Randolph County v. Coen , 99 N.C. App. 746 ( 1990 )

394 S.E.2d 256 (1990) 99 N.C. App. 746

RANDOLPH COUNTY, Plaintiff,
v.
Darel Eugene COEN, Robert Daniel Brewer, Individually, and t/d/b/a Coen Equipment Sales, and Carolyn C. Coen, Defendants.

No. 8919DC1287.

Court of Appeals of North Carolina.

August 7, 1990.

W. Ed Gavin, Asheboro, for plaintiff-appellee.

Edwards and Stamey by Gregory S. Curka, Michael C. Stamey and Billy Edwards, Jamestown, for defendants-appellants.

ARNOLD, Judge.

The issue before us is whether or not defendants established an "existing use" in the operation of their business prior to the effective date of Randolph County's Zoning Ordinance. The Ordinance prohibits the operation of defendant's sales lot at its present location, but the business qualifies as a permitted non-conforming use if it was operational prior to the effective date of the Ordinance. The law protects non-conforming users who, acting in good faith, make a "substantial beginning" toward the intended use of their land. In Re Campsites Unlimited, 287 N.C. 493, 501, 215 S.E.2d 73, 78 (1975); Sunderhaus v. Board of Adjustment of Biltmore Forest, 94 N.C. App. 324, 380 S.E.2d 132 (1989).

The district court made the following finding: "[defendants'] expenditures did not constitute a significant expenditure of money so as to vest the defendants with the right to continue to use said property as a permitted non-conforming use ..." (emphasis added). This finding, however, constitutes a mistake of law. Our case law does not support the idea that only the expenditure of money constitutes a substantial beginning. A significant expenditure of labor or energy may also demonstrate a substantial beginning. Sunderhaus, 94 N.C.App. 324, 380 S.E.2d 132.

Also, the term "substantial" does not refer only to the absolute amount of money or labor expended on a project, but rather reflects the amount expended relative to the size of the overall project. Id. In Sunderhaus, a homeowner dug a trench in his yard and placed PVC pipe in the trench in preparation for erecting a satellite-dish television antennae. The effective date of a zoning ordinance prohibiting such antennae then passed. We held that when the overall size of the project was considered, the work completed prior to the effective date of the ordinance constituted a substantial beginning. Sunderhaus, at 327, 380 S.E.2d at 134; see also City of Sanford v. Dandy Signs, Inc., 62 N.C.App. 568, 303 S.E.2d 228 (1983).

The evidence in the case sub judice shows that defendants expended a significant amount of labor and money relative to the amount of work necessary to set up their business prior to the effective date of the Ordinance. Although not a crucial factor, we also note that prior to 6 July, Coen had furnished a security bond of $15,000. See N.C.Gen.Stat. § 20-288(e) (1989). While the trial court determined that no vehicles were placed on the lot until after 6 July 1987, this finding is not determinative in deciding whether or not defendants had substantially begun their operations prior to the effective date of the Ordinance. The nature of this business was that often no vehicles were on the business site. We focus instead on the fact that prior to the effective date of the ordinance, defendants had finished preparing the site for operations, met the requirements for and obtained the requisite licenses to operate and had vehicles available for sale. On 1 July 1987, defendants were in fact open for business. The decision of the district court, therefore, is reversed.

Finally, although the issue is not properly before us at this time, we note that in general nonconforming uses cannot be expanded. The underlying policy of any zoning plan is to restrict and ultimately abolish nonconforming uses.

Reversed.

PHILLIPS and COZORT, JJ., concur.