In Re Appeal of Tadlock

Higgins, J. 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 ©over more land than -was occupied by that use when it became non-aonfomnamg.” 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. 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. *124 Board of Adjustment, 258 N.C. 476, 128 S.E. 2d 879. What is said here is not in conflict with flhe 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 I 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 O.A., 213, 142 N.E. 2d 231, appeal dismissed, 146 N.E. 2d 308, appears to be exactly in p-oiint, 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 thdnik 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 Commissioners v. Petsch, 172 Neb. 263, 109 N.W. 2d 388, the court said: “In other words, where a trailer-court project is partially completed whan 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, 74 Abs. 417 (Court of Appeals of Ohio), 141 N.E. 2d 209, citing Mc-Quillan on Municipal Corporations, 3rd Ed., Vol. 8, § 25.157, p. 272. The undisputed evidence in tins case discloses the Tadloekis, from the díate of their punchase in 1957, ware continuously thereafter engaged in completing plans for 25' units covering the whole of Area 1. The 14 units ware '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 ¡tire entirety to such use prior to the adoption of the restrictive ordinance.” C.J.S., Vol. 101, “Zoning,” § 192, p. 954. *125 At no time after purchase wais the pian '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 unit® in Area 1. However, by planning the development in three stages 'and confining actual construction to Area 1 only, the applicants a© to Areas 2 and 3 fail within' the rule that planning >a development 'alone is insufficient to enlarge a nonconforming use. We have no douibt the landowners intended ithe full ten acras 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 part — Affirmed in part.