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Zoning – Nonconforming Use – Alleged Expansion – Boat Repair & Junkyard

Teresa Bruno, Opinions Editor//February 11, 2016

Zoning – Nonconforming Use – Alleged Expansion – Boat Repair & Junkyard

Teresa Bruno, Opinions Editor//February 11, 2016

Whitehurst v. Alexander County (Lawyers Weekly No. 012-034-16, 28 pp.) (Ann Marie Calabria, J.) Appealed from Alexander County Superior Court (Theodore Royster Jr., J.) N.C. App. Unpub.

Holding: Even though respondent Sipes enlarged buildings at his nonconforming business after the enactment of the zoning ordinance, the ordinance gives the Alexander County Planning and Zoning Board of Adjustment the authority to allow an enlargement or extension of nonconforming buildings.

We affirm the superior court’s decision to uphold the board’s determination that Sipes had not violated the zoning ordinance. Remanded for correction of a clerical error.

While the language of the ordinance indicates a preference for board approval before nonconforming buildings are enlarged, failure to obtain prior approval does not automatically revoke one’s right to use nonconforming buildings. Nor does the ordinance indicate that the board cannot consider and approve the enlargement of nonconforming buildings after the enlargement occurs.

The board correctly interpreted the undefined terms “enlarged” and “extended” to contemplate a nonconformance that increased in either (1) physical footprint or (2) nature and scope.

In 2011, a zoning officer discovered that Sipes had begun storing boats on a neighbor’s property. The officer ordered Sipes to take the action necessary to correct his violation. Sipes moved the boats.

Petitioner cites no legal authority or ordinance provision, nor does he advance any legal argument to support his assertion that a zoning violation that was later corrected and passed on by the board would automatically forfeit one’s right to continue the existing nonconforming use of property.

The ordinance not only grants zoning enforcement administrators the authority to order the discontinuance of an existing nonconforming use, but it also indicates, to a stronger degree, the intent to confer on zoning enforcement administrators the authority to exercise discretion in ordering the remedy of a violation. In fact, the only ordinance provision which indicates an intent to automatically revoke a nonconforming use pertains to the cessation of a nonconforming use for more than 180 days.

A stand of pines once shielded petitioner’s view of Sipes’ property. Sipes’ removal of the pine trees from a near-vertical slope was not done to expand his business. Instead, Sipes removed the trees to keep pine needles out of the boats parked on his land.

Sipes testified that he has always kept repaired boats that have been abandoned by his customers and that he has always stored scrap metal on his property. These did not constitute expansions of the nonconforming use.

Although petitioner did not obtain the relief he sought, since the superior court did in fact grant the petition for a writ of certiorari, the court erred when it stated that it had denied petitioner’s petition. We remand for correction of this clerical error.

Affirmed and remanded.

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