concluding the petitioner’s challenged findings were “a recitation of largely uncontroverted evidence” and therefore the board’s decision was not prejudicial error
How later courts described this case
- concluding the petitioner’s challenged findings were “a recitation of largely uncontroverted evidence” and therefore the board’s decision was not prejudicial error
- finding it permissible for trial court to recite uncontroverted evidence in findings of fact section of order
- appellate review of decision of zoning board limited to whether findings of fact are supported by substantial evidence in the whole record and whether those findings of fact support the zoning board’s conclusions of law
Written by the judges who cited it.
The opinion
Judge BECTON
concurring in the result.
Because I view this case as involving an enlargement or expansion of a nonconforming use, I concur. Fearful that our decision today may be read as prohibiting intensification of a nonconforming use, I quote the following passage from 1 R. Anderson, American Law of Zoning § 6.47 (2d ed. 1976):
§ 6.47. Volume, intensity, or frequency of use.
A nonconforming use of land, whether it is a dairy farm, a manufacturing plant, or a rooming house, is not likely to remain static. As the use is exploited and economic changes occur, it may grow in volume or intensity, and periods of active use may become more frequent or of longer duration. These changes in the level of use may have profound impact upon property in the areas where they are located, but the zoning regulations seldom include specific provisions for restricting this kind of growth. . . . Absent some element of identifiable change or extension, an increase (sometimes referred to as a ‘mere’ increase) in volume, intensity, or frequency of use is held not to be an extension of use proscribed by [zoning] ordinances. . . .
*50 The Wilmington City zoning ordinance, as codified in Wilmington, N. C., Code ch. 32 (1969), itself suggests that qualitative, as opposed to quantitative, changes are not prohibited. For example, ch. 32 § 13(E)(4) provides: “Where a nonconforming situation exists, the equipment or processes may be changed if these or similar changes amount only to changes in degrees of activity, rather than changes in kind. . . .” (Emphasis added.)
Finally, although in my view “the controversy over the stable located on appellant Cannon’s property,” ante p. 6, was irrelevant, I am still not convinced that the Board’s consideration of this evidence constituted reversible error.