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  "id": 12170150,
  "name": "APPALACHIAN POSTER ADVERTISING COMPANY v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF SHELBY, N. C. and BOB HAMILTON, Director of Building and Zoning of the City of Shelby, N. C.",
  "name_abbreviation": "Appalachian Poster Advertising Co. v. Zoning Board of Adjustment of City of Shelby",
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    "judges": [
      "Judges WHICHARD and BECTON concur."
    ],
    "parties": [
      "APPALACHIAN POSTER ADVERTISING COMPANY v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF SHELBY, N. C. and BOB HAMILTON, Director of Building and Zoning of the City of Shelby, N. C."
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nThe standard for Superior Court review of a Board of Adjustment decision is as follows:\nUpon such review, the findings of fact made by the Board, if supported by evidence introduced at the hearing before the Board, are conclusive. In re Application of Hasting, 252 N.C. 327, 113 S.E. 2d 433; In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E. 2d 1. The matter is before the Court to determine whether an error of law has been committed and to give relief from an order of the Board which is found to be arbitrary, oppressive or attended with manifest abuse of authority. Durham County v. Addison, 262 N.C. 280, 136 S.E. 2d 600; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E. 2d 128. It is not the function of the reviewing court, in such a proceeding, to find the facts but to determine whether the findings of fact made by the Board are supported by the evidence before the Board. It may vacate an order based upon a finding of fact not supported by evidence.\nIn re Campsites Unlimited, 287 N.C. 493, 215 S.E. 2d 73 (1975). The arguments in petitioner-appellant\u2019s brief are directed at the findings and conclusions of the Board which the Superior Court, applying the above standard for review, has upheld.\nPetitioner first argues that there is no evidence to support the Board\u2019s finding that there were originally two separate and distinct non-conforming billboard structures. The Superior Court found substantial competent and material evidence to support this finding, and we agree. Petitioner\u2019s president, Walter J. Hogan, testified before the Board as follows:\nThe two advertising signs before the work was done might have been joined or might not. We\u2019re not sure, we\u2019ve got them both ways. I don\u2019t know whether the signs out there were visibly joined together or not before the work was done.\nBefore the work was done, I just couldn\u2019t say how far apart or how close the two sign faces were together. My recollection of it is that they were very close but it\u2019s been at least a year or so before this came up that I had actually looked at it.\nWe had six poles in a line that took up forty-eight feet and had two separate signs that did not touch, that is the original signs. There was some space, whether it was an inch or four to six inches which did not touch each other, which made it in the opinion of the Building Inspector two signs.\nI originally built two individual posters. They were built in an aligned pattern.\nIn other parts of his testimony, Hogan referred to the billboard structures as \u201ctwo signs\u201d and he stated, \u201cWhen you have two signs side by side, it is possible to remove one sign and leave the other side standing and it would be structurally sound and we could see it.\u201d Bob Hamilton, the building inspector, testified:\nBased upon my memory and as well as I recall, there were two billboard structures that were located side by side in line, one with the other, each was supported by three poles in the ground and there were two separate advertising copy areas mounted on each of the three sets of poles for each structure.\nThe evidence supports the Board\u2019s first finding of fact.\nPetitioner next challenges the Board\u2019s second finding. The first aspect of this finding, to the effect that one of the billboard structures was completely removed, is supported by the evidence. Hogan testified that both of the original display faces were taken down, but he was not sure which of the original poles were replaced. Hamilton testified, \u201cThe three poles which were replaced on the billboard were the ones which if you were standing on the site, it was the billboard to your left and they were all three on the same billboard on the left.\u201d\nThe remainder of this finding, to the effect that the billboard structure ceased to exist as a non-conforming use when it was completely removed and could not be replaced, is in reality a conclusion of law. Consideration of it requires examination of the relevant zoning ordinances. They are:\nSec. 60. Use.\nNo building or land shall hereafter be used or occupied and no building or structure or part thereof shall be erected, moved or structurally altered except in conformity with the regulations of this ordinance, or amendments thereto, for the district in which it is located.\nSec. 70. Non-conforming uses.\nAny building, structure or use of land, existing at the time of the enactment of this section, or any amendment thereto, used for a purpose not permitted in the zoning district in which it is located shall be considered a nonconforming use. However:\n70.3 A non-conforming use may not be extended or enlarged, nor shall a non-conforming structure be altered except as follows:\n70.31 Structural alterations as required by law or ordinance or as ordered by the zoning enforcement office to secure the safety of the structure are permissible.\n70.32 Maintenance and repair necessary to keep a nonconforming use in sound condition are permissible.\n70.4 A non-conforming use may not be re-established after discontinuance for a period of three hundred and sixty-five (365) days. . . .\n71.3 Maintenance. All advertising structures, together with any supports, braces, guys, and anchors shall be kept in repair and in a safe state of preservation. All signs erected to serve a temporary purpose shall be removed within thirty (30) days from the date the purpose ceased to exist.\nIn In re O\u2019Neal, 243 N.C. 714, 92 S.E. 2d 189 (1956), our Supreme Court held that a frame building used as a nursing home could be replaced with a new fireproof structure and the non-conforming use of the premises could be continued so long as the scale of the nursing home operations was not substantially increased; however, the zoning ordinances involved in O\u2019Neal did not prohibit structural alterations. We find Goodrich v. Selligman, 298 Ky. 863, 183 S.W. 2d 625 (1944), to be instructive. In Goodrich a building permit was granted for general repairs pursuant to which an outdoor advertising company removed certain old billboards and replaced them with new ones. There, as here, a zoning ordinance prohibited structural alterations except those required by law or ordinance. The Kentucky Court of Appeals held that the permit should not have been granted. The Court wrote:\nIn Selligman v. Von Allmen Bros., 297 Ky. 121, 179 S.W. 2d 207, 209, this same zoning ordinance of the city of Louisville was before us for construction, and we construed section 10 of the ordinance to mean that the owner can make no structural alteration in a non-conforming building which will indefinitely prolong its life. In the course of the opinion it was said:\n\u201cThe theory of zoning is to foster improvement by confining certain classes of buildings and uses to certain localities without imposing undue hardship upon the property owners. The present use of a non-conforming building may be continued but it cannot be increased nor can it be extended indefinitely if zoning is to accomplish anything. It is customary for zoning ordinances to provide that the life of non-conforming buildings cannot be increased by structural alterations and when a change is made by the owner in the building, he must make it conform to the ordinance.\u201d\nThe following was quoted from the opinion in A. L. Carrithers & Son v. City of Louisville, 250 Ky. 462, 63 S.W. 2d 493, 497:\n\u201c \u2018Structural alterations\u2019 intended to be prohibited by the zoning ordinance are the changing an old building in such a way as to convert it into a new or substantially different structure.\u201d\nIn the Von Allmen Bros, case the owner substituted permanent brick walls for rotted exterior wooden walls, and it was held this would extend the life of the non-conforming building and was forbidden. Here a new structure was substituted for an old one. If it is proper to do this once it will be proper to do it again and thus the life of the nonconforming structure will be indefinitely prolonged, and the whole purpose of the zoning ordinance will be defeated.\nId. at 867-68, 183 S.W. 2d at 627-28. See generally Annots., 80 A.L.R. 3d 630 (1977) and 87 A.L.R. 2d 4 (1963). Non-conforming uses are not favored by the law. Most zoning schemes foresee elimination of non-conforming uses either by amortization, see State v. Joyner, 286 N.C. 366, 211 S.E. 2d 320, appeal dismissed 422 U.S. 1002, 45 L.Ed. 2d 666, 95 S.Ct. 2618 (1975), or attrition or other means. 8A McQuillin, Municipal Corporations \u00a7 25.183 (3rd ed., 1976 rev. vol.); 82 Am. Jur. 2d, Zoning and Planning \u00a7 179 (1976). In accordance with this policy, zoning ordinances are strictly construed against indefinite continuation of non-conforming uses. Id. \u00a7 180. Where, as is the case herein, the non-conformity consists in the character of the structure, apart from the use to which it is devoted, the right to make repairs has generally been limited to such as are merely routine or ordinary and which would not result in the extension of the normal life of the structure, and the replacement of a structure which has become unuseable from natural deterioration has been held not permissible. Id. \u00a7 209; Annot., 87 A.L.R. 2d 4, \u00a7 18 (1963). Further, in accordance with the policy of eliminating non-conforming uses, several courts have given a strict construction to zoning ordinances allowing for the resumption of a non-conforming use. 82 Am. Jur. 2d, supra, \u00a7 221; Annot., 57 A.L.R. 3d 279, \u00a7 8 (1974). In the present case, the Board has taken the position that the replacement of the one billboard structure which was completely removed went beyond structural alterations as permitted by Section 70.31 and beyond maintenance and repair as permitted by Section 70.32. The Board has also concluded that Section 60, which provides that no structure shall be erected except in conformity with the zoning regulations, applies to these facts and that Section 70.4, which implicitly allows re-establishment of a non-conforming use after a discontinuance of less than 365 days, does not apply. In light of the above authorities, we cannot say that the Board\u2019s approach herein is unsupported by findings of fact, unfounded in the law or arbitrary.\nOnce it is accepted that one of the original billboards was completely removed and could not lawfully be replaced, it follows logically that the addition of three new poles and the erection of a new 12 foot by 47 V2 foot display face amounted to the enlargement, extension and structural alteration of the remaining original billboard. Further, we have little trouble with the proposition that the addition of fluorescent lighting which was directed at the new display face and which increased the amount of unnatural light in the area also violated Section 70.3 of the zoning ordinances. The Board\u2019s third and fourth findings are therefore affirmed.\nWe agree with the Superior Court that the Board could have reached a decision in favor of the petitioner on the evidence presented. However, it is not the province of the reviewing court to substitute its opinion for that of the Board so long as a reasonable basis exists for the Board\u2019s action. Mindful of the standard for judicial review in this proceeding, we affirm.\nAffirmed.\nJudges WHICHARD and BECTON concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Whisnant, Lackey and Schweppe, by N. Dixon Lackey, Jr., for petitioner-appellant.",
      "Kennedy, Church, Young and Paksoy, by William C. Young for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "APPALACHIAN POSTER ADVERTISING COMPANY v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF SHELBY, N. C. and BOB HAMILTON, Director of Building and Zoning of the City of Shelby, N. C.\nNo. 8027SC950\n(Filed 2 June 1981)\nMunicipal Corporations \u00a7 30.13\u2014 alteration of billboards \u2014 unlawful enlargement of non-conforming use\nWhere the evidence tended to show that petitioner owned two billboards in an area zoned for residential use, that the billboards existed before the zoning ordinances were enacted, that each billboard was attached to three poles and the display face of each billboard measured 12 feet by 24 feet, that the two structures were aligned side by side and were very close to each other, that petitioner removed the display faces from both billboards and removed three poles, that petitioner replaced these three poles and erected one new. and larger display face which measured 12 feet by 47 'k feet across all six poles, and that petitioner added fluorescent lighting directed at the display face, evidence was sufficient to support respondent\u2019s findings that there were originally two separate and distinct non-conforming billboard structures, that one of the billboard structures was completely removed, that the billboard structure ceased to exist as a non-conforming use when it was completely removed and could not be replaced, and that petitioner had unlawfully enlarged, extended and altered a non-conforming use, since the zoning ordinance in question prohibited structural alterations except those required by law or ordinance; the replacement by petitioner of the one billboard structure which was completely removed went beyond the structural alterations and maintenance and repair as permitted by the zoning ordinances; and where, as in this case, a nonconformity consists in the character of the structure, apart from the use to which it is devoted, the right to make repairs has generally been limited to such as are merely routine or ordinary and which would not result in the extension of the normal life of the structure, and the replacement of a structure which has become unusable from natural deterioration has been held not permissible.\nAppeal by petitioner from Lewis, Judge. Judgment entered 12 July 1980 in Superior Court, CLEVELAND County. Heard in the Court of Appeals 8 April 1981.\nThis proceeding came before the Superior Court upon a notice of appeal and petition for a writ of certiorari as to a 10 August 1978 decision of the Shelby Zoning Board of Adjustment in which the Board ruled that petitioner had unlawfully enlarged, extended and altered a non-conforming use. The Superior Court determined that the record before it was insufficient, and it remanded the matter to the Board for another hearing. That hearing was held on 10 April 1980. Testimony was presented by the president of petitioner corporation and by the building inspector for the City of Shelby. Their testimony tended to show that petitioner owned two billboards in an area zoned for residential use. The billboards existed before the zoning ordinances were enacted. Each billboard was attached to three poles, and the display face of each billboard measured 12 feet by 24 feet. The two structures were aligned side by side and were very close to each other. Petitioner removed the display faces from both billboards and removed three poles. Petitioner replaced these three poles and erected one new and larger display face, which measured 12 feet by 47*/\u00be feet, across all six poles. The original display faces had been designed for paper advertisements to be glued on them; the new display face was designed for a painted advertisement. Petitioner also added fluorescent lighting directed at the display face. The work on the billboards took about a week. The Board entered an order on 10 April 1980 as follows:\nThe Shelby Zoning Board of Adjustments at their regular meeting on April 10, 1979 (sic), made the following ruling and interpretation applicable to the above referenced nonconforming billboard sign: that the work performed on the subject billboard sign constitutes a violation of the Shelby Zoning Ordinance, Sections 70.3 and 70.32.\nThe ruling and interpretations was based upon the Board\u2019s findings\n(1) that in this matter there were (2) non-conforming, separate and distinct billboard sign structures, side by side, each measuring approximately 12' x 24' in dimension and each supported by (3) poles and that the (2) structures were not structurally tied together and were not considered as (1) structure.\n(2) that (1) of these sign structures was completely removed including the (3) supporting poles and that by the complete removal thereof, it ceased to exist as a nonconforming use and therefore another billboard cannot be built in its place (Section 60, Shelby Zoning Ordinance).\n(3) that the other of these sign structures was removed, except for the (3) supporting poles which remained; that (3) more new poles were installed in line with the (3) poles which remained; that a new and different billboard was erected across these (6) supporting poles, the billboard measuring approximately 12' x 47\u215d' in dimension; that these actions constitute an enlargement, extension, and a structural alteration of this sign structure by making it nearly twice its original size which constitutes a violation of the Shelby Zoning Ordinance, Section 70.3 and that such actions constitute a violation of the Shelby Zoning Ordinance, Section 70.32, because in the Board\u2019s opinion the work performed goes far beyond what they consider to be normal maintenance and repair.\n(4) that lighting was added to the resulting billboard sign, which, although not directly attached to the sign structure, constitutes a violation of Section 70.3 of the Zoning Ordinance because the light shines upon and reflects from the sign surface thereby increasing the amount of unnatural light in the surrounding area. The Board further rules that to correct the above violations it would be necessary for you to (1) remove the lighting (2) reduce the resulting 12' x 47 7\u00be' billboard back to (1) billboard structure measuring not more than 12' x 24'.\nPetitioner again sought review in Superior Court. The Superior Court entered an order on 12 June 1980 making the following findings and conclusions:\n1. That the Findings of Fact by the Zoning Board of Adjustment of the City of Shelby, North Carolina, at the Hearing on April 10, 1980, are supported by competent, material and substantial evidence; and that the Findings of Fact by said Board support the Conclusion of Law that the Petitioner is in violation of Section 70-3 of the Zoning Ordinance of the City of Shelby, North Carolina.\n2. That the Findings of Fact and Conclusions of Law by the Zoning Board of the City of Shelby, at the Hearing on April 10, 1980, are not arbitrary, unreasonable or capricious.\n3. That the Zoning Board of Adjustment of the City of Shelby, North Carolina, conducted the Hearing on April 10, 1980, in accordance with fair trial standards and that said Board followed the procedures specified in the Zoning Ordinances of the City of Shelby, North Carolina.\n4. That although the Zoning Board of the City of Shelby, North Carolina could have reached a decision in favor of the Petitioner on the evidence presented, this Court cannot find that said Board acted arbitrarily, capriciously or unreasonably.\nBased on the foregoing Findings of Fact, the Court concludes as a matter of law that the decision of the Zoning Board of Adjustment of the City of Shelby, North Carolina, be affirmed.\nPetitioner appeals to this Court.\nWhisnant, Lackey and Schweppe, by N. Dixon Lackey, Jr., for petitioner-appellant.\nKennedy, Church, Young and Paksoy, by William C. Young for respondent-appellee."
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