Cardwell v. Smith , 106 N.C. App. 187 ( 1992 )

415 S.E.2d 770 (1992) 106 N.C. App. 187

James D. CARDWELL and wife, Elva R. Cardwell, J.V. Bodenheimer and wife, Peggy Bodenheimer, A. Leolin Sells and wife, Naomi W. Sells, Robert F. Linville, Ronald R. Smith and wife, M.D. Smith, Ada S. Frye, and Pearl S. Sells, Plaintiffs,
v.
Aubrey SMITH, Zoning Officer and Superintendent of Inspections of Forsyth County, Salem Stone Company, William E. Ayers, Jr., and Martin Marietta Aggregates, an operating unit of Martin Marietta Corporation, Defendants.

No. 9121SC457.

Court of Appeals of North Carolina.

May 5, 1992.

Hutchins, Tyndall, Doughton & Moore by Claude M. Hamrick, Thomas W. Moore, Jr., and Maureen T. Orbock, Winston-Salem, for plaintiffs, appellants.

Petree Stockton & Robinson by Ralph M. Stockton, Jr., Jeffrey C. Howard and Stephen R. Berlin, Winston-Salem, for defendants, appellees William F. Ayers, Jr., Salem Stone Co. and Martin Marietta Aggregates.

P. Eugene Price, Jr., Winston-Salem, for defendant, appellee Aubrey Smith.

HEDRICK, Chief Judge.

The only question presented by this appeal is whether the amendment to the Zoning Ordinance adopted by the Forsyth County Commissioners on 11 May 1987 applied to defendant Salem Stone so as to preclude defendant from operating a quarry on the property in question pursuant to a previously obtained, valid special use permit.

The courts of this state have long recognized that "[a] zoning ordinance ... is in derogation of the right of private property and provisions therein granting exemptions or permissions are to be liberally construed in favor of freedom of use." In re Application of Construction Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968). In Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969), our Supreme Court held:

[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.

Id. at 55, 170 S.E.2d at 909. This Court has further held "[t]o acquire a right to carry on construction, a property owner must make a substantial beginning toward the end result of the project." Sunderhaus v. Bd. of Adjustment of Biltmore Forest, 94 N.C.App. 324, 326-27, 380 S.E.2d 132, 134 (1989).

In the present case, defendants submitted the affidavit of Mr. William E. Ayers, Jr., employee of defendant Martin-Marietta, to show the expenditures made by defendants in reliance upon the special use permit. He averred as follows:

Between October 8, 1986 and May 11, 1987, Martin Marietta spent over $1,000,000 to begin the quarry operations. Specifically, Martin Marietta Aggregates spent approximately $950,000 to purchase the real property upon which the quarry now operates. Martin Marietta also spent approximately $250,000 on various services including engineering, drainage design, erosion control, mapping, environmental and geotechnical consulting, the process for obtaining various permits, core drilling, legal fees, public relations and efforts to address various environmental matters. I spent $1,119.75 to get various permits, including the state mining permit, driveway permit, air quality permit, NPDES permit, and to copy various maps and documents recorded at the Register of Deeds Office.

As with other businesses, before a quarry can be opened a substantial amount of preparatory work must be done. This has included meetings with various land owners, meetings and discussions with county and state officials, attending and testifying at various public hearings, preparing applications for various permits related to mining operations, conducting tours for officials inspecting the site, negotiating the purchase of equipment, discussing the erosion control plan with landscape architects, various testing, and meetings with attorneys concerning the previous lawsuits brought by the opposition to this quarry against Salem Stone before the instant case.

Plaintiffs failed to produce any evidence to counter Mr. Ayers' affidavit.

On a motion for summary judgment, the question before the court is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Gregory v. Perdue, Inc., 47 N.C.App. 655, 267 S.E.2d 584 (1980). We hold the uncontradicted forecast of evidence establishes as a matter of law that defendants made substantial expenditures for the operation of a quarry on the property in question in good faith and in reliance upon the special use permit previously granted by the Zoning Board. Therefore, defendants may not now be deprived of their right to continue operation of the quarry by application of the zoning ordinance amendment.

Plaintiffs' argument that G.S. § 153A-344(b) changes the law for obtaining vested rights by requiring that land owners must first obtain a building permit prior to the enactment of the zoning amendment is rejected.

The judgment of the trial court entering summary judgment in favor of all defendants and dismissing plaintiffs' action is affirmed.

Affirmed.

ARNOLD and WELLS, JJ., concur.