holding that, because the board of aldermen only decided whether to grant a variance under the zoning ordinance, the superior court erred by determining the question of the constitutionality of the zoning ordinance, which was never raised or considered by the board of aldermen
How later courts described this case
- holding that, because the board of aldermen only decided whether to grant a variance under the zoning ordinance, the superior court erred by determining the question of the constitutionality of the zoning ordinance, which was never raised or considered by the board of aldermen
- explaining that the vested rights “doctrine is rooted in the ‘due process of law’ and the ‘law of the land’ clauses of the federal and state constitutions”
- noting this Court in Sherrill properly refused to address the petitioner’s challenge to the constitutionality of a particular zoning ordinance where the previous courts had not ruled on that issue
- noting it is not “appropriate . . . to affirm the decision of the Zoning Board of Adjustment by substituting for its basis a legal theory not relied upon by the Board”
Written by the judges who cited it.
The opinion
Justice EXUM
concurring in result.
I concur in the result reached by the Court on the nonconforming use issue for all the reasons stated in Justice Meyer’s opinion. I also agree with the Court’s conclusion that this is the only question before us. The majority rightly concludes that whether the landowner can ultimately establish in a proper proceeding that he acted in good faith in constructing his building and may have thereby acquired a vested right to maintain it are questions we should not now decide. For cases discussing this doctrine see In re Campsites Unlimited, 287 N.C. 493 , 215 S.E. 2d 73 (1975); Town of Hillsborough v. Smith, 276 N.C. 48 , 170 S.E. 2d 904 (1969).
I write only to disassociate myself from what I perceive to be an unwarranted suggestion in footnote 2 and Part C of the Court’s opinion. These portions of the opinion seem to suggest that the landowner will not be able to demonstrate in a future proceeding his “good faith” merely because a declaratory judgment action challenging his right to build under the amended ordinance had been filed against him before he began construction. This has not yet been declared the law in North Carolina, and I do not wish to say nor imply now that it should or should not be. I am satisfied the existing lawsuit should be one circumstance to be considered, probably among others, on the issue of the landowner’s good faith; but I doubt that it should be controlling on *73 the question. In any event, I think the question should be left for the future.
Chief Justice BRANCH joins in this concurring opinion.