The opinion
Bakuhill, J.
The court below was in error in concluding that the Board of Adjustment possesses authority to permit a nonconforming use to be made of property zoned under the city of Charlotte zoning ordinance. The power to zone is conferred upon the governing body of the municipality. G.S. 160-172
et seq.
That power cannot be delegated to the Board of Adjustment. Hence it has no power either under the statute or under the ordinance to permit a type of business or building prohibited by the ordinance, for to do so would be an amendment of the law and not a variance of its regulations. We so held in
Lee v. Board of Adjustment,
226 N. C. 107 , 37 S. E. (2) 128, and we adhere to that decision.
But on this record the petitioner does not seek a permit to erect a nonconforming building or a building for a nonconforming use. He proposes to use the building in part for the retail sale of candy “dealing directly with and immediately accessible to the ultimate consumer” and the proposed business is not one “mentioned as prohibited in a B2 District.”
The ordinance does not restrict the buildings within a B1 district to use for the retail sale of merchandise only. They must be used “in whole or in part” for one of the specified purposes or for the sale of merchandise directly to the ultimate consumer.
We find nothing in
the
ordinance which
can he
construed to indicate that the governing body of Charlotte intended to prohibit a combination candy factory and retail sales plant in a B1 district or to characterize such business as objectionable
per se
when erected and maintained in such district. Indeed, shops to be used in whole or in part for making articles to be sold at retail on the premises are expressly permitted. If it intended to restrict B1 districts to businesses engaged exclusively in the retail sale of merchandise, as the Board seems to have concluded, it failed to use language sufficient to accomplish that purpose. The language “to be used in whole or in part” contained in Section Y of the ordinance is controlling.
Whether the additional use for the manufacture and wholesale marketing of candy will be “injurious to adjacent premises or occupants thereof by reasons of the omission (sic) of dust, fumes, smoke, odor, or noise” or is a variance in conflict with the general purpose and intent of the ordinance and does violence to its spirit is for the Board to decide.
*518
Tbe cause must be remanded to tbe Board of Adjustment for a bearing-on tbe merits of tbe application. If it finds as a fact that the petitioner intends in good faith to use a substantial part of tbe proposed building for tbe retail sale of. candy, then it is for tbe Board to decide whether tbe additional use for tbe manufacture and marketing of candy at wholesale is, under all the circumstances, in accord with tbe ordinance. If so, tbe permit should be granted.
Tbe court below is directed to enter its order in accord with this opinion and to that end tbe cause is
Remanded.