purchase and prior to 2 January 1956 he constructed some house trailer sites on his property. These, or at least some of them, were rented and occupied when the ordinance went into effect.

Subsequent to 2 January 1956 petitioner applied to the building inspector for a permit to provide additional house trailer sites. The building inspector declined to issue the permit. Petitioner appealed to the Board of Adjustment. It heard the evidence offered and found:

"4. On January 2, 1956, appellant had constructed or begun construction of sixteen trailer sites on said land and some of said sites had been rented. "5. On January 2, 1956, appellant had done nothing toward the construction of any additional trailer sites other than the sixteen heretofore mentioned."

Based on its findings, it concluded: "The Building Inspector did not err in denying the appellant's application."

Petitioner excepted to the findings made by the Board, contending the evidence established an original plan to provide 45 trailer sites on the property, the allotment of the necessary area to that plan, and the partial consummation of the plan by necessary construction in process on 2 January 1956 to make effective use of all of the area so allotted. The right to continue to use the 16 sites referred to in Finding No. 5 is not controverted.

The city had the authority to prohibit an enlargement of a nonconforming use. In re O'Neal, 243 N.C. 714, 92 S.E.2d 189. Whether what petitioner sought was the right to complete construction of facilities for a nonconforming use to which property had been dedicated when the ordinance took effect or was an enlargement of a subsisting nonconforming use was a question of fact to be determined by the Board of Adjustment. The rule applicable is stated in In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1, 3, thus: "The duties of the building inspector being administrative, appeals from him to the Board of Adjustment present controverted questions of factnot issues of fact. Hence it is that the findings of the board, when made in good faith and supported by evidence, are final. Little v. [Board of Adjustment of City of] Raleigh, 195 N.C. 793 [143 S.E. 827]. *435 Such findings of fact are not subject to review by the courts."

Our examination of the evidence submitted to the Board of Adjustment discloses sufficient evidence to support its findings. Based on this evidence, the Board could have found the facts as contended by petitioner or contrary to his contention. In this situation its findings are conclusive. The court was correct in refusing to change or modify the findings of fact and in sustaining the order of the Board of Adjustment.

Affirmed.