Thomasville of North Carolina Ltd. v. City of Thomasville , 17 N.C. App. 483 ( 1973 )

195 S.E.2d 79 (1973) 17 N.C. App. 483

THOMASVILLE OF NORTH CAROLINA LIMITED
v.
CITY OF THOMASVILLE, a Municipal corporation.

No. 7322SC24.

Court of Appeals of North Carolina.

March 14, 1973.

Craige, Brawley by C. Thomas Ross, and Hamilton C. Horton, Jr., Winston-Salem, and Hooper & McGuire by E. Willis Hooper, Thomasville, for plaintiff appellee.

Saintsing & Leonard by George W. Saintsing, Thomasville, for defendant appellant.

GRAHAM, Judge.

". . . [O]ne who, in good faith and in reliance upon a permit lawfully issued to him, makes expenditures or incurs contractual obligations, substantial in amount, incidental to or as part of the acquisition of the building site or the construction or equipment of the proposed building for the proposed use authorized by the permit, may not be deprived of his right to continue such construction and use by the revocation of such permit, whether the revocation be by the enactment of an otherwise valid zoning ordinance or by other means, and this is true irrespective of the fact that such expenditures and actions by the holder of the permit do not result in any visible change in the condition of the land." Town of Hillsborough v. Smith, 276 N.C. 48, 55, 170 S.E.2d 904, 909.

The evidence in this case shows, and the court found, that after plaintiff obtained the building permits by court order, and in reliance upon the permits, ". . . the plaintiff began work on the building site, committed itself to a $60,000.00 earth moving contract, and moved approximately 5,000 cubic yards of earth in preparation of the building site. On May 5th, the plaintiff obligated itself by a promissory note and security agreement to the repayment of a $1,142,400.00 loan, the proceeds of which are to be expended for the completion of the housing project. A provision of the security agreement is that if the entire project is not completed within 12 months, a $274.00 per day penalty falls on the general contractor. Another provision of the security agreement is that if construction on the project stops for 20 days or more the mortgagee can enter upon and take over the project."

The contractual obligations set forth above are unquestionably substantial in amount, and if incurred in good faith, plaintiff has acquired a vested right to proceed with the project irrespective of any subsequent changes in zoning classification. The trial court concluded from facts found that ". . . plaintiff has complied with all the requirements of law and has acted in good faith in the preliminary planning of and commencement of actual construction of a housing project on its land."

The city challenges the court's conclusion, arguing that since plaintiff knew of the pending zoning application on 15 March 1972, its actions in making expenditures and incurring obligations thereafter were, as a matter of law, not in good faith. Conceding arguendo that there was evidence which would support findings leading to a conclusion that plaintiff's actions were not in good faith, we are of the opinion that under the evidence presented here, the question of good faith was one for the trial judge in its capacity as a jury.

The city relies principally on the case of Stowe v. Burke, 255 N.C. 527, 122 S.E.2d 374. There, defendant builders knew for many months of opposition to apartment construction in the area in question. The individual defendant repeatedly misrepresented to neighborhood residents that he knew nothing of a proposed apartment project and that he would do all that he could to maintain the exclusive and restricted character of the subdivision. On 5 April 1961, a proposal was submitted to the Charlotte City Council by the Planning Commission to rezone the property in question to prohibit apartment construction. Defendants were aware of the ordinance as early as 6 April 1961. They nevertheless obtained permits for an apartment project on 7 July 1961 and proceeded to move forward with construction at an ". . . extraordinary pace in an attempt, as admitted by defendants' counsel in brief filed in Supreme Court, to establish a right to continue the project before the area in question could be rezoned." The rezoning ordinance was adopted 17 July 1961. The Supreme Court held that under these facts the superior court was justified in concluding that defendants did not act in good faith in doing the work and making expenditures on the project.

The facts in the instant case are strikingly different from those in Stowe. Plaintiff here never misrepresented its plans to develop the property for apartment purposes. Its plans were well known for many months before any movement was made to rezone the property to a lower density classification. Plaintiff spent approximately $120,000.00 in preliminary plans, mortgage fees, legal fees and other expenses, and it was not until its investment in the project had become substantial that its efforts to carry forward the project were frustrated by city action, some of which the city now admits was illegal. It is true that these preliminary expenditures were made before the permits were obtained and therefore were not made in reliance on the permits. Warner v. W & O, Inc., 263 N.C. 37, 138 S.E.2d 782. However, an inference arises that even though plaintiff had notice of the pending zoning change at the time the permits issued, it was important that the project continue to move forward expeditiously in order to protect the substantial investment which plaintiff had already made. The fact that plaintiff was proceeding under permits issued pursuant to a final court judgment in a case that was not appealed serves to strengthen the inference that it was acting in good faith in incurring substantial obligations relating to the apartment project after the permits were issued. Moreover, there is no indication here that plaintiff acted with extraordinary haste, or for the sole purpose of thwarting the effect of a zoning ordinance that would prohibit apartment construction on the property.

We are of the opinion and hold that the trial court, which was sitting as a jury, did not err in holding that plaintiff's actions in reliance upon the building permits were taken in good faith.

The city assigns as error the admission of evidence over objection as to expenditures and commitments made by plaintiff before obtaining the building permits. These expenditures did not vest in plaintiff any right to have the zoning ordinance then in effect remain unchanged. ". . . [A] zoning ordinance does not vest in a property owner the right that the restrictions imposed by it upon his property or the property of others shall remain unaltered." Marren v. Gamble, 237 N.C. 680, 684, 75 S.E.2d 880, 883. However, this evidence was nevertheless competent on the question of whether plaintiff acted in good faith once the permits were obtained. It tended to show that plaintiff's plans and negotiations to construct the apartments preceded by many months its application for a building permit, and that the actions taken by plaintiff after the rezoning petition was filed continued in a natural and customary sequence, and not in a manner suggesting plaintiff was engaging in a race with City Hall, attempting to acquire a vested right to proceed before the zoning regulations could be changed.

Finally, the city objects to the following conclusion of the trial court:

"4. The actions of the defendant City in attempting to obstruct the issuance of building permits to the plaintiff through the enactment of the purported ordinance of March 30th and the subsequent actions of the defendant City in attempting to revoke the building permits lawfully issued to the plaintiff on April 17th were arbitrary and capricious and in violation of the rights of the plaintiff."

Plaintiff did not attack the rezoning ordinance itself and this ordinance has not been invalidated by the judgment entered in this case. Whether the city's actions were arbitrary or capricious is immaterial. The fact is, that under the findings and conclusions of the court, which we affirm, the city may not interfere with plaintiff's vested right to continue its project in accordance with the permits issued and as a non-conforming use under the present zoning regulations.

Affirmed.

CAMPBELL and BROCK, JJ., concur.