Stokes County v. Pack

HEDRICK, Chief Judge. Article VII of the Zoning Ordinance of Stokes County states in pertinent part: [619] General Provisions Any use of a building or land which does not conform to the use regulations, either at the effective date of this ordinance, or as a result of subsequent amendments is a nonconforming use. Non-conforming uses may be continued, provided they conform to the provisions of Article VII, Section 70. Section 70. Continuing the Use of Non-Conforming Land 70.1 Extensions of Use. Non-Conforming uses of land shall not hereafter be enlarged or extended in any way. In the case of In Re Tadlock, 261 N.C. 120, 134 S.E. 2d 177 (1964), the appellants purchased a ten-acre tract of land in 1957 and immediately began construction of a trailer park. They planned to complete the development in three stages, with each stage to encompass 25 units. At the time that the Charlotte City Council passed a zoning ordinance making the applicants’ trailer park a non-conforming use, actual construction was confined to Area 1 of the development. There were 14 units in place, and steps had been taken toward the installation of 11 more sites. Areas 2 and 3 had not been constructed, and these areas were still in the planning stage of development. The Board of Adjustment for the Charlotte Zoning Area ruled that appellants could not “extend a non-conforming use of land” by placing 11 additional units in Area 1 and developing Areas 2 and 3. The superior court affirmed the Board’s action. Both the Board and the court based their decision on a zoning ordinance which provided: “A non-conforming open use of land shall not be enlarged to cover more land than was occupied by that use when it became nonconforming.” Our Supreme Court held that under the evidence and the applicable rules of law, the appellants were entitled to complete the installation of the 11 additional units in 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 the entirety to such use prior to the adoption of the restrictive ordinance.” Id. at 124, 134 S.E. 2d at 180, citing C.J.S., Vol. 101, “Zoning,” Sec. 192, p. 954. The Court further held that “by planning the development in three stages and confining actual construction to Area 1 only, the applicants as to Areas 2 and 3 fall [620] within the rule that planning a development alone is insufficient to enlarge a non-conforming use.” Id. at 125, 134 S.E. 2d at 181. In the present case, the record discloses that at the time that the zoning ordinance went into effect on 1 March 1983, petitioners had cleared approximately five acres of their tract. They were also operating a garage and had several salvage vehicles in place. Since 1 March 1983, petitioners have continued to bring vehicles to their property in order to operate the salvage yard. We hold that under the evidence petitioners were certainly entitled to complete their salvage yard on the five acres by adding the additional vehicles. The addition of salvage vehicles in excess of the number in place on 1 March 1983 was not an enlargement or extension of a non-conforming use of land as is prohibited by Section 70 of the Zoning Ordinance of Stokes County, but rather it was the mere completion of a project which was partially finished when the zoning regulations became effective. We further hold that the other five acres in petitioners’ ten-acre tract that were not cleared and partially in use as of 1 March 1983 may not be utilized by petitioners in their garage and salvage business. This would be a non-conforming use and as such would violate Section 70 of the Zoning Ordinance of Stokes County. Such an enlargement lies within the discretion of the Stokes County Board of Adjustment. On cross-appeal, respondent Stokes County contends the “Trial Court erred in denying Stokes County’s Motion to Dismiss the appeal of Mr. and Mrs. Pack to the Zoning Board of Adjustment since the appeal was not timely filed.” In its brief, respondent has failed to set out the exception on which its argument is based, thereby subjecting their appeal to dismissal. Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure, in pertinent part, states: Immediately following each question shall be a reference to the assignments of error and exceptions pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal, or the transcript of proceedings if one is filed pursuant to Rule 9(c)(2). Exceptions not set out in the appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned. [621] Respondent’s exceptions to the trial court’s ruling are deemed abandoned. Reversed. Judges Arnold and Cozort concur.