#### VIRGINIA M. FARR v. THE BOARD OF ADJUSTMENT OF THE CITY OF ROCKY MOUNT, NORTH CAROLINA

No. 847SC10

(Filed 18 March 1986)

On remand from the North Carolina Supreme Court by their decision herein reported in 315 N.C. 309, 337 S.E. 2d 581 (1985).

Fitch and Butterfield, by G. K. Butterfield, Jr., for petitioner appellant.

Dill, Exum, Fountain & Hoyle, by William S. Hoyle, for respondent appellee.

PHILLIPS, Judge.

As directed by the above decision, we have given further consideration to the contentions made by the appellant in this Court that were not discussed in the decision reported in 73 N.C. App. 228, 326 S.E. 2d 382 (1985) and are of the opinion that those contentions are without merit and should be overruled. But even if the zoning ordinance in question applies to the case, and the record as we read it does not show that it was enacted before the prior property owner built the building involved, we are still of the opinion that the ordinance is unconstitutional for the reasons stated in our prior decision and that the judgment appealed from should be vacated.

Vacated.

Judge BECTON concurs.

Chief Judge Hedrick dissents.

Chief Judge HEDRICK

dissenting.

In my opinion, the zoning ordinance in question is not unconstitutional. I do not believe the majority has addressed the principal issue raised on appeal as to whether the occupancy of the accessory building as a residence by the petitioner’s son is a violation of the ordinance. The facts found by the zoning board support the conclusion that the occupancy of the accessory building by the petitioner’s son is in violation of the ordinance. I vote to affirm the decision of the superior court.