{ "id": 8528129, "name": "CHARLES E. FLOWERREE and wife, JANE FLOWERREE v. CITY OF CONCORD, NORTH CAROLINA and the CONCORD BOARD OF ADJUSTMENT", "name_abbreviation": "Flowerree v. City of Concord", "decision_date": "1989-04-18", "docket_number": "No. 8819SC386", "first_page": "483", "last_page": "487", "citations": [ { "type": "official", "cite": "93 N.C. App. 483" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "134 S.E. 2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "261 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572012 ], "year": 1964, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0120-01" ] }, { "cite": "270 S.E. 2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "265 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "342 S.E. 2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524746 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0526-01" ] }, { "cite": "92 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "243 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627035, 8627062 ], "year": 1956, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0714-01", "/nc/243/0714-02" ] } ], "analysis": { "cardinality": 456, "char_count": 9122, "ocr_confidence": 0.758, "pagerank": { "raw": 1.042632766312151e-07, "percentile": 0.5512983575490309 }, "sha256": "fd48b9d05ba80dade6ae13c6013cf0dd8b55950a57b9eee2e6706c923c7680e0", "simhash": "1:677af4a27fb6d2ed", "word_count": 1473 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Wells concur." ], "parties": [ "CHARLES E. FLOWERREE and wife, JANE FLOWERREE v. CITY OF CONCORD, NORTH CAROLINA and the CONCORD BOARD OF ADJUSTMENT" ], "opinions": [ { "text": "COZORT, Judge.\nThe question before us is whether the City of Concord properly denied plaintiffs\u2019 application for an occupancy permit based on a finding that there was a \u201ccessation\u201d of a nonconforming use when plaintiffs\u2019 duplex apartments were unoccupied by tenants for a period in excess of three consecutive months. We hold that there was not a cessation of use within the meaning of the applicable zoning ordinance and therefore affirm the trial court\u2019s order reversing the City\u2019s denial of the permit.\nIn August of 1986, plaintiffs purchased real property on North Union Street in Concord, North Carolina, which included a single-family home, an unattached garage with an apartment, and a duplex building containing two apartments. The entire property was located in an historic district zoned \u201cR-l Residential,\u201d in which only single-family residences, not duplexes, were allowed. At the time plaintiffs purchased the property, however, the duplex was maintained as a lawful nonconforming use under the City\u2019s zoning ordinance.\nIn December of 1986, plaintiffs installed a gas furnace in the duplex and had gas lines installed, which interfered with use of the driveway to the duplex until early spring. In late January or early February, the tenants occupying each of the duplex apartments vacated, and electrical service to both apartments was disconnected. In March electrical service to one of the apartments was reconnected. For two weeks in March plaintiffs advertised in a local newspaper for renters. The property was also listed with a local real estate company. Having no success obtaining tenants, plaintiffs undertook repairs and renovations in an effort to attract new renters. In early July 1987, one of the apartments was rented to tenants and became occupied. At that time, a tenant was also found for the second apartment. However, when plaintiffs sought a certificate of occupancy for the second apartment, the City Planning Director denied their request on the ground that there had been a cessation of use of the building as a duplex apartment building for more than three consecutive months, thus triggering the forfeiture provision of the City\u2019s zoning ordinance.\nPlaintiffs appealed to the Board of Adjustment, which, after holding a public hearing, affirmed the denial of a certificate of occupancy in accordance with the Planning Director\u2019s decision. Pursuant to N.C. Gen. Stat. \u00a7 160A-388, plaintiffs petitioned for writ of certiorari to the Superior Court of Cabarrus County. The writ was allowed and, after a hearing, the Honorable William Z. Wood entered an order reversing the Board and ordering the City to issue a certificate of occupancy to plaintiffs. The City appealed. We affirm.\nZoning ordinances should be interpreted to achieve a \u201cfair balance\u201d between a city\u2019s effort to preserve the character of a neighborhood by restricting and excluding new uses and structures and eliminating existing uses and structures which are prejudicial to the character of a neighborhood, and the rights of the property owner whose interests are affected by the ordinance. In re O\u2019Neal, 243 N.C. 714, 721, 92 S.E. 2d 189, 194 (1956). Section 604.22 of the Concord Zoning Ordinance provides that a nonconforming use shall not be \u201creused after cessation of use for three (3) consecutive months . ...\u201d We believe a fair balance of the interests of the city and property owners would not be achieved if the ordinance is interpreted as equating unoccupancy by tenants with cessation of the nonconforming use so as to preclude consideration of other relevant attendant circumstances.\nThe undisputed facts show that plaintiffs lost their tenants in January or February and were unable to re-lease the second apartment in the duplex until July. During the period of unoccupan-cy, however, plaintiffs continued to seek renters and made repairs and renovations in an effort to attract new tenants. We hold that under these facts the trial court properly concluded that there was no cessation of plaintiffs\u2019 nonconforming use. See Southern Equipment Co. v. Winstead, 80 N.C. App. 526, 342 S.E. 2d 524 (1986).\nThe City\u2019s remaining assignments of error are that (1) the trial court improperly substituted its judgment for that of the Board, and (2) the trial court\u2019s conclusion of law that there was no cessation of use was not based on sufficient findings of fact. As for the second argument, the rule is that in proceedings to review a city\u2019s zoning decision, the superior court is not the trier of fact, which is the function of the Board, but sits as an appellate court to review the record for errors of law and to insure that proper procedures were followed and that the Board\u2019s decision was supported by competent, material, and substantial evidence. Coastal Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E. 2d 379, 383, reh\u2019g denied, 300 N.C. 562, 270 S.E. 2d 106 (1980).\nIn the instant case the trial court set forth its reasoning as follows:\nThe Court is persuaded that section 604.22, which provides that a non-conforming use may not be resumed after there has been a \u201ccessation of use\u201d for three consecutive months, does not support the denial of the certificate of Occupancy for the duplex under the facts of this case where, even though the duplex remained unoccupied for a period in excess of three months, the non-occupancy resulted from factors beyond petitioners [sic] control and during the period of non-occupancy Petitioners continued to repair and renovate the units and continued to seek new tenants for the duplex. Therefore, while there was an interruption in occupancy, there was no \u201ccessation of use within\u201d the meaning of Section 604.22 of the Concord Zoning Ordinance.\nThe trial court recited the facts of the case as found by the Board that the duplex remained unoccupied for more than three months and that during the period of unoccupancy plaintiffs repaired and renovated the apartments and sought tenants. Since the facts were not in dispute, whether there was a cessation of use was a question of law. See In re Tadlock, 261 N.C. 120, 124, 134 S.E. 2d 177, 180 (1964). On the undisputed facts before it, the trial court properly concluded that there was no cessation of use.\nThe language in the court\u2019s order that \u201cthe non-occupancy resulted from factors beyond petitioners [sic] control\u201d did not constitute an additional finding of fact. In our view, that statement merely explained the court\u2019s opinion that there was not a cessation of use because the unoccupancy was due to not having found a tenant despite the owners\u2019 efforts to do so.\nAlthough we affirm the trial court\u2019s ruling, we note that there is an inconsistency in the record as to which apartment was denied the occupancy permit. The evidence before the Board and in plaintiffs\u2019 petition for certiorari indicates that the apartment in dispute was the one located at 133 North Union Street, whereas the Superior Court entered an order to issue a certificate of occupancy for the apartment located at 135 North Union Street. We therefore remand to the Clerk of Superior Court of Cabarrus County with an instruction to correct the order to refer to the appropriate apartment.\nAffirmed.\nRemanded for correction of judgment.\nJudges Arnold and Wells concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Michael B. Brough & Associates, by Michael B. Brough and Frayda S. Bluestein, for petitioner appellees.", "Ford, Parrott & Hudson, by John T. Hudson; and Johnson, Belo & Plummer, by Gordon Belo, for defendant appellant." ], "corrections": "", "head_matter": "CHARLES E. FLOWERREE and wife, JANE FLOWERREE v. CITY OF CONCORD, NORTH CAROLINA and the CONCORD BOARD OF ADJUSTMENT\nNo. 8819SC386\n(Filed 18 April 1989)\n1. Municipal Corporations \u00a7 30.19\u2014 apartments \u2014 vacant between tenants and during renovations \u2014 not a cessation of nonconforming use\nThe trial court properly concluded that there was no cessation of plaintiffs\u2019 nonconforming use and reversed the City Board of Adjustment\u2019s denial of a certificate of occupancy for plaintiffs\u2019 duplex apartment where the undisputed facts showed that plaintiffs lost their tenants in January or February and were unable to re-lease the second apartment in the duplex until July; however, during the period of unoccupancy plaintiffs continued to seek renters and made repairs and renovations in an effort to attract new tenants.\n2. Municipal Corporations \u00a7 31.2\u2014 superior court review of Board of Adjustment decision \u2014 no error\nThe trial court did not improperly substitute its judgment for that of the City\u2019s Board of Adjustment or improperly conclude based on insufficient findings of fact that there had been no cessation of plaintiffs\u2019 nonconforming use where the facts were not in dispute and whether there was a cessation of use was a question of law. The language in the court\u2019s order that the \u201cnon-occupancy resulted from factors beyond petitioners [sic] control\u201d merely explained the court\u2019s opinion and did not constitute an additional finding of fact.\nAPPEAL by respondents from the Order of Judge William Z. Wood entered 20 November 1987 in CABARRUS County Superior Court. Heard in the Court of Appeals 29 November 1988.\nMichael B. Brough & Associates, by Michael B. Brough and Frayda S. Bluestein, for petitioner appellees.\nFord, Parrott & Hudson, by John T. Hudson; and Johnson, Belo & Plummer, by Gordon Belo, for defendant appellant." }, "file_name": "0483-01", "first_page_order": 513, "last_page_order": 517 }