Town of Garner v. Weston

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139 S.E.2d 642 (1965)

263 N.C. 487

TOWN OF GARNER, a Municipal Corporation v. W. A. WESTON and wife, Bertha B. Weston.

No. 471.

Supreme Court of North Carolina.

January 15, 1965.

*644 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.

HIGGINS, Justice.

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 the zoning ordinance of the Town of Garner made provision for a hearing before the Board of Adjustment upon application for a permit to complete a nonconforming use, but the defendants have not applied for such permit and hence have not exhausted their administrative remedies. In re Application of Hasting, 252 N.C. 327, 113 S.E.2d 433; In re O'Neal, 243 N.C. 714, 92 S.E.2d 189; In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E.2d 1.

The defendants' showing, in view of their stipulations, is not sufficient to permit reversal of the judgment. However, in view of the expenses incurred, the defendants, if so advised, may make application for a nonconforming use permit as a hardship case. Such permit, however, is discretionary with the Board of Adjustment. In re Appeal of Tadlock, supra.

For the reasons assigned, the judgment is