Davis v. ZONING BD. OF ADJ. OF UNION COUNTY , 41 N.C. App. 579 ( 1979 )

255 S.E.2d 444 (1979) 41 N.C. App. 579

W. Cleve DAVIS, Petitioner,
v.
The ZONING BOARD OF ADJUSTMENT OF UNION COUNTY, N. C., Consisting of Charles Yandle, Chairman of the Board, Leon Moore, Vice Chairman of the Board, Oren Pigg, Charles McGee, Jack Haywood, Members, and Willie McDow and Clark Rummage, Alternates, Respondents.

No. 7820SC715.

Court of Appeals of North Carolina.

June 5, 1979.

Love & Milliken by John R. Milliken, Monroe, for petitioner.

Griffin, Caldwell & Helder by Thomas J. Caldwell and H. Ligon Bundy, Monroe, for respondents.

HEDRICK, Judge.

After the record and briefs were filed in this case, the parties filed in this Court the following stipulation:

On October 9, 1978, the Union Board of Commissioners adopted certain amendments to the Union County Zoning Ordinance which all parties agree could have a definite effect on the case on appeal.

The amendments are hereby offered as exhibits to the Court under Rule 9c(2) of the Rules of Appellate Procedure for whatever effect on the case on appeal that the Court deems them to have.

Attached to the stipulation is a copy of the amendments that is certified to be a true copy by Barbara W. Moore, Clerk, Union County Zoning Board of Adjustment, and which provides:

Section 1. The Union County Zoning Regulations as embodied in the Zoning Ordinance are hereby amended as follows:

. . . . .

3. Amend Section 41.34 Kennel to read as follows:

"Any activity involving the permanent or temporary keeping or treatment of animals for commercial purposes. Commercial purposes shall include but not be limited to the following: Animal hospitals, veterinarian's offices, and storage of pets belonging to someone other than the owner or operator of the premises for monetary gain. Incidental breeding and offering the resultant litter for sale shall not constitute the operation of a kennel."

4. Amend Section 41.53 Residential Occupancy by deleting this section in its entirety.

Petitioner, in his brief, challenges the constitutionality of Sections 41.34 and 41.53 of the Union County Zoning Ordinance as they existed prior to their amendment on 9 October 1978.

By filing on 10 January 1979 the stipulation and amendment to the zoning ordinance, the parties suggest that the questions raised on this appeal are moot. We think the following rule is applicable:

When, pending an appeal to this Court, a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court.

State ex rel. Utilities Commission v. Southern Bell Tel. & Tel. Co., 289 N.C. 286, 290, 221 S.E.2d 322, 324 (1976); 1 Strong's N.C. Index 3d, Appeal and Error § 9, at 216 (1976).

In the case now before us all questions raised have been rendered moot by the amendments to the Union County Zoning Ordinance. We conclude that the petitioner is no longer an aggrieved party inasmuch as the ordinance that was the basis of the letter asking petitioner "to dissolve his kennel" no longer has any force and effect. Thus, the appeal is dismissed and the costs will be taxed against the respondent.

Dismissed.

MORRIS, C. J., and WEBB, J., concur.